{"version": "1.1.0", "data": [{"title": "S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/1.html", "summary_document": {"filename": "summary-for-case-1.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/1media.pdf", "file_content": " \n\n \n\nS v Zuma and others \n\nExplanatory Note \n\n \n\n \n\n Case CCT 5/94 \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nSection 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 provides that where a \nconfession by an accused person has been made to a magistrate or has been confirmed and \nreduced to writing in the presence of a magistrate it shall be admissible in evidence against \nthe accused. The subparagraph further provides that the confession shall be presumed, unless \nthe contrary is proved, to have been freely and voluntarily made by the accused in his or her \nsound and sober senses and without having been unduly influenced to make the confession. \n\nThe accused were indicted on two counts of murder and one of robbery. At their trial before \nHugo J in the Natal Provincial Division they pleaded not guilty. Two of the accused had \nmade statements before a magistrate which were tendered by the prosecution as admissible \nconfessions. The question arose whether s 217(1)(b)(ii) of the Criminal Procedure Act was \ninconsistent with the provisions of the Constitution. Counsel for the defence and the \nprosecution consented in terms of s 101(6) of the Constitution to the trial judge deciding the \nissue. Notwithstanding the consent, Hugo J refrained from deciding on the validity of the \nsection, referring the matter to the Constitutional Court for decision and adjourning the trial \nsine die. The Attorney-General of Natal sought direct access to the Constitutional Court in \nterms of s 100(2) of the Constitution on the grounds that it was in the interests of justice that \na binding decision be given as soon as possible on the validity of s 217(1)(b)(ii). \n\nThe Court granted the application for direct access. \n\nThe Court found s 217(1)(b)(ii) to be in violation of s 25(3) of the Constitution (right to a fair \ntrial). It held it to be a longstanding principle of English and South African law of evidence \nthat the prosecution should prove that any confession on which it wished to rely was freely \nand voluntarily made. Section 217(1)(b)(ii) of the Criminal Procedure Act places on the \naccused the burden of proving on a balance of probabilities that a confession recorded by a \nmagistrate was not free and voluntary. It is not sufficient for the accused merely to raise a \ndoubt. The section therefore creates a legal burden of rebuttal on the accused -- a so-called \n'reverse onus'. \n\nThe Court considered the common law rule requiring the prosecution to prove that a \nconfession has been freely and voluntarily made to be inherent in the rights specifically \nmentioned in s 25(2), s 25(3)(c) and (d) of the Constitution and forms part of the right to a \nfair trial. These rights are the necessary reinforcement of the principle that the prosecution \nmust prove the guilt of the accused beyond reasonable doubt. Reversing the burden of proof \nseriously compromises and undermines these rights. It followed that s 217(1)(b)(ii) violates \nthese provisions. \n\n1 \n\n\f \n\nThe Court held that the tests of reasonableness, justification and necessity for limitation of \nfundamental rights set out in s 33(1) of the Constitution are not identical, and in applying \neach of them individually one will not always get the same result. But in the present case, it \nwas held, reasonableness, justification and necessity may be looked at and assessed together. \nThe rights interfered with are fundamental to concepts of justice and forensic fairness and \nhave existed in South Africa for over 150 years. A drastic consequence of the alteration to the \nlaw brought about by s 217(1)(b)(ii) is the possibility that an accused may be convicted over \nthe reasonable doubt of the court. It was not shown by the state that it was impossible or \nunduly burdensome for the prosecution to discharge its onus under the common law rule. Nor \nwas it shown that the common law rule caused substantial harm to the administration of \njustice. Even if it were assumed that the reverse onus may in some cases obviate or shorten a \ntrial within a trial on the admissibility of a confession, and released the prosecution from the \ninconvenience of marshalling and calling their witnesses before the accused gave evidence, \nthese advantages do not outweigh and justify the substantial infringement of fundamental \nrights that are the result of the application of the subparagraph. Accordingly s 217(1)(b)(ii) \ndoes not meet the criteria laid down in s 33(1) of the Constitution. It is declared inconsistent \nwith the Constitution and invalid. \n\nIn the absence of a specific order by the Constitutional Court in the interests of justice and \ngood government giving retrospective effect to a declaration that a law is invalid, s 98(6)(a) \nprovides that a declaration of invalidity shall not invalidate anything done or permitted in \nterms of that law before the coming into effect of the declaration of invalidity. The Court held \nthat the likely result of ordering the declaration of invalidity of s 217(1)(b)(ii) to have full \nretrospective effect, invalidating earlier rulings on admissibility, would be numerous appeals \nwith the possibility of proceedings de novo. In proceedings de novo the necessary evidence \nof voluntariness may no longer be available. The Court considered s 98(6)(a) to be intended \nto ensure that the invalidation of a law existing at the commencement of the Constitution \nshould not ordinarily have retrospective effect, so as to avoid the dislocation and \ninconvenience of undoing transactions, decisions or actions taken under that law. The \nConstitutional Court's power to order otherwise in the interests of justice and good \ngovernment should be exercised circumspectly. In some cases the interests of individuals \nmust be weighed against the interest of avoiding dislocation to the administration of justice \nand the desirability of a smooth transition from the old to the new. The application of the \nsubparagraph may well have caused injustice to accused persons, but the court cannot repair \nall past injustice by a simple stroke of the pen. In the present case, it was held, a proper \nbalance could be struck by invalidating the admission of any confession in reliance on s \n217(1)(b)(ii) of the Criminal Procedure Act before the date of the declaration of invalidity of \nthe section, but in respect only of trials begun on or after 27 April 1994 and in which the \nverdict had not been given at the date of the declaration. \n\nThe judgment of the Court was delivered by Kentridge AJ and was concurred in by all the \nother members of the Court. \n\n \n\n2 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-1.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/1.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nIn the matter of :\n\nCASE NO : CCT/5/94\n\nZUMA AND TWO OTHERS\n\nApplicants\n\nand\n\nTHE STATE\n\nRespondent\n\nHEARD ON\n\n23 February 1995\n\nDELIVERED ON\n\n5 April 1995\n\nJUDGMENT\n\n[1] KENTRIDGE AJ: This case arises from a criminal trial\n\nbefore Hugo J in the Natal Provincial Division. In this\n\n\f2\n\nCourt it was heard together with the case of Mhlungu and \n\nFour Others v The State (Case No CCT/25/94) which also arose from\n\na criminal trial in the Natal Provincial Division. Each of them\n\nhas come to this Court by way of a referral by the judge\n\npresiding over the trial. In each case the judge referred to\n\nthis Court for decision the question whether section\n\n217(1)(b)(ii) of the Criminal Procedure Act No 51 of 1977 is\n\ninconsistent with the provisions of the Republic of South Africa\n\nConstitution, 1993. If we so find it will be our duty under\n\nsection 98(5) of the Constitution to declare the provision\n\ninvalid. In the Mhlungu case the judge also referred to us the\n\nquestion whether, having regard to section 241(8) of the\n\nConstitution, the provisions of Chapter 3 of the Constitution\n\napply to the proceedings before him. Section 241(8) raises\n\nimportant issues which do not directly touch the Zuma case.\n\nConsequently, we propose to give judgment at this stage only in\n\nthe Zuma case, and to deal with the Mhlungu case in due course\n\nin a separate judgment.\n\n[2] In this case (as in the Mhlungu case) this Court itself has\n\nraised the issue whether the referral was competent. It is\n\nnecessary to set out in some detail the circumstances of\n\nthe criminal trial which led to the referral to this Court.\n\nBefore doing so, however, I must outline the history and\n\neffect of the challenged sub-paragraph of section 217 of\n\n\fthe Criminal Procedure Act.\n\n3\n\n[3] The section deals with the admissibility in evidence of a\n\nconfession made by an accused person before trial. Sub-\n\nsection (1) and proviso (a) thereto read as follows -\n\n\"(1)\n\nEvidence of any confession made by any person in relation to the\ncommission of any offence shall, if such confession is proved to\nhave been freely and voluntarily made by such person in his sound\nand sober senses and without having been unduly influenced\nthereto, be admissible in evidence against such person at\ncriminal proceedings relating to such offence : \nProvided - \n\n(a)\n\nthat a confession made to a peace officer, other than a\nmagistrate or justice, or, in the case of a peace officer\nreferred to in section 334, a confession made to such peace\nofficer which relates to an offence with reference to which\nsuch peace officer is authorized to exercise any power\nconferred upon him under that section, shall not be\nadmissible in evidence unless confirmed and reduced to\nwriting in the presence of a magistrate or justice;...\"\n\n \n\nIt will be seen that this sub-section requires the\n\nprosecution, if it wishes to put the confession in\n\nevidence, to prove that it was freely and voluntarily made,\n\nand was not unduly influenced. This means, at the least,\n\nproof that it was not induced by violence, or by threats or\n\npromises made by a person in authority. R v Barlin 1926 AD\n\n459, 462; R v Nhleko 1960(4) SA 712(A); S v Mpetha and\n\nothers (2) 1983(1) SA 576(C). This rule, which reflects a\n\nlong-standing principle of the English law of criminal\n\nprocedure and evidence, was embodied in the Evidence\n\nOrdinance of the Cape Colony in 1830. The rationale of the\n\nrule excluding involuntary confessions (or admissions) has\n\nbeen much discussed. See Hoffmann and Zeffertt, South\n\n\f4\n\nAfrican Law of Evidence, 4th ed. pp 205, 216-7 ; Cross on\n\nEvidence, 6th ed pp 601-3. I shall return in due course to\n\nthe historical development of the rule. At this stage it\n\nis sufficient to say that before the Union of the four\n\nprovinces in 1910 it was well established in all parts of\n\nSouth Africa that it was for the prosecution to prove that\n\nany confession on which it wished to rely was freely and\n\nvoluntarily made.\n\n[4] Proviso (a), on the other hand, has no counterpart in\n\nEnglish law. It was introduced into South African law by\n\nthe Criminal Procedure and Evidence Act, 1917. Its general\n\neffect is that confessions made to members of the police\n\nforce who are not justices of the peace are inadmissible.\n\nAn accused person who has confessed, or expressed a wish to\n\nconfess, to a police officer who is not a justice of the\n\npeace should be taken to a magistrate or justice of the\n\npeace who may take down the confession in writing. Even\n\nwhere the police officer is a justice of the peace the\n\naccused person may be taken to a magistrate who may take\n\ndown the confession in writing. The magistrate ought, of\n\ncourse, to be satisfied that the confession is freely and\n\nvoluntarily made, and should record that fact in the\n\ndocument containing the confession. It is at that stage\n\nthat proviso (b) to section 217(1) becomes relevant. That\n\n\f5\n\nproviso reads -\n\n \"Provided-\n\n ...\n\n\"(b)\n\nthat where the confession is made to a magistrate and reduced to\nwriting by him, or is confirmed and reduced to writing in the\npresence of a magistrate, the confession shall, upon the mere\nproduction thereof at the proceedings in question-\n\n(i)\n\nbe admissible in evidence against such person if it appears\nfrom the document in which the confession is contained that\nthe confession was made by a person whose name corresponds\nto that of such person and, in the case of a confession\nmade to a magistrate or confirmed in the presence of a\nmagistrate through an interpreter, if a certificate by the\ninterpreter appears on such document to the effect that he\ninterpreted truly and correctly and to the best of his\nability with regard to the contents of the confession and\nany question put to such person by the magistrate; and\n\n(ii)\n\nbe presumed, unless the contrary is proved, to have been\nfreely and voluntarily made by such person in his sound and\nsober senses and without having been unduly influenced\nthereto, if it appears from the document in which the\nconfession is contained that the confession was made freely\nand voluntarily by such person in his sound and sober\nsenses and without having been unduly influenced thereto.\n\nIt is sub-paragraph (ii) of this proviso that is under\n\nattack in the present case. It was introduced into the\n\ncriminal procedure code in 1977. In the circumstances set\n\nout in the sub-paragraph it places on the accused the\n\nburden of proving that the confession recorded by the\n\nmagistrate was not free and voluntary. The words \"unless\n\nthe contrary is proved\" place an onus on the accused which\n\nmust be discharged on a balance of probabilities. He does\n\nnot discharge the onus merely by raising a doubt. If, at\n\nthe end of the voir dire (or trial-within-a-trial) the\n\nprobabilities are evenly balanced the presumption prevails.\n\nSee Ex parte Minister of Justice: in re R v Bolon 1941 AD\n\n345, 360-1; S v Nene and Others (2) 1979(2) SA 521(D); S\n\n\f6\n\nv Mkanzi and Another 1979(2) SA 757(T); S v Mphahlele and\n\nAnother 1982(4) SA 505(A) 512.\n\n[5] I add, by way of completeness, that sub-section (2) of\n\nsection 217 provides that the prosecution may lead evidence\n\nin rebuttal of evidence advanced by an accused in rebuttal\n\nof the presumption under proviso (b).\n\n[6] In the case before us the prosecution tendered confessions\n\nwhich had been made by two of the accused before a\n\nmagistrate and reduced to writing, and invoked the\n\npresumption in proviso (b). \n\n[7]\n\nThe accused were indicted on two counts of murder and one\n\nof robbery. At their trial before Hugo J and assessors\n\nthey pleaded not guilty. Two of the accused had made\n\nstatements before a magistrate which counsel for the state\n\ntendered as admissible confessions. Admissibility was\n\ncontested by counsel for the accused and a trial-within-a-\n\ntrial ensued. At the outset defence counsel raised the\n\nissue of the constitutionality of section 217(1)(b)(ii) of\n\nthe Criminal Procedure Act, and counsel for both the\n\ndefence and the prosecution consented (in terms of section\n\n101(6) of the Constitution) to the trial judge's deciding\n\nthat issue. The trial-within-a-trial nonetheless\n\n\f7\n\nproceeded. The accused testified that they had made their\n\nstatements by reason of assaults on them by the police and\n\nthe threat of further assaults. The policemen concerned\n\ndenied this, but two women called as witnesses by the\n\ndefence said that they had seen the police assaulting the\n\naccused. At the end of the evidence the court concluded\n\nunanimously that while they were not satisfied beyond a\n\nreasonable doubt that the statements had been freely and\n\nvoluntarily made, the accused had failed to discharge the\n\nonus upon them under proviso (b) on a balance of\n\nprobabilities. In his judgment, given on 10th August, 1994\n\nand reported as S v Zuma and Others 1995(1) BCLR 49 (N),\n\nHugo J said -\n\n\"Had we been convinced that section 217(1)(b) of the\nCriminal Procedure Act was still valid and constitutional\nwe would therefore have had little hesitation in accepting\nthat the accused had not discharged the onus placed upon\nthem by that section. The constitutionality therefore of\nsection 217(1)(b) of the Criminal Procedure Act is\ntherefore crucial to the decision of this case.\"\n\nLater in his judgment he said -\n\n\"It is quite clear from what I have said that the site of\nthe onus will be decisive in this case, at least in so far\nas the admissibility of this evidence is concerned. If it\nis held by the constitutional court that section\n217(1)(b)(ii) is unconstitutional it will lead to the most\nunfortunate result that two persons who have in effect\nadmitted under oath in this Court that they indeed\ncommitted these offences may be acquitted but that may well\nbe the effect of the constitution or the provisions of the\nconstitution upon matters of this nature. It is also the\neffect of the hearing of matters of this nature in a\nseparate trial-within-a-trial, the evidence of which is not\nadmissible in deciding the merits of the conviction.\" \n\n\f8\n\nThe reference to the admissions of the two accused that\n\nthey had committed the offences arose from the evidence\n\nwhich they had given in the course of the trial-within-a-\n\ntrial. As Hugo J fully appreciated, that evidence was\n\ngiven only in the context of the trial-within-a-trial,\n\nwhere the only issue was admissibility. To that issue the\n\ntruth of the confession was irrelevant. Thus, in S v\n\nRadebe and Another, 1968(4) SA 410(A) 419 Ogilvie Thompson\n\nJ A said-\n\n\"It not infrequently occurs that, although the presiding\nJudge may think that the contents of a tendered confession\nare true, the circumstances whereunder the confession was\nmade compel its exclusion\".\n\nSee also S v Gaba 1985(4) SA 734(A) 749; S v Talane\n\n1986(3) SA 196(A) 205; S v de Vries 1989(1) SA 228(A), 233-\n\n4.\n\n[8] In the event, notwithstanding the consent given by the\n\nparties under section 101(6) Hugo J refrained from giving\n\na decision on the validity of the proviso, but referred the\n\nquestion to this court, and adjourned the trial sine die.\n\n[9] The question of the competence of Hugo J's referral arises,\n\nand has been argued before us by counsel for the accused\n\nand for the State. In addition we have received a Notice\n\nof Motion under the hand of Mr. T P McNally SC, Attorney-\n\nGeneral for Natal, seeking direct access to the Court in\n\n\f9\n\nterms of section 100(2) of the Constitution on the grounds\n\nthat it is in the interests of justice that a binding\n\ndecision be given as soon as possible on the validity of\n\nsection 217(1)(b)(ii).\n\n[10] By reason of the consent of the parties under section\n\n101(6) the issue of the constitutionality of section\n\n217(1)(b)(ii) of the Criminal Procedure Act no longer\n\nremained within the exclusive jurisdiction of this Court,\n\nand fell within the jurisdiction of Hugo J. For reasons\n\nwhich will be given in detail in the Mhlungu case the\n\nreferral by Hugo J was wholly incompetent. That was indeed\n\nthe submission of the State in its written argument, and\n\nthe point was rightly conceded by counsel for the accused.\n\nEven if a rapid resort to this Court were convenient that\n\nwould not relieve the judge from making his own decision on\n\na constitutional issue within his jurisdiction. The\n\njurisdiction conferred on judges of the Provincial and\n\nLocal Divisions of the Supreme Court under section 101(3)\n\nis not an optional jurisdiction. The jurisdiction was\n\nconferred in order to be exercised. It was in these\n\ncircumstances that the Attorney-General of Natal applied\n\nunder section 100(2) of the Constitution for direct access\n\nto the Court. Section 100(2) reads -\n\n\"(2)\n\nThe rules of the Constitutional Court may make\nprovision for direct access to the Court where it is\nin the interest of justice to do so in respect of any\n\n\f10\n\nmatter over which it has jurisdiction.\"\n\nRule 17, subrules (1) and (2) of the Rules of this Court\nprovide-\n\n \n\n(1) \n\nThe Court shall allow direct access in terms of section\n100(2) of the Constitution in exceptional circumstances\nonly, which will ordinarily exist only where the matter is\nof such urgency, or otherwise of such public importance,\nthat the delay necessitated by the use of the ordinary\nprocedures would prejudice the public interest or prejudice\nthe ends of justice and good government.\n\n(2)\n\nThe special procedure referred to in subrule (1) may be\nsanctioned by the Court on application made to it in terms\nof these rules.\n\n[11] The Attorney-General of Natal submits in his supporting\n\naffidavit that if the matter is sent back to the trial\n\ncourt without our deciding the issue it would have to be\n\nreferred again to this Court at the end of the trial. More\n\nimportant, he informs us that prevailing uncertainty as to\n\nthe constitutionality of section 217(1)(b)(ii) has resulted\n\nin inconsistency in practice in Natal and elsewhere in the\n\nRepublic. That uncertainty would remain unresolved until\n\na suitable case came properly before this Court. We agree\n\nwith the Attorney-General of Natal and with Mr d'Oliviera\n\nSC, the Attorney-General of the Transvaal, who appeared for\n\nthe State that this state of affairs must seriously\n\nprejudice the general administration of justice as well as\n\nthe interests of the numerous accused persons affected.\n\nThe admissibility of confessions is a question which arises\n\ndaily in our criminal courts and prolonged uncertainty\n\nwould be quite unacceptable. As appears from the terms of\n\n\f11\n\nRule 17, direct access is contemplated in only the most\n\nexceptional cases, and it is certainly not intended to be\n\nused to legitimate an incompetent reference. But in the\n\nspecial circumstances set out in the affidavit the\n\napplication under rule 17 was fully justified. Mr.\n\nMcNally's application is accordingly granted, so that the\n\nquestion of the validity of section 217(1)(b)(ii) is\n\nproperly before this Court.\n\n[12] Counsel for the accused has attacked section 217(1)(b)(ii)\n\nas being in conflict with section 25 of the Constitution.\n\nThe particular provisions of section 25 relied on\n\nindividually or cumulatively are the following -\n\n\"25 (2)\n\nEvery person arrested for the alleged commission of\nan offence shall ... have the right -\n\n(a)\nshe \n\npromptly to be informed, in a language which he or\nunderstands, that he or she has the right to\nremain silent and to be warned of the\nconsequences of making any statement;\n\n...\n\n(c)\n\n...\n\n \n\nnot to be compelled to make a confession or admission\nwhich could be used in evidence against him or her ;\nand\n\n (3)\n\nEvery accused person shall have the right to a fair trial,\nwhich shall include the right -\n\n...\n\n(c)\n\n(d)\n\nto be presumed innocent and to remain silent during\nplea proceedings or trial and not to testify during\ntrial ;\n\nto adduce and challenge evidence, and not to be a\ncompellable witness against himself or herself;\n\nThe concepts embodied in these provisions are by no means\n\n\f12\n\nan entirely new departure in South African criminal\n\nprocedure. The presumption of innocence, the right of\n\nsilence and the proscription of compelled confessions have\n\nfor 150 years or more been recognised as basic principles\n\nof our law, although all of them have to a greater or\n\nlesser degree been eroded by statute and in some cases by\n\njudicial decision. The resulting body of common law and\n\nstatute law forms part of the background to section 25.\n\nThe provisions of section 25 are more specific than many of\n\nthe other provisions of Chapter 3. They do nonetheless\n\ngive rise to problems of interpretation.\n\n[13] The principles upon which a constitutional bill of\n\nfundamental rights should be interpreted have been the\n\nsubject of numerous judicial dicta, in jurisdictions abroad\n\nand in Southern Africa. Many of these principles have been\n\nre-stated and applied in the judgments of Provincial and\n\nLocal Divisions interpreting our own Constitution, and in\n\njudgments of other Southern African courts. The judgment\n\nof Friedman J in Nyamakazi v President of Bophututswana,\n\n1994(1) BCLR 92(B) is a veritable thesaurus of\n\ninternational authority. Khala v The Minister of Safety &\n\nSecurity 1994(2) BCLR 89(W), 92-4; 1994 (4) SA 218(W), 222-\n\n4 per Myburgh J also contains a useful collection of\n\ncitations. It is not necessary to traverse all the\n\n\frelevant dicta but some of them bear repeating.\n\n13\n\n[14] The first of these is the much-quoted passage from the\n\njudgment of Lord Wilberforce in the Privy Council in\n\nMinister of Home Affairs (Bermuda) v Fisher [1980] AC 319\n\n(PC), 328-9. After referring to the influence of certain\n\ninternational conventions on the constitutions of former\n\ncolonies of the British Commonwealth, he said that these\n\ncalled for\n\n\"a generous interpretation ... suitable to give to\nindividuals the full measure of the fundamental rights and\nfreedoms referred to,\"\n\nand that the constitution called for \"principles of\n\ninterpretation of its own\". He went on to say -\n\n\"This is in no way to say that there are no rules of law\nwhich should apply to the interpretation of a constitution.\nA constitution is a legal instrument giving rise, amongst\nother things, to individual rights capable of enforcement\nin a court of law. Respect must be paid to the language\nwhich has been used and to the traditions and the usages\nwhich have given meaning to that language. It is quite\nconsistent with this, and with the recognition that rules\nof interpretation may apply, to take as a point of\ndeparture for the process of interpretation a recognition\nof the character and origin of the instrument, and to be\nguided by the principle of giving full recognition and\neffect to those fundamental rights and freedoms with a\nstatement of which the constitution commences.\"\n\nThis judgment was cited with approval by the Appellate\n\nDivision in S v Marwane 1982(3) SA 717(A), 748-9. See also\n\nthe judgment of the Full Bench of the Supreme Court of\n\nNamibia in Minister of Defence, Namibia v Mwandinghi\n\n1992(2) SA 355 (Nm SC), 362. \n\n\f14\n\n[15] In R v Big M Drug Mart Ltd (1985)18 DLR (4th) 321,395-6,\n\nDickson J (later Chief Justice of Canada) said, with\n\nreference to the Canadian Charter of Rights -\n\n\"The meaning of a right or freedom guaranteed by the\nCharter was to be ascertained by an analysis of the purpose\nof such a guarantee ; it was to be understood, in other\nwords, in the light of the interests it was meant to\nprotect. In my view this analysis is to be undertaken, and\nthe purpose of the right or freedom in question is to be\nsought by reference to the character and larger objects of\nthe Charter itself, to the language chosen to articulate\nthe specific right or freedom, to the historical origins of\nthe concept enshrined, and where applicable, to the meaning\nand purpose of the other specific rights and freedoms with\nwhich it is associated within the text of the Charter. The\ninterpretation should be .... a generous rather than\nlegalistic one, aimed at fulfilling the purpose of a\nguarantee and the securing for individuals the full benefit\nof the Charter's protection.\"\n\nBoth Lord Wilberforce and Dickson J emphasised that regard\n\nmust be paid to the legal history, traditions and usages of\n\nthe country concerned, if the purposes of its constitution\n\nare be fully understood. This must be right. I may\n\nnonetheless be permitted to refer to what I said in another\n\ncourt of another constitution albeit in a dissenting\n\njudgment -\n\n\"Constitutional rights conferred without express limitation\nshould not be cut down by reading implicit restrictions\ninto them, so as to bring them into line with the common\nlaw.\n\nAttorney-General v Moagi 1982(2) Botswana LR 124,184\n\n[16] That caveat is of particular importance in interpreting\n\nsection 25(3) of the Constitution. The right to a fair\n\ntrial conferred by that provision is broader than the list\n\nof specific rights set out in paragraphs (a) to (j) of the\n\n\f15\n\nsub-section. It embraces a concept of substantive fairness\n\nwhich is not to be equated with what might have passed\n\nmuster in our criminal courts before the Constitution came\n\ninto force. In S v Rudman and Another; S v Mthwana 1992(1)\n\nSA 343(A), the Appellate Division, while not decrying the\n\nimportance of fairness in criminal proceedings, held that\n\nthe function of a court of criminal appeal in South Africa\n\nwas to enquire\n\n\"whether there has been an irregularity or illegality,\nthat is a departure from the formalities, rules and\nprinciples of procedure according to which our law requires\na criminal trial to be initiated or conducted\".\n\nA court of appeal, it was said, (at 377)\n\n \n\n\"does not enquire whether the trial was fair in accordance\nwith 'notions of basic fairness and justice', or with the\n'ideas underlying the concept of justice which are the\nbasis \ncriminal\nadministration'.\"\n\ncivilised \n\nsystems \n\nall \n\nof \n\nof \n\nThat was an authoritative statement of the law before 27th\n\nApril 1994. Since that date section 25(3) has required\n\ncriminal trials to be conducted in accordance with just\n\nthose \"notions of basic fairness and justice\". It is now\n\nfor all courts hearing criminal trials or criminal appeals\n\nto give content to those notions.\n\n[17] I must also refer to Qozoleni v Minister of Law and Order\n\n1994(1) BCLR 75(E); 1994(3) SA 625(E). The judgment of\n\nFroneman J. contains much of value in its approach to\n\nconstitutional interpretation. The learned judge says (at\n\n\f16\n\n81) that the previous constitutional system of this country\n\nwas the fundamental \"mischief\" to be remedied by the new\n\nConstitution. He says (at 80) that because the\n\nConstitution is the supreme law against which all law is to\n\nbe tested,\n\n\"it must be examined with a view to extracting from it\nthose principles or values against which such law ... can\nbe measured.\"\n\nHe adds on the same page that the Constitution must be\n\ninterpreted so as \"to give clear expression to the values\n\nit seeks to nurture for a future South Africa.\" This is\n\nundoubtedly true. South African Courts are indeed enjoined\n\nby section 35 of the Constitution to interpret Chapter 3 so\n\nas \"to promote the values which underlie an open and\n\ndemocratic society based on freedom and equality\", and,\n\nwhere applicable, to have regard to relevant public\n\ninternational law. That section also permits our courts to\n\nhave regard to comparable foreign case law.\n\nI am, however, sure that Froneman J, in his reference to\n\nthe fundamental \"mischief\" to be remedied, did not intend\n\nto say that all the principles of law which have hitherto\n\ngoverned our courts are to be ignored. Those principles\n\nobviously contain much of lasting value. Nor, I am equally\n\nsure, did the learned judge intend to suggest that we\n\nshould neglect the language of the Constitution. While we\n\nmust always be conscious of the values underlying the\n\nConstitution, it is nonetheless our task to interpret a\n\n\f17\n\nwritten instrument. I am well aware of the fallacy of\n\nsupposing that general language must have a single\n\n\"objective\" meaning. Nor is it easy to avoid the influence\n\nof one's personal intellectual and moral preconceptions.\n\nBut it cannot be too strongly stressed that the\n\nConstitution does not mean whatever we might wish it to\n\nmean. \n\n[18] We must heed Lord Wilberforce's reminder that even a\n\nconstitution is a legal instrument, the language of which\n\nmust be respected. If the language used by the lawgiver is\n\nignored in favour of a general resort to \"values\" the\n\nresult is not interpretation but divination. If I may\n\nagain quote S v Moagi, supra, at 184, I would say that a\n\nconstitution\n\n\"embodying fundamental rights should as far as its language\n\npermits be given a broad construction\"\n\n(My emphasis),\n\n[19] As pointed out above, section 217(1)(b)(ii) creates a legal\n\npresumption, with the legal burden of rebuttal on the\n\naccused - what has been called a \"reverse onus\". The\n\nlegitimacy of such provisions has been considered by courts\n\nas varied as the United States Supreme Court, The Canadian\n\nSupreme Court, the Privy Council and the European Court of\n\nHuman Rights (and doubtless others) in the light of\n\n\f18\n\nprovisions entrenching, in varying language, the\n\npresumption of innocence, the right to silence and the\n\nprivilege against self-incrimination - a privilege not\n\nexpressly referred to in section 25. The case law of\n\nthese courts - which are undoubtedly courts of open and\n\ndemocratic societies - indicates that reverse onus\n\nprovisions are by no means uncommon and are not necessarily\n\nunconstitutional. Reverse onus provisions in our own\n\nstatute law are also not uncommon. To go no further than\n\nthe Criminal Procedure Act one finds, for example, the\n\npresumptions arising from entries in marriage registers on\n\ncharges of bigamy (section 237), the presumption of\n\nknowledge of falsity arising from proof of a factually\n\nfalse representation (section 245) and the presumption of\n\nhaving failed to pay tax arising merely from an allegation\n\nin a charge sheet (section 249). Foreign courts have\n\ngrappled with the problem of reconciling presumptions\n\nreversing the onus of proof with the constitutional\n\npresumption of innocence. The different solutions which\n\nthey have suggested are illuminating.\n\n[20] The courts of the United States have over many years\n\nattempted to enunciate a governing principle. Tot v The\n\nUnited States 319 US 463 (1943) concerned a federal statute\n\nmaking it an offence for a person convicted of violence to\n\n\f19\n\nreceive any firearm or ammunition which had been shipped or\n\ntransported in interstate or foreign commerce. The\n\nstatute provided that \"the possession of a firearm or\n\nammunition by any such person shall be presumptive evidence\n\nthat such firearm or ammunition was shipped transported or\n\nreceived as the case may be, by such person ... in\n\nviolation of this Act\". The Supreme Court held that while\n\nCongress and state legislatures had \"power to prescribe\n\nwhat evidence is to be received in the courts of the United\n\nStates\", the due process clauses of the Constitution \n\n\"set limits upon the power of Congress or that of a state\nlegislature to make the proof of one fact or group of facts\nevidence of the existence of the ultimate fact on which guilt is\npredicated.\" (per Roberts J at 467)\n\nThe test of the validity of such a presumption, the Court\n\nsaid, was that there be a \n\n\"rational connection between the facts proved and the fact\npresumed ... . But where the inference is so strained as not to\nhave a reasonable relation to the circumstances of life as we\nknow them it is not competent for the legislature to create it as\na rule governing the procedure of the courts. (467-8)\n\nOn this test the presumption was struck down. Twenty-five\n\nyears later a somewhat stricter test was formulated. In\n\nLeary v United States 395 US 6(1969) the Supreme Court had\n\nto consider a statute under which possession of marihuana\n\nwas deemed to be sufficient evidence of the offence of\n\nillegal importation, unless the defendant explained his\n\npossession to the satisfaction of the jury. The\n\npresumption was held to be a denial of due process of law.\n\n\f20\n\nHaving considered Tot and some later cases, Harlan J,\n\nspeaking for the Court, said that\n\n\"a criminal statutory presumption must be regarded as\n'irrational' or 'arbitrary' and hence unconstitutional, unless it\ncan at least be said with substantial assurance that the presumed\nfact is more likely than not to flow from the proved fact on\nwhich it is made to depend.\" (page 36)\n\n(Harlan J added the rider that in this assessment the\n\nCongressional determination favouring the presumption must\n\nweigh heavily.)\n\n[21] \"Rational connection\" is a useful screening test, but not\n\na conclusive one. This was acknowledged in County Court\n\nof Ulster County, New York, et al v Allen et al 442 US 140\n\n(1979). In relation to a mandatory (i.e. legal)\n\npresumption Stevens J giving judgment for the majority of\n\nthe Supreme Court, said, at 167, that\n\n\"since the prosecution bears the burden of establishing\nguilt, it may not rest its case entirely on a presumption\nunless the fact proved is sufficient to support the\ninference of guilt beyond a reasonable doubt.\" \n\nThe \"rational connection\" test has been considered in the\n\nsubstantial jurisprudence which the Canadian courts have\n\ndeveloped in construing their Charter of Rights. The\n\nCanadian cases on reverse onus provisions seem to me to be\n\nparticularly helpful, not only because of their persuasive\n\nreasoning, but because section 1 of the Charter has a\n\nlimitation clause analogous to section 33 of the South\n\nAfrican Constitution. This calls for a \"two-stage\"\n\napproach. First, has there been a contravention of a\n\n\f21\n\nguaranteed right? If so, is it justified under the\n\nlimitation clause? The single stage approach (as in the\n\nUS Constitution or the Hong Kong Bill of Rights) may call\n\nfor a more flexible approach to the construction of the\n\nfundamental right, whereas the two-stage approach may call\n\nfor a broader interpretation of the fundamental right,\n\nqualified only at the second stage. In Attorney-General\n\nof Hong Kong v Lee Kwong-kut, [1993] AC 951 (PC), an appeal\n\nto the Privy Council from Hong Kong, Lord Woolf, while\n\nnoting that the results of the two approaches often tend to\n\nbe similar, observed (at 967 H) that the two-stage\n\napproach, \n\nin \n\nlaying \n\ndown \n\nspecific \n\ncriteria \n\nof\n\njustification, had important practical consequences. See\n\nalso Cachalia & others, Fundamental Rights in the New\n\nConstitution, pp5-7.\n\n[22] There are numerous Canadian cases dealing with the\n\nconstitutionality of reverse onus provisions. I shall\n\nrefer only to three of them. In R v Oakes (1986) 26 DLR\n\n(4th) 200 the Supreme Court of Canada had before it an Act\n\nof Parliament which provided that if a person was proved to\n\nbe in unlawful possession of a narcotic he was presumed to\n\nbe in possession of it for the purposes of trafficking (a\n\nmore serious offence) unless he proved the contrary. This\n\nproof, the Court held, had to be on a balance of\n\n\f22\n\nprobabilities. This presumption was held to be\n\ninconsistent with the presumption of innocence guaranteed\n\nby section 11(d) of the Canadian Charter of Rights and\n\nFreedoms. Dickson CJC said at 212-3 -\n\n\"The presumption of innocence protects the fundamental\nliberty and human dignity of any and every person accused\nby the State of criminal conduct. An individual charged\nwith a criminal offence faces grave social and personal\nconsequences, including potential loss of physical liberty,\nsubjection to social stigma and ostracism from the\ncommunity, as well as other social, psychological and\neconomic harms. In light of the gravity of these\nconsequences, the presumption of innocence is crucial. It\nensures that until the State proves an accused's guilt\nbeyond all reasonable doubt, he or she is innocent. This\nis essential in a society committed to fairness and social\njustice.\"\n\nAnd, at 222,\n\n\"If an accused bears the burden of disproving on a balance\nof probabilities an essential element of an offence, it\nwould be possible for a conviction to occur despite the\nexistence of a reasonable doubt. This would arise if the\naccused adduced sufficient evidence to raise a reasonable\ndoubt as to his or her innocence but did not convince the\njury on a balance of probabilities that the presumed fact\nwas untrue.\"\n\nHe held further that the \"rational connection\" test, while\n\npossibly useful at the stage when the State sought to\n\njustify an infringement of a guaranteed right in terms of\n\nsection 1 of the Charter, was not in itself an adequate\n\nprotection for the constitutional presumption of innocence.\n\n\"A basic fact may rationally tend to prove a presumed fact,\nbut not prove its existence beyond a reasonable doubt. An\naccused person could thereby be convicted despite the\npresence of a reasonable doubt. This would violate the\npresumption of innocence.\"\n\n[23] R v Whyte (1988) 51 DLR (4th) 481 concerned a statute\n\ncreating the offence of having care or control of a motor\n\n\f23\n\nvehicle while one's ability to drive was impaired by\n\nalcohol. Under the statute, upon proof that the accused\n\noccupied the driver's seat he was deemed to have the care\n\nand control of the vehicle unless he established that he\n\ndid not enter the vehicle for the purpose of setting it in\n\nmotion. This presumption, too, was held to be a violation\n\nof the right to the presumption of innocence. The Supreme\n\nCourt, again speaking through Dickson CJC, held that it was\n\nirrelevant that the presumption did not relate to an\n\n\"essential element\" in the offence (cf R v Oakes, supra at\n\n222). The Chief Justice, at 493, said -\n\n\"In the case at bar, the Attorney-General of Canada argued\nthat since the intention to set the vehicle in motion is\nnot an element of the offence, s. 237(1)(a) does not\ninfringe the presumption of innocence. Counsel relied on\nthe passage from Oakes quoted above, with its reference to\nan \"essential element\", to support this argument. The\naccused here is required to disprove a fact collateral to\nthe substantive offence, unlike Oakes where the accused was\nrequired to disprove an element of the offence.\n\nThe short answer to this argument is that the distinction between\nelements of the offence and other aspects of the charge is\nirrelevant to the s. 11(d) inquiry. The real concern is not\nwhether the accused must disprove an element or prove an excuse,\nbut that an accused may be convicted while a reasonable doubt\nexists. When that possibility exists, there is a breach of the\npresumption of innocence.\n\nThe exact characterization of a factor as an essential\nelement, a collateral factor, an excuse, or a defence\nshould not affect the analysis of the presumption of\ninnocence. It is the final effect of a provision on the\nverdict that is decisive. If an accused is required to\nprove some fact on the balance of probabilities to avoid\nconviction, the provision violates the presumption of\ninnocence because it permits a conviction in spite of a\nreasonable doubt in the mind of the trier of fact as to the\nguilt of the accused.\"\n\n[24] In 1992, in R v Downey 90 DLR (4th) 449, the Supreme Court\n\n\f24\n\nof Canada dealt with a statutory presumption that a person\n\nwho lives with or is habitually in the company of\n\nprostitutes, is, in the absence of evidence to the\n\ncontrary, committing the offence of \"living on the avails\n\n[i.e. proceeds] of another person's prostitution\". This\n\npresumption was also held to infringe the presumption of\n\ninnocence (although it was held by a majority to be in all\n\nthe circumstances a justifiable infringement.) The\n\njudgment of Cory J at 456 contains a useful analysis of\n\ndifferent types of presumption. The type with which we\n\nare concerned in section 217(1)(b)(ii) is described as a\n\nlegal presumption \"where the presumed fact must be\n\ndisproved on a balance of probabilities instead of by the\n\nmere raising of evidence to the contrary\". This is what\n\nthe Canadian courts refer to as a \"reverse onus\" clause, as\n\nI do in this judgment.\n\n[25] Cory J at 461 summarised the principles derived from the\n\nauthorities in seven propositions. I shall quote the first\n\nthree-\n\n\"I.\n\nII.\n\nIII.\n\nThe presumption of innocence is infringed whenever\nthe accused is liable to be convicted despite the\nexistence of a reasonable doubt.\nIf by the provisions of a statutory presumption, an\naccused is required to establish, that is to say to\nprove or disprove, on a balance of probabilities\neither an element of an offence or an excuse, then it\ncontravenes s. 11(d). Such a provision would permit\na conviction in spite of a reasonable doubt.\nEven if a rational connection exists between the\nestablished fact and the fact to be presumed, this\nwould be insufficient to make valid a presumption\nrequiring the accused to disprove an element of the\n\n\f25\n\noffence.\"\n\nSection 11(d) of the Canadian Charter provides that any\n\nperson charged with an offence has the right\n\n\"(d)\n\nto be presumed innocent until proven guilty according\nto law in a fair and public hearing by an independent\nand impartial tribunal\".\n\nThis bears a close relationship to section 25(3)(a) and (c)\n\nof our Constitution. In both Canada and South Africa the\n\npresumption of innocence is derived from the centuries-old\n\nprinciple of English law, forcefully restated by Viscount\n\nSankey in his celebrated speech in Woolmington v Director\n\nof Public Prosecutions [1935] AC 462 (HL), 481, that it is\n\nalways for the prosecution to prove the guilt of the\n\naccused person, and that the proof must be proof beyond a\n\nreasonable doubt. Accordingly, I consider that we may\n\nappropriately apply the principles worked out by the\n\nCanadian Supreme Court in particular the first two\n\nprinciples stated by Cory J, supra.\n\n[26] Does the application of these principles in itself\n\ndemonstrate a violation of the presumption of innocence in\n\nsection 217(1)(b)(ii)? Mr d'Oliviera for the State\n\ncontended that it did not. The admission of a confession,\n\nhe said, did not conclude the prosecution in favour of the\n\nState. Thus in the present case further evidence might\n\nentitle the trial court in this case to review its finding\n\n\f26\n\nthat the accused had not discharged the onus on them.\n\nThere might also be evidence which would lead a court to\n\nfind that a confession, although admissible, was untrue.\n\nMoreover, the presumption did not relate to any element of\n\nthe offence charged, but merely to the voluntary character\n\nof the confession. This was no more than a question of\n\nadmissibility of evidence.\n\n[27] These arguments were persuasively presented, but in my view\n\nthey cannot be accepted. A confession by definition is an\n\nadmission of all the elements of the offence charged, a\n\nfull acknowledgment of guilt. R v Becker 1929 AD 167. No\n\ndoubt in some cases additional evidence (for example, that\n\nthe confession is false) will lead to an acquittal\n\nnotwithstanding the admission of the confession. But the\n\nvalidity of the presumption is not to be tested on a case\n\nby case basis. In the absence of other evidence the\n\npresumption, unrebutted, stands throughout the trial. It\n\ncould therefore happen that, given proof aliunde of the\n\ncrime itself (section 209 of the Criminal Procedure Act),\n\na conviction could follow from an admissible confession,\n\nnotwithstanding the court's reasonable doubt that it was\n\nfreely and voluntarily made. The practical effect of the\n\npresumption is that the accused may be required to prove a\n\nfact on the balance of probabilities in order to avoid\n\n\f27\n\nconviction. Cf. R v Whyte, supra, loc. cit. (last\n\nparagraph).\n\n[28] In the course of argument I asked Mr d'Oliviera whether, if\n\nthere were no further evidence, the trial court in this\n\ncase could properly give expression to its doubts as to the\n\nvoluntariness of the confession by acquitting the accused.\n\nMr d'Oliviera submitted that it could do so - as I\n\nunderstood him, by the judge's exercising a judicial\n\ndiscretion to reject admissible but unfairly prejudicial\n\nevidence. The authority for the existence of such a\n\ndiscretion is conflicting. See R v Roets and Another\n\n1954(3) SA 512(A), 520; S v Mkanzi and Another 1979(2) SA\n\n757(T); S v Mphahlele supra. Even if there is such a\n\ndiscretion and even if it could be exercised so as to\n\novercome a statutory presumption (surely a doubtful\n\nproposition)1 that gives rise to no more than a possibility\n\nof an acquittal; the possibility of a conviction remains.\n\nThe presumption of innocence cannot depend on the exercise\n\nof discretion.\n\n[29] The suggestion that the common law rule placing the onus of\n\n In England there appears to be a judicial discretion to exclude an admissible confession, for example\nbecause the methods used to obtain it, while not unlawful, were unfair. R v Sang [1980] A.C. 402 (HL), 437.\n\n\f28\n\nproving voluntariness on the prosecution is merely a rule\n\nof evidence and can therefore be freely altered by the\n\nlegislature deserves and requires fuller consideration. In\n\npart it is answered by the quotation from Tot v United\n\nStates of America, supra. In Tregea and Another v Godart\n\nand Another 1939 AD 16, 32 Stratford CJ said that if a\n\nrebuttable presumption of law shifts the burden of proof it\n\nis not a mere rule of evidence but a matter of substantive\n\nlaw. But even if the common law rule governing the\n\nadmissibility of confessions is a rule of evidence, it is,\n\nas I shall show, a rule which lies at the heart of\n\nimportant rights embodied in section 25, including the\n\nright to remain silent after arrest, the right not be\n\ncompelled to make a confession which can be used in\n\nevidence, the right to be presumed innocent and the right\n\nnot to be a compellable witness against oneself.\n\n[30] The rule itself derives from more than 300 years of English\n\nlegal history. By the latter half of the 18th century the\n\nrule was clearly stated in its modern form-\n\n\"A confession forced from the mind by the flattery of hope\nor by the torture of fear comes in so questionable a shape,\nwhen it is to be considered as evidence of guilt, that no\ncredit ought to be given to it\" -\n\n R v Warwickshall (1783) 1 Leach, 263.\n\nIn Ibrahim v R [1914] AC 599 (PC) at 610 Lord Sumner said\n\nthat this was a rule of policy. It would appear that the\n\n\f29\n\nrule derived from a determination to eradicate the\n\noppressive and often barbaric methods of interrogation\n\nemployed by the Star Chamber in 17th century England to\n\nextract confessions from accused persons. From the\n\nabhorrence of those methods there developed the privilege\n\nagainst self-incrimination, and the right of silence, one\n\naspect of which is the exclusion of compelled confessions,\n\nwith the onus placed on the prosecution to prove beyond\n\nreasonable doubt that any confession relied on was\n\nvoluntary. In Smith v Director of Serious Fraud Office\n\n[1993] AC 1 (HL) Lord Mustill distinguished the \"disparate\n\ngroup of immunities\" denoted by the expression \"the right\n\nto silence\". At 32 Lord Mustill observed that the law\n\nrelating to proof of the voluntariness of confessions was\n\nparticularly important at a time when an accused was not\n\nentitled to give evidence on his own behalf - a disability\n\nremoved in England only in 1898. Nonetheless, Lord Mustill\n\nsaid, \n\n\"Even now, nearly hundred years after that disability has\nbeen removed, the imprint of the old law is still clearly\nto be seen.\"\n\nIt is indeed.\n\n[31] In Lam Chi-Ming v R, [1991] 2 AC 212 (PC), 220, an appeal\nto the Privy Council from Hong Kong, Lord Griffiths said-\n\n\"Their lordships are of the view that the more recent\nEnglish cases established that the rejection of an\nimproperly obtained confession is not dependent only upon\npossible unreliability but also upon the principle that a\nman cannot be compelled to incriminate himself and upon the\n\n\f30\n\nimportance that attaches in a civilised society to proper\nbehaviour by the police towards those in their custody. All\nthree of these factors have combined to produce the rule of\nlaw applicable in Hong Kong as well as in England that a\nconfession is not admissible in evidence unless the\nprosecution establish that it was voluntary. This, perhaps\nthe most fundamental rule of the English criminal law, now\nfinds expression in England in section 76 of the Police and\nCriminal Evidence Act 1984.\"\n\nIn Wong Kam-ming v R [1980] AC 247 (PC), 261, Lord Hailsham\n\nstated the underlying principle in memorable words-\n\n\"any civilised system of criminal jurisprudence must accord\nto the judiciary some means of excluding confessions or\nadmissions obtained by improper methods. This is not only\nbecause of the potential unreliability of such statements,\nbut also, and perhaps mainly, because in a civilised\nsociety it is vital that persons in custody or charged with\noffences should not be subjected to ill treatment or\nimproper pressure in order to extract confessions. It is\ntherefore of very great importance that the courts should\ncontinue to insist that before extra-judicial statements\ncan be admitted in evidence the prosecution must be made\nto prove beyond reasonable doubt that the statement was not\nobtained in a manner which should be reprobated and was\ntherefore in the truest sense voluntary.\"\n\nIn South Africa, too, courts have over the years recognised\n\nthe origins and the importance of the common law rule. In\n\nR v Camane and Others 1925 AD 570, 575 Innes CJ said-\n\n\"Now, it is an established principle of our law that no\none can be compelled to give evidence incriminating\nhimself. He cannot be forced to do that either before the\ntrial, or during the trial. The principle comes to us\nthrough the English law, and its roots go far back in\nhistory. Wigmore, in his book on Evidence (vol IV, sec.\n2250) traces very accurately the genesis, and indicates the\nlimits of the privilege. And he shows that, however\nimportant the doctrine may be, it is necessary to confine\nit within its proper limits. What the rule forbids is\ncompelling a man to give evidence which incriminates\nhimself.\"\n\n[32] In R v Gumede and Another 1942 AD 398, 412-4, Feetham JA\n\nreferred to the embodiment of the rule in the Criminal\n\nProcedure and Evidence Act 1917, and noted that its first\n\n\f31\n\nappearance in South Africa was in Ordinance No 72 of 1830\n\nof the Cape of Good Hope. There was no doubt, he said, that\n\nthe Ordinance was intended to apply to the Cape Colony the\n\ncommon law of England in regard to the burden of proof\n\nresting on the prosecution when asking a criminal court to\n\nadmit a confession alleged to have been made by an accused\n\nperson. He cited the cases of R v Warwickshall, supra and\n\nIbrahim v R, supra, as did Nicholas AJA, in his detailed\n\nexamination of the rule in S v de Vries, supra, 232-4.\n\n[33] The conclusion which I reach, as a result of this survey,\n\nis that the common law rule in regard to the burden of\n\nproving that a confession was voluntary has been not a\n\nfortuitous but an integral and essential part of the right\n\nto remain silent after arrest, the right not to be\n\ncompelled to make a confession, and the right not to be a\n\ncompellable witness against oneself. These rights, in\n\nturn, are the necessary reinforcement of Viscount Sankey's\n\n\"golden thread\" - that it is for the prosecution to prove\n\nthe guilt of the accused beyond reasonable doubt\n\n(Woolmington's case, supra). Reverse the burden of proof\n\nand all these rights are seriously compromised and\n\nundermined. I therefore consider that the common law rule\n\non the burden of proof is inherent in the rights\n\nspecifically mentioned in section 25(2) and (3)(c) and (d),\n\n\f32\n\nand forms part of the right to a fair trial. In so\n\ninterpreting these provisions of the Constitution I have\n\ntaken account of the historical background, and comparable\n\nforeign case law. I believe too that this interpretation\n\npromotes the values which underlie an open and democratic\n\nsociety and is entirely consistent with the language of\n\nsection 25. It follows that section 217(1)(b)(ii) violates\n\nthese provisions of the Constitution.\n\n[34] I should add that I prefer not to consider in this judgment\n\nthe meaning and scope of the right to silence during trial.\n\nIt is unnecessary to decide whether section 217(1)(b)(ii)\n\nviolates that right.\n\n[35] The State submitted, in the alternative, that if the\n\nproviso in question is a violation of fundamental rights,\n\nit is one which is saved by section 33(1) of the\n\nConstitution. The proviso, it was argued, was a law of\n\ngeneral application which was (i) reasonable, (ii)\n\njustifiable in an open and democratic society based on\n\nfreedom and equality, under paragraph (a) of the sub-\n\nsection and was also \"necessary\" in terms of paragraph (b).\n\nMuch written and oral argument was addressed to us on the\n\nCanadian approach to the broadly analogous provision in\n\nsection 1 of the Canadian Charter, which guarantees the\n\n\f33\n\nrights and freedoms set out in that document\n\n\"subject only to such reasonable limits prescribed by law\nas can be demonstrably justified in a free and democratic\nsociety\".\n\nThe Canadian courts have evolved certain criteria, in\n\napplying this section, such as the existence of substantial\n\nand pressing public needs which are met by the impugned\n\nstatute. There, if the statutory violation is to be\n\njustified it must also pass a \"proportionality\" test, which\n\nthe courts dissect into several components. See, e.g. R\n\nv Chaulk (1991) 1 CRR (2d) 1. These criteria may well be\n\nof assistance to our courts in cases where a delicate\n\nbalancing of individual rights against social interests is\n\nrequired. But section 33(1) itself sets out the criteria\n\nwhich we are to apply, and I see no reason, in this case at\n\nleast, to attempt to fit our analysis into the Canadian\n\npattern.\n\n[36] As to reasonableness I am prepared to assume that the\n\npresumption passes the \"rational connection\" test, although\n\nI am not convinced of this. But that does not in itself\n\nexplain why it should be thought reasonable to undermine a\n\nlong-established and now entrenched right. The tests of\n\nreasonableness, justifiability and necessity are not\n\nidentical, and in applying each of them individually one\n\nwill not always get the same result. But in this\n\n\f34\n\nparticular instance reasonableness, justification and\n\nnecessity may be looked at and assessed together. The\n\nState's problems here are manifold. The rights interfered\n\nwith are fundamental to our concepts of justice and\n\nforensic fairness. They have existed in this country for\n\nover 150 years. A drastic consequence of the alteration to\n\nthe law brought about by section 217(1)(b)(ii) is the\n\npossibility that an accused may be convicted over the\n\nreasonable doubt of the court. Nor has it been shown that\n\nit is in practice impossible or unduly burdensome for the\n\nState to discharge its onus; it has done so successfully in\n\ninnumerable trials under the common law rule. The\n\ncircumstances in which an accused person agreed to make a\n\nconfession are not peculiarly within his or her own\n\nknowledge. What then is the rationale of the proviso? The\n\nanswer, it seems (and we have been given no other) lies in\n\nthe Report of the Botha Commission into criminal procedure\n\nand evidence (RP 78/1971). The extract I quote here is\n\ntaken from the written submissions on behalf of the accused\n\nin this case.\n\n\"5.31.3. It is however a disquieting phenomenon that\naccused persons, after having made a confession to a\nmagistrate which was confirmed and reduced to writing in\nthe presence of a magistrate or justice, far too frequently\nand sometimes under the influence of others and in spite of\ntheir contrary allegations to the magistrate or justice,\nallege at their trial that the confession was in fact\nimproperly obtained from them and is therefore inadmissible\nin evidence with the result that, notwithstanding the\naccused's erstwhile allegations, the admissibility thereof\nhas, far too frequently, to be determined at an extended\nhearing where the onus rests upon the State throughout. As\na judicial officer a magistrate is peculiarly equipped and\n\n\f35\n\nable, with the aid of his personal observation and\npreceding interrogation of the person who makes the\nconfession, to come to a prima facie conclusion in regard\nto the question whether the confession was or is being made\nfreely and voluntarily by such person in his sound and\nsober senses without having been unduly influenced thereto,\nand it is highly improbable that a magistrate would take a\nconfession from someone unless he is convinced of the\nexistence of the prescribed requirements for the\nadmissibility thereof. In view of these considerations,\nand to give meaning to the making or confirmation of a\nconfession to or in the presence of a magistrate, the\nCommission is of the opinion that, where a confession was\nmade to a magistrate and reduced to writing, or confirmed\nand reduced to writing in the presence of a magistrate, it\nshould at the trial of that person for an offence to which\nthe confession relates, be presumed, unless that person\nproved the contrary (that is to say, on a balance of\nprobabilities) that the confession was made freely and\nvoluntarily by such person in his sound and sober senses\nwithout having been unduly influenced thereto. The\nCommission therefore recommends that a further proviso to\nthis effect be added to section 244(1) with reference to a\nconfession made to a magistrate or confirmed and reduced to\nwriting in the presence of a magistrate. Such a provision\nwould considerably shorten and may eliminate the extent of\nthe so called trials within a trial.\"\n\nIt appears from this passage that the harm which the new\n\nproviso was intended to overcome was twofold. First, some\n\naccused attempt dishonestly to retract confessions which\n\nthey have made before a magistrate. Second, this leads to\n\nunduly long trials within trials. The justification of the\n\namendment, therefore, was that it would make it more\n\ndifficult for the dishonest accused to make false\n\nallegations of duress, and that this would shorten trials.\n\n[37] As to the first head of justification, the objective is\n\nlaudable. But the reasoning of the Commission seems to\n\noverlook the interests of an accused who has in fact been\n\nsubject to duress. The Commission itself, in para 5.23 of\n\nits Report, recognised that an apparently voluntary\n\n\f36\n\nconfirmation of a confession before a magistrate \"may be\n\nmisleading, where the confession was in fact forced\n\nbeforehand by improper interrogation or inducement by the\n\npolice.\" There is nothing before this Court to show that\n\nthe common law rule caused substantial harm to the\n\nadministration of justice. The Commission points to the\n\nimprobability of a magistrate taking a confession unless\n\nconvinced of its voluntariness. That may well be an\n\nimprobability in most cases, but why that should justify\n\nplacing a burden of proof on the accused I am unable to\n\nfollow. That improbability has always weighed against an\n\naccused and will continue to do so, without resort to the\n\nproviso. In any event there is nothing in the Criminal\n\nProcedure Act which obliges a magistrate to conduct any\n\nparticular preliminary enquiry into voluntariness. Some\n\nAttorneys-General and magistrates have drafted helpful\n\nquestionnaires for the use of magistrates or justices of\n\nthe peace before recording a confession. But there is no\n\nstandard form and none with statutory provenance.\n\n[38] The reverse onus may in some cases obviate or shorten the\n\ntrial within a trial. Those of my colleagues on the Court\n\nwho have had considerable experience of criminal trials\n\ndoubt that is so. Even if it were the case, and even if it\n\ndid release police or prosecution from the inconvenience of\n\n\f37\n\nmarshalling and calling their witnesses before the accused\n\ngave evidence, I cannot regard those inconveniences as\n\noutweighing and justifying the substantial infringement of\n\nthe important rights which I have identified. The argument\n\nfrom convenience would only have merit in situations where\n\naccused persons plainly have more convenient access to\n\nproof, and where the reversed burden does not create undue\n\nhardship or unfairness. Cf R v Oakes (1983) 3 CRR 289,\n\n304, per Martin JA in the Ontario Court of Appeal. That is\n\nnot the case here.\n\n[39] Accordingly, section 217(b)(ii) does not meet the criteria\n\nlaid down in section 33(1) of the Constitution. It is\n\ninconsistent with the Constitution and in terms of section\n\n98(5) of the Constitution, it must be declared invalid.\n\n[40] It follows that in my opinion the ruling given by Levinsohn\n\nJ in S v Shangase and Another 1994(2) BCLR 42(D); 1995(1)\n\nSA 425(D) was correct. \n\n[41] It is important, I believe, to emphasise what this judgment\n\ndoes not decide. It does not decide that all statutory\n\nprovisions which create presumptions in criminal cases are\n\ninvalid. This Court recognises the pressing social need\n\nfor the effective prosecution of crime, and that in some\n\n\f38\n\ncases the prosecution may require reasonable presumptions\n\nto assist it in this task. Presumptions are of different\n\ntypes. Some are no more than evidential presumptions,\n\nwhich give certain prosecution evidence the status of prima\n\nfacie proof, requiring the accused to do no more than\n\nproduce credible evidence which casts doubt on the prima\n\nfacie proof. See e.g. the presumptions in section 212 of\n\nthe Criminal Procedure Act. This judgment does not relate\n\nto such presumptions. Nor does it seek to invalidate\n\nevery legal presumption reversing the onus of proof. Some\n\nmay be justifiable as being rational in themselves,\n\nrequiring an accused person to prove only facts to which he\n\nor she has easy access, and which it would be unreasonable\n\nto expect the prosecution to disprove. The provisions in\n\nsection 237 of the Act (evidence on charge of bigamy) may\n\nbe of this type. Or there may be presumptions which are\n\nnecessary if certain offences are to be effectively\n\nprosecuted, and the State is able to show that for good\n\nreason it cannot be expected to produce the evidence\n\nitself. The presumption that a person who habitually\n\nconsorts with prostitutes is living off the proceeds of\n\nprostitution was upheld on that basis in R v Downey supra\n\nby the Supreme Court of Canada. A similar presumption in\n\na United Kingdom statute was upheld by the European Court\n\nof Human Rights in X v United Kingdom (Application No\n\n\f39\n\n5124/71, Collection of Decisions, ECHR 135). This is not\n\nsuch a case. Nor does this judgment deal with statutory\n\nprovisions which are in form presumptions but which in\n\neffect create new offences. See Attorney-General v\n\nOdendaal 1982 Botswana LR 194, 226-7.\n\n[42] I would also make clear that this judgment does not purport\n\nto apply to exceptions, exemptions or provisos to statutory\n\noffences, referred to in section 90 of the Criminal\n\nProcedure Act and in the extensive case law on that section\n\nand its predecessors. Nor, of course, does it deal with\n\nthe factors governing the creation of offences of strict\n\nliability, discussed in Amalgamated Beverage Industries\n\nNatal (Pty) Ltd v Durban City Council 1994(3) SA 170 and\n\n646(A), although the considerations weighed in that case\n\nmay not be irrelevant to the constitutional validity of \n\ncertain statutory presumptions. \n\n[43] It is necessary, finally, to consider what order, if any,\n\nshould be made under section 98(6) of the Constitution\n\nconsequent upon the finding of invalidity. The terms of\n\nthat sub-section are as follows -\n\n\"(6) Unless the Constitutional Court in the interests of\njustice and good government orders otherwise, and save to\nthe extent that it so orders, the declaration of invalidity\nof a law or a provision thereof -\n\n\f(a)\n\n(b)\n\n40\n\nexisting at the commencement of this\nConstitution, shall not invalidate anything\ndone or permitted in terms thereof before the\ncoming into effect of such declaration of\ninvalidity ;or\n\nafter \n\npassed \nshall\ninvalidate everything done or permitted in\nterms thereof.\n\ncommencement, \n\nsuch \n\nParagraph (a) of the sub-section applies in this case.\n\nAbsent a specific order by this Court, any decision by a\n\ntrial court admitting a confession in reliance on section\n\n217(1)(b)(ii), given before the date of the declaration of\n\nits invalidity, would stand. This would be unfortunate for\n\nsome accused persons. But if we were to give our\n\ndeclaration full retrospective effect in terms of section\n\n98(6) so as to invalidate such earlier rulings on\n\nadmissibility the likely result of such order would be\n\nnumerous appeals with the possibility of proceedings de\n\nnovo under sections 313 or 324 of the Criminal Procedure\n\nAct. In proceedings de novo the necessary evidence of\n\nvoluntariness may no longer be available. Paragraph (a) of\n\nsection 98(6) is intended to ensure that the invalidation\n\nof a statute existing at the date of commencement of the\n\nConstitution should not ordinarily have any retrospective\n\neffect, so as to avoid the dislocation and inconvenience of\n\nundoing transactions, decisions or actions taken under that\n\nstatute. This Court's power to order otherwise in the\n\ninterests of justice and good government should be\n\nexercised circumspectly. In some cases (and I believe that\n\n\f41\n\nthis is one of them) the interests of individuals must be\n\nweighed against the interest of avoiding dislocation to the\n\nadministration of justice and the desirability of a smooth\n\ntransition from the old to the new. We should also take\n\ninto account the fact that hitherto the police and\n\nprosecution \n\nhave \n\nlegitimately \n\nrelied \n\non \n\nsection\n\n217(1)(b)(ii). Cf. the approach of the United States\n\nSupreme Court in such cases as Linkletter v Walker 381 US\n\n618 (1965) and Stovall v Denno 388 US 293 (1967). \n\n[44] The application of section 217(1)(b)(ii) since 27th April,\n\n1994 may well have caused injustice to accused persons, but\n\nwe cannot repair all past injustice by a simple stroke of\n\nthe pen. Weighing all the relevant considerations it seems\n\nto me that the proper balance can be struck by invalidating\n\nthe admission of any confession in reliance on section\n\n217(1)(b)(ii) before the date of our declaration, but in\n\nrespect only of trials begun on or after 27th April, 1994,\n\nand not completed at the date of delivery of this judgment.\n\nThe effect might be in those trials to require\n\nreconsideration of the admissibility of confessions already\n\nadmitted, including the hearing of further evidence. \n\nWhether an order under section 98(6) may or should\n\nencompass proceedings which were pending before 27th April,\n\n1994, depends on the proper interpretation of section\n\n\f42\n\n241(8) of the Constitution. As indicated at the beginning\n\nof the judgment, that issue is deferred for determination\n\nin the Mhlungu case. \n\n[45] In the present case the trial judge has given no decision\n\non the admissibility of the confessions, so that no special\n\norder need be made in respect of it.\n\n[46] In conclusion, we should like to express our indebtedness\n\nto Mr A Findlay S.C. and his colleagues, of the Durban Bar,\n\nwho appeared for the accused persons at the request of the\n\nCourt.\n\nThe following order is accordingly made :-\n\n1\n\n2\n\nIt is declared that section 217(1)(b)(ii) of the\nCriminal Procedure Act, 1977, is invalid.\n\nIn terms of sub-section (6) of section 98 of the\nConstitution it is ordered that this declaration\nshall invalidate any application of the said\nsection 217(1)(b)(ii) in any criminal trial which\ncommenced on or after 27th April, 1994, and in\nwhich the verdict has not at the date of this\norder been given. \n\n______________________________\nS.KENTRIDGE\nACTING JUDGE OF THE CONSTITUTIONAL COURT\n\nWe concur in the judgement of Kentridge AJ:\n\n \n\nChaskalson P\n\n\f \n\nAckermann J\n\nDidcott J\n\nKriegler J\n \n \nLanga J\n\nMadala J\n\nMahomed J\n\nMokgoro J\n\nO'Regan J\n\nSachs J\n\nCASE NO\n\n43\n\n:\n\nCCT/5/94 \n\nCOUNSEL FOR APPLICANT \n: A. Findlay SC\n MJD Wallis SC\n PJ Olsen\n M. Mkize\n K Govender\n\nINSTRUCTED BY\n\n: \n\nCOUNSEL FOR RESPONDENT\n JWS de Villiers\n I Stretch\n\n: JA van S d'Oliveira SC\n\n\f EA Erasmus\n SM Galloway \n\n44\n\nINSTRUCTED BY\n\nDATE OF HEARING\n\n:\n\n:\n\n23 February 1995\n\nDATE OF JUDGMENT\n\n:\n\n5 April 1995\n\n\f"}, "id": "600987b3-4b5e-4d73-b6b6-41ad6e1a62bf", "update_date": "2021-03-15 17:08:56.815381", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter of : CASE NO : CCT/5/94 ZUMA AND TWO OTHERS Applicants and THE STATE Respondent HEARD ON 23 February 1995 DELIVERED ON 5 April 1995 JUDGMENT", "KENTRIDGE AJ: This case arises from a criminal trial before Hugo J in the Natal Provincial Division. In this Court it was heard together with the case of Mhlungu and Four Others v The State (Case No CCT/25/94) which also arose from a criminal trial in the Natal Provincial Division. Each of them has come to this Court by way of a referral by the judge presiding over the trial. In each case the judge referred to this Court for decision the question whether section 217(1)(b)(ii) of the Criminal Procedure Act No 51 of 1977 is inconsistent with the provisions of the Republic of South Africa Constitution, 1993. If we so find it will be our duty under section 98(5) of the Constitution to declare the provision invalid. In the Mhlungu case the judge also referred to us the question whether, having regard to section 241(8) of the Constitution, the provisions of Chapter 3 of the Constitution apply to the proceedings before him. Section 241(8) raises important issues which do not directly touch the Zuma case. Consequently, we propose to give judgment at this stage only in the Zuma case, and to deal with the Mhlungu case in due course in a separate judgment.", "In this case (as in the Mhlungu case) this Court itself has raised the issue whether the referral was competent. It is necessary to set out in some detail the circumstances of the criminal trial which led to the referral to this Court. Before doing so, however, I must outline the history and effect of the challenged sub-paragraph of section 217 of \fthe Criminal Procedure Act. 3", "The section deals with the admissibility in evidence of a confession made by an accused person before trial. Sub- section (1) and proviso (a) thereto read as follows - \"(1) Evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence : Provided - (a) that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in section 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice;...\" It will be seen that this sub-section requires the prosecution, if it wishes to put the confession in evidence, to prove that it was freely and voluntarily made, and was not unduly influenced. This means, at the least, proof that it was not induced by violence, or by threats or promises made by a person in authority. R v Barlin 1926 AD 459, 462; R v Nhleko 1960(4) SA 712(A); S v Mpetha and others (2) 1983(1) SA 576(C). This rule, which reflects a long-standing principle of the English law of criminal procedure and evidence, was embodied in the Evidence Ordinance of the Cape Colony in 1830. The rationale of the rule excluding involuntary confessions (or admissions) has been much discussed. See Hoffmann and Zeffertt, South \f4 African Law of Evidence, 4th ed. pp 205, 216-7 ; Cross on Evidence, 6th ed pp 601-3. I shall return in due course to the historical development of the rule. At this stage it is sufficient to say that before the Union of the four provinces in 1910 it was well established in all parts of South Africa that it was for the prosecution to prove that any confession on which it wished to rely was freely and voluntarily made.", "Proviso (a), on the other hand, has no counterpart in English law. It was introduced into South African law by the Criminal Procedure and Evidence Act, 1917. Its general effect is that confessions made to members of the police force who are not justices of the peace are inadmissible. An accused person who has confessed, or expressed a wish to confess, to a police officer who is not a justice of the peace should be taken to a magistrate or justice of the peace who may take down the confession in writing. Even where the police officer is a justice of the peace the accused person may be taken to a magistrate who may take down the confession in writing. The magistrate ought, of course, to be satisfied that the confession is freely and voluntarily made, and should record that fact in the document containing the confession. It is at that stage that proviso (b) to section 217(1) becomes relevant. That \f5 proviso reads - \"Provided- ... \"(b) that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question- (i) be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and (ii) be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto. It is sub-paragraph (ii) of this proviso that is under attack in the present case. It was introduced into the criminal procedure code in 1977. In the circumstances set out in the sub-paragraph it places on the accused the burden of proving that the confession recorded by the magistrate was not free and voluntary. The words \"unless the contrary is proved\" place an onus on the accused which must be discharged on a balance of probabilities. He does not discharge the onus merely by raising a doubt. If, at the end of the voir dire (or trial-within-a-trial) the probabilities are evenly balanced the presumption prevails. See Ex parte Minister of Justice: in re R v Bolon 1941 AD 345, 360-1; S v Nene and Others (2) 1979(2) SA 521(D); S \f6 v Mkanzi and Another 1979(2) SA 757(T); S v Mphahlele and Another 1982(4) SA 505(A) 512.", "I add, by way of completeness, that sub-section (2) of section 217 provides that the prosecution may lead evidence in rebuttal of evidence advanced by an accused in rebuttal of the presumption under proviso (b).", "In the case before us the prosecution tendered confessions which had been made by two of the accused before a magistrate and reduced to writing, and invoked the presumption in proviso (b).", "The accused were indicted on two counts of murder and one of robbery. At their trial before Hugo J and assessors they pleaded not guilty. Two of the accused had made statements before a magistrate which counsel for the state tendered as admissible confessions. Admissibility was contested by counsel for the accused and a trial-within-a- trial ensued. At the outset defence counsel raised the issue of the constitutionality of section 217(1)(b)(ii) of the Criminal Procedure Act, and counsel for both the defence and the prosecution consented (in terms of section 101(6) of the Constitution) to the trial judge's deciding that issue. The trial-within-a-trial nonetheless \f7 proceeded. The accused testified that they had made their statements by reason of assaults on them by the police and the threat of further assaults. The policemen concerned denied this, but two women called as witnesses by the defence said that they had seen the police assaulting the accused. At the end of the evidence the court concluded unanimously that while they were not satisfied beyond a reasonable doubt that the statements had been freely and voluntarily made, the accused had failed to discharge the onus upon them under proviso (b) on a balance of probabilities. In his judgment, given on 10th August, 1994 and reported as S v Zuma and Others 1995(1) BCLR 49 (N), Hugo J said - \"Had we been convinced that section 217(1)(b) of the Criminal Procedure Act was still valid and constitutional we would therefore have had little hesitation in accepting that the accused had not discharged the onus placed upon them by that section. The constitutionality therefore of section 217(1)(b) of the Criminal Procedure Act is therefore crucial to the decision of this case.\" Later in his judgment he said - \"It is quite clear from what I have said that the site of the onus will be decisive in this case, at least in so far as the admissibility of this evidence is concerned. If it is held by the constitutional court that section 217(1)(b)(ii) is unconstitutional it will lead to the most unfortunate result that two persons who have in effect admitted under oath in this Court that they indeed committed these offences may be acquitted but that may well be the effect of the constitution or the provisions of the constitution upon matters of this nature. It is also the effect of the hearing of matters of this nature in a separate trial-within-a-trial, the evidence of which is not admissible in deciding the merits of the conviction.\" \f8 The reference to the admissions of the two accused that they had committed the offences arose from the evidence which they had given in the course of the trial-within-a- trial. As Hugo J fully appreciated, that evidence was given only in the context of the trial-within-a-trial, where the only issue was admissibility. To that issue the truth of the confession was irrelevant. Thus, in S v Radebe and Another, 1968(4) SA 410(A) 419 Ogilvie Thompson J A said- \"It not infrequently occurs that, although the presiding Judge may think that the contents of a tendered confession are true, the circumstances whereunder the confession was made compel its exclusion\". See also S v Gaba 1985(4) SA 734(A) 749; S v Talane 1986(3) SA 196(A) 205; S v de Vries 1989(1) SA 228(A), 233- 4.", "In the event, notwithstanding the consent given by the parties under section 101(6) Hugo J refrained from giving a decision on the validity of the proviso, but referred the question to this court, and adjourned the trial sine die.", "The question of the competence of Hugo J's referral arises, and has been argued before us by counsel for the accused and for the State. In addition we have received a Notice of Motion under the hand of Mr. T P McNally SC, Attorney- General for Natal, seeking direct access to the Court in \f9 terms of section 100(2) of the Constitution on the grounds that it is in the interests of justice that a binding decision be given as soon as possible on the validity of section 217(1)(b)(ii).", "By reason of the consent of the parties under section 101(6) the issue of the constitutionality of section 217(1)(b)(ii) of the Criminal Procedure Act no longer remained within the exclusive jurisdiction of this Court, and fell within the jurisdiction of Hugo J. For reasons which will be given in detail in the Mhlungu case the referral by Hugo J was wholly incompetent. That was indeed the submission of the State in its written argument, and the point was rightly conceded by counsel for the accused. Even if a rapid resort to this Court were convenient that would not relieve the judge from making his own decision on a constitutional issue within his jurisdiction. The jurisdiction conferred on judges of the Provincial and Local Divisions of the Supreme Court under section 101(3) is not an optional jurisdiction. The jurisdiction was conferred in order to be exercised. It was in these circumstances that the Attorney-General of Natal applied under section 100(2) of the Constitution for direct access to the Court. Section 100(2) reads - \"(2) The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any \f10 matter over which it has jurisdiction.\" Rule 17, subrules (1) and (2) of the Rules of this Court provide- (1) The Court shall allow direct access in terms of section 100(2) of the Constitution in exceptional circumstances only, which will ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of the ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government. (2) The special procedure referred to in subrule (1) may be sanctioned by the Court on application made to it in terms of these rules.", "The Attorney-General of Natal submits in his supporting affidavit that if the matter is sent back to the trial court without our deciding the issue it would have to be referred again to this Court at the end of the trial. More important, he informs us that prevailing uncertainty as to the constitutionality of section 217(1)(b)(ii) has resulted in inconsistency in practice in Natal and elsewhere in the Republic. That uncertainty would remain unresolved until a suitable case came properly before this Court. We agree with the Attorney-General of Natal and with Mr d'Oliviera SC, the Attorney-General of the Transvaal, who appeared for the State that this state of affairs must seriously prejudice the general administration of justice as well as the interests of the numerous accused persons affected. The admissibility of confessions is a question which arises daily in our criminal courts and prolonged uncertainty would be quite unacceptable. As appears from the terms of \f11 Rule 17, direct access is contemplated in only the most exceptional cases, and it is certainly not intended to be used to legitimate an incompetent reference. But in the special circumstances set out in the affidavit the application under rule 17 was fully justified. Mr. McNally's application is accordingly granted, so that the question of the validity of section 217(1)(b)(ii) is properly before this Court.", "Counsel for the accused has attacked section 217(1)(b)(ii) as being in conflict with section 25 of the Constitution. The particular provisions of section 25 relied on individually or cumulatively are the following - \"25 (2) Every person arrested for the alleged commission of an offence shall ... have the right - (a) she promptly to be informed, in a language which he or understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement; ... (c) ... not to be compelled to make a confession or admission which could be used in evidence against him or her ; and (3) Every accused person shall have the right to a fair trial, which shall include the right - ... (c) (d) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial ; to adduce and challenge evidence, and not to be a compellable witness against himself or herself; The concepts embodied in these provisions are by no means \f12 an entirely new departure in South African criminal procedure. The presumption of innocence, the right of silence and the proscription of compelled confessions have for 150 years or more been recognised as basic principles of our law, although all of them have to a greater or lesser degree been eroded by statute and in some cases by judicial decision. The resulting body of common law and statute law forms part of the background to section 25. The provisions of section 25 are more specific than many of the other provisions of Chapter 3. They do nonetheless give rise to problems of interpretation.", "The principles upon which a constitutional bill of fundamental rights should be interpreted have been the subject of numerous judicial dicta, in jurisdictions abroad and in Southern Africa. Many of these principles have been re-stated and applied in the judgments of Provincial and Local Divisions interpreting our own Constitution, and in judgments of other Southern African courts. The judgment of Friedman J in Nyamakazi v President of Bophututswana, 1994(1) BCLR 92(B) is a veritable thesaurus of international authority. Khala v The Minister of Safety & Security 1994(2) BCLR 89(W), 92-4; 1994 (4) SA 218(W), 222- 4 per Myburgh J also contains a useful collection of citations. It is not necessary to traverse all the \frelevant dicta but some of them bear repeating. 13", "The first of these is the much-quoted passage from the judgment of Lord Wilberforce in the Privy Council in Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC), 328-9. After referring to the influence of certain international conventions on the constitutions of former colonies of the British Commonwealth, he said that these called for \"a generous interpretation ... suitable to give to individuals the full measure of the fundamental rights and freedoms referred to,\" and that the constitution called for \"principles of interpretation of its own\". He went on to say - \"This is in no way to say that there are no rules of law which should apply to the interpretation of a constitution. A constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and the usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the constitution commences.\" This judgment was cited with approval by the Appellate Division in S v Marwane 1982(3) SA 717(A), 748-9. See also the judgment of the Full Bench of the Supreme Court of Namibia in Minister of Defence, Namibia v Mwandinghi 1992(2) SA 355 (Nm SC), 362. \f14", "In R v Big M Drug Mart Ltd (1985)18 DLR (4th) 321,395-6, Dickson J (later Chief Justice of Canada) said, with reference to the Canadian Charter of Rights - \"The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee ; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be .... a generous rather than legalistic one, aimed at fulfilling the purpose of a guarantee and the securing for individuals the full benefit of the Charter's protection.\" Both Lord Wilberforce and Dickson J emphasised that regard must be paid to the legal history, traditions and usages of the country concerned, if the purposes of its constitution are be fully understood. This must be right. I may nonetheless be permitted to refer to what I said in another court of another constitution albeit in a dissenting judgment - \"Constitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to bring them into line with the common law. Attorney-General v Moagi 1982(2) Botswana LR 124,184", "That caveat is of particular importance in interpreting section 25(3) of the Constitution. The right to a fair trial conferred by that provision is broader than the list of specific rights set out in paragraphs (a) to (j) of the \f15 sub-section. It embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force. In S v Rudman and Another; S v Mthwana 1992(1) SA 343(A), the Appellate Division, while not decrying the importance of fairness in criminal proceedings, held that the function of a court of criminal appeal in South Africa was to enquire \"whether there has been an irregularity or illegality, that is a departure from the formalities, rules and principles of procedure according to which our law requires a criminal trial to be initiated or conducted\". A court of appeal, it was said, (at 377) \"does not enquire whether the trial was fair in accordance with 'notions of basic fairness and justice', or with the 'ideas underlying the concept of justice which are the basis criminal administration'.\" civilised systems all of of That was an authoritative statement of the law before 27th April 1994. Since that date section 25(3) has required criminal trials to be conducted in accordance with just those \"notions of basic fairness and justice\". It is now for all courts hearing criminal trials or criminal appeals to give content to those notions.", "I must also refer to Qozoleni v Minister of Law and Order 1994(1) BCLR 75(E); 1994(3) SA 625(E). The judgment of Froneman J. contains much of value in its approach to constitutional interpretation. The learned judge says (at \f16 81) that the previous constitutional system of this country was the fundamental \"mischief\" to be remedied by the new Constitution. He says (at 80) that because the Constitution is the supreme law against which all law is to be tested, \"it must be examined with a view to extracting from it those principles or values against which such law ... can be measured.\" He adds on the same page that the Constitution must be interpreted so as \"to give clear expression to the values it seeks to nurture for a future South Africa.\" This is undoubtedly true. South African Courts are indeed enjoined by section 35 of the Constitution to interpret Chapter 3 so as \"to promote the values which underlie an open and democratic society based on freedom and equality\", and, where applicable, to have regard to relevant public international law. That section also permits our courts to have regard to comparable foreign case law. I am, however, sure that Froneman J, in his reference to the fundamental \"mischief\" to be remedied, did not intend to say that all the principles of law which have hitherto governed our courts are to be ignored. Those principles obviously contain much of lasting value. Nor, I am equally sure, did the learned judge intend to suggest that we should neglect the language of the Constitution. While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a \f17 written instrument. I am well aware of the fallacy of supposing that general language must have a single \"objective\" meaning. Nor is it easy to avoid the influence of one's personal intellectual and moral preconceptions. But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.", "We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to \"values\" the result is not interpretation but divination. If I may again quote S v Moagi, supra, at 184, I would say that a constitution \"embodying fundamental rights should as far as its language permits be given a broad construction\" (My emphasis),", "As pointed out above, section 217(1)(b)(ii) creates a legal presumption, with the legal burden of rebuttal on the accused - what has been called a \"reverse onus\". The legitimacy of such provisions has been considered by courts as varied as the United States Supreme Court, The Canadian Supreme Court, the Privy Council and the European Court of Human Rights (and doubtless others) in the light of \f18 provisions entrenching, in varying language, the presumption of innocence, the right to silence and the privilege against self-incrimination - a privilege not expressly referred to in section 25. The case law of these courts - which are undoubtedly courts of open and democratic societies - indicates that reverse onus provisions are by no means uncommon and are not necessarily unconstitutional. Reverse onus provisions in our own statute law are also not uncommon. To go no further than the Criminal Procedure Act one finds, for example, the presumptions arising from entries in marriage registers on charges of bigamy (section 237), the presumption of knowledge of falsity arising from proof of a factually false representation (section 245) and the presumption of having failed to pay tax arising merely from an allegation in a charge sheet (section 249). Foreign courts have grappled with the problem of reconciling presumptions reversing the onus of proof with the constitutional presumption of innocence. The different solutions which they have suggested are illuminating.", "The courts of the United States have over many years attempted to enunciate a governing principle. Tot v The United States 319 US 463 (1943) concerned a federal statute making it an offence for a person convicted of violence to \f19 receive any firearm or ammunition which had been shipped or transported in interstate or foreign commerce. The statute provided that \"the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped transported or received as the case may be, by such person ... in violation of this Act\". The Supreme Court held that while Congress and state legislatures had \"power to prescribe what evidence is to be received in the courts of the United States\", the due process clauses of the Constitution \"set limits upon the power of Congress or that of a state legislature to make the proof of one fact or group of facts evidence of the existence of the ultimate fact on which guilt is predicated.\" (per Roberts J at 467) The test of the validity of such a presumption, the Court said, was that there be a \"rational connection between the facts proved and the fact presumed ... . But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of the courts. (467-8) On this test the presumption was struck down. Twenty-five years later a somewhat stricter test was formulated. In Leary v United States 395 US 6(1969) the Supreme Court had to consider a statute under which possession of marihuana was deemed to be sufficient evidence of the offence of illegal importation, unless the defendant explained his possession to the satisfaction of the jury. The presumption was held to be a denial of due process of law. 0 Having considered Tot and some later cases, Harlan J, speaking for the Court, said that \"a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.\" (page 36) (Harlan J added the rider that in this assessment the Congressional determination favouring the presumption must weigh heavily.)", "\"Rational connection\" is a useful screening test, but not a conclusive one. This was acknowledged in County Court of Ulster County, New York, et al v Allen et al 442 US 140 (1979). In relation to a mandatory (i.e. legal) presumption Stevens J giving judgment for the majority of the Supreme Court, said, at 167, that \"since the prosecution bears the burden of establishing guilt, it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.\" The \"rational connection\" test has been considered in the substantial jurisprudence which the Canadian courts have developed in construing their Charter of Rights. The Canadian cases on reverse onus provisions seem to me to be particularly helpful, not only because of their persuasive reasoning, but because section 1 of the Charter has a limitation clause analogous to section 33 of the South African Constitution. This calls for a \"two-stage\" approach. First, has there been a contravention of a 1 guaranteed right? If so, is it justified under the limitation clause? The single stage approach (as in the US Constitution or the Hong Kong Bill of Rights) may call for a more flexible approach to the construction of the fundamental right, whereas the two-stage approach may call for a broader interpretation of the fundamental right, qualified only at the second stage. In Attorney-General of Hong Kong v Lee Kwong-kut, [1993] AC 951 (PC), an appeal to the Privy Council from Hong Kong, Lord Woolf, while noting that the results of the two approaches often tend to be similar, observed (at 967 H) that the two-stage approach, in laying down specific criteria of justification, had important practical consequences. See also Cachalia & others, Fundamental Rights in the New Constitution, pp5-7.", "There are numerous Canadian cases dealing with the constitutionality of reverse onus provisions. I shall refer only to three of them. In R v Oakes (1986) 26 DLR (4th) 200 the Supreme Court of Canada had before it an Act of Parliament which provided that if a person was proved to be in unlawful possession of a narcotic he was presumed to be in possession of it for the purposes of trafficking (a more serious offence) unless he proved the contrary. This proof, the Court held, had to be on a balance of 2 probabilities. This presumption was held to be inconsistent with the presumption of innocence guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms. Dickson CJC said at 212-3 - \"The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice.\" And, at 222, \"If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue.\" He held further that the \"rational connection\" test, while possibly useful at the stage when the State sought to justify an infringement of a guaranteed right in terms of section 1 of the Charter, was not in itself an adequate protection for the constitutional presumption of innocence. \"A basic fact may rationally tend to prove a presumed fact, but not prove its existence beyond a reasonable doubt. An accused person could thereby be convicted despite the presence of a reasonable doubt. This would violate the presumption of innocence.\"", "R v Whyte (1988) 51 DLR (4th) 481 concerned a statute creating the offence of having care or control of a motor 3 vehicle while one's ability to drive was impaired by alcohol. Under the statute, upon proof that the accused occupied the driver's seat he was deemed to have the care and control of the vehicle unless he established that he did not enter the vehicle for the purpose of setting it in motion. This presumption, too, was held to be a violation of the right to the presumption of innocence. The Supreme Court, again speaking through Dickson CJC, held that it was irrelevant that the presumption did not relate to an \"essential element\" in the offence (cf R v Oakes, supra at 222). The Chief Justice, at 493, said - \"In the case at bar, the Attorney-General of Canada argued that since the intention to set the vehicle in motion is not an element of the offence, s. 237(1)(a) does not infringe the presumption of innocence. Counsel relied on the passage from Oakes quoted above, with its reference to an \"essential element\", to support this argument. The accused here is required to disprove a fact collateral to the substantive offence, unlike Oakes where the accused was required to disprove an element of the offence. The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.\"", "In 1992, in R v Downey 90 DLR (4th) 449, the Supreme Court 4 of Canada dealt with a statutory presumption that a person who lives with or is habitually in the company of prostitutes, is, in the absence of evidence to the contrary, committing the offence of \"living on the avails [i.e. proceeds] of another person's prostitution\". This presumption was also held to infringe the presumption of innocence (although it was held by a majority to be in all the circumstances a justifiable infringement.) The judgment of Cory J at 456 contains a useful analysis of different types of presumption. The type with which we are concerned in section 217(1)(b)(ii) is described as a legal presumption \"where the presumed fact must be disproved on a balance of probabilities instead of by the mere raising of evidence to the contrary\". This is what the Canadian courts refer to as a \"reverse onus\" clause, as I do in this judgment.", "Cory J at 461 summarised the principles derived from the authorities in seven propositions. I shall quote the first three- \"I. II. III. The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt. If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on a balance of probabilities either an element of an offence or an excuse, then it contravenes s. 11(d). Such a provision would permit a conviction in spite of a reasonable doubt. Even if a rational connection exists between the established fact and the fact to be presumed, this would be insufficient to make valid a presumption requiring the accused to disprove an element of the 5 offence.\" Section 11(d) of the Canadian Charter provides that any person charged with an offence has the right \"(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal\". This bears a close relationship to section 25(3)(a) and (c) of our Constitution. In both Canada and South Africa the presumption of innocence is derived from the centuries-old principle of English law, forcefully restated by Viscount Sankey in his celebrated speech in Woolmington v Director of Public Prosecutions [1935] AC 462 (HL), 481, that it is always for the prosecution to prove the guilt of the accused person, and that the proof must be proof beyond a reasonable doubt. Accordingly, I consider that we may appropriately apply the principles worked out by the Canadian Supreme Court in particular the first two principles stated by Cory J, supra.", "Does the application of these principles in itself demonstrate a violation of the presumption of innocence in section 217(1)(b)(ii)? Mr d'Oliviera for the State contended that it did not. The admission of a confession, he said, did not conclude the prosecution in favour of the State. Thus in the present case further evidence might entitle the trial court in this case to review its finding 6 that the accused had not discharged the onus on them. There might also be evidence which would lead a court to find that a confession, although admissible, was untrue. Moreover, the presumption did not relate to any element of the offence charged, but merely to the voluntary character of the confession. This was no more than a question of admissibility of evidence.", "These arguments were persuasively presented, but in my view they cannot be accepted. A confession by definition is an admission of all the elements of the offence charged, a full acknowledgment of guilt. R v Becker 1929 AD 167. No doubt in some cases additional evidence (for example, that the confession is false) will lead to an acquittal notwithstanding the admission of the confession. But the validity of the presumption is not to be tested on a case by case basis. In the absence of other evidence the presumption, unrebutted, stands throughout the trial. It could therefore happen that, given proof aliunde of the crime itself (section 209 of the Criminal Procedure Act), a conviction could follow from an admissible confession, notwithstanding the court's reasonable doubt that it was freely and voluntarily made. The practical effect of the presumption is that the accused may be required to prove a fact on the balance of probabilities in order to avoid 7 conviction. Cf. R v Whyte, supra, loc. cit. (last paragraph).", "In the course of argument I asked Mr d'Oliviera whether, if there were no further evidence, the trial court in this case could properly give expression to its doubts as to the voluntariness of the confession by acquitting the accused. Mr d'Oliviera submitted that it could do so - as I understood him, by the judge's exercising a judicial discretion to reject admissible but unfairly prejudicial evidence. The authority for the existence of such a discretion is conflicting. See R v Roets and Another 1954(3) SA 512(A), 520; S v Mkanzi and Another 1979(2) SA 757(T); S v Mphahlele supra. Even if there is such a discretion and even if it could be exercised so as to overcome a statutory presumption (surely a doubtful proposition)1 that gives rise to no more than a possibility of an acquittal; the possibility of a conviction remains. The presumption of innocence cannot depend on the exercise of discretion.", "The suggestion that the common law rule placing the onus of In England there appears to be a judicial discretion to exclude an admissible confession, for example because the methods used to obtain it, while not unlawful, were unfair. R v Sang [1980] A.C. 402 (HL), 437. 8 proving voluntariness on the prosecution is merely a rule of evidence and can therefore be freely altered by the legislature deserves and requires fuller consideration. In part it is answered by the quotation from Tot v United States of America, supra. In Tregea and Another v Godart and Another 1939 AD 16, 32 Stratford CJ said that if a rebuttable presumption of law shifts the burden of proof it is not a mere rule of evidence but a matter of substantive law. But even if the common law rule governing the admissibility of confessions is a rule of evidence, it is, as I shall show, a rule which lies at the heart of important rights embodied in section 25, including the right to remain silent after arrest, the right not be compelled to make a confession which can be used in evidence, the right to be presumed innocent and the right not to be a compellable witness against oneself.", "The rule itself derives from more than 300 years of English legal history. By the latter half of the 18th century the rule was clearly stated in its modern form- \"A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it\" - R v Warwickshall (1783) 1 Leach, 263. In Ibrahim v R [1914] AC 599 (PC) at 610 Lord Sumner said that this was a rule of policy. It would appear that the 9 rule derived from a determination to eradicate the oppressive and often barbaric methods of interrogation employed by the Star Chamber in 17th century England to extract confessions from accused persons. From the abhorrence of those methods there developed the privilege against self-incrimination, and the right of silence, one aspect of which is the exclusion of compelled confessions, with the onus placed on the prosecution to prove beyond reasonable doubt that any confession relied on was voluntary. In Smith v Director of Serious Fraud Office", "AC 1 (HL) Lord Mustill distinguished the \"disparate group of immunities\" denoted by the expression \"the right to silence\". At 32 Lord Mustill observed that the law relating to proof of the voluntariness of confessions was particularly important at a time when an accused was not entitled to give evidence on his own behalf - a disability removed in England only in 1898. Nonetheless, Lord Mustill said, \"Even now, nearly hundred years after that disability has been removed, the imprint of the old law is still clearly to be seen.\" It is indeed.", "In Lam Chi-Ming v R, [1991] 2 AC 212 (PC), 220, an appeal to the Privy Council from Hong Kong, Lord Griffiths said- \"Their lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the \f30 importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary. This, perhaps the most fundamental rule of the English criminal law, now finds expression in England in section 76 of the Police and Criminal Evidence Act 1984.\" In Wong Kam-ming v R [1980] AC 247 (PC), 261, Lord Hailsham stated the underlying principle in memorable words- \"any civilised system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilised society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary.\" In South Africa, too, courts have over the years recognised the origins and the importance of the common law rule. In R v Camane and Others 1925 AD 570, 575 Innes CJ said- \"Now, it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial. The principle comes to us through the English law, and its roots go far back in history. Wigmore, in his book on Evidence (vol IV, sec. 2250) traces very accurately the genesis, and indicates the limits of the privilege. And he shows that, however important the doctrine may be, it is necessary to confine it within its proper limits. What the rule forbids is compelling a man to give evidence which incriminates himself.\"", "In R v Gumede and Another 1942 AD 398, 412-4, Feetham JA referred to the embodiment of the rule in the Criminal Procedure and Evidence Act 1917, and noted that its first \f31 appearance in South Africa was in Ordinance No 72 of 1830 of the Cape of Good Hope. There was no doubt, he said, that the Ordinance was intended to apply to the Cape Colony the common law of England in regard to the burden of proof resting on the prosecution when asking a criminal court to admit a confession alleged to have been made by an accused person. He cited the cases of R v Warwickshall, supra and Ibrahim v R, supra, as did Nicholas AJA, in his detailed examination of the rule in S v de Vries, supra, 232-4.", "The conclusion which I reach, as a result of this survey, is that the common law rule in regard to the burden of proving that a confession was voluntary has been not a fortuitous but an integral and essential part of the right to remain silent after arrest, the right not to be compelled to make a confession, and the right not to be a compellable witness against oneself. These rights, in turn, are the necessary reinforcement of Viscount Sankey's \"golden thread\" - that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington's case, supra). Reverse the burden of proof and all these rights are seriously compromised and undermined. I therefore consider that the common law rule on the burden of proof is inherent in the rights specifically mentioned in section 25(2) and (3)(c) and (d), \f32 and forms part of the right to a fair trial. In so interpreting these provisions of the Constitution I have taken account of the historical background, and comparable foreign case law. I believe too that this interpretation promotes the values which underlie an open and democratic society and is entirely consistent with the language of section 25. It follows that section 217(1)(b)(ii) violates these provisions of the Constitution.", "I should add that I prefer not to consider in this judgment the meaning and scope of the right to silence during trial. It is unnecessary to decide whether section 217(1)(b)(ii) violates that right.", "The State submitted, in the alternative, that if the proviso in question is a violation of fundamental rights, it is one which is saved by section 33(1) of the Constitution. The proviso, it was argued, was a law of general application which was (i) reasonable, (ii) justifiable in an open and democratic society based on freedom and equality, under paragraph (a) of the sub- section and was also \"necessary\" in terms of paragraph (b). Much written and oral argument was addressed to us on the Canadian approach to the broadly analogous provision in section 1 of the Canadian Charter, which guarantees the \f33 rights and freedoms set out in that document \"subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society\". The Canadian courts have evolved certain criteria, in applying this section, such as the existence of substantial and pressing public needs which are met by the impugned statute. There, if the statutory violation is to be justified it must also pass a \"proportionality\" test, which the courts dissect into several components. See, e.g. R v Chaulk (1991) 1 CRR (2d) 1. These criteria may well be of assistance to our courts in cases where a delicate balancing of individual rights against social interests is required. But section 33(1) itself sets out the criteria which we are to apply, and I see no reason, in this case at least, to attempt to fit our analysis into the Canadian pattern.", "As to reasonableness I am prepared to assume that the presumption passes the \"rational connection\" test, although I am not convinced of this. But that does not in itself explain why it should be thought reasonable to undermine a long-established and now entrenched right. The tests of reasonableness, justifiability and necessity are not identical, and in applying each of them individually one will not always get the same result. But in this \f34 particular instance reasonableness, justification and necessity may be looked at and assessed together. The State's problems here are manifold. The rights interfered with are fundamental to our concepts of justice and forensic fairness. They have existed in this country for over 150 years. A drastic consequence of the alteration to the law brought about by section 217(1)(b)(ii) is the possibility that an accused may be convicted over the reasonable doubt of the court. Nor has it been shown that it is in practice impossible or unduly burdensome for the State to discharge its onus; it has done so successfully in innumerable trials under the common law rule. The circumstances in which an accused person agreed to make a confession are not peculiarly within his or her own knowledge. What then is the rationale of the proviso? The answer, it seems (and we have been given no other) lies in the Report of the Botha Commission into criminal procedure and evidence (RP 78/1971). The extract I quote here is taken from the written submissions on behalf of the accused in this case. \"5.31.3. It is however a disquieting phenomenon that accused persons, after having made a confession to a magistrate which was confirmed and reduced to writing in the presence of a magistrate or justice, far too frequently and sometimes under the influence of others and in spite of their contrary allegations to the magistrate or justice, allege at their trial that the confession was in fact improperly obtained from them and is therefore inadmissible in evidence with the result that, notwithstanding the accused's erstwhile allegations, the admissibility thereof has, far too frequently, to be determined at an extended hearing where the onus rests upon the State throughout. As a judicial officer a magistrate is peculiarly equipped and \f35 able, with the aid of his personal observation and preceding interrogation of the person who makes the confession, to come to a prima facie conclusion in regard to the question whether the confession was or is being made freely and voluntarily by such person in his sound and sober senses without having been unduly influenced thereto, and it is highly improbable that a magistrate would take a confession from someone unless he is convinced of the existence of the prescribed requirements for the admissibility thereof. In view of these considerations, and to give meaning to the making or confirmation of a confession to or in the presence of a magistrate, the Commission is of the opinion that, where a confession was made to a magistrate and reduced to writing, or confirmed and reduced to writing in the presence of a magistrate, it should at the trial of that person for an offence to which the confession relates, be presumed, unless that person proved the contrary (that is to say, on a balance of probabilities) that the confession was made freely and voluntarily by such person in his sound and sober senses without having been unduly influenced thereto. The Commission therefore recommends that a further proviso to this effect be added to section 244(1) with reference to a confession made to a magistrate or confirmed and reduced to writing in the presence of a magistrate. Such a provision would considerably shorten and may eliminate the extent of the so called trials within a trial.\" It appears from this passage that the harm which the new proviso was intended to overcome was twofold. First, some accused attempt dishonestly to retract confessions which they have made before a magistrate. Second, this leads to unduly long trials within trials. The justification of the amendment, therefore, was that it would make it more difficult for the dishonest accused to make false allegations of duress, and that this would shorten trials.", "As to the first head of justification, the objective is laudable. But the reasoning of the Commission seems to overlook the interests of an accused who has in fact been subject to duress. The Commission itself, in para 5.23 of its Report, recognised that an apparently voluntary \f36 confirmation of a confession before a magistrate \"may be misleading, where the confession was in fact forced beforehand by improper interrogation or inducement by the police.\" There is nothing before this Court to show that the common law rule caused substantial harm to the administration of justice. The Commission points to the improbability of a magistrate taking a confession unless convinced of its voluntariness. That may well be an improbability in most cases, but why that should justify placing a burden of proof on the accused I am unable to follow. That improbability has always weighed against an accused and will continue to do so, without resort to the proviso. In any event there is nothing in the Criminal Procedure Act which obliges a magistrate to conduct any particular preliminary enquiry into voluntariness. Some Attorneys-General and magistrates have drafted helpful questionnaires for the use of magistrates or justices of the peace before recording a confession. But there is no standard form and none with statutory provenance.", "The reverse onus may in some cases obviate or shorten the trial within a trial. Those of my colleagues on the Court who have had considerable experience of criminal trials doubt that is so. Even if it were the case, and even if it did release police or prosecution from the inconvenience of \f37 marshalling and calling their witnesses before the accused gave evidence, I cannot regard those inconveniences as outweighing and justifying the substantial infringement of the important rights which I have identified. The argument from convenience would only have merit in situations where accused persons plainly have more convenient access to proof, and where the reversed burden does not create undue hardship or unfairness. Cf R v Oakes (1983) 3 CRR 289, 304, per Martin JA in the Ontario Court of Appeal. That is not the case here.", "Accordingly, section 217(b)(ii) does not meet the criteria laid down in section 33(1) of the Constitution. It is inconsistent with the Constitution and in terms of section 98(5) of the Constitution, it must be declared invalid.", "It follows that in my opinion the ruling given by Levinsohn J in S v Shangase and Another 1994(2) BCLR 42(D); 1995(1) SA 425(D) was correct.", "It is important, I believe, to emphasise what this judgment does not decide. It does not decide that all statutory provisions which create presumptions in criminal cases are invalid. This Court recognises the pressing social need for the effective prosecution of crime, and that in some \f38 cases the prosecution may require reasonable presumptions to assist it in this task. Presumptions are of different types. Some are no more than evidential presumptions, which give certain prosecution evidence the status of prima facie proof, requiring the accused to do no more than produce credible evidence which casts doubt on the prima facie proof. See e.g. the presumptions in section 212 of the Criminal Procedure Act. This judgment does not relate to such presumptions. Nor does it seek to invalidate every legal presumption reversing the onus of proof. Some may be justifiable as being rational in themselves, requiring an accused person to prove only facts to which he or she has easy access, and which it would be unreasonable to expect the prosecution to disprove. The provisions in section 237 of the Act (evidence on charge of bigamy) may be of this type. Or there may be presumptions which are necessary if certain offences are to be effectively prosecuted, and the State is able to show that for good reason it cannot be expected to produce the evidence itself. The presumption that a person who habitually consorts with prostitutes is living off the proceeds of prostitution was upheld on that basis in R v Downey supra by the Supreme Court of Canada. A similar presumption in a United Kingdom statute was upheld by the European Court of Human Rights in X v United Kingdom (Application No \f39 5124/71, Collection of Decisions, ECHR 135). This is not such a case. Nor does this judgment deal with statutory provisions which are in form presumptions but which in effect create new offences. See Attorney-General v Odendaal 1982 Botswana LR 194, 226-7.", "I would also make clear that this judgment does not purport to apply to exceptions, exemptions or provisos to statutory offences, referred to in section 90 of the Criminal Procedure Act and in the extensive case law on that section and its predecessors. Nor, of course, does it deal with the factors governing the creation of offences of strict liability, discussed in Amalgamated Beverage Industries Natal (Pty) Ltd v Durban City Council 1994(3) SA 170 and 646(A), although the considerations weighed in that case may not be irrelevant to the constitutional validity of certain statutory presumptions.", "It is necessary, finally, to consider what order, if any, should be made under section 98(6) of the Constitution consequent upon the finding of invalidity. The terms of that sub-section are as follows - \"(6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof - \f(a) (b) 40 existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity ;or after passed shall invalidate everything done or permitted in terms thereof. commencement, such Paragraph (a) of the sub-section applies in this case. Absent a specific order by this Court, any decision by a trial court admitting a confession in reliance on section 217(1)(b)(ii), given before the date of the declaration of its invalidity, would stand. This would be unfortunate for some accused persons. But if we were to give our declaration full retrospective effect in terms of section 98(6) so as to invalidate such earlier rulings on admissibility the likely result of such order would be numerous appeals with the possibility of proceedings de novo under sections 313 or 324 of the Criminal Procedure Act. In proceedings de novo the necessary evidence of voluntariness may no longer be available. Paragraph (a) of section 98(6) is intended to ensure that the invalidation of a statute existing at the date of commencement of the Constitution should not ordinarily have any retrospective effect, so as to avoid the dislocation and inconvenience of undoing transactions, decisions or actions taken under that statute. This Court's power to order otherwise in the interests of justice and good government should be exercised circumspectly. In some cases (and I believe that \f41 this is one of them) the interests of individuals must be weighed against the interest of avoiding dislocation to the administration of justice and the desirability of a smooth transition from the old to the new. We should also take into account the fact that hitherto the police and prosecution have legitimately relied on section 217(1)(b)(ii). Cf. the approach of the United States Supreme Court in such cases as Linkletter v Walker 381 US 618 (1965) and Stovall v Denno 388 US 293 (1967).", "The application of section 217(1)(b)(ii) since 27th April, 1994 may well have caused injustice to accused persons, but we cannot repair all past injustice by a simple stroke of the pen. Weighing all the relevant considerations it seems to me that the proper balance can be struck by invalidating the admission of any confession in reliance on section 217(1)(b)(ii) before the date of our declaration, but in respect only of trials begun on or after 27th April, 1994, and not completed at the date of delivery of this judgment. The effect might be in those trials to require reconsideration of the admissibility of confessions already admitted, including the hearing of further evidence. Whether an order under section 98(6) may or should encompass proceedings which were pending before 27th April, 1994, depends on the proper interpretation of section \f42 241(8) of the Constitution. As indicated at the beginning of the judgment, that issue is deferred for determination in the Mhlungu case.", "In the present case the trial judge has given no decision on the admissibility of the confessions, so that no special order need be made in respect of it.", "In conclusion, we should like to express our indebtedness to Mr A Findlay S.C. and his colleagues, of the Durban Bar, who appeared for the accused persons at the request of the Court. The following order is accordingly made :- 1 2 It is declared that section 217(1)(b)(ii) of the Criminal Procedure Act, 1977, is invalid. In terms of sub-section (6) of section 98 of the Constitution it is ordered that this declaration shall invalidate any application of the said section 217(1)(b)(ii) in any criminal trial which commenced on or after 27th April, 1994, and in which the verdict has not at the date of this order been given. ______________________________ S.KENTRIDGE ACTING JUDGE OF THE CONSTITUTIONAL COURT We concur in the judgement of Kentridge AJ: Chaskalson P \f Ackermann J Didcott J Kriegler J Langa J Madala J Mahomed J Mokgoro J O'Regan J Sachs J CASE NO 43 : CCT/5/94 COUNSEL FOR APPLICANT : A. Findlay SC MJD Wallis SC PJ Olsen M. Mkize K Govender INSTRUCTED BY : COUNSEL FOR RESPONDENT JWS de Villiers I Stretch : JA van S d'Oliveira SC \f EA Erasmus SM Galloway 44 INSTRUCTED BY DATE OF HEARING : : 23 February 1995 DATE OF JUDGMENT : 5 April 1995"], "max_length_judgement_paras": 696}, {"title": "S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/3.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-3.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/3.pdf", "file_content": "Case No. CCT/3/94 \n\nIN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA \n\n \n \n \n \nIn the matter of: \n \nTHE STATE \n \nversus \n \nT MAKWANYANE AND M MCHUNU \n \n \nHeard on: \n \nDelivered on: \n________________________________________________________________ \n \n \n \n________________________________________________________________ \n \n \n[1] \n\nJUDGMENT \n\n15 February to 17 February 1995 \n\n6 June 1995 \n\n \n\n \n\nCHASKALSON P: The two accused in this matter were convicted in the \nWitwatersrand Local Division of the Supreme Court on four counts of murder, one \ncount of attempted murder and one count of robbery with aggravating circumstances. \n They were sentenced to death on each of the counts of murder and to long terms of \nimprisonment on the other counts. They appealed to the Appellate Division of the \nSupreme Court against the convictions and sentences. The Appellate Division \ndismissed the appeals against the convictions and came to the conclusion that the \ncircumstances of the murders were such that the accused should receive the heaviest \nsentence permissible according to law. \n\n \n[2] \n\n \n \n\nSection 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the \ndeath penalty is a competent sentence for murder. Counsel for the accused was \ninvited by the Appellate Division to consider whether this provision was consistent \nwith the Republic of South Africa Constitution, 1993, which had come into force \nsubsequent to the conviction and sentence by the trial court. He argued that it was \nnot, contending that it was in conflict with the provisions of sections 9 and 11(2) of \n\n1 \n\n\fthe Constitution. \n\nThe Appellate Division dismissed the appeals against the sentences on the counts of \nattempted murder and robbery, but postponed the further hearing of the appeals \nagainst the death sentence until the constitutional issues are decided by this Court. \nSee: S v Makwanyane en \u2018n Ander 1994 (3) SA 868 (A). Two issues were raised: \nthe constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the \nimplications of section 241(8) of the Constitution. Although there was no formal \nreference of these issues to this Court in terms of section 102(6) of the Constitution, \nthat was implicit in the judgment of the Appellate Division, and was treated as such \nby the parties. \n\nThe trial was concluded before the 1993 Constitution came into force, and so the \nquestion of the constitutionality of the death sentence did not arise at the trial. \nBecause evidence which might possibly be relevant to that issue would not have been \nled, we asked counsel appearing before this Court to consider whether evidence, other \nthan undisputed information placed before us in argument, would be relevant to the \ndetermination of the question referred to us by the Appellate Division. Apart from \nthe issue of public opinion, with which I will deal later in this judgment, counsel were \nnot able to point to specific material that had not already been placed before us which \nmight be relevant to the decision on the constitutional issues raised in this case. I am \nsatisfied that no good purpose would be served by referring the case back to the trial \ncourt for the hearing of further evidence and that we should deal with the matter on \nthe basis of the information and arguments that have been presented to us. \n\nIt would no doubt have been better if the framers of the Constitution had stated \nspecifically, either that the death sentence is not a competent penalty, or that it is \npermissible in circumstances sanctioned by law. This, however, was not done and it \nhas been left to this Court to decide whether the penalty is consistent with the \nprovisions of the Constitution. That is the extent and limit of the Court's power in this \ncase. \n\n2 \n\n \n[3] \n\n \n[4] \n\n \n[5] \n\n \n \n \n\n\f[6] \n\nNo executions have taken place in South Africa since 1989.1 There are apparently \nover 300 persons, and possibly as many as 400 if persons sentenced in the former \nTranskei, Bophuthatswana and Venda are taken into account, who have been \nsentenced to death by the Courts and who are on death row waiting for this issue to be \nresolved. Some of these convictions date back to 1988, and approximately half of the \npersons on death row were sentenced more than two years ago.2 This is an intolerable \nsituation and it is essential that it be resolved one way or another without further \ndelay.3 \n\nThe Relevant Provisions of the Constitution \n \n[7] \n \n\nThe Constitution \n\n \n 1 The last execution in South Africa occurred on 14 November 1989. See infra note 26. \n\n 2 This information was contained in the written argument filed on behalf of the South African Government \nand was not disputed. \n\n 3 The mental anguish suffered by convicted persons awaiting the death sentence is well documented. A \nprolonged delay in the execution of a death sentence may in itself be cause for the invalidation of a sentence of \ndeath that was lawfully imposed. In India, Zimbabwe and Jamaica, where the death sentence is not \nunconstitutional, sentences of death have been set aside on these grounds. The relevant authorities are collected \nand discussed by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, \nZimbabwe and Others 1993 (4) SA 239 (ZSC), and by Lord Griffiths in Pratt v Attorney-General for Jamaica \n[1993] 3 WLR 995 (JPC). \n\n \n \n\n3 \n\n\f... provides a historic bridge between the past of a deeply divided society \ncharacterised by strife, conflict, untold suffering and injustice, and a future \nfounded on the recognition of human rights, democracy and peaceful co-existence \nand development opportunities for all South Africans, irrespective of colour, race, \nclass, belief or sex.4 \n\nIt is a transitional constitution but one which itself establishes a new order in South \nAfrica; an order in which human rights and democracy are entrenched and in which \nthe Constitution: \n\n... shall be the supreme law of the Republic and any law or act inconsistent with its \nprovisions shall, unless otherwise provided expressly or by necessary implication in \nthis Constitution, be of no force and effect to the extent of the inconsistency.5 \n\nChapter Three of the Constitution sets out the fundamental rights to which every \nperson is entitled under the Constitution and also contains provisions dealing with the \nway in which the Chapter is to be interpreted by the Courts. It does not deal \nspecifically with the death penalty, but in section 11(2), it prohibits \"cruel, inhuman \nor degrading treatment or punishment.\" There is no definition of what is to be \nregarded as \"cruel, inhuman or degrading\" and we therefore have to give meaning to \nthese words ourselves. \n\n \n\n \n\n \n[8] \n\n \n\n \n 4 These words are taken from the first paragraph of the provision on National Unity and Reconciliation with \nwhich the Constitution concludes. Section 232(4) provides that for the purposes of interpreting the Constitution, \nthis provision shall be deemed to be part of the substance of the Constitution, and shall not have a lesser status \nthan any other provision of the Constitution. \n\n 5 Section 4(1) of the Constitution. \n\n \n \n\n4 \n\n\f[9] \n\nIn S v Zuma and Two Others,6 this Court dealt with the approach to be adopted in the \ninterpretation of the fundamental rights enshrined in Chapter Three of the \nConstitution. It gave its approval to an approach which, whilst paying due regard to \nthe language that has been used, is \"generous\" and \"purposive\" and gives expression \nto the underlying values of the Constitution. Kentridge AJ, who delivered the \njudgment of the Court, referred with approval7 to the following passage in the \nCanadian case of R v Big M Drug Mart Ltd: \n\n \n\n \n\n \n\nThe meaning of a right or freedom guaranteed by the Charter was to be ascertained \nby an analysis of the purpose of such a guarantee; it was to be understood, in other \nwords, in the light of the interests it was meant to protect. \n\nIn my view this analysis is to be undertaken, and the purpose of the right or \nfreedom in question is to be sought by reference to the character and larger objects \nof the Charter itself, to the language chosen to articulate the specific right or \nfreedom, to the historical origins of the concept enshrined, and where applicable, \nto the meaning and purpose of the other specific rights and freedoms with which it \nis associated within the text of the Charter. The interpretation should be...a \ngenerous rather than legalistic one, aimed at fulfilling the purpose of a guarantee \nand securing for individuals the full benefit of the Charter's protection.8 \n\n \n 6 Constitutional Court Case No. CCT/5/94 (5 April 1995). \n\n 7 Id. at para. 15. \n\n 8 (1985) 13 CRR 64 at 103. As O'Regan J points out in her concurring judgment, there may possibly be \ninstances where the \"generous\" and \"purposive\" interpretations do not coincide. That problem does not arise in \nthe present case. \n\n \n \n\n5 \n\n\f[10] Without seeking in any way to qualify anything that was said in Zuma's case, I need \nsay no more in this judgment than that section 11(2) of the Constitution must not be \nconstrued in isolation, but in its context, which includes the history and background to \nthe adoption of the Constitution, other provisions of the Constitution itself and, in \nparticular, the provisions of Chapter Three of which it is part.9 It must also be \nconstrued in a way which secures for \"individuals the full measure\" of its protection.10 \n Rights with which section 11(2) is associated in Chapter Three of the Constitution, \nand which are of particular importance to a decision on the constitutionality of the \ndeath penalty are included in section 9, \"every person shall have the right to life\", \nsection 10, \"every person shall have the right to respect for and protection of his or \nher dignity\", and section 8, \"every person shall have the right to equality before the \nlaw and to equal protection of the law.\" Punishment must meet the requirements of \nsections 8, 9 and 10; and this is so, whether these sections are treated as giving \nmeaning to Section 11(2) or as prescribing separate and independent standards with \nwhich all punishments must comply.11 \n\n \n[11] Mr. Bizos, who represented the South African government at the hearing of this \nmatter, informed us that the government accepts that the death penalty is a cruel, \ninhuman and degrading punishment and that it should be declared unconstitutional. \nThe Attorney General of the Witwatersrand, whose office is independent of the \ngovernment, took a different view, and contended that the death penalty is a necessary \nand acceptable form of punishment and that it is not cruel, inhuman or degrading \nwithin the meaning of section 11(2). He argued that if the framers of the Constitution \nhad wished to make the death penalty unconstitutional they would have said so, and \n\n \n 9 Jaga v D\u00f6nges, N.O. and Another 1950 (4) SA 653 (A) at 662-663. \n\n 10 Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) at 328-329. \n\n 11 In the analysis that follows sections 8, 9 and 10 are treated together as giving meaning to section 11(2), \nwhich is the provision of Chapter Three that deals specifically with punishment. \n\n \n \n\n6 \n\n\fthat their failure to do so indicated an intention to leave the issue open to be dealt with \nby Parliament in the ordinary way. It was for Parliament, and not the government, to \ndecide whether or not the death penalty should be repealed, and Parliament had not \ntaken such a decision. \n\n \nLegislative History \n \n[12] The written argument of the South African government deals with the debate which \n\ntook place in regard to the death penalty before the commencement of the \nconstitutional negotiations. The information that it placed before us was not disputed. \n It was argued that this background information forms part of the context within \nwhich the Constitution should be interpreted. \n\n \n[13] Our Courts have held that it is permissible in interpreting a statute to have regard to \n\nthe purpose and background of the legislation in question. \n\n \n\nCertainly no less important than the oft repeated statement that the words and \nexpressions used in a statute must be interpreted according to their ordinary \nmeaning is the statement that they must be interpreted in the light of their context. \nBut it may be useful to stress two points in relation to the application of this \nprinciple. The first is that \"the context\", as here used, is not limited to the \nlanguage of the rest of the statute regarded as throwing light of a dictionary kind \non the part to be interpreted. Often of more importance is the matter of the statute, \nits apparent scope and purpose, and, within limits, its background.12 \n\n \n[14] Debates in Parliament, including statements made by Ministers responsible for \n\nlegislation, and explanatory memoranda providing reasons for new bills have not been \nadmitted as background material. It is, however, permissible to take notice of the \nreport of a judicial commission of enquiry for the limited purpose of ascertaining \"the \nmischief aimed at [by] the statutory enactment in question.\"13 These principles were \n\n \n 12 Per Schreiner JA in Jaga v D\u00f6nges, N.O. and Another, supra note 9, at 662G-H. \n\n 13 Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) at 668H-669F; Westinghouse \nBrake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986(2) SA 555(A) at 562C-563A. \n \n \n\n7 \n\n\fderived in part from English law. In England, the courts have recently relaxed this \nexclusionary rule and have held, in Pepper (Inspector of Taxes) v Hart14 that, subject \nto the privileges of the House of Commons: \n\n...reference to Parliamentary material should be permitted as an aid to the \nconstruction of legislation which is ambiguous or obscure or the literal meaning of \nwhich leads to an absurdity. Even in such cases references in court to Parliamentary \nmaterial should only be permitted where such material clearly discloses the mischief \naimed at or the legislative intention lying behind the ambiguous or obscure words.15 \n\n \n\n \n\n \n 14 1993 AC 593 HL (E). \n\n 15 Per Lord Browne-Wilkinson at 634D-E, who went on to say that \"as at present advised I cannot foresee \nthat any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these \ncriteria\". \n\n \n \n\n8 \n\n\f[15] As the judgment in Pepper's case shows, a similar relaxation of the exclusionary rule \n\nhas apparently taken place in Australia and New Zealand.16 Whether our Courts \nshould follow these examples and extend the scope of what is admissible as \nbackground material for the purpose of interpreting statutes does not arise in the \npresent case. We are concerned with the interpretation of the Constitution, and not \nthe interpretation of ordinary legislation. A constitution is no ordinary statute. It is \nthe source of legislative and executive authority. It determines how the country is to \nbe governed and how legislation is to be enacted. It defines the powers of the \ndifferent organs of State, including Parliament, the executive, and the courts as well \nas the fundamental rights of every person which must be respected in exercising such \npowers. \n\n \n\n \n 16 Id. at 637 F. \n\n \n \n\n9 \n\n\f[16] \n\nIn countries in which the constitution is similarly the supreme law, it is not unusual \nfor the courts to have regard to the circumstances existing at the time the constitution \nwas adopted, including the debates and writings which formed part of the process. \nThe United States Supreme Court pays attention to such matters, and its judgments \nfrequently contain reviews of the legislative history of the provision in question, \nincluding references to debates, and statements made, at the time the provision was \nadopted.17 The German Constitutional Court also has regard to such evidence.18 The \nCanadian Supreme Court has held such evidence to be admissible, and has referred to \nthe historical background including the pre-confederation debates for the purpose of \ninterpreting provisions of the Canadian Constitution, although it attaches less weight \nto such information than the United States Supreme Court does.19 It also has regard \nto ministerial statements in Parliament in regard to the purpose of particular \nlegislation.20 In India, whilst speeches of individual members of Parliament or the \nConvention are apparently not ordinarily admissible, the reports of drafting \ncommittees can, according to Seervai, \"be a helpful extrinsic aid to construction.\"21 \nSeervai cites Kania CJ in A. K. Gopalan v The State22 for the proposition that whilst \nnot taking \"...into consideration the individual opinions of Members of Parliament or \nConvention to construe the meaning of a particular clause, when a question is raised \nwhether a certain phrase or expression was up for consideration at all or not, a \nreference to debates may be permitted.\" The European Court of Human Rights and \nthe United Nations Committee on Human Rights all allow their deliberations to be \n\n \n 17 ROTUNDA AND NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE \u00a723.6 (2d ed. \n1992). \n\n 18 In the decision on the constitutionality of life imprisonment, [1977] 45 BVerfGE 187, the German Federal \nConstitutional Court took into account that life imprisonment was seen by the framers of the constitution as the \nalternative to the death sentence when they decided to abolish capital punishment. KOMMERS, THE \nCONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 315 (1989). \n\n 19 Reference re s.94(2) of the Motor Vehicle Act (British Columbia) (1986) 18 CRR 30 at 47-50; United \nStates v Cotroni (1990) 42 CRR 101 at 109; Mahe v Alberta (1990) 46 CRR 193 at 214. \n\n 20 Irwin Toy Ltd. v Quebec (AG) (1989) 39 CRR 193 at 241. \n\n 21 H M SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3rd ed. (1983) Vol. I, para. 2.35 et seq. \n\n 22 (1950) SCR 88 at 111, as cited in Seervai, id., Vol. II, para. 24.7, note 25. \n \n \n\n10 \n\n\finformed by travaux pr\u00e9paratoires.23 \n\n[17] Our Constitution was the product of negotiations conducted at the Multi-Party \nNegotiating Process. The final draft adopted by the forum of the Multi-Party \nNegotiating Process was, with few changes, adopted by Parliament. The Multi-Party \nNegotiating Process was advised by technical committees, and the reports of these \ncommittees on the drafts are the equivalent of the travaux pr\u00e9paratoires, relied upon \nby the international tribunals. Such background material can provide a context for the \ninterpretation of the Constitution and, where it serves that purpose, I can see no \nreason why such evidence should be excluded. The precise nature of the evidence, \nand the purpose for which it may be tendered, will determine the weight to be given \nto it. \n\n \n[18] \n \n\nIt has been said in respect of the Canadian constitution that: \n\n \n 23 Article 32 of the Vienna Convention of Treaties 1969, 8 ILM 679 (1969) permits the use of travaux \npr\u00e9paratoires for the purpose of interpreting treaties. For examples of the application of this principle, see Keith \nCox v Canada, United Nations Committee on Human Rights, Communication No. 539/1993, 3 November 1993, \nat 19, stating: \n \n\nNonetheless, when giving a broad interpretation to any human rights treaty, care must be \ntaken not to frustrate or circumvent the ascertainable will of the drafters. Here the rules of \ninterpretation set forth in article 32 of the Vienna Convention on the Law of Treaties help \nus by allowing the use of the travaux pr\u00e9paratoires. \n\n \nNg v Canada, United Nations Committee on Human Rights, Communication No 469/1991, 5 November 1993, at \n9; Young, James and Webster v United Kingdom (1981) 3 EHRR 20, para. 166; Lithgow v United Kingdom \n(1986) 8 EHRR 329, para. 117; and more generally J.G. STARKE, INTRODUCTION TO INTERNATIONAL LAW 481 \n(10th ed., Butterworths)(1989). \n\n \n \n\n11 \n\n\f...the Charter is not the product of a few individual public servants, however \ndistinguished, but of a multiplicity of individuals who played major roles in the \nnegotiating, drafting and adoption of the Charter. How can one say with any \nconfidence that within this enormous multiplicity of actors ... the comments of a few \nfederal civil servants can in any way be determinative.24 \n\n \n\nOur Constitution is also the product of a multiplicity of persons, some of whom took \n\npart in the \nnegotiations, and \nothers who as \nmembers of \nParliament \nenacted the final \ndraft. The same \ncaution is called \nfor in respect of \nthe comments of \nindividual actors \nin the process, no \nmatter how \nprominent a role \nthey might have \nplayed. \n\n \n[19] Background evidence may, however, be useful to show why particular provisions \n\nwere or were not included in the Constitution. It is neither necessary nor desirable at \nthis stage in the development of our constitutional law to express any opinion on \nwhether it might also be relevant for other purposes, nor to attempt to lay down \ngeneral principles governing the admissibility of such evidence. It is sufficient to say \nthat where the background material is clear, is not in dispute, and is relevant to \n\n \n 24 Reference re s.94(2) of the Motor Vehicle Act (British Columbia), supra note 19, at 49. \n\n \n \n\n12 \n\n\fshowing why particular provisions were or were not included in the Constitution, it \ncan be taken into account by a Court in interpreting the Constitution. These \nconditions are satisfied in the present case. \n\n \n[20] Capital punishment was the subject of debate before and during the constitution-\n\nmaking process, and it is clear that the failure to deal specifically in the Constitution \nwith this issue was not accidental.25 \n\n \n\n \n 25 The brief account that follows is taken from the written submissions of the South African Government. \nThese facts were not disputed at the hearing. \n \n\n \n \n\n13 \n\n\f[21] \n\n \n[22] \n\nIn February 1990, Mr F W de Klerk, then President of the Republic of South Africa, \nstated in Parliament that \"the death penalty had been the subject of intensive \ndiscussion in recent months\", which had led to concrete proposals for reform under \nwhich the death penalty should be retained as an option to be used in \"extreme cases\", \nthe judicial discretion in regard to the imposition of the death sentence should be \nbroadened, and an automatic right of appeal allowed to those under sentence of \ndeath.26 These proposals were later enacted into law by the Criminal Law \nAmendment Act No. 107 of 1990. \n\nIn August 1991, the South African Law Commission in its Interim Report on Group \nand Human Rights described the imposition of the death penalty as \"highly \ncontroversial\".27 A working paper of the Commission which preceded the Interim \nReport had proposed that the right to life be recognised in a bill of rights, subject to \nthe proviso that the discretionary imposition of the sentence of death be allowed for \nthe most serious crimes. As a result of the comments it received, the Law \nCommission decided to change the draft and to adopt a \"Solomonic solution\"28 under \nwhich a constitutional court would be required to decide whether a right to life \nexpressed in unqualified terms could be circumscribed by a limitations clause \n\n \n 26 Address to Parliament on 2 February 1990. In this speech it was said that the last execution in South \nAfrica had been on 14 November 1989. \n\n 27 South African Law Commission, Interim Report on Group and Human Rights, Project 58, August 1991, \npara. 7.31. \n\n 28 \"The Commission ... considers that a Solomonic solution is necessary: a middle course between the \nretention of capital punishment and the abolition thereof must be chosen in the proposed bill of rights.\" Id. at \n7.33. \n\n \n \n\n14 \n\n\fcontained in a bill of rights.29 \"This proposed solution\" it said \"naturally imposes an \nonerous task on the Constitutional Court. But it is a task which this Court will in \nfuture have to carry out in respect of many other laws and executive and \nadministrative acts. The Court must not shrink from this task, otherwise we shall be \nback to parliamentary sovereignty.\"30 \n\nIn March 1992, the then Minister of Justice issued a press statement in which he said: \n \n\n \n \n[23] \n\n \n\n \n 29 Id. at para. 7.36. \n\n 30 Id. at para. 7.37. \n\n \n \n\n15 \n\n\fOpinions regarding the death penalty differ substantially. There are those who feel \nthat the death penalty is a cruel and inhuman form of punishment. Others are of \nthe opinion that it is in some extreme cases the community's only effective \nsafeguard against violent crime and that it gives effect in such cases to the \nretributive and deterrent purposes of punishment.31 \n\nHe went on to say that policy in regard to the death penalty might be settled during \nnegotiations on the terms of a Bill of Fundamental Rights, and that pending the \noutcome of such negotiations, execution of death sentences which had not been \ncommuted, would be suspended. He concluded his statement by saying that: \n\n \n\n \n\nThe government wishes to see a speedy settlement of the future constitutionality of \nthis form of punishment and urges interested parties to join in the discussions on a \nBill of Fundamental Rights.32 \n\n \n[24] The moratorium was in respect of the carrying out, and not the imposition, of the \n\ndeath sentence. The death sentence remained a lawful punishment and although the \ncourts may possibly have been influenced by the moratorium, they continued to \nimpose it in cases in which it was considered to be the \"only proper\" sentence. \nAccording to the statistics provided to us by the Attorney General, 243 persons have \nbeen sentenced to death since the amendment to section 277 in 1990, and of these \nsentences, 143 have been confirmed by the Appellate Division. \n\n \n\n \n 31 South African Government Heads of Argument, Vol 1, authorities, 32-34. \n\n 32 Id. \n\n \n \n\n16 \n\n\f[25] \n\nIn the constitutional negotiations which followed, the issue was not resolved. Instead, \nthe \"Solomonic solution\" was adopted.33 The death sentence was, in terms, neither \nsanctioned nor excluded, and it was left to the Constitutional Court to decide whether \nthe provisions of the pre-constitutional law making the death penalty a competent \nsentence for murder and other crimes are consistent with Chapter Three of the \nConstitution. If they are, the death sentence remains a competent sentence for murder \n\n \n\n \n 33 This is apparent from the reports of the Technical Committee on Fundamental Rights and, in particular, the \nFourth to the Seventh reports, which were brought to our attention by counsel. The reports show that the \nquestion whether the death penalty should be made an exception to the right to life was \"up for debate\" in the \nNegotiating Council. The Sixth Report contained the following references to the right to life: \n \n\nLife: (1) Every person shall have the right to life. (2) A law in force at the commencement of subsection \n(1) relating to capital punishment or abortion shall remain in force until repealed or amended by the \n[legislature]. (3) No sentence of death shall be carried out until the [Constitutional Assembly] has \npronounced finally on the abolition or retention of capital punishment. \n\n[Comment: The Council still has to decide on the inclusion of this right and if so whether its \nformulation should admit of qualification of the type suggested above. The unqualified inclusion of the \nright will result in the [Constitutional Court] having to decide on the validity of any law relating to \ncapital punishment or abortion.] Sixth Report, 15 July 1993 at 5. \n\n \n \nIn the Seventh Report the right to life was formulated in the terms in which it now appears in section 9 of the \nConstitution. The report contained the following comment: \n \n\n[Comment: The Ad Hoc Committee appointed by the Planning Committee recommends the \nunqualified inclusion of this right in the Chapter. We support this proposal.] Seventh Report, 29 July \n1993 at 3. \n\n \n \n\n17 \n\n\fin cases in which those provisions are applicable, unless and until Parliament \notherwise decides; if they are not, it is our duty to say so, and to declare such \nprovisions to be unconstitutional. \n\n \nSection 11(2) - Cruel, Inhuman or Degrading Punishment \n \n\n[26] Death is the most extreme form of punishment to which a convicted criminal can be \n\nsubjected. Its execution is final and irrevocable. It puts an end not only to the right to \nlife itself, but to all other personal rights which had vested in the deceased under \nChapter Three of the Constitution. It leaves nothing except the memory in others of \nwhat has been and the property that passes to the deceased's heirs. In the ordinary \nmeaning of the words, the death sentence is undoubtedly a cruel punishment. Once \nsentenced, the prisoner waits on death row in the company of other prisoners under \nsentence of death, for the processes of their appeals and the procedures for clemency \nto be carried out. Throughout this period, those who remain on death row are \nuncertain of their fate, not knowing whether they will ultimately be reprieved or taken \nto the gallows. Death is a cruel penalty and the legal processes which necessarily \ninvolve waiting in uncertainty for the sentence to be set aside or carried out, add to \nthe cruelty. It is also an inhuman punishment for it \"...involves, by its very nature, a \ndenial of the executed person's humanity\",34 and it is degrading because it strips the \nconvicted person of all dignity and treats him or her as an object to be eliminated by \nthe state. The question is not, however, whether the death sentence is a cruel, \ninhuman or degrading punishment in the ordinary meaning of these words but \nwhether it is a cruel, inhuman or degrading punishment within the meaning of section \n11(2) of our Constitution.35 The accused, who rely on section 11(2) of the \n\n \n 34 Furman v. Georgia, 408 U.S. 238, 290 (1972)(Brennan, J., concurring). \n\n 35 This has been the approach of certain of the justices of the United States Supreme Court. Thus, White, J., \nconcurring, who said in Furman v. Georgia, supra note 34, at 312, that \"[T]he imposition and execution of the \ndeath penalty are obviously cruel in the dictionary sense\", was one of the justices who held in Gregg v Georgia, \ninfra note 60, that capital punishment was not per se cruel and unusual punishment within the meaning of the \nFifth and Fourteenth Amendments of the United States Constitution. Burger, CJ., dissenting, refers in Furman's \ncase at 379, 380, and 382 to a punishment being cruel \"in the constitutional sense\". See also, comments by \nJustice Stewart, concurring in Furman's case at 309, \"... the death sentences now before us are the product of a \n \n \n\n18 \n\n\fConstitution, carry the initial onus of establishing this proposition.36 \n\n \nThe Contentions of the Parties \n \n[27] The principal arguments advanced by counsel for the accused in support of their \n\ncontention that the imposition of the death penalty for murder is a \"cruel, inhuman or \ndegrading punishment,\" were that the death sentence is an affront to human dignity, is \ninconsistent with the unqualified right to life entrenched in the Constitution, cannot be \ncorrected in case of error or enforced in a manner that is not arbitrary, and that it \nnegates the essential content of the right to life and the other rights that flow from it. \nThe Attorney General argued that the death penalty is recognised as a legitimate form \nof punishment in many parts of the world, it is a deterrent to violent crime, it meets \nsociety's need for adequate retribution for heinous offences, and it is regarded by \nSouth African society as an acceptable form of punishment. He asserted that it is, \ntherefore, not cruel, inhuman or degrading within the meaning of section 11(2) of the \nConstitution. These arguments for and against the death sentence are well known and \nhave been considered in many of the foreign authorities and cases to which we were \nreferred. We must deal with them now in the light of the provisions of our own \nConstitution. \n\n \nThe Effect of the Disparity in the Laws Governing Capital Punishment \n \nlegal system that brings them, I believe, within the very core of the... guarantee against cruel and unusual \npunishments...it is clear that these sentences are 'cruel' in the sense that they excessively go beyond, not in \ndegree but in kind, the punishments that the legislatures have determined to be necessary [citing Weems v. \nUnited States, 217 U.S. 349 (1910)]...death sentences [imposed arbitrarily] are cruel and unusual in the same \nway that being struck by lightning is cruel and unusual\". \n\n 36 Matinkinca and Another v Council of State, Ciskei and Another 1994 (1) BCLR 17 (Ck) at 34B-D; \nQozeleni v Minister of Law and Order and Another 1994 (1) BCLR 75(E) at 87D-E. Cf. Kindler v Canada \n(Minister of Justice) (1992) 6 CRR (2d) 193 at 214. \n\n \n \n\n19 \n\n\f \n[28] One of the anomalies of the transition initiated by the Constitution is that the Criminal \n\nProcedure Act does not apply throughout South Africa. This is a consequence of \nsection 229 of the Constitution which provides: \n\n \n\nSubject to this Constitution, all laws which immediately before the commencement \nof this Constitution were in force in any area which forms part of the national \nterritory, shall continue in force in such area, subject to any repeal or amendment \nof such laws by a competent authority. \n\n \n[29] Prior to the commencement of the Constitution, the Criminal Procedure Act was in \nforce only in the old Republic of South Africa. Its operation did not extend to the \nformer Transkei, Bophuthatswana, Venda or Ciskei, which were then treated by South \nAfrican law as independent states and had their own legislation. Although their \nrespective Criminal Procedure statutes were based on the South African legislation, \nthere were differences, including differences in regard to the death penalty. The most \nstriking difference in this regard was in Ciskei, where the death sentence was \nabolished on June 8, 1990 by the military regime,37 the de facto government of the \nterritory, and it ceased from that date to be a competent sentence.38 These differences \nstill exist,39 which means that the law governing the imposition of the death sentence \nin South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. \n A person who commits murder and is brought to trial in that part of the province \nwhich was formerly Ciskei, cannot be sentenced to death, whilst a person who \ncommits murder and is brought to trial in another part of the same province, can be \nsentenced to death. There is no rational reason for this distinction, which is the result \n\n \n 37 The Criminal Procedure Second Amendment Decree, 1990, Decree No. 16 of 1990 of the Council of State \nof the Republic of Ciskei, 8 June 1990, as amended. \n\n 38 S v Qeqe and Another 1990 (2) SACR 654 (CkAD). \n\n 39 In the former Transkei, Bophuthatswana and Venda the death sentence was a competent verdict for murder \nbut the provisions of the relevant statutes in Transkei and Bophuthatswana are not identical to section 277. For \nthe purposes of this judgment it is not necessary to analyse the differences, which relate in the main to the \nprocedure prescribed for appeals and the powers of the court on appeal, procedures that are now subject to the \nprovisions of section 241(1) and (1A) of the Constitution, as amended by the Constitution of the Republic of \nSouth Africa Third Amendment Act No. 13 of 1994. \n\n \n \n\n20 \n\n\fof history, and we asked for argument to be addressed to us on the question whether \nthis difference has a bearing on the constitutionality of section 277(1)(a) of the \nCriminal Procedure Act. \n\n \n[30] Counsel for the accused argued that it did. They contended that in the circumstances \n\nsection 277 was not a law of general application (which is a requirement under \nsection 33(1) for the validity of any law which limits a Chapter Three right), and that \nthe disparate application of the death sentence within South Africa discriminates \nunfairly between those prosecuted in the former Ciskei and those prosecuted \nelsewhere in South Africa, and offends against the right to \"equality before the law \nand to equal protection of the law.\"40 \n\n \n[31] \n\n \n\nIf the disparity had been the result of legislation enacted after the Constitution had \ncome into force the challenge to the validity of section 277 on these grounds may well \nhave been tenable. Criminal law and procedure is a national competence and the \nnational government could not without very convincing reasons have established a \n\"safe haven\" in part of one of the provinces in which the death penalty would not be \nenforced. The disparity is not, however, the result of the legislative policy of the new \nParliament, but a consequence of the Constitution which brings together again in one \ncountry the parts that had been separated under apartheid. The purpose of section 229 \nwas to ensure an orderly transition, and an inevitable consequence of its provisions is \nthat there will be disparities in the law reflecting pre-existing regional variations, and \nthat this will continue until a uniform system of law has been established by the \nnational and provincial legislatures within their fields of competence as contemplated \nby Chapter Fifteen of the Constitution. \n\n \n 40 See section 8 of the Constitution. \n\n \n \n\n21 \n\n\f[32] The requirement of section 229 that existing laws shall continue to be in force subject \nto the Constitution, makes the Constitution applicable to existing laws within each of \nthe geographic areas. These laws have to meet all the standards prescribed by \nChapter Three, and this no doubt calls for consistency and parity of laws within the \nboundaries of each of the different geographic areas. It does not, however, mean that \nthere has to be consistency and parity between the laws of the different geographic \nareas themselves.41 Such a construction would defeat the apparent purpose of section \n229, which is to allow different legal orders to exist side by side until a process of \nrationalisation has been carried out, and would inappropriately expose a substantial \npart if not the entire body of our statutory law to challenges under section 8 of the \nConstitution. It follows that disparities between the legal orders in different parts of \nthe country, consequent upon the provisions of section 229 of the Constitution, cannot \nfor that reason alone be said to constitute a breach of the equal protection provisions \nof section 8, or render the laws such that they are not of general application. \n\n \nInternational and Foreign Comparative Law \n \n\n \n 41 AK Entertainment CC v Minister of Safety and Security and Others 1995 (1) SACLR 130 (E) at 135-136. \n\n \n \n\n22 \n\n\f[33] The death sentence is a form of punishment which has been used throughout history \n\nby different societies. It has long been the subject of controversy.42 As societies \nbecame more enlightened, they restricted the offences for which this penalty could be \nimposed.43 The movement away from the death penalty gained momentum during the \nsecond half of the present century with the growth of the abolitionist movement. In \nsome countries it is now prohibited in all circumstances, in some it is prohibited save \nin times of war, and in most countries that have retained it as a penalty for crime, its \nuse has been restricted to extreme cases. According to Amnesty International, 1,831 \nexecutions were carried out throughout the world in 1993 as a result of sentences of \ndeath, of which 1,419 were in China, which means that only 412 executions were \ncarried out in the rest of the world in that year.44 Today, capital punishment has been \nabolished as a penalty for murder either specifically or in practice by almost half the \ncountries of the world including the democracies of Europe and our neighbouring \ncountries, Namibia, Mozambique and Angola.45 In most of those countries where it is \nretained, as the Amnesty International statistics show, it is seldom used. \n\nIn the course of the arguments addressed to us, we were referred to books and articles \non the death sentence, and to judgments dealing with challenges made to capital \npunishment in the courts of other countries and in international tribunals. The \ninternational and foreign authorities are of value because they analyse arguments for \nand against the death sentence and show how courts of other jurisdictions have dealt \nwith this vexed issue. For that reason alone they require our attention. They may also \nhave to be considered because of their relevance to section 35(1) of the Constitution, \n\n \n[34] \n\n \n 42 An account of the history of the death sentence, the growth of the abolitionist movement, and the \napplication of the death sentence by South African courts is given by Prof. B. van Niekerk in Hanged by the \nNeck Until You Are Dead, (1969) 86 SALJ 457; Professor E. Kahn in The Death Penalty in South Africa, (1970) \n33 THRHR 108; and by Professor G. Devenish in The historical and jurisprudential evolution and background \nto the application of the death penalty in South Africa and its relationship with constitutional and political \nreform, SACJ (1992) 1. For analysis of trends in capital punishment internationally, see AMNESTY \nINTERNATIONAL, WHEN THE STATE KILLS...THE DEATH PENALTY V. HUMAN RIGHTS (1989). \n\n 43 See generally, Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries \n(December 1, 1993), AI Index ACT 50/02/94. \n\n 44 Amnesty International, Update to Death Sentences and executions in 1993, AI Index ACT 51/02/94. \n\n 45 Supra note 43. \n\n \n \n\n23 \n\n\fwhich states: \n\n \n\nIn interpreting the provisions of this Chapter a court of law shall promote the \nvalues which underlie an open and democratic society based on freedom and \nequality and shall, where applicable, have regard to public international law \napplicable to the protection of the rights entrenched in this Chapter, and may have \nregard to comparable foreign case law. \n\n \n[35] Customary international law and the ratification and accession to international \n\nagreements is dealt with in section 231 of the Constitution which sets the \nrequirements for such law to be binding within South Africa. In the context of section \n35(1), public international law would include non-binding as well as binding law.46 \nThey may both be used under the section as tools of interpretation. International \nagreements and customary international law accordingly provide a framework within \nwhich Chapter Three can be evaluated and understood, and for that purpose, decisions \nof tribunals dealing with comparable instruments, such as the United Nations \nCommittee on Human Rights,47 the Inter-American Commission on Human Rights,48 \nthe Inter-American Court of Human Rights,49 the European Commission on Human \nRights,50 and the European Court of Human Rights,51 and in appropriate cases, reports \n\n \n 46 J. Dugard in RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER 192-195 (Dawid \nvan Wyk et al.eds., Juta & Co., Ltd., 1994). Professor Dugard suggests, at 193-194, that section 35 requires \nregard to be had to \"all the sources of international law recognised by article 38(1) of the Statute of the \nInternational Court of Justice, ie: \n \n\n(a) \n\n(b) \n(c) \n(d) \n\ninternational conventions, whether general or particular, establishing rules expressly \nrecognised by the contesting states; \ninternational custom, as evidence of a general practice accepted as law; \nthe general principles of law recognized by civilized nations; [and] \n... judicial decisions and the teachings of the most highly qualified publicists of the various \nnations, as subsidiary means for the determination of rules of law.\" \n\n 47 Established under article 28 of the International Covenant on Civil and Political Rights (ICCPR or \nInternational Covenant) 1966. \n\n 48 Established in terms of article 33 of the American Convention on Human Rights 1969. \n\n 49 Id. \n\n 50 Established in terms of article 19 of the European Convention for the Protection of Human Rights and \nFundamental Freedoms, 1950 (\"European Convention\"). \n\n 51 Id. \n \n \n\n24 \n\n\fof specialised agencies such as the International Labour Organisation may provide \nguidance as to the correct interpretation of particular provisions of Chapter Three. \n\n \n[36] Capital punishment is not prohibited by public international law, and this is a factor \n\nthat has to be taken into account in deciding whether it is cruel, inhuman or degrading \npunishment within the meaning of section 11(2). International human rights \nagreements differ, however, from our Constitution in that where the right to life is \nexpressed in unqualified terms they either deal specifically with the death sentence, or \nauthorise exceptions to be made to the right to life by law.52 This has influenced the \nway international tribunals have dealt with issues relating to capital punishment, and \nis relevant to a proper understanding of such decisions. \n\n \n\n \n 52 The pertinent part of article 6 of the ICCPR reads: \n \n\n1. \n\n2. \n\nEvery human being has the inherent right to life. This right shall be \nprotected by law. No one shall be arbitrarily deprived of his life. \n...sentence of death may be imposed only for the most serious crimes in \naccordance with the law in force at the time of the commission of the \ncrime and not contrary to the provisions of the present covenant ... \n\n \nArticle 4(2) of the American Convention on Human Rights and article 2 of the European Convention \nof Human Rights contain similar provisions. Article 4 of the African Charter of Human an People's \nRights provides: \n \n\nHuman beings are inviolable. Every human being shall be entitled to respect for his life and \nthe integrity of his person. No one may be arbitrarily deprived of this right. (Emphasis \nsupplied) \n\n \n \n\n25 \n\n\f[37] Comparative \"bill of rights\" jurisprudence will no doubt be of importance, \n\nparticularly in the early stages of the transition when there is no developed indigenous \njurisprudence in this branch of the law on which to draw. Although we are told by \nsection 35(1) that we \"may\" have regard to foreign case law, it is important to \nappreciate that this will not necessarily offer a safe guide to the interpretation of \nChapter Three of our Constitution.53 This has already been pointed out in a number \nof decisions of the Provincial and Local Divisions of the Supreme Court,54 and is \nimplicit in the injunction given to the Courts in section 35(1), which in permissive \nterms allows the Courts to \"have regard to\" such law. There is no injunction to do \nmore than this. \n\n \n[38] When challenges to the death sentence in international or foreign courts and tribunals \n\nhave failed, the constitution or the international instrument concerned has either \ndirectly sanctioned capital punishment or has specifically provided that the right to \nlife is subject to exceptions sanctioned by law. The only case to which we were \nreferred in which there were not such express provisions in the Constitution, was the \ndecision of the Hungarian Constitutional Court. There the challenge succeeded and \nthe death penalty was declared to be unconstitutional.55 \n\n \n\n \n 53 See S v Zuma and Two Others, supra note 6. \n\n 54 See, e.g., Qozeleni, supra note 36, at 80B-C; S v Botha and Others 1994 (3) BCLR 93 (W) at 110F-G. \n\n 55 Decision No. 23/1990 (X.31.) AB of the (Hungarian) Constitutional Court (George Feher trans.). \n\n \n \n\n26 \n\n\f[39] Our Constitution expresses the right to life in an unqualified form, and prescribes the \n\ncriteria that have to be met for the limitation of entrenched rights, including the \nprohibition of legislation that negates the essential content of an entrenched right. In \ndealing with comparative law, we must bear in mind that we are required to construe \nthe South African Constitution, and not an international instrument or the constitution \nof some foreign country, and that this has to be done with due regard to our legal \nsystem, our history and circumstances, and the structure and language of our own \nConstitution.56 We can derive assistance from public international law and foreign \ncase law, but we are in no way bound to follow it. \n\n \nCapital Punishment in the United States of America \n \n\n \n 56 The judgment of Kentridge AJ in S v Zuma and Two Others, supra note 6, discusses the relevance of \nforeign case law in the context of the facts of that case, and demonstrates the use that can be made of such \nauthorities in appropriate circumstances. \n\n \n \n\n27 \n\n\f[40] The earliest litigation on the validity of the death sentence seems to have been \n\npursued in the courts of the United States of America. It has been said there that the \n\"Constitution itself poses the first obstacle to [the] argument that capital punishment \nis per se unconstitutional\".57 From the beginning, the United States Constitution \nrecognised capital punishment as lawful. The Fifth Amendment (adopted in 1791) \nrefers in specific terms to capital punishment and impliedly recognises its validity. \nThe Fourteenth Amendment (adopted in 1868) obliges the states, not to \"deprive any \nperson of life, liberty, or property, without due process of law\" and it too impliedly \nrecognises the right of the states to make laws for such purposes.58 The argument that \ncapital punishment is unconstitutional was based on the Eighth Amendment, which \nprohibits cruel and unusual punishment.59 Although the Eighth Amendment \"has not \nbeen regarded as a static concept\"60 and as drawing its meaning \"from the evolving \nstandards of decency that mark the progress of a maturing society\",61 the fact that the \nConstitution recognises the lawfulness of capital punishment has proved to be an \nobstacle in the way of the acceptance of this argument, and this is stressed in some of \nthe judgments of the United States Supreme Court.62 \n\n \n[41] Although challenges under state constitutions to the validity of the death sentence \n\nhave been successful,63 the federal constitutionality of the death sentence as a \nlegitimate form of punishment for murder was affirmed by the United States Supreme \n\n \n 57 Furman v. Georgia, supra note 34, at 418 (Powell, J., joined by Burger, CJ., Blackmun, J. and Rehnquist, \nJ., dissenting). \n\n 58 See Furman v. Georgia, supra note 34. \n\n 59 Id. \n\n 60 Gregg v. Georgia, 428 U.S. 153, 173 (1976)(Stewart, Powell and Stevens, JJ.). \n\n 61 Trop v. Dulles, 356 U.S. 86, 101 (1958). \n\n 62 See Furman v. Georgia, supra note 34, at 380-384, and at 417-420 (Burger, CJ., and Powell, J., \nrespectively, dissenting). See also, Gregg v. Georgia, supra note 60, at 176-180; and Callins v Collins, 114 \nS.Ct. 1127 (1994)(judgement denying cert.)(Scalia, J., concurring). Those who take the contrary view say that \nthese provisions do no more than recognise the existence of the death penalty at the time of the adoption of the \nConstitution, but do not exempt it from the cruel and unusual punishment clause. Furman v Georgia at 283-284 \n(Brennan, J., concurring); People v. Anderson, 493 P.2d 880, 886 (Cal. 1972)(Wright, CJ.). \n\n 63 See infra paras. 91-92. \n\n \n \n\n28 \n\n\fCourt in Gregg v. Georgia.64 Both before and after Gregg's case, decisions \nupholding and rejecting challenges to death penalty statutes have divided the Supreme \nCourt, and have led at times to sharply-worded judgments.65 The decisions ultimately \nturned on the votes of those judges who considered the nature of the discretion given \nto the sentencing authority to be the crucial factor. \n\n \n\n \n 64 Supra note 60, at 187. \n\n 65 See, e.g., the concurring opinion of Scalia, J., in Callins v. Collins, supra note 62; the opinions of \nRehnquist, J., concurring in part and dissenting in part, in Lockett v. Ohio, supra note 66, at 628 et seq., and \ndissenting in Woodson v. North Carolina, supra note 66, at 308 et seq. \n\n \n \n\n29 \n\n\f[42] Statutes providing for mandatory death sentences, or too little discretion in \n\nsentencing, have been rejected by the Supreme Court because they do not allow for \nconsideration of factors peculiar to the convicted person facing sentence, which may \ndistinguish his or her case from other cases.66 For the same reason, statutes which \nallow too wide a discretion to judges or juries have also been struck down on the \ngrounds that the exercise of such discretion leads to arbitrary results.67 In sum, \ntherefore, if there is no discretion, too little discretion, or an unbounded discretion, the \nprovision authorising the death sentence has been struck down as being contrary to \nthe Eighth Amendment; where the discretion has been \"suitably directed and limited \nso as to minimise the risk of wholly arbitrary and capricious action\",68 the challenge \nto the statute has failed.69 \n\n \nArbitrariness and Inequality \n \n[43] Basing his argument on the reasons which found favour with the majority of the \nUnited States Supreme Court in Furman v. Georgia, Mr Trengove contended on \nbehalf of the accused that the imprecise language of section 277, and the unbounded \ndiscretion vested by it in the Courts, make its provisions unconstitutional. \n\n \n[44] \n \n\n \n\nSection 277 of the Criminal Procedure Act provides: \n\nSentence of death \n\n(1) \n\nThe sentence of death may be passed by a superior court only and only in \n\n \n 66 Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 \n(1976), reh'g denied 429 U.S. 890 (1976); Lockett v. Ohio, 438 U.S. 586 (1978)(system for imposing \ndeath sentences invalid to the extent it precludes consideration by sentencing jury or judge of potentially \nmitigating factors). \n\n 67 See Green v. Georgia 442 U.S. 95 (1979). \n\n 68 Gregg v. Georgia, supra note 60, at 189. \n\n 69 Id. See also, Proffitt v. Florida, 428 U.S. 242 (1976). The nature of the offence for which the sentence is \nimposed is also relevant. Coker v. Georgia, 433 U.S. 584 (1977). \n \n\n \n \n\n30 \n\n\f \n\n \n\n \n\n \n\n \n\n \n \n\nthe case of a conviction for- \n\n(a) \n(b) \n\n(c) \n\n(d) \n(e) \n(f) \n\nmurder; \ntreason committed when the Republic is \nin a state of war; \nrobbery or attempted robbery, if the \ncourt finds aggravating circumstances to \nhave been present; \nkidnapping; \nchild-stealing; \nrape. \n\n(2) \n\nThe sentence of death shall be imposed- \n\n(a) \n\nafter the presiding judge conjointly with \nthe assessors (if any), subject to the \nprovisions of s 145(4)(a), or, in the case \nof a trial by a special superior court, that \ncourt, with due regard to any evidence \nand argument on sentence in terms of \nsection 274, has made a finding on the \npresence or absence of any mitigating or \naggravating factors; and \n\n(b) \n\nif the presiding judge or court, as the \ncase may be, with due regard to that \nfinding, is satisfied that the sentence of \ndeath is the proper sentence. \n\n(3) \n\n(a) \n\n(b) \n\nThe sentence of death shall not be \nimposed upon an accused who was \nunder the age of 18 years at the time of \nthe commission of the act which \nconstituted the offence concerned. \nIf in the application of paragraph (a) the \nage of an accused is placed in issue, the \nonus shall be on the State to show \nbeyond reasonable doubt that the \n\n31 \n\n\faccused was 18 years of age or older at \nthe relevant time. \n\n \n[45] Under our court system questions of guilt and innocence, and the proper sentence to \n\nbe imposed on those found guilty of crimes, are not decided by juries. In capital \ncases, where it is likely that the death sentence may be imposed, judges sit with two \nassessors who have an equal vote with the judge on the issue of guilt and on any \nmitigating or aggravating factors relevant to sentence; but sentencing is the \nprerogative of the judge alone. The Criminal Procedure Act allows a full right of \nappeal to persons sentenced to death, including a right to dispute the sentence without \nhaving to establish an irregularity or misdirection on the part of the trial judge. The \nAppellate Division is empowered to set the sentence aside if it would not have \nimposed such sentence itself, and it has laid down criteria for the exercise of this \npower by itself and other courts.70 If the person sentenced to death does not appeal, \nthe Appellate Division is nevertheless required to review the case and to set aside the \ndeath sentence if it is of the opinion that it is not a proper sentence.71 \n\n \n\n \n 70 Criminal Procedure Act No. 51 of 1977, section 322(2A)(as amended by section 13 of Act No. 107 of \n1990). \n\n 71 Id. section 316A(4)(a). \n\n \n \n\n32 \n\n\f[46] Mitigating and aggravating factors must be identified by the Court, bearing in mind \n\nthat the onus is on the State to prove beyond reasonable doubt the existence of \naggravating factors, and to negative beyond reasonable doubt the presence of any \nmitigating factors relied on by the accused.72 Due regard must be paid to the personal \ncircumstances and subjective factors which might have influenced the accused \nperson's conduct,73 and these factors must then be weighed up with the main objects \nof punishment, which have been held to be: deterrence, prevention, reformation, and \nretribution.74 In this process \"[e]very relevant consideration should receive the most \nscrupulous care and reasoned attention\",75 and the death sentence should only be \nimposed in the most exceptional cases, where there is no reasonable prospect of \nreformation and the objects of punishment would not be properly achieved by any \nother sentence.76 \n\n \n[47] There seems to me to be little difference between the guided discretion required for \nthe death sentence in the United States, and the criteria laid down by the Appellate \n\n \n 72 S v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A. \n\n 73 S v Masina and Others 1990 (4) SA 709 (A) at 718G-H. \n\n 74 S v J 1989 (1) SA 669 (A) at 682G. \"Generally speaking, however, retribution has tended to yield ground \nto the aspects of correction and prevention, and it is deterrence (including prevention) which has been described \nas the 'essential', 'all important', 'paramount' and 'universally admitted' object of punishment\". Id. at 682I-J (cited \nwith approval in S v P 1991 (1) SA 517 (A) at 523G-H). Cf. R v Swanepoel 1945 AD 444 at 453-455. \n\n 75 Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v \nDlamini 1992 (1) SA 18 (A) at 31I-32A in the context of the approach to sentencing under section 322(2A)(b) of \nthe Criminal Procedure Act No. 51 of 1977). \n\n 76 S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra note 72, at 749A-D. \n\n \n \n\n33 \n\n\fDivision for the imposition of the death sentence. The fact that the Appellate \nDivision, a court of experienced judges, takes the final decision in all cases is, in my \nview, more likely to result in consistency of sentencing, than will be the case where \nsentencing is in the hands of jurors who are offered statutory guidance as to how that \ndiscretion should be exercised. \n\n \n[48] The argument that the imposition of the death sentence under section 277 is arbitrary \nand capricious does not, however, end there. It also focuses on what is alleged to be \nthe arbitrariness inherent in the application of section 277 in practice. Of the \nthousands of persons put on trial for murder, only a very small percentage are \nsentenced to death by a trial court, and of those, a large number escape the ultimate \npenalty on appeal.77 At every stage of the process there is an element of chance. The \noutcome may be dependent upon factors such as the way the case is investigated by \nthe police, the way the case is presented by the prosecutor, how effectively the \naccused is defended, the personality and particular attitude to capital punishment of \nthe trial judge and, if the matter goes on appeal, the particular judges who are selected \nto hear the case. Race78 and poverty are also alleged to be factors. \n\n \n 77 According to the statistics referred to in the amicus brief of the South African Police approximately 9 000 \nmurder cases are brought to trial each year. In the more than 40 000 cases that have been heard since the \namendment to section 277 of the Criminal Procedure Act, only 243 persons were sentenced to death, and of \nthese sentences, only 143 were ultimately confirmed on appeal. See also, Devenish, supra note 42, at 8 and 13. \n\n 78 In the amicus brief of Lawyers for Human Rights, Centre for Applied Legal Studies and the Society for the \nAbolition of the Death Penalty in South Africa it is pointed out that the overwhelming majority of those \n\n \n \n\n34 \n\n\f \n\n \nsentenced to death are poor and black. There is an enormous social and cultural divide between those sentenced \nto death and the judges before whom they appear, who are presently almost all white and middle class. This in \nitself gives rise to problems which even the most meticulous judge cannot avoid. The formal trial proceedings \nare recorded in English or Afrikaans, languages which the judges understand and speak, but which many of the \naccused may not understand, or of which they may have only an imperfect understanding. The evidence of \nwitnesses and the discourse between the judge and the accused often has to be interpreted, and the way this is \ndone influences the proceedings. The differences in the backgrounds and culture of the judges and the accused \nalso comes into the picture, and is particularly relevant when the personal circumstances of the accused have to \nbe evaluated for the purposes of deciding upon the sentence. All this is the result of our history, and with the \ndemise of apartheid this will change. Race and class are, however, factors that run deep in our society and \ncannot simply be brushed aside as no longer being relevant. \n\n \n \n\n35 \n\n\f[49] Most accused facing a possible death sentence are unable to afford legal assistance, \n\nand are defended under the pro deo system. The defending counsel is more often than \nnot young and inexperienced, frequently of a different race to his or her client, and if \nthis is the case, usually has to consult through an interpreter. Pro deo counsel are \npaid only a nominal fee for the defence, and generally lack the financial resources and \nthe infrastructural support to undertake the necessary investigations and research, to \nemploy expert witnesses to give advice, including advice on matters relevant to \nsentence, to assemble witnesses, to bargain with the prosecution, and generally to \nconduct an effective defence. Accused persons who have the money to do so, are able \nto retain experienced attorneys and counsel, who are paid to undertake the necessary \ninvestigations and research, and as a result they are less likely to be sentenced to \ndeath than persons similarly placed who are unable to pay for such services.79 \n\n \n[50] \n\nIt needs to be mentioned that there are occasions when senior members of the bar act \npro deo in particularly difficult cases - indeed the present case affords an example of \nthat, for Mr Trengove and his juniors have acted pro deo in the proceedings before us, \nand the Legal Resources Centre who have acted as their instructing attorneys, have \ndone so without charge. An enormous amount of research has gone into the \npreparation of the argument and it is highly doubtful that even the wealthiest \nmembers of our society could have secured a better service than they have provided. \nBut this is the exception and not the rule. This may possibly change as a result of the \nprovisions of section 25(3)(e) of the Constitution, but there are limits to the available \nfinancial and human resources, limits which are likely to exist for the foreseeable \nfuture, and which will continue to place poor accused at a significant disadvantage in \ndefending themselves in capital cases. \n\n \n 79 I do not want to be understood as being critical of the pro deo counsel who perform an invaluable service, \noften under extremely difficult conditions, and to whom the courts are much indebted. But the unpalatable truth \nis that most capital cases involve poor people who cannot afford and do not receive as good a defence as those \nwho have means. In this process, the poor and the ignorant have proven to be the most vulnerable, and are the \npersons most likely to be sentenced to death. \n\n \n \n\n36 \n\n\f \nIt cannot be gainsaid that poverty, race and chance play roles in the outcome of \ncapital cases and in the final decision as to who should live and who should die. It is \nsometimes said that this is understood by the judges, and as far as possible, taken into \naccount by them. But in itself this is no answer to the complaint of arbitrariness; on \nthe contrary, it may introduce an additional factor of arbitrariness that would also \nhave to be taken into account. Some, but not all accused persons may be acquitted \nbecause such allowances are made, and others who are convicted, but not all, may for \nthe same reason escape the death sentence.80 \n\nIn holding that the imposition and the carrying out of the death penalty in the cases \nthen under consideration constituted cruel and unusual punishment in the United \nStates, Justice Douglas, concurring in Furman v. Georgia, said that \"[a]ny law which \nis nondiscriminatory on its face may be applied in such a way as to violate the Equal \nProtection Clause of the Fourteenth Amendment.\" Discretionary statutes are: \n\n[51] \n\n \n[52] \n\n \n\n \n 80 See the comments of Curlewis, J in [1991] SAJHR, Vol. 7, p. 229, arguing that judges who do not impose \nthe death sentence when they should do so are not doing their duty. \"Let me return to the point that troubles the \nauthors: 'that a person's life may depend upon who sits in judgment.' Of course this happens. I do not know why \nthe authors are so hesitant in saying so. Their own reasoning, let alone their tables, proves this\". Id. at 230. \n\n \n \n\n37 \n\n\f...pregnant with discrimination and discrimination is an ingredient not compatible \nwith the idea of equal protection of the laws that is implicit in the ban on \"cruel and \nunusual\" punishments.81 \n\nIt was contended that we should follow this approach and hold that the factors to \nwhich I have referred, make the application of section 277, in practice, arbitrary and \ncapricious and, for that reason, any resulting death sentence is cruel, inhuman and \ndegrading punishment. \n\n \n[53] \n\n \n\n \n 81 Furman v. Georgia, supra note 34, at 257. \n\n \n \n\n38 \n\n\f[54] The differences that exist between rich and poor, between good and bad prosecutions, \n\nbetween good and bad defence, between severe and lenient judges, between judges \nwho favour capital punishment and those who do not, and the subjective attitudes that \nmight be brought into play by factors such as race and class, may in similar ways \naffect any case that comes before the courts, and is almost certainly present to some \ndegree in all court systems. Such factors can be mitigated, but not totally avoided, by \nallowing convicted persons to appeal to a higher court. Appeals are decided on the \nrecord of the case and on findings made by the trial court. If the evidence on record \nand the findings made have been influenced by these factors, there may be nothing \nthat can be done about that on appeal. Imperfection inherent in criminal trials means \nthat error cannot be excluded; it also means that persons similarly placed may not \nnecessarily receive similar punishment. This needs to be acknowledged. What also \nneeds to be acknowledged is that the possibility of error will be present in any system \nof justice and that there cannot be perfect equality as between accused persons in the \nconduct and outcome of criminal trials. We have to accept these differences in the \nordinary criminal cases that come before the courts, even to the extent that some may \ngo to gaol when others similarly placed may be acquitted or receive non-custodial \nsentences. But death is different, and the question is, whether this is acceptable when \nthe difference is between life and death. Unjust imprisonment is a great wrong, but if \nit is discovered, the prisoner can be released and compensated; but the killing of an \ninnocent person is irremediable.82 \n\n \n\n \n 82 \"While this court has the power to correct constitutional or other errors retroactively...it cannot, of course, \nraise the dead.\" Suffolk District v. Watson and Others, 381 Mass. 648, 663 (1980)(Hennessy, CJ.)(plurality \ndecision holding the death penalty unconstitutionally cruel under the Massachusetts State Constitution). \"Death, \nin its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or \ntwo. Because of the qualitative difference, there is a corresponding difference in the need for reliability in the \ndetermination that death is the appropriate punishment in a specific case\". Woodson v. North Carolina, supra \nnote 66, at 305 (Stewart, Powell and Stevens, JJ.). \n\n \n \n\n39 \n\n\f[55] \n\nIn the United States, the Supreme Court has addressed itself primarily to the \nrequirement of due process. Statutes have to be clear and discretion curtailed without \nignoring the peculiar circumstances of each accused person. Verdicts are set aside if \nthe defence has not been adequate,83 and persons sentenced to death are allowed wide \nrights of appeal and review. This attempt to ensure the utmost procedural fairness has \nitself led to problems. The most notorious is the \"death row phenomenon\" in which \nprisoners cling to life, exhausting every possible avenue of redress, and using every \ndevice to put off the date of execution, in the natural and understandable hope that \nthere will be a reprieve from the Courts or the executive. It is common for prisoners \nin the United States to remain on death row for many years, and this dragging out of \nthe process has been characterised as being cruel and degrading.84 The difficulty of \n\n \n 83 Voyles v. Watkins, 489 F.Supp 901 (D.D.C.: N.D.Miss. 1980). See also, People v. Frierson, 599 P.2d. 587 \n(1979). Cf. Powell v. Alabama, 287 U.S. 45 (1932). \n\n 84 Furman v. Georgia, supra note 34, at 288-289 (Brennan, J., concurring). Although in the United States \nprolonged delay extending even to more than ten years has not been held, in itself, a reason for setting aside a \ndeath sentence, Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990)(rejecting a claim that execution after \nsixteen years on death row would constitute curel and unusual punishment in violation of the Eighth and \nFourteenth Amendments), in other jurisdictions a different view is taken. \n \n\nIt is part of the human condition that a condemned man will take every opportunity to save his life \nthrough use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the \nappellate hearings over a period of years, the fault is to attributed to the appellate system that permits \nsuch delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the \nyears are not compatible with capital punishment. The death row phenomenon must not become \nestablished as a part of our jurisprudence. \n\n \nPratt v Attorney-General for Jamaica, supra note 3, at 1014. \n\n \n \n\n40 \n\n\fimplementing a system of capital punishment which on the one hand avoids \narbitrariness by insisting on a high standard of procedural fairness, and on the other \nhand avoids delays that in themselves are the cause of impermissible cruelty and \ninhumanity, is apparent. Justice Blackmun, who sided with the majority in Gregg's \ncase, ultimately came to the conclusion that it is not possible to design a system that \navoids arbitrariness.85 To design a system that avoids arbitrariness and delays in \ncarrying out the sentence is even more difficult. \n\n \n\n \n 85 Callins v. Collins, supra note 62, (Blackmun, J., dissenting). \n\n \n \n\n41 \n\n\f[56] The United States jurisprudence has not resolved the dilemma arising from the fact \nthat the Constitution prohibits cruel and unusual punishments, but also permits, and \ncontemplates that there will be capital punishment. The acceptance by a majority of \nthe United States Supreme Court of the proposition that capital punishment is not per \nse unconstitutional, but that in certain circumstances it may be arbitrary, and thus \nunconstitutional, has led to endless litigation. Considerable expense and interminable \ndelays result from the exceptionally-high standard of procedural fairness set by the \nUnited States courts in attempting to avoid arbitrary decisions. The difficulties that \nhave been experienced in following this path, to which Justice Blackmun and Justice \nScalia have both referred,86 but from which they have drawn different conclusions, \npersuade me that we should not follow this route. \n\n \nThe Right to Dignity \n \n[57] Although the United States Constitution does not contain a specific guarantee of \nhuman dignity, it has been accepted by the United States Supreme Court that the \nconcept of human dignity is at the core of the prohibition of \"cruel and unusual \npunishment\" by the Eighth and Fourteenth Amendments.87 For Brennan J this was \ndecisive of the question in Gregg v. Georgia. \n\n \n\nThe fatal constitutional infirmity in the punishment of death is that it treats \n\n \n 86 Id. (compare Scalia, J., concurring, with Blackmun, J., dissenting). \n\n 87 Trop v. Dulles, supra note 61, at 100. See also, Furman v. Georgia, supra note 34, at 270-281 (Brennan, \nJ., concurring); Gregg v Georgia, supra note 60, at 173; People v. Anderson, supra note 62, at 895 (\"The dignity \nof man, the individual and the society as a whole, is today demeaned by our continued practice of capital \npunishment.\"). \n\n \n \n\n42 \n\n\f\"members of the human race as nonhumans, as objects to be toyed with and \ndiscarded. [It is] thus inconsistent with the fundamental premise of the Clause that \neven the vilest criminal remains a human being possessed of common human \ndignity.\"88 \n\n \n[58] Under our constitutional order the right to human dignity is specifically guaranteed. \n\nIt can only be limited by legislation which passes the stringent test of being \n'necessary'. The weight given to human dignity by Justice Brennan is wholly \nconsistent with the values of our Constitution and the new order established by it. It \nis also consistent with the approach to extreme punishments followed by courts in \nother countries. \n\n \n[59] \n\nIn Germany, the Federal Constitutional Court has stressed this aspect of punishment. \n \n\n \n 88 Gregg v. Georgia, supra note 60, at 230 (Brennan, J., dissenting) (quoting his opinion in Furman v. \nGeorgia, at 273). See also, Furman v. Georgia, supra note 34, at 296, where Brennan, J., concurring, states: \n\"The country has debated whether a society for which the dignity of the individual is the supreme value can, \nwithout a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.\" \n\n \n \n\n43 \n\n\fRespect for human dignity especially requires the prohibition of cruel, inhuman, \nand degrading punishments. [The state] cannot turn the offender into an object of \ncrime prevention to the detriment of his constitutionally protected right to social \nworth and respect.89 \n\n \n[60] That capital punishment constitutes a serious impairment of human dignity has also \nbeen recognised by judgments of the Canadian Supreme Court. Kindler v Canada90 \nwas concerned with the extradition from Canada to the United States of two fugitives, \nKindler, who had been convicted of murder and sentenced to death in the United \nStates, and Ng who was facing a murder charge there and a possible death sentence. \nThree of the seven judges who heard the cases expressed the opinion that the death \npenalty was cruel and unusual: \n\n \n\nIt is the supreme indignity to the individual, the ultimate corporal punishment, the \nfinal and complete lobotomy and the absolute and irrevocable castration. [It is] the \nultimate desecration of human dignity...91 \n\n \n[61] Three other judges were of the opinion that: \n \n\n \n 89 [1977] 45 BVerfGE 187, 228 (Life Imprisonment case)(as translated in Kommers, supra note 18, at 316). \nThe statement was made in the context of a discussion on punishment to be meted out in respect of murders of \nwanton cruelty. It was held that a life sentence was a competent sentence as long as it allowed the possibility of \nparole for a reformed prisoner rehabilitated during his or her time in prison. \n\n 90 (1992) 6 CRR (2d) 193 SC. \n\n 91 Id. at 241 (per Cory, J, dissenting with Lamer, CJC, concurring). See also, Sopinka, J, dissenting (with \nLamer, CJC, concurring) at 220. \n\n \n \n\n44 \n\n\f[t]here is strong ground for believing, having regard to the limited extent to which \nthe death penalty advances any valid penological objectives and the serious \ninvasion of human dignity it engenders, that the death penalty cannot, except in \nexceptional circumstances, be justified in this country.92 \n\n \n\nIn the result, however, the majority of the Court held that the validity of the order for \nextradition did not depend upon the constitutionality of the death penalty in Canada, \nor the guarantee in its Charter of Rights against cruel and unusual punishment. The \nCharter was concerned with legislative and executive acts carried out in Canada, and \nan order for extradition neither imposed nor authorised any punishment within the \nborders of Canada. \n\n \n[62] The issue in Kindler's case was whether the action of the Minister of Justice, who had \nauthorised the extradition without any assurance that the death penalty would not be \nimposed, was constitutional. It was argued that this executive act was contrary to \nsection 12 of the Charter which requires the executive to act in accordance with \nfundamental principles of justice. The Court decided by a majority of four to three \nthat in the particular circumstances of the case the decision of the Minister of Justice \ncould not be set aside on these grounds. In balancing the international obligations of \nCanada in respect of extradition, and another purpose of the extradition legislation - \nto prevent Canada from becoming a safe haven for criminals, against the likelihood \nthat the fugitives would be executed if returned to the United States, the view of the \nmajority was that the decision to return the fugitives to the United States could not be \nsaid to be contrary to the fundamental principles of justice. In their view, it would not \nshock the conscience of Canadians to permit this to be done. \n\n \nThe International Covenant on Civil and Political Rights \n \n[63] Ng and Kindler took their cases to the Human Rights Committee of the United \n\nNations, contending that Canada had breached its obligations under the International \n\n \n 92 Id. at 202 (per La Forest, J)(L'Heureux-Dube and Gonthier, JJ concurring). \n\n \n \n\n45 \n\n\fCovenant on Civil and Political Rights. Once again, there was a division of opinion \nwithin the tribunal. In Ng's case it was said: \n\nThe Committee is aware that, by definition, every execution of a sentence of death \nmay be considered to constitute cruel and inhuman treatment within the meaning \nof article 7 of the covenant.93 \n\n \n\n \n\n \n 93 Ng v Canada, supra note 23, at 21. \n\n \n \n\n46 \n\n\f[64] There was no dissent from that statement. But the International Covenant contains \n\nprovisions permitting, with some qualifications, the imposition of capital punishment \nfor the most serious crimes. In view of these provisions, the majority of the \nCommittee were of the opinion that the extradition of fugitives to a country which \nenforces the death sentence in accordance with the requirements of the International \nCovenant, should not be regarded as a breach of the obligations of the extraditing \ncountry. In Ng's case, the method of execution which he faced if extradited was \nasphyxiation in a gas chamber. This was found by a majority of the Committee to \ninvolve unnecessary physical and mental suffering and, notwithstanding the sanction \ngiven to capital punishment, to be cruel punishment within the meaning of article 7 of \nthe International Covenant. In Kindler's case, in which the complaint was delivered at \nthe same time as that in the Ng's case, but the decision was given earlier, it was held \nthat the method of execution which was by lethal injection was not a cruel method of \nexecution, and that the extradition did not in the circumstances constitute a breach of \nCanada's obligations under the International Covenant.94 \n\n \n[65] The Committee also held in Kindler's case that prolonged judicial proceedings giving \n\nrise to the death row phenomenon does not per se constitute cruel, inhuman or \ndegrading treatment. There were dissents in both cases. Some Commissioners in \nNg's case held that asphyxiation was not crueller than other forms of execution. Some \nin Kindler's case held that the provision of the International Covenant against the \narbitrary deprivation of the right to life took priority over the provisions of the \nInternational Covenant which allow the death sentence, and that Canada ought not in \nthe circumstances to have extradited Kindler without an assurance that he would not \nbe executed. \n\n \n[66] \n\nIt should be mentioned here that although articles 6(2) to (5) of the International \nCovenant specifically allow the imposition of the death sentence under strict controls \n\n \n 94 Joseph Kindler v Canada, United Nations Committee on Human Rights, Communication No 470/1991, 30 \nJuly 1993. \n\n \n \n\n47 \n\n\f\"for the most serious crimes\" by those countries which have not abolished it, it \nprovides in article 6(6) that \"[n]othing in this article shall be invoked to delay or to \nprevent the abolition of capital punishment by any State Party to the present \nCovenant.\" The fact that the International Covenant sanctions capital punishment \nmust be seen in this context. It tolerates but does not provide justification for the \ndeath penalty. \n\n \n[67] Despite these differences of opinion, what is clear from the decisions of the Human \nRights Committee of the United Nations is that the death penalty is regarded by it as \ncruel and inhuman punishment within the ordinary meaning of those words, and that \nit was because of the specific provisions of the International Covenant authorising the \nimposition of capital punishment by member States in certain circumstances, that the \nwords had to be given a narrow meaning. \n\n \nThe European Convention on Human Rights \n \n[68] Similar issues were debated by the European Court of Human Rights in Soering v \n\nUnited Kingdom.95 This case was also concerned with the extradition to the United \nStates of a fugitive to face murder charges for which capital punishment was a \ncompetent sentence. It was argued that this would expose him to inhuman and \ndegrading treatment or punishment in breach of article 3 of the European Convention \non Human Rights. Article 2 of the European Convention protects the right to life but \nmakes an exception in the case of \"the execution of a sentence of a court following \n[the] conviction of a crime for which this penalty is provided by law.\" The majority \nof the Court held that article 3 could not be construed as prohibiting all capital \npunishment, since to do so would nullify article 2. It was, however, competent to test \nthe imposition of capital punishment in particular cases against the requirements of \narticle 3 -- the manner in which it is imposed or executed, the personal circumstances \nof the condemned person and the disproportionality to the gravity of the crime \ncommitted, as well as the conditions of detention awaiting execution, were capable of \n\n \n 95 (1989) 11 EHRR 439 at paras. 103, 105 and 111. \n\n \n \n\n48 \n\n\fbringing the treatment or punishment received by the condemned person within the \nproscription. \n\n \n[69] On the facts, it was held that extradition to the United States to face trial in Virginia \nwould expose the fugitive to the risk of treatment going beyond the threshold set by \narticle 3. The special factors taken into account were the youth of the fugitive (he \nwas 18 at the time of the murders), an impaired mental capacity, and the suffering on \ndeath row which could endure for up to eight years if he were convicted. \nAdditionally, although the offence for which extradition was sought had been \ncommitted in the United States, the fugitive who was a German national was also \nliable to be tried for the same offence in Germany. Germany, which has abolished the \ndeath sentence, also sought his extradition for the murders. There was accordingly a \nchoice in regard to the country to which the fugitive should be extradited, and that \nchoice should have been exercised in a way which would not lead to a contravention \nof article 3. What weighed with the Court was the fact that the choice facing the \nUnited Kingdom was not a choice between extradition to face a possible death \npenalty and no punishment, but a choice between extradition to a country which \nallows the death penalty and one which does not. We are in a comparable position. A \nholding by us that the death penalty for murder is unconstitutional, does not involve a \nchoice between freedom and death; it involves a choice between death in the very few \ncases which would otherwise attract that penalty under section 277(1)(a), and the \nsevere penalty of life imprisonment. \n\n \nCapital Punishment in India \n \n[70] \n\nIn the amicus brief of the South African Police, reliance was placed on decisions of \nthe Indian Supreme Court, and it is necessary to refer briefly to the way the law has \ndeveloped in that country. \n\n \n[71] \n\n \n \n\nSection 302 of the Indian Penal Code authorises the imposition of the death sentence \n\n49 \n\n\fas a penalty for murder. In Bachan Singh v State of Punjab,96 the constitutionality of \nthis provision was put in issue. Article 21 of the Indian Constitution provides that: \n\n \n\nNo person shall be deprived of his life or personal liberty except according to \nprocedure established by law. \n\n \n[72] The wording of this article presented an obstacle to a challenge to the death sentence, \nbecause there was a \"law\" which made provision for the death sentence. Moreover, \narticle 72 of the Constitution empowers the President and Governors to commute \nsentences of death, and article 134 refers to the Supreme Court's powers on appeal in \ncases where the death sentence has been imposed. It was clear, therefore, that capital \npunishment was specifically contemplated and sanctioned by the framers of the Indian \nConstitution, when it was adopted by them in November 1949.97 \n\n \n[73] Counsel for the accused in Bachan Singh's case sought to overcome this difficulty by \n\ncontending that article 21 had to be read with article 19(1), which guarantees the \nfreedoms of speech, of assembly, of association, of movement, of residence, and the \nfreedom to engage in any occupation. These fundamental freedoms can only be \nrestricted under the Indian Constitution if the restrictions are reasonable for the \nattainment of a number of purposes defined in sections 19(2) to (6). It was contended \nthat the right to life was basic to the enjoyment of these fundamental freedoms, and \nthat the death sentence restricted them unreasonably in that it served no social \npurpose, its deterrent effect was unproven and it defiled the dignity of the individual. \n\n \n\n \n 96 (1980) 2 SCC 684. \n\n 97 Id. at 730, para. 136. \n\n \n \n\n50 \n\n\f[74] The Supreme Court analysed the provisions of article 19(1) and came to the \n\nconclusion, for reasons that are not material to the present case, that the provisions of \nsection 302 of the Indian Penal Code did \"not have to stand the test of article 19(1) of \nthe Constitution.\"98 It went on, however, to consider \"arguendo\" what the outcome \nwould be if the test of reasonableness and public interest under article 19(1) had to be \nsatisfied. \n\n \n\n \n 98 Id. at 709, para. 61. \n\n \n \n\n51 \n\n\f[75] The Supreme Court had recognised in a number of cases that the death sentence \nserved as a deterrent, and the Law Commission of India, which had conducted an \ninvestigation into capital punishment in 1967, had recommended that capital \npunishment be retained. The court held that in the circumstances it was \"for the \npetitioners to prove and establish that the death sentence for murder is so outmoded, \nunusual or excessive as to be devoid of any rational nexus with the purpose and object \nof the legislation.\"99 \n\n \n[76] The Court then dealt with international authorities for and against the death sentence, \nand with the arguments concerning deterrence and retribution.100 After reviewing the \narguments for and against the death sentence, the court concluded that: \n\n \n\n...the question whether or not [the] death penalty serves any penological purpose is \na difficult, complex and intractable issue [which] has evoked strong, divergent \nviews. For the purpose of testing the constitutionality of the impugned provisions \nas to death penalty ... on the grounds of reasonableness in the light of Articles 19 \nand 21 of the Constitution, it is not necessary for us to express any categorical \nopinion, one way or another, as to which of these antithetical views, held by the \nAbolitionists and the Retentionists, is correct. It is sufficient to say that the very \nfact that persons of reason, learning and light are rationally and deeply divided in \ntheir opinion on this issue, is ground among others, for rejecting the petitioners' \n\n \n 99 Id. at 712, para. 71. \n\n 100 I have not yet dealt specifically with the issues of deterrence, prevention and retribution, on which the \nAttorney General placed reliance in his argument. These are all factors relevant to the purpose of punishment \nand are present both in capital punishment, and in the alternative of imprisonment. Whether they serve to make \ncapital punishment a more effective punishment than imprisonment is relevant to the argument on justification, \nand will be considered when that argument is dealt with. For the moment it is sufficient to say that they do not \nhave a bearing on the nature of the punishment, and need not be taken into account at this stage of the enquiry. \n\n \n \n\n52 \n\n\fargument that retention of death penalty in the impugned provision, is totally \ndevoid of reason and purpose.101 \n\n \n\nIt accordingly held that section 302 of the Indian Penal Code \"violates neither the \nletter nor the ethos of Article 19.\"102 \n\n[77] The Court then went on to deal with article 21. It said that if article 21 were to be \nexpanded in accordance with the interpretative principle applicable to legislation \nlimiting rights under Article 19(1), article 21 would have to be read as follows: \n\n \n\n \n\nNo person shall be deprived of his life or personal liberty except according to fair, \njust and reasonable procedure established by a valid law. \n\n \n 101 Supra note 96, at 729, para. 132. \n\n 102 Id. \n\n \n \n\n53 \n\n\fAnd thus expanded, it was clear that the State could deprive a person of his or her life, \nby \"fair, just and reasonable procedure.\" In the circumstances, and taking into \naccount the indications that capital punishment was considered by the framers of the \nconstitution in 1949 to be a valid penalty, it was asserted that \"by no stretch of the \nimagination can it be said that death penalty...either per se or because of its execution \nby hanging constitutes an unreasonable, cruel or unusual punishment\" prohibited by \nthe Constitution.103 \n\n \n[78] The wording of the relevant provisions of our Constitution are different. The question \nwe have to consider is not whether the imposition of the death sentence for murder is \n\"totally devoid of reason and purpose\", or whether the death sentence for murder \"is \ndevoid of any rational nexus\" with the purpose and object of section 277(1)(a) of the \nCriminal Procedure Act. It is whether in the context of our Constitution, the death \npenalty is cruel, inhuman or degrading, and if it is, whether it can be justified in terms \nof section 33. \n\n \n\n \n 103 Supra note 96, at 730-731, para. 136. For similar reasons, the death penalty was held not to be \ninconsistent with the Constitution of Botswana, or with the Constitution of the former Bophuthatswana. S v \nNtesang 1995 (4) BCLR 426 (Botswana); S v Chabalala 1986 (3) SA 623 (B AD). \n\n \n \n\n54 \n\n\f[79] The Indian Penal Code leaves the imposition of the death sentence to the trial judge's \ndiscretion. In Bachan Singh's case there was also a challenge to the constitutionality \nof the legislation on the grounds of arbitrariness, along the lines of the challenges that \nhave been successful in the United States. The majority of the Court rejected the \nargument that the imposition of the death sentence in such circumstances is arbitrary, \nholding that a discretion exercised judicially by persons of experience and standing, \nin accordance with principles crystallized by judicial decisions, is not an arbitrary \ndiscretion.104 To complete the picture, it should be mentioned that long delays in \ncarrying out the death sentence in particular cases have apparently been held in India \nto be unjust and unfair to the prisoner, and in such circumstances the death sentence is \nliable to be set aside.105 \n\n \n \nThe Right to Life \n \n[80] The unqualified right to life vested in every person by section 9 of our Constitution is \n\nanother factor crucially relevant to the question whether the death sentence is cruel, \ninhuman or degrading punishment within the meaning of section 11(2) of our \nConstitution. In this respect our Constitution differs materially from the Constitutions \nof the United States and India. It also differs materially from the European \nConvention and the International Covenant. Yet in the cases decided under these \nconstitutions and treaties there were judges who dissented and held that \nnotwithstanding the specific language of the constitution or instrument concerned, \ncapital punishment should not be permitted. \n\n \n 104 Id. at 740, para. 165. Bhagwati J dissented. The dissenting judgement is not available to me, but \naccording to AMNESTY INTERNATIONAL, WHEN THE STATE KILLS, supra note 42, at 147, Bhagwati J asserted in \nhis judgement that \"[t]he prevailing standards of human decency are incompatible with [the] death penalty.\" \n\n 105 Triveniben v State of Gujarat [1992] LRC(Const.) 425 (Sup. Ct. of India); Daya Singh v Union of India \n[1992] LRC(Const.) 452 (Sup. Ct. of India). \n\n \n \n\n55 \n\n\f \n[81] \n\n \n[82] \n\n \n\nIn some instances the dissent focused on the right to life. In Soering's case before the \nEuropean Court of Human Rights, Judge de Meyer, in a concurring opinion, said that \ncapital punishment is \"not consistent with the present state of European \ncivilisation\"106 and for that reason alone, extradition to the United States would \nviolate the fugitive's right to life. \n\nIn a dissent in the United Nations Human Rights Committee in Kindler's case, \nCommittee member B. Wennergren also stressed the importance of the right to life. \n\n \n 106 Supra note 95, at 484. \n\n \n \n\n56 \n\n\fThe value of life is immeasurable for any human being, and the right to life \nenshrined in article 6 of the Covenant is the supreme human right. It is an \nobligation of States [P]arties to the Covenant to protect the lives of all human \nbeings on their territory and under their jurisdiction. If issues arise in respect of \nthe protection of the right to life, priority must not be accorded to the domestic \nlaws of other countries or to (bilateral) treaty articles. Discretion of any nature \npermitted under an extradition treaty cannot apply, as there is no room for it under \nCovenant obligations. It is worth repeating that no derogation from a State's \nobligations under article 6, paragraph 1, is permitted. This is why Canada, in my \nview, violated article 6, paragraph 1, by consenting to extradite Mr. Kindler to the \nUnited States, without having secured assurances that Mr. Kindler would not be \nsubjected to the execution of the death sentence.107 \n\n \n[83] An individual's right to life has been described as \"[t]he most fundamental of all \n\nhuman rights\",108 and was dealt with in that way in the judgments of the Hungarian \nConstitutional Court declaring capital punishment to be unconstitutional.109 The \nchallenge to the death sentence in Hungary was based on section 54 of its \nConstitution which provides: \n\n \n\n \n\n \n[84] \n\n(1) In the Republic of Hungary everyone has the inherent right to life and to \nhuman dignity, and no one shall be arbitrarily deprived of these rights. \n\n(2) No one shall be subjected to torture or to cruel or inhuman or degrading \npunishment \n\nSection 8, the counterpart of section 33 of our Constitution, provides that laws shall \nnot impose any limitations on the essential content of fundamental rights. According \nto the finding of the Court, capital punishment imposed a limitation on the essential \n\n \n 107 Joseph Kindler v Canada, supra note 94, at 23. \n\n 108 Per Lord Bridge in R v Home Secretary, Ex parte Bugdaycay (1987) AC 514 at 531G. \n\n 109 Supra note 55. \n\n \n \n\n57 \n\n\fcontent of the fundamental rights to life and human dignity, eliminating them \nirretrievably. As such it was unconstitutional. Two factors are stressed in the \njudgment of the Court. First, the relationship between the rights of life and dignity, \nand the importance of these rights taken together. Secondly, the absolute nature of \nthese two rights taken together. Together they are the source of all other rights. \nOther rights may be limited, and may even be withdrawn and then granted again, but \ntheir ultimate limit is to be found in the preservation of the twin rights of life and \ndignity. These twin rights are the essential content of all rights under the \nConstitution. Take them away, and all other rights cease. I will deal later with the \nrequirement of our Constitution that a right shall not be limited in ways which negate \nits essential content. For the present purposes it is sufficient to point to the fact that \nthe Hungarian Court held capital punishment to be unconstitutional on the grounds \nthat it is inconsistent with the right to life and the right to dignity. \n\n \n[85] Our Constitution does not contain the qualification found in section 54(1) of the \n\nHungarian constitution, which prohibits only the arbitrary deprivation of life. To that \nextent, therefore, the right to life in section 9 of our Constitution is given greater \nprotection than it is by the Hungarian Constitution. \n\n \n[86] The fact that in both the United States and India, which sanction capital punishment, \n\nthe highest courts have intervened on constitutional grounds in particular cases to \nprevent the carrying out of death sentences, because in the particular circumstances of \nsuch cases, it would have been cruel to do so, evidences the importance attached to \nthe protection of life and the strict scrutiny to which the imposition and carrying out \nof death sentences are subjected when a constitutional challenge is raised. The same \nconcern is apparent in the decisions of the European Court of Human Rights and the \nUnited Nations Committee on Human Rights. It led the Court in Soering's case to \norder that extradition to the United States, in the circumstances of that case, would \nresult in inhuman or degrading punishment, and the Human Rights Committee to \ndeclare in Ng's case that he should not be extradited to face a possible death by \nasphyxiation in a gas chamber in California. \n\n \n \n \n\n58 \n\n\fPublic Opinion \n \n[87] The Attorney General argued that what is cruel, inhuman or degrading depends to a \n\nlarge extent upon contemporary attitudes within society, and that South African \nsociety does not regard the death sentence for extreme cases of murder as a cruel, \ninhuman or degrading form of punishment. It was disputed whether public opinion, \nproperly informed of the different considerations, would in fact favour the death \npenalty. I am, however, prepared to assume that it does and that the majority of South \nAfricans agree that the death sentence should be imposed in extreme cases of murder. \n The question before us, however, is not what the majority of South Africans believe a \nproper sentence for murder should be. It is whether the Constitution allows the \nsentence. \n\n \n[88] Public opinion may have some relevance to the enquiry, but in itself, it is no \n\nsubstitute for the duty vested in the Courts to interpret the Constitution and to uphold \nits provisions without fear or favour. If public opinion were to be decisive there \nwould be no need for constitutional adjudication. The protection of rights could then \nbe left to Parliament, which has a mandate from the public, and is answerable to the \npublic for the way its mandate is exercised, but this would be a return to \nparliamentary sovereignty, and a retreat from the new legal order established by the \n1993 Constitution. By the same token the issue of the constitutionality of capital \npunishment cannot be referred to a referendum, in which a majority view would \nprevail over the wishes of any minority. The very reason for establishing the new \nlegal order, and for vesting the power of judicial review of all legislation in the courts, \nwas to protect the rights of minorities and others who cannot protect their rights \nadequately through the democratic process. Those who are entitled to claim this \nprotection include the social outcasts and marginalised people of our society. It is \nonly if there is a willingness to protect the worst and the weakest amongst us, that all \nof us can be secure that our own rights will be protected. \n\n \n[89] This Court cannot allow itself to be diverted from its duty to act as an independent \narbiter of the Constitution by making choices on the basis that they will find favour \n\n \n \n\n59 \n\n\fwith the public.110 Justice Powell's comment in his dissent in Furman v Georgia \nbears repetition: \n\n...the weight of the evidence indicates that the public generally has not accepted \neither the morality or the social merit of the views so passionately advocated by the \narticulate spokesmen for abolition. But however one may assess amorphous ebb \nand flow of public opinion generally on this volatile issue, this type of inquiry lies \nat the periphery - not the core - of the judicial process in constitutional cases. The \nassessment of popular opinion is essentially a legislative, and not a judicial, \nfunction.111 \n\nSo too does the comment of Justice Jackson in West Virginia State Board of \nEducation v Barnette: \n\n \n\n \n\n \n\n \n 110 \"The cruel or unusual punishment clause of the California Constitution, like other provisions of the \nDeclaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual \nand minority rights against encroachment by the majority. It is the function of the court to examine legislative \nacts in the light of such constitutional mandates to ensure that the promise of the Declaration of Rights is a \nreality to the individual (citations omitted)...Were it otherwise, the Legislature would ever be the sole judge of \nthe permissible means and extent of punishment and article I, section 6, of the Constitution would be \nsuperfluous.\" People v. Anderson, supra note 62, at 888. This was also the approach of the President of the \nHungarian Constitutional Court in his concurring opinion on the constitutionality of capital punishment, where \nhe said: \"The Constitutional Court is not bound either by the will of the majority or by public sentiments.\" \nSupra note 55, at 12. See also, Gregg v. Georgia, supra note 60, at 880. In the decisive judgment of the Court, \nJustices Stewart, Powell and Stevens, accepted that \"...the Eighth Amendment demands more than that a \nchallenged punishment be acceptable to contemporary society. The Court also must ask whether it comports \nwith the basic concept of human dignity at the core of the Amendment.\" (citation omitted) \n\n 111 Supra note 34, at 443. \n\n \n \n\n60 \n\n\fThe very purpose of a Bill of Rights was to withdraw certain subjects from the \nvicissitudes of political controversy, to place them beyond the reach of majorities \nand officials and to establish them as legal principles to be applied by the courts. \nOne's right to life, liberty, and property, to free speech, a free press, freedom of \nworship and assembly and other fundamental rights may not be submitted to vote; \nthey depend on the outcome of no elections.112 \n\n \nCruel, Inhuman and Degrading Punishment \n \n[90] The United Nations Committee on Human Rights has held that the death sentence by \n\ndefinition is cruel and degrading punishment. So has the Hungarian Constitutional \nCourt, and three judges of the Canadian Supreme Court. The death sentence has also \nbeen held to be cruel or unusual punishment and thus unconstitutional under the state \nconstitutions of Massachusetts and California.113 \n \n\n \n\n \n 112 319 U.S. 624, 638 (1943). \n\n 113 The Californian Constitution was subsequently amended to sanction capital punishment. \n\n \n \n\n61 \n\n\f[91] The California decision is People v. Anderson.114 Capital punishment was held by six \n\nof the seven judges of the Californian Supreme Court to be \"impermissibly cruel\"115 \nunder the California Constitution which prohibited cruel or unusual punishment. \nAlso, \n\n \n\n \n[92] \n\nIt degrades and dehumanizes all who participate in its processes. It is unnecessary \nto any legitimate goal of the state and is incompatible with the dignity of man and \nthe judicial process.116 \n\nIn the Massachusetts decision in District Attorney for the Suffolk District v. \nWatson,117 where the Constitution of the State of Massachusetts prohibited cruel or \nunusual punishment, the death sentence was also held, by six of the seven judges, to \nbe impermissibly cruel.118 \n\n \n 114 Supra note 62. \n\n 115 Id. at 899. The cruelty lay \"...not only in the execution itself and the pain incident thereto, but also in the \ndehumanizing effects of the lengthy imprisonment prior to the execution during which the judicial and \nadministrative procedures essential to due process of law are carried out.\" Id. at 894 (citations omitted). \n\n 116 Id. at 899. \n\n 117 381 Mass. 648 (1980). \n\n 118 \"...[T]he death penalty is unacceptable under contemporary standards of decency in its unique and \ninherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror.\" Id. at 664. \"All \nmurderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are \ninescapably capricious when applied to murders and murderers.\" Id. at 665. \"...[A]rbitrariness and \n\n \n \n\n62 \n\n\f \n[93] \n\n \n\nIn both cases the disjunctive effect of \"or\" was referred to as enabling the Courts to \ndeclare capital punishment unconstitutional even if it was not \"unusual\". Under our \nConstitution it will not meet the requirements of section 11(2) if it is cruel, or \ninhuman, or degrading. \n\n \ndiscrimination...inevitably persist even under a statute which meets the demands of Furman.\" Id. at 670. \n\"...[T]he supreme punishment of death, inflicted as it is by chance and caprice, may not stand.\" Id. at 671. \"The \ndeath sentence itself is a declaration that society deems the prisoner a nullity, less than human and unworthy to \nlive. But that negation of his personality carries through the entire period between sentence and execution.\" Id. \nat 683 (Liacos, J., concurring). \n\n \n \n\n63 \n\n\f[94] Proportionality is an ingredient to be taken into account in deciding whether a penalty \nis cruel, inhuman or degrading.119 No Court would today uphold the constitutionality \nof a statute that makes the death sentence a competent sentence for the cutting down \nof trees or the killing of deer, which were capital offences in England in the 18th \nCentury.120 But murder is not to be equated with such \"offences.\" The wilful taking \nof an innocent life calls for a severe penalty, and there are many countries which still \nretain the death penalty as a sentencing option for such cases. Disparity between the \ncrime and the penalty is not the only ingredient of proportionality; factors such as the \nenormity and irredeemable character of the death sentence in circumstances where \nneither error nor arbitrariness can be excluded, the expense and difficulty of \naddressing the disparities which exist in practice between accused persons facing \nsimilar charges, and which are due to factors such as race, poverty, and ignorance, \nand the other subjective factors which have been mentioned, are also factors that can \nand should be taken into account in dealing with this issue. It may possibly be that \nnone alone would be sufficient under our Constitution to justify a finding that the \ndeath sentence is cruel, inhuman or degrading. But these factors are not to be \nevaluated in isolation. They must be taken together, and in order to decide whether \nthe threshold set by section 11(2) has been crossed121 they must be evaluated with \nother relevant factors, including the two fundamental rights on which the accused \nrely, the right to dignity and the right to life. \n\n \n\n \n 119 E.g., Coker v. Georgia, 433 U.S. 782 (1977)(imposition of the death penalty for rape violates due process \nguarantees because the sentence is grossly disproportionate punishment for a nonlethal offence). See also, \nGregg v. Georgia, supra note 60, at 187 (\"[W]e must consider whether the punishment of death is \ndisproportionate in relation to the crime for which it is imposed.\"), and Furman v. Georgia, supra note 34, at 273 \n(\"...a punishment may be degrading simply by reason of its enormity.\"). \n\n 120 The Black Act: 9 George I. C.22, as cited in E.P. THOMPSON, WHIGS AND HUNTERS, THE ORIGIN OF THE \nBLACK ACT 211 (Pantheon). The author notes that these provisions were described by Lord Chief Justice \nHardwicke as \"necessary for the present state and condition of things and to suppress mischiefs, which were \ngrowing frequent among us.\" \n\n 121 This was the approach of Brennan, J., in Furman v. Georgia, supra note 34, at 282 (\"The test, then, will \nordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is \ninflicted arbitrarily, if it is substantially rejected by contemporary society [a determination he makes based on \nthe infrequency of use in relation to the number of offences for which such punishment may apply], and if there \nis no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then \nthe continued infliction of that punishment violates the [clause prohibiting cruel and unusual punishment].\"). \n\n \n \n\n64 \n\n\f[95] The carrying out of the death sentence destroys life, which is protected without \n\nreservation under section 9 of our Constitution, it annihilates human dignity which is \nprotected under section 10, elements of arbitrariness are present in its enforcement \nand it is irremediable. Taking these factors into account, as well as the assumption \nthat I have made in regard to public opinion in South Africa, and giving the words of \nsection 11(2) the broader meaning to which they are entitled at this stage of the \nenquiry, rather than a narrow meaning,122 I am satisfied that in the context of our \nConstitution the death penalty is indeed a cruel, inhuman and degrading punishment. \n\n \nIs capital punishment for murder justifiable? \n \n[96] The question that now has to be considered is whether the imposition of such \n\npunishment is nonetheless justifiable as a penalty for murder in the circumstances \ncontemplated by sections 277(1)(a), 316A and 322(2A) of the Criminal Procedure \nAct. \n\n \n\n \n 122 S v Zuma and Two Others, supra note 6, para. 21. \n\n \n \n\n65 \n\n\f[97] \n\n \n[98] \n\nIt is difficult to conceive of any circumstances in which torture, which is specifically \nprohibited under section 11(2), could ever be justified. But that does not necessarily \napply to capital punishment. Capital punishment, unlike torture, has not been \nabsolutely prohibited by public international law. It is therefore not inappropriate to \nconsider whether the death penalty is justifiable under our Constitution as a penalty \nfor murder. This calls for an enquiry similar to that undertaken by Brennan J in \nFurman's case123 in dealing with the contention that \"death is a necessary punishment \nbecause it prevents the commission of capital crimes more effectively than any less \nsevere punishment.\"124 The same question is addressed and answered in the negative \nin the judgment of Wright CJ in People v Anderson.125 Under the United States \nConstitution and the Californian Constitution, which have no limitation clauses, this \nenquiry had to be conducted within the larger question of the definition of the right. \nWith us, however, the question has to be dealt with under section 33(1). \n\nSection 33(1) of the Constitution provides, in part, that: \n \n\n \n\nThe rights entrenched in this Chapter may be limited by law of general application, \nprovided that such limitation- \n(a) \n\nshall be permissible only to the extent that it is- \n(i) \n(ii) \n\nreasonable; and \njustifiable in an open and democratic society based on freedom \nand equality; and \n\n \n 123 Furman v. Georgia, supra note 34, at 300. Brennan, J., was dealing here with the proposition that \"an \nunusually severe and degrading punishment may not be excessive in view of the purposes for which it is \ninflicted.\" \n\n 124 Id. \n\n 125 \"The People concede that capital punishment is cruel to the individual involved. They argue, however, \nthat only \"unnecessary\" cruelty is constitutionally proscribed, and that if a cruel punishment can be justified it is \nnot forbidden by article I, section 6, of the California Constitution.\" Supra note 62, at 895. \n\n \n \n\n66 \n\n\f \n\n(b) \n\nshall not negate the essential content of the right in question. \n\n \n[99] \n\nSection 33(1)(b) goes on to provide that the limitation of certain rights, including the \nrights referred to in section 10 and section 11 \"shall, in addition to being reasonable \nas required in paragraph (a)(I), also be necessary.\" \n\n \nThe Two-Stage Approach \n \n\n[100] Our Constitution deals with the limitation of rights through a general limitations clause. As \n\nwas pointed out by Kentridge AJ in Zuma's case,126 this calls for a \"two-stage\" \napproach, in which a broad rather than a narrow interpretation is given to the \nfundamental rights enshrined in Chapter Three, and limitations have to be justified \nthrough the application of section 33. In this it differs from the Constitution of the \nUnited States, which does not contain a limitation clause, as a result of which courts \nin that country have been obliged to find limits to constitutional rights through a \nnarrow interpretation of the rights themselves. Although the \"two-stage\" approach \nmay often produce the same result as the \"one-stage\" approach,127 this will not always \nbe the case. \n\n \n[101] The practical consequences of this difference in approach are evident in the present case. In \n\nGregg v. Georgia, the conclusion reached in the judgment of the plurality was \nsummed up as follows: \n\n \n\n \n 126 S v Zuma and Two Others, supra note 6. \n\n 127 Attorney-General of Hong Kong v Lee Kwong-Kut, (1993) AC 951 at 970-972 (PC). \n\n \n \n\n67 \n\n\fIn sum, we cannot say that the judgment of the Georgia legislature that capital \npunishment may be necessary in some cases is clearly wrong. Considerations of \nfederalism, as well as respect for the ability of a legislature to evaluate, in terms of its \nparticular state the moral consensus concerning the death penalty and its social utility \nas a sanction, require us to conclude in the absence of more convincing evidence, that \nthe infliction of death as a punishment for murder is not without justification, and is \nthus not unconstitutionally severe.128 \n\n \n[102] Under our Constitution, the position is different. It is not whether the decision of the State \n\nhas been shown to be clearly wrong; it is whether the decision of the State is \njustifiable according to the criteria prescribed by section 33. It is not whether the \ninfliction of death as a punishment for murder \"is not without justification\", it is \nwhether the infliction of death as a punishment for murder has been shown to be both \nreasonable and necessary, and to be consistent with the other requirements of section \n33. It is for the legislature, or the party relying on the legislation, to establish this \njustification, and not for the party challenging it to show that it was not justified.129 \n\n \nThe Application of Section 33 \n \n[103] The criteria prescribed by section 33(1) for any limitation of the rights contained in section \n\n11(2) are that the limitation must be justifiable in an open and democratic society \nbased on freedom and equality, it must be both reasonable and necessary and it must \nnot negate the essential content of the right. \n\n \n\n \n\n 128 Supra note 60, at 186-187. \n\n 129 S v Zuma and Two Others, supra note 6. \n\n \n \n\n68 \n\n\f[104] The limitation of constitutional rights for a purpose that is reasonable and necessary in a \n\ndemocratic society involves the weighing up of competing values, and ultimately an \nassessment based on proportionality.130 This is implicit in the provisions of section \n33(1). The fact that different rights have different implications for democracy, and in \nthe case of our Constitution, for \"an open and democratic society based on freedom \nand equality\", means that there is no absolute standard which can be laid down for \ndetermining reasonableness and necessity. Principles can be established, but the \napplication of those principles to particular circumstances can only be done on a case \nby case basis. This is inherent in the requirement of proportionality, which calls for \nthe balancing of different interests. In the balancing process, the relevant \nconsiderations will include the nature of the right that is limited, and its importance to \nan open and democratic society based on freedom and equality; the purpose for which \nthe right is limited and the importance of that purpose to such a society; the extent of \nthe limitation, its efficacy, and particularly where the limitation has to be necessary, \nwhether the desired ends could reasonably be achieved through other means less \ndamaging to the right in question. In the process regard must be had to the provisions \nof section 33(1), and the underlying values of the Constitution, bearing in mind that, \nas a Canadian Judge has said, \"the role of the Court is not to second-guess the wisdom \nof policy choices made by legislators.\"131 \n\n \nLimitation of Rights in Canada \n\n \n\n 130 A proportionality test is applied to the limitation of fundamental rights by the Canadian courts, the \nGerman Federal Constitutional Court and the European Court of Human Rights. Although the approach of these \nCourts to proportionality is not identical, all recognise that proportionality is an essential requirement of any \nlegitimate limitation of an entrenched right. Proportionality is also inherent in the different levels of scrutiny \napplied by United States courts to governmental action. \n\n 131 Reference re ss. 193 and 195(1)(c) of the Criminal Code of Manitoba, infra note 135. \n\n \n \n\n69 \n\n\f[105] In dealing with this aspect of the case, Mr Trengove placed considerable reliance on the \n\ndecision of the Canadian Supreme Court in R v Oakes.132 The Canadian Charter of \nRights, as our Constitution does, makes provision for the limitation of rights through \na general clause. Section 1 of the Charter permits such reasonable limitations of \nCharter rights \"as can be demonstrably justified in a free and democratic society.\" In \nOakes' case it was held that in order to meet this requirement a limitation of a Charter \nright had to be directed to the achievement of an objective of sufficient importance to \nwarrant the limitation of the right in question, and that there had also to be \nproportionality between the limitation and such objective. In a frequently-cited \npassage, Dickson CJC described the components of proportionality as follows: \n\n \n\nThere are, in my view, three important components of a proportionality test. First, \nthe measures adopted must be carefully designed to achieve the objective in question. \nThey must not be arbitrary, unfair or based on irrational considerations. In short, they \nmust be rationally connected to the objective. Second, the means, even if rationally \nconnected to the objective in this first sense, should impair \"as little as possible\" the \nright or freedom in question: R v Big M Drug Mart Ltd. at p. 352. Third, there must \nbe a proportionality between the effects of the measures which are responsible for \nlimiting the Charter right or freedom, and the objective which has been identified as \nof \"sufficient importance\".133 \n\n \n\n[106] Although there is a rational connection between capital punishment and the purpose for \n\nwhich it is prescribed, the elements of arbitrariness, unfairness and irrationality in the \nimposition of the penalty, are factors that would have to be taken into account in the \napplication of the first component of this test. As far as the second component is \nconcerned, the fact that a severe punishment in the form of life imprisonment is \navailable as an alternative sentence, would be relevant to the question whether the \ndeath sentence impairs the right as little as possible. And as I will show later, if all \nrelevant considerations are taken into account, it is at least doubtful whether a \n\n \n 132 (1986) 19 CRR 308. \n\n 133 Id. at 337. \n\n \n \n\n70 \n\n\fsentence of capital punishment for murder would satisfy the third component of the \nOakes test. \n\n \n[107] The second requirement of the Oakes test, that the limitation should impair the right \"as little \n\nas possible\" raises a fundamental problem of judicial review. Can, and should, an \nunelected court substitute its own opinion of what is reasonable or necessary for that \nof an elected legislature? Since the judgment in R v Oakes, the Canadian Supreme \nCourt has shown that it is sensitive to this tension, which is particularly acute where \nchoices have to be made in respect of matters of policy. In Irwin Toy Ltd v Quebec \n(Attorney General),134 Dickson CJ cautioned that courts, \"must be mindful of the \nlegislature's representative function.\" In Reference re ss. 193 and 195 (1)(c) of the \nCriminal Code (Manitoba),135 it was said that \"the role of the Court is not to second-\nguess the wisdom of policy choices made by ...legislators\"; and in R v Chaulk, that \nthe means must impair the right \"as little as is reasonably possible\".136 Where choices \nhave to be made between \"differing reasonable policy options\", the courts will allow \nthe government the deference due to legislators, but \"[will] not give them an \nunrestricted licence to disregard an individual's Charter Rights. Where the \ngovernment cannot show that it had a reasonable basis for concluding that it has \ncomplied with the requirement of minimal impairment in seeking to attain its \nobjectives, the legislation will be struck down.\"137 \n\n \nLimitation of Rights in Germany \n \n\n 134 (1989) 39 CRR 193 at 248. \n\n 135 (1990) 48 CRR 1 at 62. \n\n 136 (1991) 1 CRR (2d) 1 at 30. \n\n 137 Per La Forest J in Tetreault-Gadoury v Canada (Employment and Immigration Commission) (1991), 4 \nCRR(2d) 12 at 26. See also, Rodriquez v British Columbia (AG) (1994) 17 CRR(2d) 192 at 222 and 247. \n\n \n \n\n71 \n\n\f \n[108] The German Constitution does not contain a general limitations clause but permits certain \n\nbasic rights to be limited by law. According to Professor Grimm,138 the Federal \nConstitutional Court allows such limitation \"only in order to make conflicting rights \ncompatible or to protect the rights of other persons or important community \ninterests...any restriction of human rights not only needs constitutionally valid \nreasons but also has to be proportional to the rank and importance of the right at \nstake.\" Proportionality is central to the process followed by the Federal \nConstitutional Court in its adjudication upon the limitation of rights. The Court has \nregard to the purpose of the limiting legislation, whether the legislation is suitable for \nthe achievement of such purpose, which brings into consideration whether it in fact \nachieves that purpose, is necessary therefor, and whether a proper balance has been \nachieved between the purpose enhanced by the limitation, and the fundamental right \nthat has been limited.139 The German Constitution also has a provision similar to \nsection 33(1)(b) of our Constitution, but the Court apparently avoids making use of \nthis provision,140 preferring to deal with extreme limitations of rights through the \n\n \n\n 138 Dieter Grimm, Human Rights and Judicial Review in Germany, in HUMAN RIGHTS AND JUDICIAL REVIEW: \nA COMPARATIVE PERSPECTIVE 267, 275 (David H. Beatty, ed., Martinus Nijhoff publ.)(1994). Prof. Grimm is \npresently a member of the German Federal Constitutional Court. \n\n 139 Id. For a discussion of the application of the principle of proportionality in German Constitutional \njurisprudence, see CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 18-20, 307-310 (Univ. \nof Chicago Press)(1994). Prof. Currie outlines the genesis of proportionality, intimated in the Magna Carta and \ngenerally described by Blackstone, and notes that it was further developed by Carl Gottleib Svarez, a celebrated \nthinker of the German Enlightenment. \"Svarez insisted on proportionality both between ends and means and \nbetween costs and benefits; both aspects of the principle are reflected in the jurisprudence of the Constitutional \nCourt.\" Currie at 307. \n\n 140 Currie, id., at 178, note 15 and accompanying text. See also infra note 161. \n\n \n \n\n72 \n\n\fproportionality test. \n\n \nLimitation of Rights Under the European Convention \n \n[109] The European Convention also has no general limitations clause, but makes certain rights \nsubject to limitation according to specified criteria. The proportionality test of the \nEuropean Court of Human Rights calls for a balancing of ends and means. The end \nmust be a \"pressing social need\" and the means used must be proportionate to the \nattainment of such an end. The limitation of certain rights is conditioned upon the \nlimitation being \"necessary in a democratic society\" for purposes defined in the \nrelevant provisions of the Convention. The national authorities are allowed a \ndiscretion by the European Court of Human Rights in regard to what is necessary - a \nmargin of appreciation - but not unlimited power. The \"margin of appreciation\" that \nis allowed varies depending upon the nature of the right and the nature and ambit of \nthe restriction. A balance has to be achieved between the general interest, and the \ninterest of the individual.141 Where the limitation is to a right fundamental to \ndemocratic society, a higher standard of justification is required;142 so too, where a \nlaw interferes with the \"intimate aspects of private life.\"143 On the other hand, in \nareas such as morals or social policy greater scope is allowed to the national \nauthorities.144 The jurisprudence of the European Court of Human Rights provides \nsome guidance as to what may be considered necessary in a democratic society, but \nthe margin of appreciation allowed to national authorities by the European Court \nmust be understood as finding its place in an international agreement which has to \naccommodate the sovereignty of the member states. It is not necessarily a safe guide \nas to what would be appropriate under section 33 of our Constitution. \n\n \n\n 141 R v France (1993) 16 EHRR 1, para. 63. \n\n 142 Handyside v United Kingdom (1979-80) 1 EHRR 737, para. 49. \n\n 143 Dudgeon v United Kingdom (1981) 4 EHRR 149, para. 52; Norris v Ireland (1988) 13 EHRR 186, para. \n46; Modinos v Cyprus (1993) 16 EHRR 485. \n\n 144 \"...[T]he margin of appreciation available to the legislature in implementing social and economic policies \nshould be a wide one...\" James v United Kingdom (1986) 8 EHRR 123, para. 46. See also, Lithgow v United \nKingdom (1986) 8 EHRR 329, para. 122. \n \n\n \n \n\n73 \n\n\f \nIs Capital Punishment for Murder Justifiable under the South African Constitution? \n \n[110] In Zuma's case, Kentridge AJ pointed out that the criteria developed by the Canadian Courts \n\nfor the interpretation of section 1 of the Canadian Charter of Rights may be of \nassistance to our Courts, but that there are differences between our Constitution and \nthe Canadian Charter which have a bearing on the way in which section 33 should be \ndealt with. This is equally true of the criteria developed by other courts, such as the \nGerman Constitutional Court and the European Court of Human Rights. Like \nKentridge AJ, \"I see no reason in this case... to attempt to fit our analysis into the \nCanadian pattern,\"145 or for that matter to fit it into the pattern followed by any of the \nother courts to which reference has been made. Section 33 prescribes in specific \nterms the criteria to be applied for the limitation of different categories of rights and it \nis in the light of these criteria that the death sentence for murder has to be justified. \n\n \n[111] \"Every person\" is entitled to claim the protection of the rights enshrined in Chapter Three, \nand \"no\" person shall be denied the protection that they offer. Respect for life and \ndignity which are at the heart of section 11(2) are values of the highest order under \nour Constitution. The carrying out of the death penalty would destroy these and all \nother rights that the convicted person has, and a clear and convincing case must be \nmade out to justify such action. \n\n \n\n \n\n 145 S v Zuma and Two Others, supra note 122, para. 35. \n\n \n \n\n74 \n\n\f[112] The Attorney General contended that the imposition of the death penalty for murder in the \n\nmost serious cases could be justified according to the prescribed criteria. The \nargument went as follows. The death sentence meets the sentencing requirements for \nextreme cases of murder more effectively than any other sentence can do. It has a \ngreater deterrent effect than life imprisonment; it ensures that the worst murderers \nwill not endanger the lives of prisoners and warders who would be at risk if the \n\"worst of the murderers\" were to be imprisoned and not executed; and it also meets \nthe need for retribution which is demanded by society as a response to the high level \nof crime. In the circumstances presently prevailing in the country, it is therefore a \nnecessary component of the criminal justice system. This, he said, is recognised by \nthe Appellate Division, which only confirms a death sentence if it is convinced that \nno other sentence would be a proper sentence.146 \n\n \nThe Judgements of the Appellate Division \n \n[113] The decisions of the Appellate Division to which the Attorney General referred are only of \nlimited relevance to the questions that have to be decided in the present case. The \nlaw which the Appellate Division has applied prescribes that the death sentence is a \ncompetent sentence for murder in a proper case. The Appellate Division has reserved \nthis sentence for extreme cases in which the maximum punishment would be the \nappropriate punishment. Were it to have done otherwise, and to have refused to pass \ndeath sentences, it would in effect have been saying that the death sentence is never a \nproper sentence, and that section 277(1)(a) should not be enforced. This was not \nwithin its competence. The criteria set by the Appellate Division for the passing of a \ndeath sentence for murder are relevant to the argument on arbitrariness, and also \nprovide a basis for testing the justifiability of such a penalty. They do not, however, \ndo more than that. \n\n \nThe Judgement of the Tanzanian Court of Appeal \n \n \n\n 146 S v Senonohi, supra note 76, at 734F-G. \n\n \n \n\n75 \n\n\f[114] There is support for part of the Attorney General's argument in the judgment of the \n\nTanzanian Court of Appeal in Mbushuu and Another v The Republic.147 It was held \nin this case that the death sentence amounted to cruel and degrading punishment, \nwhich is prohibited under the Tanzanian Constitution, but that despite this finding, it \nwas not unconstitutional. The Constitution authorised derogations to be made from \nbasic rights for legitimate purposes, and a derogation was lawful if it was not \narbitrary, and was reasonably necessary for such purpose. The legitimate purposes to \nwhich the death sentence was directed was a constitutional requirement that \n\"everyone's right to life shall be protected by law.\" The death sentence was a \nmandatory penalty for murder, but it was not considered by the Court to be arbitrary \nbecause decisions as to guilt or innocence are taken by judges. There was no proof \none way or the other that the death sentence was necessarily a more effective \npunishment than a long period of imprisonment. In the view of the Court, however, it \nwas for society and not the courts to decide whether the death sentence was a \nnecessary punishment. The Court was satisfied that society favoured the death \nsentence, and that in the circumstances \"the reasonable and necessary\" standard had \nbeen met. Accordingly, it held that the death sentence was a lawful derogation from \nthe prohibition of cruel and degrading punishment, and thus valid. \n\n \n\n \n\n 147 Criminal Appeal No. 142 of 1994; 30 January 1995. \n\n \n \n\n76 \n\n\f[115] The approach of the Tanzanian Court of Appeal to issues concerning the limitation of basic \n\nrights seems to have been influenced by the language of the Tanzanian \nConstitution,148 and rules of interpretation developed by the Courts to deal with that \nlanguage. The relevant provisions of our Constitution are different and the correct \napproach to the interpretation of the limitations clause must be found in the language \nof section 33 construed in the context of the Constitution as a whole. It is for the \nCourt, and not society or Parliament, to decide whether the death sentence is \njustifiable under the provisions of section 33 of our Constitution.149 In doing so we \ncan have regard to societal attitudes in evaluating whether the legislation is \nreasonable and necessary, but ultimately the decision must be ours. If the decision of \nthe Tanzanian Court of Appeal is inconsistent with this conclusion, I must express my \ndisagreement with it. \n\n \n\nDeterrence \n\n \n[116] The Attorney General attached considerable weight to the need for a deterrent to violent \n\ncrime. He argued that the countries which had abolished the death penalty were on \nthe whole developed and peaceful countries in which other penalties might be \nsufficient deterrents. We had not reached that stage of development, he said. If in \nyears to come we did so, we could do away with the death penalty. Parliament could \ndecide when that time has come. At present, however, so the argument went, the \ndeath sentence is an indispensable weapon if we are serious about combatting violent \ncrime. \n\n \n\n 148 Id., wherein Ramadhani JA., highlights with respect to the Republic of Tanzania Constitution, that article \n30(2) provides that laws, and actions taken in accordance with such laws, shall not be invalidated under the \nConstitution if such laws (or actions) make provision, inter alia, for \"ensuring that the rights and freedom of \nother or the public interest are not prejudiced by the misuse of the individual rights and freedom.\" Id. at p. 23. \nThe judgment refers to \"derogations\" and not to \"limitations\". \n\n 149 See discussion on public opinion supra paras. 87 to 89. \n\n \n \n\n77 \n\n\f[117] The need for a strong deterrent to violent crime is an end the validity of which is not open to \nquestion. The state is clearly entitled, indeed obliged, to take action to protect human \nlife against violation by others. In all societies there are laws which regulate the \nbehaviour of people and which authorise the imposition of civil or criminal sanctions \non those who act unlawfully. This is necessary for the preservation and protection of \nsociety. Without law, society cannot exist. Without law, individuals in society have \nno rights. The level of violent crime in our country has reached alarming proportions. \n It poses a threat to the transition to democracy, and the creation of development \nopportunities for all, which are primary goals of the Constitution. The high level of \nviolent crime is a matter of common knowledge and is amply borne out by the \nstatistics provided by the Commissioner of Police in his amicus brief. The power of \nthe State to impose sanctions on those who break the law cannot be doubted. It is of \nfundamental importance to the future of our country that respect for the law should be \nrestored, and that dangerous criminals should be apprehended and dealt with firmly. \nNothing in this judgment should be understood as detracting in any way from that \nproposition. But the question is not whether criminals should go free and be allowed \nto escape the consequences of their anti-social behaviour. Clearly they should not; \nand equally clearly those who engage in violent crime should be met with the full \nrigour of the law. The question is whether the death sentence for murder can \nlegitimately be made part of that law. And this depends on whether it meets the \ncriteria prescribed by section 33(1). \n\n \n[118] The Attorney General pointed to the substantial increase in the incidence of violent crime \nover the past five years during which the death sentence has not been enforced. He \ncontended that this supported his argument that imprisonment is not a sufficient \ndeterrent, and that we have not yet reached the stage of development where we can do \nwithout the death sentence. Throughout this period, however, the death sentence \nremained a lawful punishment, and was in fact imposed by the courts although the \nsentences were not carried out.150 The moratorium was only announced formally on \n\n \n\n 150 S v W 1993(2) SACR 74, at 76H-I. \n\n \n \n\n78 \n\n\f27 March 1992.151 A decision could have been taken at any time to terminate the \nmoratorium on executions, and none of the criminals had any assurance that the \nmoratorium would still be in place if they were to be caught, brought to trial, \nconvicted and sentenced to death. \n\n \n\n \n\n 151 In the Statement of Minister of Justice dated 27 March 1992, supra note 31, para. 22. \n\n \n \n\n79 \n\n\f[119] The cause of the high incidence of violent crime cannot simply be attributed to the failure to \n\ncarry out the death sentences imposed by the courts. The upsurge in violent crime \ncame at a time of great social change associated with political turmoil and conflict, \nparticularly during the period 1990 to 1994. It is facile to attribute the increase in \nviolent crime during this period to the moratorium on executions.152 It was a \nprogression that started before the moratorium was announced. There are many \nfactors that have to be taken into account in looking for the cause of this \nphenomenon. It is a matter of common knowledge that the political conflict during \nthis period, particularly in Natal and the Witwatersrand, resulted in violence and \ndestruction of a kind not previously experienced. No-go areas, random killings on \ntrains, attacks and counter attacks upon political opponents, created a violent and \nunstable environment, manipulated by political dissidents and criminal elements \nalike. \n\n \n[120] Homelessness, unemployment, poverty and the frustration consequent upon such conditions \n\nare other causes of the crime wave. And there is also the important factor that the \npolice and prosecuting authorities have been unable to cope with this. The statistics \npresented in the police amicus brief show that most violent crime is not solved, and \nthe Attorney General confirmed that the risk of a criminal being apprehended and \nconvicted for such offences is somewhere between 30 and 40 per cent. Throughout \nthe period referred to by the Attorney General the death sentence remained on the \nstatute book and was imposed on convicted murderers when the Courts considered it \nappropriate to do so. \n\n \n[121] We would be deluding ourselves if we were to believe that the execution of the few persons \nsentenced to death during this period, and of a comparatively few other people each \nyear from now onwards will provide the solution to the unacceptably high rate of \ncrime. There will always be unstable, desperate, and pathological people for whom \n\n \n\n 152 Indeed, such a hypothesis is not born out by the statistics analysed by Justice Didcott in his concurring \nopinion at para 182. \n\n \n \n\n80 \n\n\fthe risk of arrest and imprisonment provides no deterrent, but there is nothing to show \nthat a decision to carry out the death sentence would have any impact on the \nbehaviour of such people, or that there will be more of them if imprisonment is the \nonly sanction. No information was placed before us by the Attorney General in \nregard to the rising crime rate other than the bare statistics, and they alone prove \nnothing, other than that we are living in a violent society in which most crime goes \nunpunished - something that we all know. \n\n \n[122] The greatest deterrent to crime is the likelihood that offenders will be apprehended, \n\nconvicted and punished. It is that which is presently lacking in our criminal justice \nsystem; and it is at this level and through addressing the causes of crime that the State \nmust seek to combat lawlessness. \n\n \n[123] In the debate as to the deterrent effect of the death sentence, the issue is sometimes dealt with \n\nas if the choice to be made is between the death sentence and the murder going \nunpunished. That is of course not so. The choice to be made is between putting the \ncriminal to death and subjecting the criminal to the severe punishment of a long term \nof imprisonment which, in an appropriate case, could be a sentence of life \nimprisonment.153 Both are deterrents, and the question is whether the possibility of \nbeing sentenced to death, rather than being sentenced to life imprisonment, has a \nmarginally greater deterrent effect, and whether the Constitution sanctions the \nlimitation of rights affected thereby. \n\n \n\n \n\n 153 Since 1991, section 64 of the Correctional Service Act 8 of 1959 has provided that a person sentenced to \nlife imprisonment may only be released from prison in the following circumstances: (a) the advisory release \nboard \"with due regard to the interest of society\", recommends that the prisoner be released and (b) the Minister \nof Correctional Services accepts that recommendation and authorizes the release of the prisoner. This means \nthat the Minister of Correctional Services must accept responsibility for the release of the prisoner, and can only \ndo so if the advisory release board is in favour of the prisoner being released. \n\n \n \n\n81 \n\n\f[124] In the course of his argument the Attorney General contended that if sentences imposed by \n\nthe Courts on convicted criminals are too lenient, the law will be brought into \ndisrepute, and members of society will then take the law into their own hands. Law is \nbrought into disrepute if the justice system is ineffective and criminals are not \npunished. But if the justice system is effective and criminals are apprehended, \nbrought to trial and in serious cases subjected to severe sentences, the law will not \nfall into disrepute. We have made the commitment to \"a future founded on the \nrecognition of human rights, democracy and peaceful co-existence...for all South \nAfricans.\"154 Respect for life and dignity lies at the heart of that commitment. One \nof the reasons for the prohibition of capital punishment is \"that allowing the State to \nkill will cheapen the value of human life and thus [through not doing so] the State \nwill serve in a sense as a role model for individuals in society.\"155 Our country needs \nsuch role models. \n\n \n[125] The Attorney General also contended that if even one innocent life should be saved by the \nexecution of perpetrators of vile murders, this would provide sufficient justification \nfor the death penalty.156 The hypothesis that innocent lives might be saved must be \nweighed against the values underlying the Constitution, and the ability of the State to \nserve \"as a role model\". In the long run more lives may be saved through the \ninculcation of a rights culture, than through the execution of murderers. \n\n \n[126] The death sentence has been reserved for the most extreme cases, and the overwhelming \n\nmajority of convicted murderers are not and, since extenuating circumstances became \na relevant factor sixty years ago, have not been sentenced to death in South Africa. I \n\n \n\n 154 This statement is taken from the provision on National Reconciliation. \n\n 155 Sopinka J (La Forest, Gonthier, Iacobucci and Major JJ, concurring) in Rodriquez v British Columbia \n(1994) 17 CRR(2d) 193 at 218. \n\n 156 This proposition is advanced in greater detail by J Price, (1995) \"De Rebus\" 89. \n\n \n \n\n82 \n\n\freferred earlier to the figures provided by the Attorney General which show that \nbetween the amendment of the Criminal Procedure Act in 1990, and January 1995, \nwhich is the date of his written argument in the present case, 243 death sentences \nwere imposed, of which 143 were confirmed by the Appellate Division. Yet, \naccording to statistics placed before us by the Commissioner of Police and the \nAttorney General, there were on average approximately 20 000 murders committed, \nand 9 000 murder cases brought to trial, each year during this period. Would the \ncarrying out of the death sentence on these 143 persons have deterred the other \nmurderers or saved any lives? \n\n \n[127] It was accepted by the Attorney General that this is a much disputed issue in the literature on \n\nthe death sentence. He contended that it is common sense that the most feared \npenalty will provide the greatest deterrent, but accepted that there is no proof that the \ndeath sentence is in fact a greater deterrent than life imprisonment for a long period. \nIt is, he said, a proposition that is not capable of proof, because one never knows \nabout those who have been deterred; we know only about those who have not been \ndeterred, and who have committed terrible crimes. This is no doubt true, and the fact \nthat there is no proof that the death sentence is a greater deterrent than imprisonment \ndoes not necessarily mean that the requirements of section 33 cannot be met. It is, \nhowever, a major obstacle in the way of the Attorney General's argument, for he has \nto satisfy us that the penalty is reasonable and necessary, and the doubt which exists \nin regard to the deterrent effect of the sentence must weigh heavily against his \nargument. \"A punishment as extreme and as irrevocable as death cannot be \npredicated upon speculation as to what the deterrent effect might be...\"157 I should \nadd that this obstacle would not be removed by the implementation of a suggestion in \none of the amicus briefs, that section 277(1) of the Criminal Procedure Act should be \nmade more specific, and should identify the extreme categories of murder for which \nthe death sentence would be a permissible punishment. \n\n \n\nPrevention \n\n \n\n 157 Wright, CJ., in People v. Anderson, supra note 62, at 897. \n\n \n \n\n83 \n\n\f \n[128] Prevention is another object of punishment. The death sentence ensures that the criminal \n\nwill never again commit murders, but it is not the only way of doing so, and life \nimprisonment also serves this purpose. Although there are cases of gaol murders, \nimprisonment is regarded as sufficient for the purpose of prevention in the \noverwhelming number of cases in which there are murder convictions, and there is \nnothing to suggest that it is necessary for this purpose in the few cases in which death \nsentences are imposed. \n\n \n\nRetribution \n\n \n[129] Retribution is one of the objects of punishment, but it carries less weight than deterrence.158 \n\nThe righteous anger of family and friends of the murder victim, reinforced by the \npublic abhorrence of vile crimes, is easily translated into a call for vengeance. But \ncapital punishment is not the only way that society has of expressing its moral \noutrage at the crime that has been committed. We have long outgrown the literal \napplication of the biblical injunction of \"an eye for an eye, and a tooth for a tooth\". \nPunishment must to some extent be commensurate with the offence, but there is no \nrequirement that it be equivalent or identical to it. The state does not put out the eyes \nof a person who has blinded another in a vicious assault, nor does it punish a rapist, \nby castrating him and submitting him to the utmost humiliation in gaol. The state \ndoes not need to engage in the cold and calculated killing of murderers in order to \nexpress moral outrage at their conduct. A very long prison sentence is also a way of \nexpressing outrage and visiting retribution upon the criminal. \n\n \n[130] Retribution ought not to be given undue weight in the balancing process. The Constitution is \n\npremised on the assumption that ours will be a constitutional state founded on the \nrecognition of human rights.159 The concluding provision on National Unity and \n\n \n\n 158 S v P 1991 (1) SA 517 (A) at 523D-F. See also supra note 74. \n\n 159 The Preamble to the Constitution records that the new order will be a \"constitutional state in which...all \ncitizens shall be able to enjoy and exercise their fundamental rights and freedoms.\" The commitment to \nrecognition of human rights is reaffirmed in the concluding provision on National Unity and Reconciliation. \n\n \n \n\n84 \n\n\f \n\n \n\nReconciliation contains the following commitment: \n\nThe adoption of this Constitution lays the secure foundation for the people of South \nAfrica to transcend the divisions and strife of the past, which generated gross \nviolations of human rights, the transgression of humanitarian principles in violent \nconflicts and a legacy of hatred, fear, guilt and revenge. \n\nThese can now be addressed on the basis that there is a need for understanding but \nnot for vengeance, a need for reparation but not for retaliation, a need for ubuntu but \nnot for victimisation. (Emphasis supplied) \n\n \n[131] Although this commitment has its primary application in the field of political reconciliation, \n\nit is not without relevance to the enquiry we are called upon to undertake in the \npresent case. To be consistent with the value of ubuntu ours should be a society that \n\"wishes to prevent crime...[not] to kill criminals simply to get even with them.\"160 \n\n \n \n \n \n\n \n\nThe Essential Content of the Right \n\n \n\n 160 Brennan, J., in Furman v. Georgia, supra note 34, at 305. \n\n \n \n\n85 \n\n\f[132] Section 33(1)(b) provides that a limitation shall not negate the essential content of the right. \n\nThere is uncertainty in the literature concerning the meaning of this provision. It \nseems to have entered constitutional law through the provisions of the German \nConstitution, and in addition to the South African constitution, appears, though not \nprecisely in the same form, in the constitutions of Namibia, Hungary, and possibly \nother countries as well. The difficulty of interpretation arises from the uncertainty as \nto what the \"essential content\" of a right is, and how it is to be determined. Should \nthis be determined subjectively from the point of view of the individual affected by \nthe invasion of the right, or objectively, from the point of view of the nature of the \nright and its place in the constitutional order, or possibly in some other way? \nProfessor Currie draws attention to the large number of theories which have been \npropounded by German scholars as to the how the \"essence\" of a right should be \ndiscerned and how the constitutional provision should be applied.161 The German \nFederal Constitutional Court has apparently avoided to a large extent having to deal \nwith this issue by subsuming the enquiry into the proportionality test that it applies \nand the precise scope and meaning of the provision is controversial.162 \n\n \n[133] If the essential content of the right not to be subjected to cruel, inhuman or degrading \npunishment is to be found in respect for life and dignity, the death sentence for \nmurder, if viewed subjectively from the point of view of the convicted prisoner, \nclearly negates the essential content of the right. But if it is viewed objectively from \n\n \n\n 161 Currie, supra note 139, refers to an analysis of the 'remarkable variety of views' on the meaning of \n'essence'. Id. at 178 (citing 2 Maunz/Durig, Art. 19, Abs. II, Rdnr. 16). \n\n 162 Grimm, supra note 138, at page 276 states, \"operating at an earlier stage than the essential content limit in \nArticle 19(2), the proportionality principle has rendered the former almost insignificant.\" Currie, supra note \n139, notes that the German Federal Constitutional Court has remarked in at least one case that dealt with the \n'essential content' question that the Court \"state[d] an alternative ground that, because of its greater stringency \n[the proportionality test], has made it unnecessary in most cases to inquire whether a restriction invades the \n'essential content' of a basic right.\" Currie, supra note 139, at 306-307 (citing 22 BVerfGE 180, 220 (1967)). \n\n \n \n\n86 \n\n\fthe point of view of a constitutional norm that requires life and dignity to be \nprotected, the punishment does not necessarily negate the essential content of the \nright. It has been argued before this Court that one of the purposes of such \npunishment is to protect the life and hence the dignity of innocent members of the \npublic, and if it in fact does so, the punishment will not negate the constitutional \nnorm. On this analysis it would, however, have to be shown that the punishment \nserves its intended purpose. This would involve a consideration of the deterrent and \npreventative effects of the punishment and whether they add anything to the \nalternative of life imprisonment. If they do not, they cannot be said to serve a life \nprotecting purpose. If the negation is viewed both objectively and subjectively, the \nostensible purpose of the punishment would have to be weighed against the \ndestruction of the individual's life. For the purpose of that analysis the element of \nretribution would have to be excluded and the \"life saving\" quality of the punishment \nwould have to be established. \n\n \n[134] It is, however, not necessary to solve this problem in the present case. At the very least the \n\nprovision evinces concern that, under the guise of limitation, rights should not be \ntaken away altogether. It was presumably the same concern that influenced Dickson \nCJC to say in R v Oakes that rights should be limited \"as little as possible\",163 and the \nGerman Constitutional Court to hold in the life imprisonment case that all possibility \nof parole ought not to be excluded.164 \n\n \nThe Balancing Process \n \n[135] In the balancing process, deterrence, prevention and retribution must be weighed against the \n\nalternative punishments available to the state, and the factors which taken together \nmake capital punishment cruel, inhuman and degrading: the destruction of life, the \n\n \n\n 163 R v Oakes, supra note 132, at 337 (citing R v Big M Drug Mart Ltd., supra, at 352). \n\n 164 See Kommers supra note 18. \n\n \n \n\n87 \n\n\fannihilation of dignity, the elements of arbitrariness, inequality and the possibility of \nerror in the enforcement of the penalty. \n\n \n[136] The Attorney General argued that the right to life and the right to human dignity were not \n\nabsolute concepts. Like all rights they have their limits. One of those limits is that a \nperson who murders in circumstances where the death penalty is permitted by section \n277, forfeits his or her right to claim protection of life and dignity. He sought to \nsupport this argument by reference to the principles of self-defence. If the law \nrecognises the right to take the life of a wrongdoer in a situation in which self-\ndefence is justified, then, in order to deter others, and to ensure that the wrongdoer \ndoes not again kill an innocent person, why should it not recognise the power of the \nstate to take the life of a convicted murderer? Conversely, if the death sentence \nnegates the essential content of the right to life, how can the taking of the life of \nanother person in self-defence, or even to protect the State itself during war or \nrebellion, ever be justified. \n\n \n[137] This argument is fallacious. The rights vested in every person by Chapter Three of the \n\nConstitution are subject to limitation under section 33. In times of emergency, some \nmay be suspended in accordance with the provisions of section 34 of the \nConstitution.165 But subject to this, the rights vest in every person, including \ncriminals convicted of vile crimes. Such criminals do not forfeit their rights under the \nConstitution and are entitled, as all in our country now are, to assert these rights, \nincluding the right to life, the right to dignity and the right not to be subjected to \ncruel, inhuman or degrading punishment. Whether or not a particular punishment is \ninconsistent with these rights depends upon an interpretation of the relevant \nprovisions of the Constitution, and not upon a moral judgment that a murderer should \nnot be allowed to claim them. \n\n \n\n \n\n 165 Sections 8(2), 9, 10 and 11(2) are in fact non-derogable rights and in terms of section 34(5)(c) cannot be suspended \nduring an emergency. \n\n \n \n\n88 \n\n\f[138] Self-defence is recognised by all legal systems. Where a choice has to be made between the \nlives of two or more people, the life of the innocent is given preference over the life \nof the aggressor. This is consistent with section 33(1). To deny the innocent person \nthe right to act in self-defence would deny to that individual his or her right to life. \nThe same is true where lethal force is used against a hostage taker who threatens the \nlife of the hostage. It is permissible to kill the hostage taker to save the life of the \ninnocent hostage. But only if the hostage is in real danger. The law solves problems \nsuch as these through the doctrine of proportionality, balancing the rights of the \naggressor against the rights of the victim, and favouring the life or lives of innocents \nover the life or lives of the guilty.166 But there are strict limits to the taking of life, \neven in the circumstances that have been described, and the law insists upon these \nlimits being adhered to. In any event, there are material respects in which killing in \nself-defence or necessity differ from the execution of a criminal by the State. Self-\ndefence takes place at the time of the threat to the victim's life, at the moment of the \nemergency which gave rise to the necessity and, traditionally, under circumstances in \nwhich no less-severe alternative is readily available to the potential victim. Killing \nby the State takes place long after the crime was committed, at a time when there is \nno emergency and under circumstances which permit the careful consideration of \nalternative punishment. \n\n \n\n 166 Self-defence is treated in our law as a species of private defence. It is not necessary for the purposes of \nthis judgement to examine the limits of private defence. Until now, our law has allowed killing in defence of \nlife, but also has allowed killing in defence of property, or other legitimate interest, in circumstances where it is \nreasonable and necessary to do so. S v Van Wyk 1967 (1) SA 488 (A). Whether this is consistent with the \nvalues of our new legal order is not a matter which arises for consideration in the present case. What is material \nis that the law applies a proportionality test, weighing the interest protected against the interest of the \nwrongdoer. These interests must now be weighed in the light of the Constitution. \n\n \n \n\n89 \n\n\f[139] The examples of war and rebellion are also not true analogies. War and rebellion are special \n\ncases which must be dealt with in terms of the legal principles governing such \nsituations. It is implicit in any constitutional order that the State can act to put down \nrebellion and to protect itself against external aggression. Where it is necessary in the \npursuit of such ends to kill in the heat of battle the taking of life is sanctioned under \nthe Constitution by necessary implication, and as such, is permissible in terms of \nsection 4(1).167 But here also there are limits. Thus prisoners of war who have been \ncaptured and who are no longer a threat to the State cannot be put to death; nor can \nlethal force be used against rebels when it is not necessary to do so for the purposes \nof putting down the rebellion. \n\n \n[140] The case of a police officer shooting at an escaping criminal was also raised in argument. \n\nThis is permitted under section 49(2) of the Criminal Procedure Act as a last resort if \nit is not possible to arrest the criminal in the ordinary way. Once again, there are \nlimits. It would not, for instance, be permissible to shoot at point blank range at a \ncriminal who has turned his or her back upon a police officer in order to abscond, \nwhen other methods of subduing and arresting the criminal are possible. We are not \nconcerned here with the validity of section 49(2) of the Criminal Procedure Act, and I \nspecifically refrain from expressing any view thereon. Greater restriction on the use \nof lethal force may be one of the consequences of the establishment of a \nconstitutional state which respects every person's right to life. Shooting at a fleeing \ncriminal in the heat of the moment, is not necessarily to be equated with the execution \nof a captured criminal. But, if one of the consequences of this judgment might be to \n\n \n\n 167 \"The inherent right of the State to assume extraordinary powers and to use all means at its disposal in \norder to defend itself when its existence is at stake is recognized by our common law as an exceptional and \nextreme constitutional tool.\" Per Selikowitz J in End Conscription Campaign v Minister of Defence 1989 (2) \nSA 180(C) at 199H. Here too it is not necessary to examine the limits of this \"inherent right\", or the limitations \n(if any) imposed on it by the Constitution. All that need be said is that it is of an entirely different character than \nthe alleged \"right\" of the State to execute murderers, and subject to different considerations. \n\n \n \n\n90 \n\n\frender the provisions of section 49(2) unconstitutional, the legislature will have to \nmodify the provisions of the section in order to bring it into line with the \nConstitution. In any event, the constitutionality of the death sentence for murder does \nnot depend upon whether it is permissible for life to be taken in other circumstances \ncurrently sanctioned by law. It depends upon whether it is justifiable as a penalty in \nterms of section 33 of the Constitution. In deciding this question, the fact that the \nperson sentenced to death is denied his or her right to life is of the greatest \nimportance. \n\n \n[141] The Attorney General argued that all punishment involves an impairment of dignity. \nImprisonment, which is the alternative to the death sentence, severely limits a \nprisoner's fundamental rights and freedoms. There is only the barest freedom of \nmovement or of residence in prison, and other basic rights such as freedom of \nexpression and freedom of assembly are severely curtailed. \n\n \n[142] Dignity is inevitably impaired by imprisonment or any other punishment, and the undoubted \n\npower of the state to impose punishment as part of the criminal justice system, \nnecessarily involves the power to encroach upon a prisoner's dignity. But a prisoner \ndoes not lose all his or her rights on entering prison. \n\n[Prisoners retain] those absolute natural rights relating to personality, to which \nevery man is entitled. True [their] freedom had been greatly impaired by the legal \nprocess of imprisonment but they were entitled to demand respect for what \nremained. The fact that their liberty had been legally curtailed could afford no \nexcuse for a further legal encroachment upon it. [It was] contended that the \n[prisoners] once in prison could claim only such rights as the Ordinance and the \nregulations conferred. But the directly opposite view is surely the correct one. \nThey were entitled to all their personal rights and personal dignity not temporarily \ntaken away by law, or necessarily inconsistent with the circumstances in which \nthey had been placed.168 \n\n \n\n 168 Innes J in Whittaker v Roos and Bateman 1912 AD 92 at 122-123. See also, Goldberg and Others v \nMinister of Prisons and Others 1979 (1) SA 14 (A) at 39H-40C; Nestor and Others v Minister of Police and \nOthers 1984 (4) SA 230 (SWA) at 250F-251D. \n\n \n \n\n91 \n\n\f \n[143] A prisoner is not stripped naked, bound, gagged and chained to his or her cell. The right of \nassociation with other prisoners, the right to exercise, to write and receive letters and \nthe rights of personality referred to by Innes J are of vital importance to prisoners and \nhighly valued by them precisely because they are confined, have only limited contact \nwith the outside world, and are subject to prison discipline. Imprisonment is a severe \npunishment; but prisoners retain all the rights to which every person is entitled under \nChapter Three subject only to limitations imposed by the prison regime that are \njustifiable under section 33.169 Of these, none are more important than the section \n11(2) right not to be subjected to \"torture of any kind...nor to cruel, inhuman or \ndegrading treatment or punishment.\" There is a difference between encroaching \nupon rights for the purpose of punishment and destroying them altogether. It is that \ndifference with which we are concerned in the present case. \n\n \n\nConclusion \n\n \n[144] The rights to life and dignity are the most important of all human rights, and the source of all \nother personal rights in Chapter Three. By committing ourselves to a society founded \non the recognition of human rights we are required to value these two rights above all \nothers. And this must be demonstrated by the State in everything that it does, \nincluding the way it punishes criminals. This is not achieved by objectifying \nmurderers and putting them to death to serve as an example to others in the \nexpectation that they might possibly be deterred thereby. \n\n \n[145] In the balancing process the principal factors that have to be weighed are on the one hand the \n\ndestruction of life and dignity that is a consequence of the implementation of the \ndeath sentence, the elements of arbitrariness and the possibility of error in the \nenforcement of capital punishment, and the existence of a severe alternative \npunishment (life imprisonment) and, on the other, the claim that the death sentence is \n\n \n\n 169 See also, Woods v Minister of Justice, Legal and Parliamentary Affairs and Others, 1995 BCLR 56(ZSC) \nat 58F-G; Turner v. Safley, 482 U.S. 78, 84-85 (1987). \n\n \n \n\n92 \n\n\fa greater deterrent to murder, and will more effectively prevent its commission, than \nwould a sentence of life imprisonment, and that there is a public demand for \nretributive justice to be imposed on murderers, which only the death sentence can \nmeet. \n\n \n[146] Retribution cannot be accorded the same weight under our Constitution as the rights to life \nand dignity, which are the most important of all the rights in Chapter Three. It has \nnot been shown that the death sentence would be materially more effective to deter or \nprevent murder than the alternative sentence of life imprisonment would be. Taking \nthese factors into account, as well as the elements of arbitrariness and the possibility \nof error in enforcing the death penalty, the clear and convincing case that is required \nto justify the death sentence as a penalty for murder, has not been made out. The \nrequirements of section 33(1) have accordingly not been satisfied, and it follows that \nthe provisions of section 277(1)(a) of the Criminal Procedure Act, 1977 must be held \nto be inconsistent with section 11(2) of the Constitution. In the circumstances, it is \nnot necessary for me to consider whether the section would also be inconsistent with \nsections 8, 9 or 10 of the Constitution if they had been dealt with separately and not \ntreated together as giving meaning to section 11(2). \n\n \n\nSection 241(8) of the Constitution \n\n \n[147] In the present case the trial had been completed but an appeal to the Appellate Division was \npending, when the 1993 Constitution came into force. The validity of the trial, and \nthe fact that the death sentences were competent sentences at the time they were \nimposed, are not in issue. What is in issue before the Appellate Division is whether \nthe death sentences can and should be confirmed. It has postponed its judgment \npending the determination of the issues referred to us for our decision. \n\n \n[148] It is not necessary to deal with the provisions of section 241(8) in the present case. The \n\nAttorney General correctly conceded that if the death penalty for murder is \nunconstitutional, it would not be competent to carry out the death sentences that have \nbeen imposed on the accused. The prohibition of cruel, inhuman or degrading \n\n \n \n\n93 \n\n\fpunishment is applicable to all punishments implemented after the 27th April, and can \nbe invoked to prevent a punishment being carried out even if the punishment was \nlawful when it was imposed.170 \n\n \n\nThe Order to be made \n\n \n[149] I have dealt in this judgment only with the provisions of section 277(1)(a) of the Criminal \n\nProcedure Act, but it is clear that if subsection (1)(a) is inconsistent with the \nConstitution, subsections (1)(c) to (1)(f) must also be unconstitutional, so too must \nprovisions of legislation corresponding to sections 277(1)(a), (c), (d), (e) and (f) that \nare in force in parts of the national territory in terms of section 229 of the \nConstitution. Different considerations arising from section 33(1) might possibly \napply to subsection (b) which makes provision for the imposition of the death \nsentence for treason committed when the republic is in a state of war. No argument \nwas addressed to us on this issue, and I refrain from expressing any views thereon. \n\n \n[150] The proper sentence to be imposed on the accused is a matter for the Appellate Division and \nnot for us to decide. This, and other capital cases which have been postponed by the \nAppellate Division pending the decision of this Court on the constitutionality of the \ndeath sentence, can now be dealt with in accordance with the order made in this case. \n Lest there be any doubt on this score, one of the effects of our judgment is to prohibit \nthe State, or any of its organs, from executing persons whose appeals against \nsentences of death have been disposed of. Such persons will remain in custody under \nthe sentences imposed on them until such sentences have been set aside in accordance \nwith law, and substituted by appropriate and lawful punishments. This will form part \nof the order made. \n\n \n[151] The following order is made: \n\n \n\n 170 See Pratt v Attorney General for Jamaica; and Catholic Commission for Justice in Zimbabwe v The \nAttorney General, Zimbabwe, and Others, supra note 3. \n\n \n \n\n94 \n\n\f \n\n \n\n \n\n \n\n1. \n\nIn terms of section 98(5) of the Constitution, and with effect from the date of this \norder, the provisions of paragraphs (a), (c), (d), (e) and (f) of section 277(1) of the \nCriminal Procedure Act, and all corresponding provisions of other legislation \nsanctioning capital punishment which are in force in any part of the national territory \nin terms of section 229, are declared to be inconsistent with the Constitution and, \naccordingly, to be invalid. \n\n2. \n\nIn terms of section 98(7) of the Constitution, and with effect from the date of this \norder: \n\n(a) \n\n(b) \n\nthe State is and all its organs are forbidden to execute any person already \nsentenced to death under any of the provisions thus declared to be invalid; and \n\nall such persons will remain in custody under the sentences imposed on them, \nuntil such sentences have been set aside in accordance with law and \nsubstituted by lawful punishments. \n\n \n \n[152] ACKERMANN J: I concur fully in the judgment of the President, both regarding his \n\nconclusions and his reasons therefor, save in the respects hereinafter set forth. I also \nagree with the order proposed by him. \n\n \n[153] I place greater emphasis on the inevitably arbitrary nature of the decision involved in the \n\nimposition of the death penalty as a form of punishment in supporting the conclusion \nthat it constitutes \"cruel\", \"inhuman\" and \"degrading punishment\" within the meaning \nof section 11(2) of the Constitution, which cannot be saved by section 33(1). \n\n \n[154] In paragraphs [43] to [56] of his judgment the President deals with the arbitrariness and \n\ninequality of the death penalty. He deals (more particularly in paragraphs [55] and \n[56]) with the difficulties faced by the US Supreme Court in trying to eliminate the \ndangers of arbitrariness by employing the due process provisions of the Fifth and \n\n \n \n\n95 \n\n\f \n \n\nACKERMANN J \n\nFourteenth Amendments. Such efforts cause considerable expense and interminable \ndelays, and the President concludes by expressing the view that we should not follow \nthe United States route. I agree, but that does not mean that we ought not to accord \ngreater weight to considerations of arbitrariness and inequality. The US Supreme \nCourt has been obliged to follow the route it did because, so it seems to me, their \nConstitution postulates (by implication) that it is possible to devise due process \nmechanisms which can deal with the arbitrary and unequal features of death sentence \nimposition. We are not so constrained. Our right to life is not qualified in the way it is \nqualified in the Fifth and Fourteenth Amendments of the US Constitution. We are not \nconstitutionally constrained to accept the arbitrary consequences of the imposition of \nthe death penalty. \n\n \n[155] The preamble to the Constitution refers to the creation of a new order in a state, which, \n\namongst other things, is described as a \"constitutional state.\" Section 4(1) declares the \nConstitution to be the \"supreme law of the Republic\" which by virtue of section 4(2) \n\"binds all legislative, executive and judicial organs of state at all levels of \ngovernment.\" Every person's right to equality before the law is entrenched in section \n8(1) and in section 8(2) a substantial number of different grounds of unfair \ndiscrimination are prohibited. The constitutional importance of equality is further \nunderscored in section 35(1) which enjoins the courts to promote the values which \nunderlie an open and democratic society based on freedom and equality in \ninterpreting the provisions of Chapter 3. \n\n \n[156] In reaction to our past, the concept and values of the constitutional state, of the \"regstaat\", \nand the constitutional right to equality before the law are deeply foundational to the \ncreation of the \"new order\" referred to in the preamble. The detailed enumeration and \ndescription in section 33(1) of the criteria which must be met before the legislature \ncan limit a right entrenched in Chapter 3 of the Constitution emphasises the \nimportance, in our new constitutional state, of reason and justification when rights are \nsought to be curtailed. We have moved from a past characterised by much which was \narbitrary and unequal in the operation of the law to a present and a future in a \n\n \n \n\n96 \n\n\f \n \n\nACKERMANN J \n\nconstitutional state where state action must be such that it is capable of being \nanalysed and justified rationally. The idea of the constitutional state presupposes a \nsystem whose operation can be rationally tested against or in terms of the law. \nArbitrariness, by its very nature, is dissonant with these core concepts of our new \nconstitutional order. Neither arbitrary action nor laws or rules which are inherently \narbitrary or must lead to arbitrary application can, in any real sense, be tested against \nthe precepts or principles of the Constitution171. Arbitrariness must also inevitably, by \n\n \n\n 171See in general Prof. E Mureinik 'A Bridge to Where? Introducing the Interim Bill of Rights' 10 (1994) \nSAJHR 31. At 32 the learned author points out that - \n \n\n\"If the new Constitution is a bridge away from a culture of authority, it is clear what it must be \na bridge to. It must lead to a culture of justification - a culture in which every exercise of \npower is expected to be justified; ... If the Constitution is to be a bridge in this direction, it is \nplain that the Bill of Rights must be its chief strut\". \n\n \nAt 38 he points out that Chapter 3 of the Constitution, and in particular section 24, the administrative justice \nclause - \n \n\n\"gives a lead which, properly followed, would put South Africa at the frontiers of the search \nfor a culture of justification.\" \n\n \n \n\n97 \n\n\f \n \n\nACKERMANN J \n\nits very nature, lead to the unequal treatment of persons. Arbitrary action, or decision \nmaking, is incapable of providing a rational explanation as to why similarly placed \npersons are treated in a substantially different way. Without such a rational justifying \nmechanism, unequal treatment must follow. \n\n \n[157] It is in the context of our (textually) unqualified section 9 right to life that I find certain \n\nobservations in the US decisions supportive on the issue and consequences of \narbitrariness. We are free to look at the incidence and consequences of arbitrariness \nwithout being constrained by a constitutional authorization (whether explicit or \nimplicit) of the death penalty. One must of course constantly bear in mind that the \nrelevant criteria in the Eighth Amendment of the US Constituion also differ from \nthose in section 11(2) of our Constitution. Whereas in the former they are \"cruel and \nunusual\" in the latter they are \"cruel, inhuman or degrading\". \n\n \n \n[158] In Furman v. Georgia172 the US Supreme Court had to consider a case where the \n\ndetermination of whether the penalty for murder and rape should be death or another \npunishment was left by the State of Georgia to the discretion of the judge or of the \njury. In the course of his judgment173 Douglas J referred with approval to the \nfollowing comments in a journal article: \n\n \n\n \n\n \n\n\"A penalty ... should be considered 'unusually' imposed if it is administered \narbitrarily or discriminatingly ... [t]he extreme rarity with which applicable death \npenalty provisions are put to use raises a strong inference of arbitrariness.\" \n\nHe further expressed the view174 that - \n\n\"[t]he high service rendered by the 'cruel and unusual' punishment clause of the \nEighth Amendment is to require legislatures to write penal laws that are evenhanded, \n\n \n 172408 US 238 (1972). \n\n 173Id. at 249. \n\n 174Id. at 256. \n\n \n \n\n98 \n\n\f \n \n \n[159] On the issue of arbitrariness Brennan J observed in Furman175 that - \n \n\nnon-selective, and nonarbitrary ...\" \n\nACKERMANN J \n\n\"In determining whether a punishment comports with human dignity, we are aided \nalso by a second principle inherent in the [Cruel and Unusual Punishments] Clause - \nthat the State must not arbitrarily inflict a severe punishment. This principle derives \nfrom the notion that the State does not respect human dignity when, without reason, \nit inflicts upon some people a severe punishment that it does not inflict upon others.\" \n\n \n\n \n\n 175Id. at 274. \n\n \n \n\n99 \n\n\f \n \n\n \n\n \n\nHe also stated176 (in a context not dissimilar to ours where a vast number of murders \nare committed, a large number of accused charged and convicted but relatively few \nultimately executed) that - \n\nACKERMANN J \n\n\"No one has yet suggested a rational basis that could differentiate in those terms the \nfew who die from the many who go to prison. Crimes and criminals simply do not \nadmit of a distinction that can be drawn so finely as to explain, on that ground, the \nexecution of such a tiny sample of those eligible ......... Nor is the distinction credible \nin fact.\" \n\n[160] Stewart J founded his judgment on the fact that the imposition of so extreme a penalty in \n\npursuance of the Georgia statute was inevitably arbitrary. After referring to the fact \nthat \"the petitioners are among a capriciously selected random handful upon whom \nthe sentence of death has in fact been imposed\" he concludes simply by holding that - \n\n \n\n \n\n\"the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence \nof death under legal systems that permit this unique penalty to be so wantonly and so \nfreakishly imposed\"177 \n\n \n\n 176Id. at 294. \n\n 177Id. at 309 - 310. \n\n \n \n\n100 \n\n\f \n \n[161] In Callins v. Collins, cert. denied, 114 S.Ct. 1127, 127 L.Ed 435 (1994) Blackmun J filed a \n\nACKERMANN J \n\ndissenting opinion. In it he observed that178- \n\n \n\n \n\n \n\n \n\n \n\n \n\n\"[e]xperience has taught us that the constitutional goal of eliminating arbitrariness \nand discrimination from the administration of death, see Furman v. Georgia, supra, \ncan never be achieved without compromising an equally essential component of \nfundamental fairness - individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 \n(1978).\" \n\nand, commenting upon its unavoidable arbitrariness, that179- \n\n\"[i]t is virtually self-evident to me now that no combination of procedural rules or \nsubstantive regulations ever can save the death penalty from its inherent \nconstitutional deficiencies. The basic question - does the system accurately and \nconsistently determine which defendants 'deserve' to die? - cannot be answered in the \naffirmative.\" \n\nHe further expressed the view that180- \n\n\"[a]lthough most of the public seems to desire, and the Constitution appears to \npermit, the penalty of death, it surely is beyond dispute that if the death penalty \ncannot be administered consistently and rationally, it must not be administered at \nall.\" (emphasis added) \n\n \n\n 178Callins v. Collins, supra, at 1129. \n\n 179Id. at 1130. \n\n 180Id. at 1131. \n\n \n \n\n101 \n\n\f \n \n\n \n\nand that181, in the aftermath of the Furman judgment - \n\nACKERMANN J \n\n\"[i]t soon became apparent that discretion could not be eliminated from capital \nsentencing without threatening the fundamental fairness due a defendant when life is \nat stake. Just as contemporary society was no longer tolerant of the random or \ndiscriminatory infliction of the penalty of death ... evolving standards of decency \nrequired due consideration of the uniqueness of each individual defendant when \nimposing society's ultimate penalty ... [T]he consistency and rationality promised in \nFurman are inversely related to the fairness owed the individual when considering a \nsentence of death. A step toward consistency is a step away from fairness\". \n\n \n \n \n[162] In considering a constitutional right to life unfettered by the restraints or interpretative \n\nproblems of the right in the US Constitution, I am of the view that the above dicta are \nappropriate to the issue of the constitutionality of the death sentence in South Africa. \nAs general propositions, which can be applied in the context of our Constitution, I \nwould accept and endorse the views of Blackmun J. \n\n \n[163] As to the more general principle that arbitrariness conflicts with the idea of a right to equality \n\nand equality before the law I am fortified in my view by the following remarks of \nBhagwati, J in Gandhi v. Union of India 1978 SC 597 at 624: \n\n \n\n\"We must reiterate here what was pointed out by the majority in E.P. Royappa v. \nState of Tamil Nadu (1974) 2 SCR 348: (AIR 1974 SC 555) namely, that 'from a \npositivistic point of view, equality is antithetic to arbitrariness. In fact equality and \narbitrariness are sworn enemies; one belongs to the rule of law in a republic, while \nthe other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, \nit is implicit in it that it is unequal both according to political logic and constitutional \nlaw and is, therefore violative of Article 14.'\" \n\n \n[164] I am mindful of the fact that it is virtually impossible (save in the case of rigidly \n\ncircumscribed mandatory sentences - which present other dangers) to avoid elements \nof arbitrariness in the imposition of any punishment. Arbitrary elements are present in \n\n \n\n 181Id. at 1132. \n\n \n \n\n102 \n\n\f \n \n\n \n \n \n\nACKERMANN J \n\nthe difficult decision to send an offender to prison for the first time, or in deciding \nwhat the appropriate length of the prison sentence should be in any case where it is \nimposed. However, the consequences of the death sentence, as a form of punishment, \ndiffer so radically from any other sentence that the death sentence differs not only in \ndegree but also \n\nin substance from any other form of punishment. A sentence which preserves life \ndiffers incomparably from one which obliterates life. The executed person has, in \nfact, \"lost the right to have rights.\"182 In this sense the death sentence is unique and \n\n \n\n 182Trop v. Dulles 356 US 84 (1958) at 102 quoted with approval by Brennan J in Furman, supra note 2, at \n289. See also Stewart J in Furman at 306: \n \n\n\"The penalty of death differs from all other forms of criminal punishment, not in degree but in \nkind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the \nconvict as a basic purpose of criminal justice. And it is unique, finally, in its absolute \nrenunciation of all that is embodied in our concept of humanity.\" \n\n \n \n\n103 \n\n\f \n \n\n \n\nthe dimension and consequences of arbitrariness in its imposition differ \nfundamentally from the dimension and consequences of arbitrariness in the \nimposition of any other punishment183. \n\nACKERMANN J \n\n \n\n \n\n 183In Callins v. Collins, supra, at 1132, Blackmun J, quoting from the opinion of Stewart, Powell and Stevens \nJJ in Woodson v. North Carolina 428 US 280 (1976) at 305, pointed out that because of the qualitative \ndifference of the death penalty, \"there is a corresponding difference in the need for reliability in the \ndetermination that death is the appropriate punishment in a specific case.\" \n\n \n \n\n104 \n\n\fACKERMANN J \n\n \n \n[165] In paragraphs [44] to [46] of his judgment the President has referred to the relevant statutory \nprovisions prescribing the tests to be applied for the imposition of the death sentence \nand the guidelines laid down for their application by the Appellate Division of the \nSupreme Court. In the end, whatever guidelines are employed, a process of weighing \nup has to take place between \"mitigating factors\" (if any) and \"aggravating factors\" \nand thereafter a value judgment made as to whether \"the sentence of death is the \nproper sentence.\" I am not suggesting that the statutory provisions could have been \nbetter formulated or that the Appellate Division guidelines could be improved upon. \nThe fact of the matter is that they leave such a wide latitude for differences of \nindividual assessment, evaluation and normative judgment, that they are inescapably \narbitrary to a marked degree. There must be many borderline cases where two courts, \nwith the identical accused and identical facts, would undoubtedly come to different \nconclusions. I have no doubt that even on a court composed of members of the genus \nHercules184 and Athena there would in many cases be differences of opinion, \nincapable of rational elucidation, on whether to impose the death penalty in a \nparticular case, where its imposition was, as in the case of section 277(1) of the \nCriminal Procedure Act, dependant on the application of widely formulated criteria \nand the exercise of difficult value judgments. \n\n \n[166] The conclusion which I reach is that the imposition of the death penalty is inevitably \n\narbitrary and unequal. Whatever the scope of the right to life in section 9 of the \nConstitution may be, it unquestionably encompasses the right not to be deliberately \nput to death by the state in a way which is arbitrary and unequal. I would therefore \nhold that section 277(1)(a) of the Criminal Procedure Act is inconsistent with the \nsection 9 right to life. I would moreover also hold that it is inconsistent with section \n\n \n\n 184Prof. Dworkin's lawyer \"of superhuman skill, learning, patience and acumen\"; see Taking Rights Seriously \n(1978) 105. \n\n \n \n\n105 \n\n\f \n \n\nACKERMANN J \n\n11(2). Where the arbitrary and unequal infliction of punishment occurs at the level of \na punishment so unique as the death penalty, it strikes me as being cruel and \ninhuman. For one person to receive the death sentence, where a similarly placed \nperson does not, is, in my assessment of values, cruel to the person receiving it. To \nallow chance, in this way, to determine the life or death of a person, is to reduce the \nperson to a cypher in a sophisticated judicial lottery. This is to treat the sentenced \nperson as inhuman. When these considerations are taken in conjunction with those set \nforth by the President in his judgment, they render the death penalty a cruel, inhuman \nand degrading punishment. For the reasons expounded by the President in his \njudgment, and with which I fully agree, neither the infringement of section 9 nor of \nsection 11(2) by section 277(1)(a) of the Criminal Procedure Act, can be saved by the \nprovisions of section 33(1) of the Constitution. Accordingly the provisions of section \n277(1)(a) must be held to be inconsistent with sections 9 and 11(2) of the \nConstitution. \n\n \n[167] In paragraphs [132] to [134] of his judgment the President alludes to the provision in section \n33(1)(b) of the Constitution that a limitation \"shall not negate the essential content of \nthe right in question\" but, after referring to uncertainties concerning its meaning, \nfinds it unnecessary to resolve the issue in the present case. In paragraph [133] he \npostulates, however, a subjective and an objective approach to the problem. I do not \nnecessarily agree with his formulation of the objective approach. In my view it is \nunnecessary in the present case to say anything at all about the meaning to be \nattached to this provision. It is one which the framers of our Constitution borrowed in \npart from article 19(2) of the German Basic Law (\"Grundgesetz\") which provides that \n- \n\n\"In keinem Falle darf ein Grundrecht in seinem Wesensgehalt angetastet \nwerden\" \n(\"In no case may the essence of a basic right be encroached upon\"15) \n\n \n\n \n\n 15From the official translation published by the Press and Information Office of the Federal Government, \nBonn (1994). \n\n \n \n\n106 \n\n\f \n \n\nThere are obvious differences in the wording of the qualification. Nevertheless there \nis a wealth of German case law and scholarship on the topic16. Without the fullest \n\nACKERMANN J \n\n \n\n \n\n 16Decisions of the Federal Constitutional Court: 2 BVerfGE 266 at 285; 6 BVerfGE 32 at 41; 7 BVerfGE 377 \nat 411; 13 BVerfGE 97 at 122; 15 BVerfGE 126 at 144; 16 BVerfGE 194 at 201; 21 BVerfGE 92 at 93; 22 \nBVerfGE 180 at 218; 27 BVerfGE 344 at 350; 30 BVerfGE 1 at 24; 30 BVerfGE 47 at 53; 31 BVerfGE 58 at \n61; 32 BVerfGE 373 at 379; 34 BVerfGE 238 at 245; 58 BVerfGE 300 at 348; 61 BVerfGE 82 at 113; 80 \nBVerfGE 367 at 373. \n \n\nDecisions of the Federal Administrative Court: 1 BVerwGE 92 at 93; 1 BVerwGE 269 at 270; 2 \n\nBVerwGE 85 at 87; BVerwGE reported in 90 Deutsches Verwaltungsblatt at 709. \n \n\nDecisions of the Federal Court of Justice: 4 BGHSt 375 at 377 (also reported in 1955 Die \u00d6ffentliche \n\nVerwaltung at 176); 4 BGHSt 385; 5 BGHSt 375; 6 BGHZ 270 at 275; 22 BGHZ 168 at 176. \n \n\nGeneral academic works: Von M\u00fcnch/Kunig Grundgesetz Kommentar (1992) 997-1004; Leibholz-\nRinck-Hesselberger Grundgesetz Kommentar an Hand der Rechtsprechung des Bundesverfassungsgerichts \n(1994)(commentary on art.19) 16-18; Maunz-D\u00fcrig-Herzog Grundgesetz Kommentar (1991) (commentary on \nart.19II) 1-14; Jarass/Pieroth Grundgesetz f\u00fcr die Bundesrepublik Deutschland (1992) 336-8; J Isensee & P \nKirchhof (eds) Handbuch des Staatsrechts vol 5 (1992) 795; E Denninger in Reihe Alternativkommentare \nKommentar zum Grundgesetz f\u00fcr die Bundesrepublik Deutschland (1984) 1179; Schmidt-Bleibtreu-Klein \nKommentar zum Grundgesetz (1990) 397-9; K Hesse Grundz\u00fcge des Verfassungsrechts der Bundesrepublik \nDeutschland (1991) 140; Von Mangoldt/Klein Das Bonner Grundgesetz (1966) 551; K Doehring Allgemeine \n\n \n \n\n107 \n\n\f \n \n\nexposition of, and argument on, inter alia, the German jurisprudence in this regard, I \nconsider it undesirable to express any view on the subject. \n\nACKERMANN J \n\n \n\nStaatslehre (1991) 222; Maunz-Zippelius Deutsches Staatsrecht (1991) 161. \n \n\nSpecialist literature on art.19(2) GG: P H\u00e4berle Die Wesensgehaltgarantie des Artikels 19 Abs. 2 \n\nGrundgesetz (1983); E von Hippel Grenzen und Wesensgehalt der Grundrechte (1965); H Kr\u00fcger \u2018Der \nWesensgehalt der Grundrechte des Art.19 GG\u2019 (1955) Die \u00d6ffentliche Verwaltung 597; L Scheider Der Schutz \ndes Wesensgehalts von Grundrechten nach Art.19 Abs.2 GG (1983); G Herbert \u2018Der Wesensgehalt der \nGrundrechte\u2019 12 (1985) Europ\u00e4ische Grundrechte Zeitschrift 321; Zivier Der Wesensgehalt der Grundrechte \nDiss. Berlin (1960); J Chlosta Der Wesensgehalt der Eigentumsgew\u00e4hrleistung (1975); P Lerche \u00dcbermass und \nVerfassungsrecht (1961); Kaufmann \u2018\u00dcber den \u2018Wesensgehalt\u2019 der Grund- und Menschenrechte\u2019 (1984) Archiv \nf\u00fcr Rechts- und Sozialphilosophie 384; E Denninger \u2018Zum Begriff des \u2018Wesensgehaltes\u2019 in der Rechtsprechung \n(Art.19.Abs.II GG)\u2019 (1960) Die \u00d6ffentliche Verwaltung 812. \n\n \n \n\n108 \n\n\f \nACKERMANN J \n \n[168] Members of the public are understandably concerned, often frightened, for their life and \n\nsafety in a society where the incidence of violent crime is high and the rate of \napprehension and conviction of the perpetrators low. This is a pressing public \nconcern. However important it undoubtedly is to emphasise the constitutional \nimportance of individual rights, there is a danger that the other leg of the \nconstitutional state compact may not enjoy the recognition it deserves. I refer to the \nfact that in a constitutional state individuals agree (in principle at least) to abandon \ntheir right to self-help in the protection of their rights only because the state, in the \nconstitutional state compact, assumes the obligation to protect these rights. If the state \nfails to discharge this duty adequately, there is a danger that individuals might feel \njustified in using self-help to protect their rights. This is not a fanciful possibility in \nSouth Africa. \"The need for a strong deterrent to violent crime\" is underscored by the \nPresident in his judgment as is the duty of the state, through the criminal justice \nsystem, to ensure that offenders will be apprehended and convicted, for these steps \nare conditions precedent to punishment.17 \n\n \n[169] Apart from deterring others, one of the goals of punishment is to prevent the convicted \nprisoner from committing crimes again. Both the preventative and reformative \ncomponents of punishment are directed towards this end, although reformation \nobviously has the further commendable aim of the betterment of the prisoner. Society \nas a whole is justifiably concerned that this aim of punishment should be achieved \nand society fears the possibility that the violent criminal, upon release from prison, \nwill once again harm society. Society is particularly concerned with the possibility of \nthis happening in the case of an unreformed recidivist murderer or rapist if the death \npenalty is abolished. \n\n \n\n \n\n 17Para. 117. \n\n \n \n\n109 \n\n\fACKERMANN J \n\n \n \n[170] The President has rightly pointed out in his judgment that in considering the deterrent effect \nof the death sentence the evaluation is not to be conducted by contrasting the death \npenalty with no punishment at all but between the death sentence and \"severe \npunishment of a long term of imprisonment which, in an appropriate case, could be a \nsentence of life imprisonment\";18 I agree with this approach. With the abolition of \nthe death penalty society needs the firm assurance that the unreformed recidivist \nmurderer or rapist will not be released from prison, however long the sentence served \nby the prisoner may have been, if there is a reasonable possibility that the prisoner \nwill repeat the crime. Society needs to be assured that in such cases the state will see \nto it that such a recidivist will remain in prison permanently. \n\n \n[171] I appreciate the concern of not wishing to anticipate the issue as to whether life \n\nimprisonment, however executed and administered, is constitutional or not. At the \nsame time I do not believe that the two issues can be kept in watertight separate \njuristic compartments. If the death penalty is to be abolished, as I believe it must, \nsociety is entitled to the assurance that the state will protect it from further harm from \nthe convicted unreformed recidivist killer or rapist. If there is an individual right not \nto be put to death by the criminal justice system there is a correlative obligation on \nthe state, through the criminal justice system, to protect society from once again \nbeing harmed by the unreformed recidivist killer or rapist. The right and the \nobligation are inseparably part of the same constitutional state compact. \n\n \n\n \n \n\n 18Para. 123. \n\n \n \n\n110 \n\n\f \nACKERMANN J \n \n[172] Article 102 of the German Basic Law declares that capital punishment is abolished. The \n\nGerman Federal Constitutional Court considered the constitutionality of life \nimprisonment in 197719. The provision in the criminal code which prescribes life \nimprisonment for murder was challenged on the basis that it conflicted with the \nprotection afforded to human dignity (art 1.1) and personal freedom (art 2.2) in the \nGerman Basic Law. The Court upheld the law on the basis that it was not shown that \nthe serving of a sentence of life imprisonment leads to irreparable physical or \npsychological damage to the prisoner's health. The Court did however find that the \nright to human dignity demands a humane execution of the sentence. This meant that \nthe existing law, which made provision for executive pardon, had to be replaced by a \nlaw laying down objective criteria for the release of prisoners serving life sentences. \nIn the course of its judgment, the Court made clear that there is nothing \nconstitutionally objectionable to executing a life sentence in full in cases where the \nprisoner does not meet the criteria. At page 242 of the judgment the Court said: \n\n \n\n \n\n \n\n\"Die Menschenw\u00fcrde wird auch dann nicht verletzt, wenn der Vollzug der Strafe \nwegen fortdauernder Gef\u00e4hrlichkeit des Gefangenen notwendig ist und sich aus \ndiesem Grunde eine Begnadigung verbietet. Es ist der staatlichen Gemeinschaft nicht \nverwehrt, sich gegen einen gemeingef\u00e4hrlichen Straft\u00e4ter durch Freiheitsentzug zu \nsichern.\" \n\n(\"Human dignity is not infringed when the execution of the sentence remains \nnecessary due to the continuing danger posed by the prisoner and clemency is for this \nreason precluded. The state is not prevented from protecting the community from \ndangerous criminals by keeping them incarcerated\".) \n\n \n \n \n \n \n \n[173] DIDCOTT J: I agree with Chaskalson P that our new Constitution (Act 200 of 1993) \n \n\n 1945 BVerfGE 187. \n\n \n \n\n111 \n\n\f \n \n\noutlaws capital punishment in South Africa for the crimes covered by his judgment, \nand I concur in the order giving effect to that conclusion which he proposes to make. \n\nDIDCOTT J \n\n \n[174] My grounds for believing the death penalty to be unconstitutional for the crimes in question \n\nare these. Capital punishment violates the right to life of every person that is \nprotected by section 9 of the Constitution and contravenes the prohibition pronounced \nin section 11(2) against cruel, inhuman or degrading punishment, both of which bind \nthe state and its organs in terms of section 7(1). The provisions of the Criminal \nProcedure Act ( 51 of 1977) that sanction sentences of death for such crimes are not \nsaved from nullification in their consequent clash with sections 9 and 11 (2). For \nthey fail to satisfy the conditions which paragraph (a) of section 33(1) prescribes for \ntheir survival as exceptions to the general rule, the conditions requiring that they must \nbe reasonable in the first place and, in a society of the sort described there, justifiable \nin the second. Nor do they pass the further test of necessity set by paragraph (aa) for \nany permissible invasion of section 11(2). \n\n \n[175] Perhaps the essential content of the right to life is negated in addition, an effect not \n\ncountenanced by paragraph (b) of section 33(1) which subjects the legitimacy of any \nencroachment on the right to the extra requirement that no such result may ever \nensue. That point may be put aside, however, once the requirements of paragraphs \n(a) and (aa) are not met. Negating the essential content of a constitutional right is a \nconcept less simple and clear than it may appear at first to be. Any definitive ruling \non its import that was made now would have a profound bearing on other issues \nlikely to confront us in the future, with implications for them which are difficult to \nforesee at so early a stage in the development of our jurisprudence. It is better, I \ntherefore feel, not to go into the question on this occasion, but to leave that open for \nconsideration and decision on a different one when it has to be answered. \n\n \n[176] Nor, for much the same reasons, do I think it wise to venture at present a comprehensive and \nexact definition of what is encompassed by the constitutional right to life. It suffices \nfor the purposes of this case to say that the proclamation of the right and the respect \n\n \n \n\n112 \n\n\f \n \n\nDIDCOTT J \n\nfor it demanded from the state must surely entitle one, at the very least, not to be put \nto death by the state deliberately, systematically and as an act of policy that denies in \nprinciple the value of the victim's life. Those are hardly features of deaths which the \nstate may happen to cause in the course of waging defensive warfare, quelling an \ninsurrection or rescuing hostages, to cite some situations debated before us in which a \nconstitutional protection of life was said to be inconceivable. Such hallmarks do, \nhowever, characterise every execution by the state of a criminal. \n\n \n[177] Whether execution ranks also as a cruel, inhuman or degrading punishment is a question \n\nthat lends itself to no precise measurement. It calls for a value judgment in an area \nwhere personal opinions are prone to differ, a value judgment that can easily become \nentangled with or be influenced by one's own moral attitude and feelings. \nJudgments of that order must often be made by courts of law, however, whose \ntraining and experience warns them against the trap of undue subjectivity. Such a \njudgment is now required from us, at all events, and would have been inescapable \nwhichever way the question was answered. Nor do we lack guidance on it. A \nprovision of the Zimbabwean Constitution which banned inhuman or degrading \npunishment was considered by their Supreme Court in Catholic Commission for \nJustice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993(4) \nSA 239 (ZSC). Gubbay CJ had this to say about it (at 247 I - 248 B): \n\n\"It is a provision that embodies broad and idealistic notions of dignity, humanity \nand decency. It guarantees that punishment.....of the individual be exercised within \nthe ambit of civilised standards. Any punishment.....incompatible with the evolving \nstandards of decency that mark the progress of a maturing society, or which involve \nthe infliction of unnecessary suffering, is repulsive. What might not have been \nregarded as inhuman decades ago may be revolting to the new sensitivities which \nemerge as civilisation advances\". \n\n \nThe same goes, I firmly believe, for our section 11(2). Gubbay CJ continued thus (at \n248 B-C): \n\n113 \n\n \n\n \n\n \n \n \n \n\n\f \n \n\n \n \n\nDIDCOTT J \n\n\"(A)n application of this approach to whether a form of ... punishment ... is inhuman \nor degrading is dependent upon the exercise of a value judgment ...; one that must \nnot only take account of the emerging consensus of values in the civilised \ninternational community (of which this country is a part) ..., but of contemporary \nnorms operative in Zimbabwe and the sensitivities of its people\". \n\nI take that view here too, where such norms and sensitivities are demonstrated, \nabove all else, by the altruistic and humanitarian philosophy which animates the \nConstitution enjoyed by us nowadays. \n\n \n \n[178] Capital punishment was discussed at length in Furman v State of Georgia(1972) 408 US \n\n238, a case handled by the Supreme Court of the United States of America in which \na comparably liberal philosophy was expounded by a number of the judges hearing \nit. Stewart J described that sentence (at 306) as - \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n \n\n\u201c.....unique ...in its absolute renunciation of all that is embodied in our \nconcept of humanity.\u201d \n\nBrennan J agreed, declaring in the same case (at 290 and 291) that: \n\n\u201cDeath is truly an awesome punishment. The calculated killing of a human being \nby the state involves, by its very nature, a denial of the executed person\u2019s humanity. \n The contrast with the plight of a person punished by imprisonment is evident....A \nprisoner remains a member of the human family...In comparison to all other \npunishments...the deliberate extinguishment of human life by the state is uniquely \ndegrading to human dignity\u201d. \n\nThe distinctive features of the penalty were emphasised by Brennan J elsewhere in \nhis judgment, when he wrote (at 287 and 288) that: \n\n\u201cDeath is today an unusually severe punishment, unusual in its pain, in its finality, \nand in its enormity. No other existing punishment is comparable to death in terms of \nphysical and mental suffering... Since the discontinuance of flogging as a \nconstitutionally permissible punishment..., death remains the only punishment that \nmay involve the conscious infliction of physical pain. In addition, we know that \n\n114 \n\n\f \n \n\n \n\n \n\n \n \n\n \n \n \n\n \n\n \n \n\nDIDCOTT J \n\nmental pain is an inseparable part of our practice of punishing criminals by death, \nfor the prospect of pending execution exacts a frightful toll during the inevitable \nlong wait between the imposition of sentence and the actual infliction of death... \nThe unusual severity of death is manifested most clearly in its finality and enormity. \n Death, in these respects, is in a class by itself.\u201d \n\nIn a Californian case, the one of The People v Anderson (1972) 493 P 2d 880, \nWright CJ observed (at 894) that: \n\n \n\n\u201cThe cruelty of capital punishment lies not only in the execution itself and the pain \nincident thereto, but also in the dehumanising effects of the lengthy imprisonment \nprior to execution during which the judicial and administrative procedures essential \nto due process of law are carried out. Penologists and medical experts agree that the \nprocess of carrying out a verdict of death is often so degrading and brutalising to the \nhuman spirit as to constitute psychological torture.\u201d \n\nLiacos J elaborated on that aspect of the matter in the judgment which he delivered \nwhen District Attorney for the Suffolk District v Watson and Others (1980) 381 Mass \n648 \n\nwas decided in Massachusetts. The passages that I shall quote (at 678 - 9, 681 and \n683) are vivid. They went thus: \n\n\u201cThe ordeals of the condemned are inherent and inevitable in any system that \ninforms the condemned person of his sentence and provides for a gap between \nsentence and execution. Whatever one believes about the cruelty of the death \npenalty itself, this violence done the prisoner\u2019s mind must afflict the conscience of \nenlightened government and give the civilised heart no rest... The condemned must \nconfront this primal terror directly, and in the most demeaning circumstances. A \ncondemned man knows, subject to the possibility of successful appeal or \ncommutation, the time and manner of his death. His thoughts about death must \nnecessarily be focussed more precisely than other people\u2019s. He must wait for a \nspecific death, not merely expect death in the abstract. Apart from cases of suicide \nor terminal illness, this certainty is unique to those who are sentenced to death. The \nstate puts the question of death to the condemned person, and he must grapple with \nit without the consolation that he will die naturally or with his humanity intact. A \ncondemned person experiences an extreme form of debasement.... The death \nsentence itself is a declaration that society deems the prisoner a nullity, less than \n\n115 \n\n\f \n \n\n \n\n \n\nDIDCOTT J \nhuman and unworthy to live. But that negation of his personality carries through the \nentire period between sentence and execution.\u201d \n\nA similar account was furnished by Gubbay CJ in the Catholic Commission case \nwhen he said (at 268 E-H): \n\n\u201cFrom the moment he enters the condemned cell, the prisoner is enmeshed in a \ndehumanising environment of near hopelessness. He is in a place where the sole \nobject is to preserve his life so that he may be executed. The condemned prisoner is \n\u2018the living dead\u2019..... He is kept only with other death sentence prisoners - with those \nwhose appeals have been dismissed and who await death or reprieve; or those \nwhose appeals are still to be heard or are pending judgment. While the right to an \nappeal may raise the prospect of being allowed to live, the intensity of the trauma is \nmuch increased by knowledge of its dismissal. The hope of a reprieve is all that is \nleft. Throughout all this time the condemned prisoner constantly broods over his \nfate. The horrifying spectre of being hanged by the neck and the apprehension of \nbeing made to suffer a painful....death is ....never far from mind.\u201d \n\n[179] The Constitutions of California and Massachusetts forbade cruel punishments. Sentences of \ndeath were held in each state to be contraventions of the prohibition which could not \nstand. The decision reached in the case of the District Attorney for Suffolk was \nannounced by Hennessey CJ, who said (at 664 and 665): \n\n \n\n \n\n \n \n\n\u201c(T)he death penalty is unacceptable under contemporary standards of decency in its \nunique and inherent capacity to inflict pain. The mental agony is, simply and \nbeyond question, a horror.... We conclude..... that the death penalty, with its full \npanoply of concomitant physical and mental tortures, is impermissibly cruel.....when \njudged by contemporary standards of decency.\u201d \n\nExecutions were not outlawed altogether, on the other hand, in either Furman v State \nof Georgia or the case of the Catholic Commission, despite the castigation that they \nthen underwent. The reason lay in the special provisions of the governing charters, \nthe Constitutions of the United States and Zimbabwe, each of which impliedly \nauthorised the punishment, or appeared at least to do so, by protecting the right to \nlife in terms that specifically excluded deaths thus caused. So, while executions \ncould be and were banned in the particular circumstances of the two cases, \ninsufficient room was visible for the total embargo which Brennan J and Gubbay CJ \nwould no doubt have preferred to impose on them. No such obstacle was presented \nby the Constitution of Massachusetts or found to be raised at that time by the \nCalifornian one. None of this detracts, however, from my purpose in repeating the \n\n116 \n\n\f \n \n\nDIDCOTT J \n\nharrowing descriptions given on all four occasions of the ordeal suffered by \ncriminals awaiting and experiencing execution. I am unaware of any criticism ever \nlevelled at those descriptions, which were not disputed before us when reliance was \nplaced on them in argument, and I have no reason to believe that they may have been \ninaccurate or exaggerated in any material respect. They suffice on the whole to \nconvince me that every sentence of death must be stamped, for the purposes of \nsection 11(2), as an intrinsically cruel, inhuman and degrading punishment. \n\n \n[180] I pass to the question whether capital punishment is nevertheless allowed by section 33(1) \nfor the crimes that concern us now. I am not sure that a sentence with a sequel of \nsuch cruelty, inhumanity and degradation can ever be rightly regarded in a civilised \nsociety as a reasonable or justifiable measure, let alone a necessary one. But I shall \nassume that the penalty is not innately incapable of meeting those requirements. \n\n \n[181] The most familiar argument advanced in support of capital punishment, and the main \n\ncontention we have to consider under the heading of its suggested permissibility, is \nthat executions operate as a unique deterrent against the future commission of the \ncrimes visited with them. That proposition, if sound indeed, deserves to be taken \nseriously. It then provides the strongest reason, in cases of murder at all events, for \nrating the sentence of death as an expedient which, though regrettable, passes \nconstitutional muster. For section 9 protects likewise the lives of the innocent, the \nlives of potential victims. And that is a factor which must enter the reckoning, \nespecially at present when the crimes of violence perpetrated here have become so \nprevalent and reached a level so appalling that acute anxiety is felt everywhere about \nthe danger to life lurking around the corner. Such a time was said to be hardly \npropitious for, such a state of affairs to be scarcely conducive to, any relaxation in \nthe rigour of the law. We dared not exacerbate the danger, we were warned, by \nreducing the force of deterrence in the combat with it. I agree that the nation cannot \nafford our doing so, and we would not wish it anyhow. Sight must never be lost, \nhowever, of this. The question is not whether capital punishment has a deterrent \neffect, but whether its deterrent effect happens to be significantly greater than that of \n\n117 \n\n \n \n\n\f \n \n\nthe alternative sentence available, a suitably severe sentence of imprisonment which \nnot only gets passed but may also be expected to run its course. \n\n \n\nDIDCOTT J \n\n[182] The debate surrounding that question, an old one both here and elsewhere, has often been \nmarked by the production of statistical evidence tendered to show that the death penalty \neither does not or does serve a uniquely deterrent purpose, as the case may be. The rate \nof capital crimes committed in a state performing executions is compared with that of \nthe selfsame crimes experienced contemporaneously in some place or another where \nnone occurs. The records of countries that executed convicts formerly, but have ceased \ndoing so, are also examined. Comparisons are then drawn between the rates of those \ncrimes found there before the punishment was abandoned and the ones encountered \nafterwards. Such statistics, when analysed, have always turned out to be inconclusive in \nthe end. The pictures that they purport to present differ in the first place. The clarity of \nthe sketching is impaired, in the second, by all sorts of variable factors for which no \nallowance is or can be made. One thinks, for instance, of differences and fluctuations in \nmoral codes and values, in the efficiency and success of police forces in preventing and \ninvestigating crimes, in the climate for the collaboration and assistance that they need to \nobtain from the public and the extent of it which they manage to gain, in the \norganisation and skills of criminal conspirators and, above all perhaps, in the social and \neconomic conditions that have so profound a bearing everywhere on the incidence of \ncrimes. It therefore did not surprise me to hear that no great store was set in argument \nby figures of that kind. Others were drawn to our attention, which related to South \nAfrica alone. They recorded the number of alleged murders that were reported here \nduring every year from 1988 until 1993, inclusive of both. A globular increase \nemerged, the rate of which over the whole period of six years amounted approximately \nto 35% and accordingly to an annual average of almost 6%, calculated for convenience \nby means of a straight division that inflates the rate slightly, to be sure, since it \ndisregards the effect on the percentage of the change from year to year in the figure on \nwhich it ought actually to be based. Interesting to notice, however, is this. The number \nof alleged murders rose by a mere 1% or thereabouts during 1993, in contrast with the \n\n \n \n\n118 \n\n\f \n \n\nDIDCOTT J \n\naverage rate of 6% postulated, and by 9% during the time from the beginning of 1992 \nuntil the end of 1993, which remained lower than the corresponding average of 12% for \nthat period of two years. The significance of the arithmetic lies in the fact that the \nmoratorium on executions was announced, formally and firmly, in March 1992. What \nthe exercise appears to illustrate, if statistics prove anything in such an area, is the \nirrelevance of the announcement to the rate of murders alleged, which had grown \nsteadily while executions were carried out and was not accelerated by the halt in \nhangings. The results of my analysis, for what they are worth, may be added to the \ncogent and stronger reasons which Chaskalson P has supplied in paragraphs [119] and \n[120] for rejecting the contention addressed to us that the moratorium had contributed \nmaterially to the increase. \n\n \n[183] Without empirical proof of the extent to which capital punishment worked as a deterrent, \nneither side could present any argument on the point better than the appeal to common \nsense that tends to be lodged whenever the debate is conducted. That the extreme \npenalty must inevitably be more terrifying than anything else was said, on the one hand, \nto speak for itself. It spoke superficially, we were told on the other, and unrealistically \ntoo. What stood to reason was this instead. A very large proportion of murderers were \nin no mood or state of mind at the time to contemplate or care about the consequences \nof their killings which they might personally suffer. Those rational enough to take \naccount of them gambled by and large on their escape from detection and arrest, where \nthe odds in their favour were often rather high. The prospect of conviction and \npunishment was much less immediate and seldom entered their thinking. It was \nfanciful, should that happen on relatively rare occasions, to imagine their being daunted \nby the possibility of a journey to the gallows, a journey taken by only a small \npercentage of convicted murderers even at the height of executions in this country, but \nnot by the probability of incarceration in a jail for many years and perhaps for the rest \nof their lives. The second school of thought is the one which gets to grips with the \nrealities of the matter, in my opinion, appraising them with a lot more plausibility and \npersuasiveness than any that attaches to the stark proposition of the first school. \n\n \n \n \n\n119 \n\n\fDIDCOTT J \n\n \n \n[184] It is unnecessary, however, to go so far. The protagonists of capital punishment bear the burden \nof satisfying us that it is permissible under section 33(1). To the extent that their case \ndepends upon the uniquely deterrent effect attributed to it, they must therefore convince \nus that it indeed serves such a purpose. Nothing less is expected from them in any event \nwhen human lives are at stake, lives which may not continue to be destroyed on the \nmere possibility that some good will come of it. In that task they have failed and, as far \nas one can see, could never have succeeded. \n\n \n[185] In his judgment Chaskalson P has discussed retribution as another goal of punishment, and the \narbitrariness and inequality contaminating our processes that culminate in executions. \nHis treatment of the first subject will be found in paragraphs [129] to [131] and of the \nsecond one in paragraphs [48] to [54]. I share the view taken by him that retribution \nsmacks too much of vengeance to be accepted, either on its own or in combination with \nother aims, as a worthy purpose of punishment in the enlightened society to which we \nSouth Africans have now committed ourselves, and that the expression of moral outrage \nwhich is its further and more defensible object can be communicated effectively by \nsevere sentences of imprisonment. The inequality of which he has written may be \ncurable in the long run, once it is not the result of the arbitrariness described by him. \nThe same does not go, however, for the arbitrariness itself, a flaw in the edifice which \nAckermann J has examined as well in paragraphs [158] to [165]. The problem of that is \nquite as intractable here as it has proved to be in the United States of America, where \nthe courts have wrestled with it constantly and by no means to their satisfaction. For \nsuch arbitrariness is largely inherent in the nature of the proceedings from start to finish. \n Similar trouble may be inescapable, to be sure, in cases that are not capital ones. But in \nthose producing sentences of death the arbitrariness is intolerable because of the \nirreversibility of the punishment once that gets put into force and the consequent \nirremediability of mistakes discovered afterwards, mistakes which do occur now and \nthen notwithstanding the myth to the contrary. The defect then militates forcefully, I \nbelieve, against the reasonableness and justifiability of capital punishment. \n\n \n[186] The conclusion to which I have thus come, echoing the one reached by Chaskalson P, is that the \n \n \n\n120 \n\n\f \n \n\nDIDCOTT J \n\ndeath penalty cannot survive our constitutional scrunity of it. The line I have taken in \narriving there differs in some parts from that preferred by him, occasionally approaching \na topic from another angle and sometimes placing the emphasis elsewhere. It has also \ncalled for less elaboration in the light of his meticulous research into a mountain of \nmaterial and his erudite exposition of the themes developed from that. In general, \nhowever, I agree with his judgment, a profound and monumental work with which I feel \nproud to associate myself. \n\n \n[187] I wish before ending this judgment to add my voice to that of Chaskalson P in dealing with a \ncouple of points raised in argument on which he has commented already but which I \nhave not yet mentioned. \n\n[188] Whether capital punishment ought to be abolished or retained amounted, so it was said, to a \nquestion of policy which Parliament should decide, representing as it did the citizens of \nthe country and expressing their general will. The issue is also, however, a constitutional \none. It has been put before us squarely and properly. We cannot delegate to Parliament \nthe duty that we bear to determine it, or evade that duty otherwise, but must perform it \nourselves. In doing so, we were counselled in the alternative, we had to pay great \nattention to public opinion, which was said to favour the retention of the death penalty. \nWe have no means of ascertaining whether that is indeed so, but I shall assume it to be \nthe case. One may also assume, with a fair measure of confidence, that most members of \nthe public who support capital punishment do so primarily in the belief that, owing to its \nuniquely deterrent force, they and their families are safer with than without its \nprotection. The feeling is quite understandable, given its basis. But it deserves no \nfurther homage if the premise underlying and accounting for it is fallacious or \nunfounded, as I consider that one to be. To allow ourselves to be influenced unduly by \npublic opinion would, in any event, be wrong. Powell J disparaged such external \npressures on constitutional adjudication when he said in Furman v State of Georgia (at \n443): \n\n \n\n \n \n\n\u201c(T)he weight of the evidence indicates that the public generally has not accepted either \nthe morality or the social merit of the views so passionately advocated by the articulate \nspokesmen for abolition. But however one may assess (the) amorphous ebb and flow of \n\n121 \n\n\f \n \n\n \n\n \n\nDIDCOTT J \npublic opinion generally on this volatile issue, this type of enquiry lies at the periphery - \nnot the core - of the judicial process in constitutional cases. The assessment of popular \nopinion is essentially a legislative, not a judicial, function.\u201d \n\nIn similar vein were these remarks passed by Jackson J on the earlier occasion of West \nVirginia State Board of Education v Barnette and Others (1942) 319 U5 624 (at 638): \n\n\u201cThe very purpose of a bill of rights was to withdraw certain subjects from the \nvicissitudes of political controversy, to place them beyond the reach of majorities... and \nto establish them as legal principles to be applied by the courts. One\u2019s right to life.... \nand other fundamental rights may not be submitted to vote; they depend on the outcome \nof no elections.\u201d \n\n \n[189] The other point was not so much a contention as a complaint, one registered against the \nsympathy with murderers, and the lack of any felt for the victims and their families, \nwhich some proponents of capital punishment have seen as the motivation behind every \nattack on it. It is unnecessary, I hope, for this court to answer that canard. In rebuttal of \nthe criticism, lest it be levelled at us all the same, one can do no better than to repeat the \nfollowing excerpts from the judgment which Wright CJ wrote in The People v Anderson \n(at 896 and 899): \n\n \n\n\u201cWe are fully aware that many condemned prisoners have committed crimes of the \nutmost cruelty and depravity and that such persons are not entitled to the slightest \nsympathy from society in the administration of justice or otherwise.... Our conclusion \nthat the death penalty may no longer be exacted in California.... is not grounded in \nsympathy for those who would commit crimes of violence, but in concern for the society \nthat diminishes itself whenever it takes the life of one of its members. Lord Chancellor \nGardiner reminded the House of Lords, debating abolition of capital punishment in \nEngland: \u2018When we abolished the punishment for treason that you should be hanged, \nand then cut down while still alive, and then disembowelled while still alive, and then \nquartered, we did not abolish that punishment because we sympathised with traitors, but \nbecause we took the view that it was a punishment no longer consistent with our self-\nrespect\u2019.\u201d \n\n \n[190] South Africa has experienced too much savagery. The wanton killing must stop before it makes \na mockery of the civilised, humane and compassionate society to which the nation \naspires and has constitutionally pledged itself. And the state must set the example by \ndemonstrating the priceless value it places on the lives of all its subjects, even the worst. \n\n \n \n \n \n\n122 \n\n\f \n \n\nKENTRIDGE AJ \n[191] KENTRIDGE AJ: I agree with the order proposed by Chaskalson P and with the reasons for it \ncontained in his judgment and in the judgment of Didcott J In view of the importance of \nthe issue and in deference to the forceful submissions of Mr von Lieres SC, the Attorney-\nGeneral of the Witwatersrand, I add some remarks of my own. \n\n \n[192] Capital punishment is an issue on which many members of the public hold strong and \nconflicting views. To many of them it may seem strange that so difficult and important a \npublic issue should be decided by the eleven appointed judges of this court. It must be \nunderstood that we undertake this task not because we claim a superior wisdom for \nourselves but, as Chaskalson P has explained in his judgment, because the framers of the \nConstitution have imposed on us the inescapable duty of deciding whether the death \npenalty for murder is consistent with Chapter Three of the Constitution. It should not be \noverlooked that a decision holding the death penalty to be constitutional would have \nbeen just as far-reaching an exercise of judicial power as the decision to strike it down. \n\n \n[193] Some public commentators on the question before this court have supposed that any doubt as to \nthe unconstitutionality of the death penalty was foreclosed by section 9 of the \nConstitution, which proclaims in unqualified terms that every person shall have the right \nof life, read with section 33(1)(b), which provides that no statutory limitation on that or \nany other constitutional right shall \"negate the essential content of the right in question.\" \n The execution of a condemned prisoner, it is suggested, must negate entirely his right to \nlife and must therefore ipso facto be in conflict with the constitution. For my part, I do \nnot believe that this supposedly simple solution bears examination. Although the right to \nlife is stated in unqualified terms its full scope and implications remain to be worked out \nin future cases. Certainly, as the President of the Court has pointed out, the right to life \nmust accommodate the right to kill in lawful self-defence of one's own life or the lives of \nothers, as well as the right of the State to defend itself against insurrection. The right to \nlife may also be seen as entailing a duty on the State to protect the lives of its citizens by \nensuring, as far as it is able, that unlawful killing is visited with condign punishment. \nThat punishment like any other, must fall within the limits imposed by section 11(2) of \nthe Constitution. As to section 33(1)(b), I agree with Chaskalson P that our decision in \n\n \n \n\n123 \n\n\f \n \n\nKENTRIDGE AJ \n\nthis case can be reached without requiring the Court to give an authoritative \ninterpretation of that clause. We did, however, hear argument on the clause and I should \nlike to state briefly why I do not think that it provides the short answer to the problem of \nthe constitutionality of the death penalty. \n\n \n[194] The source of section 33(1)(b) is presumably the similar provision in the Constitution of the \nFederal Republic of Germany. As far as I am aware the German Constitutional Court \nhas never given any definite interpretation to that clause. Varying constructions of it \nhave been suggested by the authors cited by Chaskalson P in the footnotes to paragraphs \n108 and 132 of his Judgment; see also the discussion by Rautenbach in 1991 TSAR 403. \n For present purposes it is sufficient to mention two possible interpretations of section \n33(1)(b). The first is that it requires one to consider the effect of any State action on the \nindividual concerned - sometimes called the subjective approach. On this basis the \ninfliction of the death penalty must conflict with section 33(1)(b) because in destroying \nlife it must negate the essence of the right to life. I do not find this so-called subjective \ninterpretation convincing. It cannot accommodate the many State measures which must \nbe necessary and justifiable in any society, such as long-term imprisonment for serious \ncrimes. It is true that a prisoner, even one held under secure conditions, retains some \nresidual rights. See Whittaker v Roos 1912 A.D. 92, 122-3, per Innes J. But I find it \ndifficult to comprehend how, on any rational use of language, it could be denied that \nwhile he is in prison the essence of the prisoner's right to freedom (section 11), of his or \nher right to leave the Republic (section 20) or to pursue a livelihood anywhere in the \nnational territory (section 26) is not negated. Many other examples could be given \nwhich in my view rule out the subjective approach of the sub-section. \n\n \n[195] The other approach (sometimes, not altogether appropriately, called the objective approach) is to \n examine the law which is sought to be justified under section 33. That section states \nthat rights entrenched in Chapter Three may be limited by laws of general application \nprovided that such limitation complies with the requirements of paragraph (a) of sub-\nsection 1 and provided further that it does not negate the essential content of the right in \nquestion. What must pass scrutiny under section 33 is the limitation contained in the law \n\n \n \n\n124 \n\n\f \n \n\nKENTRIDGE AJ \n\nof general application. This means in my opinion that it is the law itself which must pass \nthe test. On this basis a law providing for imprisonment for defined criminal conduct, \ncannot be said to negate the essential content of the right to freedom, whatever the effect \non the individual prisoner serving a sentence under that law. Similarly such a law would \nnot negate the essential content of the right of free movement. Those are general rights \nentrenched in the Constitution, and a law which preserves those rights for most people at \nmost times does not negate the essential content of those rights. An example of a law \nwhich might negate the essence of the right to freedom of movement would be a law \n(such as the Departure from the Republic Act, 1955) under which no person may leave \nthe Republic without the express or implied consent of the Government. Another \npossible example could relate to the right of freedom of speech. A law providing for \ngeneral censorship of all publications would on the face of it negate the essence of the \nright to freedom of speech. On the other hand a law providing penalties for what is \ncolloquially referred to as \"hate speech\" would not, I think, negate the essence of that \nright. (Whether or not it would meet the other criteria of section 33 is a different \nquestion.) \n\n \n[196] It follows that in my opinion that the true issue for decision is whether or not the death penalty \nfor murder is a \"cruel, inhuman or degrading punishment\", although the entrenched right \nto life, like the right to dignity and to equality of treatment, does illuminate the issue. As \nboth Chaskalson P and Didcott J have emphasised, capital punishment is qualitatively \nsomething quite apart from even the longest term of imprisonment. It entails the \ncalculated destruction of a human life. Inequalities in its incidence are probably \nunavoidable. In the infliction of capital punishment judicial and executive error can \nnever be wholly excluded nor, of course, repaired. With regard to the uniquely cruel and \ninhuman nature of the death penalty I would refer to the ample citation of American \nauthority by Didcott J in paragraphs 6 and 7 of his Judgment and to the various decisions \nof international tribunals cited by Chaskalson P. I would add to these the judgment of \nBlackmun J in Callins v Collins 114 S. Ct. 1127 (1994). The statement of Stewart J in \nFurman v Georgia 408 US 238 at 306 cited by Scalia J in Harmelin v Michigan 501 US \n957 (1991), also deserves repetition: \n\n \n \n\n125 \n\n\f \n \n \n\n \n\nKENTRIDGE AJ \n\n\"The penalty of death differs from all other forms of criminal punishment, not \nin degree but in kind. It is unique in its total irrevocability. It is unique in its \nrejection of rehabilitation of the convict as a basic purpose of criminal justice. \nAnd it is unique, finally, in its absolute renunciation of all that is embodied in \nour concept of humanity.\" \n\nThe \"death row\" phenomenon as a factor in the cruelty of capital punishment has been \neloquently described by Lord Griffiths in Pratt v Johnson [1994] 2 AC 1 and by Gubbay \nCJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney General \nZimbabwe 1994 (4) SA 329. Those were cases of inordinately extended delay in the \ncarrying out of the death sentence, but the mental agony of the criminal, in its alternation \nof fear, hope and despair must be present even when the time between sentence and \nexecution is measured in months or weeks rather than years. \n\n \n[197] It may be said that if the punishment is cruel so was the act of the murderer. That cannot and \nshould not be denied. In the present case the Appellants committed murders of \nhorrifying callousness motivated by nothing but greed. In some of the cases summarised \nin the Attorney-General's written submissions, all of them cases in which the Appellate \nDivision had confirmed the sentence of death, the accused had, if that were possible, \ncommitted even more revolting acts of cruelty against their victims. I agree with \nChaskalson P that proportionality is an ingredient to be taken into account in deciding \nwhether a penalty is cruel, inhuman or degrading. But that does not mean that the State \nshould respond to the murderer's cruelty with a deliberate and matching cruelty of its \nown. As Simon Jenkins said in a recent article on the death penalty in \"The Times\" \n(London), that would imply that punishment must not merely fit the crime, but repeat the \ncrime. \n\n \n[198] Section 35 of the Constitution requires us to \"promote the values which underlie an open and \ndemocratic society based on freedom and equality.\" We are thus entitled and obliged to \nconsider the practices of such societies. That exercise shows us that most of the \ncountries which we would naturally include in that category have abolished capital \npunishment as a penalty for murder, either by legislation or by disuse. These countries \n\n \n \n\n126 \n\n\f \n \n\nKENTRIDGE AJ \n\ninclude the neighbouring States of Namibia, Angola and Mozambique. The principal \nexceptions are the great democracies of India and the United States. In each of those \ncountries the written constitution expressly contemplates the legitimacy, subject to \nsafeguards, of the death penalty. Thus the Fifth Amendment to the Constitution of the \nUnited States begins with the words, \"No person shall be held to answer for a capital, or \notherwise infamous crime, unless on a presentment or indictment of a Grand Jury...\" \nThere are similar express indications of the acceptability of the death sentence in Article \n21 of the Constitution of India. It is therefore understandable that the Supreme Courts of \nthose two countries have found themselves unable to hold that the death penalty is per se \nunconstitutional. Nonetheless, in our attempt to identify objectively the values of an \nopen and democratic society what I find impressive is that individual judges of great \ndistinction such as Brennan J in the United States and Bhagwati J in India have held, \nnotwithstanding those constitutional provisions, that the death penalty is impermissible \nwhen measured against the standards of humanity and decency which have evolved since \nthe date of their respective constitutions. Similarly, courts to which considerable respect \nis due, such as the Supreme Court of California in People v Anderson 493 P.2d 880 \n(1972) and the Supreme Judicial Court of Massachusetts in District Attorney for the \nSuffolk District v Watson 381 Mass 648 (1980) have held the death penalty to be a \"cruel \nand inhuman punishment\" and therefore in conflict with their respective State \nconstitutions. In the California case that decision was arrived at notwithstanding clauses \nin the State Constitution which, like the United States Constitution, recognised the \nexistence of capital punishment. (See Anderson's case at 886-7). \n\n \n[199] The reference to \"evolving standards of decency\" is taken from the judgment of Warren CJ in \nTrop v Dulles 356 US 86 at 101 (1958) where, speaking for the Court, he adopted as the \nmeasure of permissible punishment under the Eighth Amendment of the United States \nConstitution \"the evolving standards of decency that mark the progress of a maturing \nsociety.\" Commenting on this dictum in Thomson v Oklahoma 487 US 815 (1988) \nScalia J (dissenting) said at 865: \n\n \n \n \n\n\"Of course, the risk of assessing evolving standards is that it is all too easy to \nbelieve that evolution has culminated in one's own views.\" \n\n127 \n\n\f \n \n\nKENTRIDGE AJ \n\nThis is a pertinent warning which I have, I hope, kept in mind. I believe, nonetheless, \nthat there is ample objective evidence that evolving standards of civilisation demonstrate \nthe unacceptability of the death penalty in countries which are or aspire to be free and \ndemocratic societies. Most democratic countries have abandoned the death penalty for \nmurder. Even in countries which have the death penalty on the statute books there is a \ndecline in its use. Although one cannot say that the death penalty is as yet contrary to \ninternational law, Chaskalson P has demonstrated that that is the direction in which \ninternational law is developing. I shall come later to the question of public opinion and \nthe guidance to be obtained from it, but what is clear to my mind is that in general in \ncivilised democratic societies the imposition of the death penalty has been found to be \nunacceptably cruel, inhuman and degrading, not only to those subjected to it but also to \nthe society which inflicts it. Simon Jenkins, in the article which I have already quoted, \nsays that the State is (or should be) \"institutionalised civilisation.\" I would agree, and \nadd that this is especially true of the State created by our new Constitution. The \ndeliberate execution of a human, however depraved and criminal his conduct, must \ndegrade the new society which is coming into being. \n\n \n[200] In the course of argument before us much was said about public opinion on the death penalty in \nSouth Africa. Both Chaskalson P and Didcott J have shown that public opinion, even if \nexpressed in acts of Parliament, cannot be decisive. If we were simply to defer to public \nopinion we would be abdicating from our constitutional function. Yet, were public \nopinion on the question clear it could not be entirely ignored. The accepted mores of \none's own society must have some relevance to the assessment whether a punishment is \nimpermissibly cruel and inhuman. In Furman v Georgia 408 US 238 (1972) Brennan J \nat 277 said that one of the principles inherent in the constitutional prohibition of cruel \nand unusual punishments was that \"a severe punishment must not be unacceptable to \ncontemporary society.\" Much earlier, in Weems v United States 217 US 349, 378 (1910) \nthe United States Supreme Court had held that that provision of the Constitution was \n\"not fastened to the obsolete\", but might \"acquire meaning as public opinion becomes \nenlightened by a human justice.\" I would, with all respect, suggest that the principle \npropounded by Brennan J may give too much weight to prevailing opinion - an opinion \n\n \n \n\n128 \n\n\f \n \n\n \n\nKENTRIDGE AJ \n\nwhich may swing with public moods and varying public concerns. But in any event, \nwhether or not a punishment is acceptable to contemporary society is not to be judged by \nthe results of informal public opinion polls, still less by letters to the press. In People v \nAnderson (supra) Wright CJ speaking for the Supreme Court of California said at 893-4: \n\n\"Public acceptance of capital punishment is a relevant but not controlling factor \nin assessing whether it is consonant with contemporary standards of decency. \nBut public acceptance cannot be measured by the existence of death penalty \nstatutes or by the fact that some juries impose death on criminal defendants. \nNor are public opinion polls about a process which is far removed from the \nexperience of those responding helpful in determining whether capital \npunishment would be acceptable to an informed public were it even-handedly \napplied to a substantial proportion of the persons potentially subject to \nexecution.\" \n\nIn Gregg v Georgia 428 US 153 (1976) a judgment given four years after Furman v \nGeorgia, supra, Stewart J at 179-180 found that developments during that period had \nshown that \"a large proportion of American society continues to regard it (capital \npunishment) as an appropriate and necessary criminal sanction.\" The principal evidence \non which Stewart J based this finding was that since the Furman case the legislatures of \n35 of the United States had enacted new death penalty statutes. Further, the Congress of \nthe United States had enacted a statute providing the death penalty for aircraft piracy. In \naddition, he referred to an official State-wide referendum in the State of California \nadopting a constitutional amendment that authorised capital punishment. \n\n \n[201] Needless to say, there was no similar evidence before us. Public opinion has not expressed itself \nin a referendum, nor in any recent legislation. Certainly, there is no evidence of a \ngeneral social acceptance of the death penalty for murderers such as might conceivably \nhave influenced our conclusions. On the contrary, developments in South Africa point in \nthe opposite direction. It is to be noted that even at the time, during the previous decade, \nwhen South Africa had the unenviable reputation for carrying out more executions than \nany other country in the western world, only a proportion of those convicted of murder \nwere sentenced to death, and of those many were reprieved. The amendment to the \nCriminal Procedure Act introduced by Act No 107 of 1990 drastically reduced the \nnumber of convicted murderers sentenced to death. The subsequent developments \ndescribed by Chaskalson P including the official executive moratorium on the death \n\n \n \n\n129 \n\n\f \n \n\nKENTRIDGE AJ \n\npenalty announced in March 1992, while not evidence of general opinion, do cast serious \ndoubt on the acceptability of capital punishment in South Africa. In fact, we are \ninformed, since 1989 there has been no judicial execution in South Africa. Thus there \nhas been in this country no indication whatsoever of what Stewart J in Gregg's case \nreferred to as \"society's endorsement of the death penalty for murder.\" In the \nConstitution itself such endorsement is markedly absent. Consequently, in all the \ncircumstances, the appeal to public opinion could not affect our decision. \n\n \n[202] There is little I wish to add to what has been said by other members of the Court on the \napplication of section 33. On the question whether a death penalty can be justified by its \ndeterrent effect the statistical and other evidence is inconclusive, as it was bound to be. \nAs the analysis of Chaskalson P shows the statistical evidence comes nowhere near \nestablishing that the death penalty is an effective deterrent against murder. Nor on the \nother hand can it be shown that it is not a deterrent. As Mr von Lieres pointed out, only \nthose who were not deterred enter the statistics; the number who were deterred cannot \nbe known. In Burns' well-known lines, \"What's done we often may compute/But know \nnot what's resisted.\" The most impressive argument of Mr von Lieres on this aspect of \nthe case was that, statistics aside, the awfulness of the death penalty must in its nature \ndeter some would-be murderers. In the face of the appalling murder rates in this country, \nhe said, we cannot afford to relinquish any possible weapon in the fight against violent \ncrime. That is a powerful argument but, given the cruelty and inhumanity of the death \npenalty, it is an argument which cannot in the end prevail. It relies essentially on the \nmere possibility that the death sentence may deter some murderers. That is not a \nsufficient justification for the continued existence of such an extreme punishment. \n\n[203] I have little to add, too, to what Chaskalson P has said on the element of retribution as an \nelement in punishment. The Attorney-General's argument was that the criminal law \nincluding the modes of punishment must adequately reflect the moral outrage felt by \nsociety when a vicious and cold-blooded murder is committed. This too I regard as an \nargument of weight. One can understand in particular the reaction of the families of \nvictims of murderers and the feeling that the culprits \"deserve to die\". But the choice, as \nChaskalson P has pointed out, is not between death penalty on the one hand and the \n\n \n \n\n130 \n\n\f \n \n\nKENTRIDGE AJ \n\ncondonation of the murderer's act on the other. The choice is between the death penalty \nand a long term of imprisonment which might in appropriate cases include life \nimprisonment in the fullest sense of the term. As a civilised society it is not open to us, \nin my opinion, to express our moral outrage by executing even the worst of murderers \nany more than we could do so by the public hangings or mutilations of a bygone time. \n\n \n[204] In conclusion I would endorse what Didcott J has cogently stated; the striking down of the \ndeath penalty entails no sympathy whatsoever for the murderer, nor any condonation of \nhis crime. What our decision does entail is a recognition that even the worst and most \nvicious criminals are not excluded from the protections of the Constitution. In 1910 Mr \nWinston Churchill speaking in the House of Commons said this: \n\n \n\n\"The mood and temper of the public in regard to the treatment of crime and \ncriminals is one of the most unfailing tests of the civilisation of any country. A \ncalm dispassionate recognition of the rights of the accused, and even of the \nconvicted criminal, against the State - a constant heart-searching by all charged \nwith the duty of punishment - a desire and eagerness to rehabilitate in the \nworld of industry those who have paid their due in the hard coinage of \npunishment: tireless efforts towards discovery of curative and regenerative \nprocesses: unfailing faith that there is a treasure, if you can only find it, in the \nheart of every man. These are the symbols, which, in the treatment of crime \nand criminal, mark and measure the stored-up strength of a nation, and are sign \nand proof of the living virtue in it.\" \n\n \n \n[205] KRIEGLER J: I agree with the conclusions reached by Chaskalson P, endorse the bulk of his \nreasoning and concur in the order he has formulated. There are just two points that I \nwish to add though: the first by way of additional emphasis and the second to indicate a \nsomewhat different line of reasoning. \n\n \n[206] The basic issue, as Chaskalson P points out in the opening and concluding paragraphs of the \nmain judgment, is whether the Constitution1 has outlawed capital punishment in South \nAfrica.2 The issue is not whether I favour the retention or the abolition of the death \n\n \n 1Constitution of The Republic of South Africa, Act No. 200 of 1993, as amended. \n\n 2As sanctioned by section 277(1) of the Criminal Procedure Act, 1977, as amended and the corresponding \n\n131 \n\n \n \n\n\f \n \n\nKRIEGLER J \npenalty, nor whether this Court, Parliament or even overwhelming public opinion \nsupports the one or the other view. The question is what the Constitution says about it. \n\n \n\n \nprovisions of the former Transkei, Bophuthatswana and Venda. \n\n \n \n\n132 \n\n\fKRIEGLER J \n\n \n \n[207] In answering that question the methods to be used are essentially legal, not moral or \nphilosophical. To be true the judicial process cannot operate in an ethical vacuum. After \nall, concepts like \"good faith\", \"unconscionable\" or \"reasonable\" import value judgments \ninto the daily grind of courts of law. And it would be foolish to deny that the judicial \nprocess, especially in the field of constitutional adjudication, calls for value judgments in \nwhich extra-legal considerations may loom large. Nevertheless, the starting point, the \nframework and the outcome of the exercise must be legal. The foundation of our state \nand all its organs, the rules which govern their interaction and the entrenchment of the \nrights of its people are to be found in an Act of Parliament, albeit a unique one.3 That \nAct entrusts the enforcement of its provisions to courts of law.4 The \"court of final \ninstance over all matters relating to the interpretation, protection and enforcement\" of \nthose provisions is this Court,5 appointment to which is reserved for lawyers.6 The \n\n \n\n 3Section 4 of the Constitution describes it as \"the supreme law of the Republic ... [which] shall bind all \nlegislative, executive and judicial organs of state at all levels of government.\" Section 7 makes Chapter 3, \ncontaining fundamental rights, binding on \"all legislative and executive organs of state at all levels of \ngovernment\" and provides that it \"shall apply to all law in force and all administrative decisions taken and acts \nperformed during the period of operation of this Constitution.\" \n\n 4See Chapter 7 of the Constitution. \n\n 5Section 98(2) of the Constitution. \n\n 6See section 99(2)(c) of the Constitution which requires on appointee to be a person who \"(i) is a judge of the \nSupreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at \nleast 10 years after having so qualified, practised as an advocate or an attorney or lectured in law at a university; \nor (ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitutional \n\n \n \n\n133 \n\n\f \n \n\nincumbents are judges, not sages; their discipline is the law, not ethics or philosophy and \ncertainly not politics. \n\nKRIEGLER J \n\n \n[208] The exercise is to establish whether there is an invalid infringement of a right protected by \n\nChapter Three. This \n\n \n\n \n\n \n\n \n\n\"calls for a 'two-stage' approach. First, has there been a contravention of a guaranteed \nright? If so, is it justified under the limitation clause?\"7 \n\n \nFor the first step, one need go no further than section 9 of the Constitution, which could \nnot possibly be plainer: \n\n\"Every person shall have the right to life.\" \n\nWhatever else section 9 may mean in other contexts, with regard to which I express no \nview, at the very least it indicates that the State may not deliberately deprive any person \nof his or her life. As against that general prohibition section 277(1) of the Criminal \nProcedure Act sanctions a judicial order for the deprivation of a person's life. The two \nprovisions are clearly not reconcilable. Therefore, the latter provision is liable to be \nstruck down under section 4(1) of the Constitution, unless it is saved by the second step \nof the analysis -application of the limitations clause. \n\n \n\nlaw relevant to the application of this Constitution and the law of the Republic.\" \n\n 7Per Kentridge AJ, in S v Zuma and Others 1995 (4) BCLR 401, 414 (SA). The \"limitation clause\" he refers \nto is section 33(1) of the Constitution. \n\n \n \n\n134 \n\n\fKRIEGLER J \n\n \n \n[209] During the second step of the exercise one must ask whether that infringement of the right to life \nis reasonable and also whether it is justifiable in an open and democratic society based \non freedom and equality (sections 33(1)(a)(i) & (ii)).8 As I am satisfied that section \n277(1)(a) does not meet the threshold test of reasonableness, I find it unnecessary to ask \nwhether it is justifiable in the kind of society postulated. Nor do I consider the meaning \nof section 33(1)(b), which is discussed in paragraphs 132, 133 and 134 of the main \njudgment and paragraphs 193, 194 and 195 of the judgment of Kentridge AJ.9 In respect \nthereof I express no opinion. \n\n \n\n 8The questions may well be asked what the distinction is between reasonable and justifiable and whether one \ntest can be met and not the other. Be that as it may, this case is so clear that the distinction, if any, between the \ntwo criteria need not be considered. \n\n 9Relating to the meaning and effect of the prohibition in section 33(1)(b) against a limitation which \"negate[s] \nthe essential content of the right in question.\" \n\n \n \n\n135 \n\n\f \n \n[210] I also find it unnecessary to probe the outer limits of what is reasonable. At the very least the \nreasonableness of a provision which flies directly in the face of an entrenched right \nwould have to be cogently established. Furthermore a provision relating to so basic and \nso precious a right as the right to life itself (without which all other rights are nought), \nwould have to be manifestly reasonable.10 \n\nKRIEGLER J \n\n \n[211] We were favoured with literally thousands of pages of material in support of and opposed to the \ndeath penalty, ranging from the religious, ethical, philosophical and ideological to the \nmathematical and statistical. Mr Von Lieres, SC, who argued the retentionist cause with \ngreat skill, in essence sought to bring the death sentence within the protection of section \n33(1) on the strength of its deterrent and retributive value. The main judgment deals \nwith these two considerations11 and I merely wish to make a few additional observations \nregarding deterrence.12 \n\n \n\n \n\n 10The reasonableness of other limitations on the right to life does not arise here. Suffice it to say that there \nmust always be a proportionality between any right and the limitation thereof sought to be saved under section \n33(1). \n\n 11Paragraphs 116 to 127 on deterrence and 129 to 131 on retribution. \n\n 12No more need be said about retribution than has been said by my colleagues. See also paragraph 203 of the \njudgment of Kentridge AJ and paragraph 185 of the judgment of Didcott J. \n\n \n \n\n136 \n\n\f \n \n[212] Nearly a quarter of a century ago the US Supreme Court decided the watershed case of Furman \nv Georgia.13 In the course of a compendiously researched opinion, Marshall J reviewed \nvirtually every scrap of Anglo-American evidence for and against capital punishment. In \nthe course of his \"long and tedious journey\" (his own description) he made the crucial \nfinding that 200 years of research had established \n\nKRIEGLER J \n\n \n\n \n\n\"that capital punishment serves no purpose that life imprisonment could not serve \nequally well.\"14 \n\nA decade later the Indian Supreme Court surveyed the international authorities for and \nagainst the death penalty in Bachan Singh's case.15 Since then a great deal more has \nbeen written in support of both the abolitionist and the retentionist schools. But when all \nis said and done the answer is still what it was to Marshall J in Furman's case: the death \npenalty has no demonstrable penological value over and above that of long-term \nimprisonment. No empirical study, no statistical exercise and no theoretical analysis has \nbeen able to demonstrate that capital punishment has any deterrent force greater than that \nof a really heavy sentence of imprisonment. That is the ineluctable conclusion to be \ndrawn from the mass of data so thoroughly canvassed in the written and oral arguments \npresented to us. \n\n \n[213] Another equally ineluctable conclusion then is that capital punishment cannot be vindicated by \nthe provisions of section 33(1) of the Constitution.16 It simply cannot be reasonable to \n\n \n\n 13408 US 238 (1972). \n\n 14Id. at 359. \n\n 15Bachan Singh v State of Punjab (1980) 2 SCC 684, quoted in paragraph 76 of the main judgment. \n\n16\n\n The provisions of section 277(1)(b), which sanction the death penalty for treason committed at a time when \n\n \n \n\n137 \n\n\f \n \n\nsanction judicial killing without knowing whether it has any marginal deterrent value. \n\nKRIEGLER J \n\n \n[214] Having concluded that capital punishment is inconsistent with section 9 of the Constitution and \ncannot be saved by section 33(1), I find it unnecessary to consider its possible \ninconsistency with any other fundamental rights protected by Chapter Three. Vigilant \nprotection of the right to human dignity (section 10) and of the immunity from cruel, \ninhuman or degrading punishment (section 11(2)) is undoubtedly essential. So too \narbitrariness in the imposition of any sentence is fatally inconsistent with the demand for \nequality so emphatically mandated in sections 8(1) and (2). I do not want to be \nunderstood as disagreeing with the views expressed by any of my colleagues in regard to \nthose rights and their importance; but in the hierarchy of values and fundamental rights \nguaranteed under chapter 3, I see them as ranking below the right to life. Indeed, they \nare subsumed by that most basic of rights. Inasmuch as capital punishment, by \ndefinition, strikes at the heart of the right to life, the debate need go no further. \n\n \n \n[215] LANGA J: I agree with the conclusions reached by Chaskalson P and generally with the \nreasons he advances in his exhaustive and erudite judgment. I concur in the order he has \nproposed. I wish to put additional emphasis on some of the aspects he has dealt with. \n\n \n[216] The death sentence, in terms of the provisions of section 277 of the Criminal Procedure Act, No. \n\n51 of 1977, is unconstitutional, violating as it does: \n\n \n\n(a) \n\nthe right to life which is guaranteed to every person by section 9 of the \nConstitution; \n\n \n\nthe Republic is in a state of war, do not arise for consideration in this case. That is a wholly different situation \nwhich requires independent evaluation. \n\n \n \n\n138 \n\n\f \n \n\n(b) \n(c) \n\nthe right to respect for human dignity guaranteed in section 10; \nthe right not to be subjected to cruel, inhuman and degrading punishment as set \nout in section 11(2). \n\n \n[217] For the reasons set out in Didcott J's judgment, I place more emphasis on the right to life. \nSection 9 of the Constitution proclaims it in unqualified terms. It is the most \nfundamental of all rights,1 the supreme human right.2 I do not consider it necessary or \ndesirable to define the exact scope of the right, save to make two points, namely: \n\n \n\n \n\n \n \n\n(a) \n\n(b) \n\nIt does mean that every person has the right not to be deliberately put to death by \nthe State as punishment, as envisaged in section 277 of the Criminal Procedure \nAct. \n\nI do not exclude the application of the limitations clause to the right to life. Any \nlaw which seeks to limit the right will have to comply with the requirements of \nsection 33(1) of the Constitution. For the reasons set out in Chaskalson P's \njudgment, the requirements have not been met; the State has been unable to \njustify the limitation which is imposed on the right to life by section 277 of the \nCriminal Procedure Act. I cannot accept that it is \"reasonable,\" as required by \nsection 33(1) of the Constitution, to override what is the most fundamental of all \nrights, without clear proof that the deterrence value of the penalty is substantially \nhigher than that which the imposition of a suitably long period of imprisonment \nhas. This has not been proved. Because of the view I take, I find it unnecessary \n\n \n 1 See the remarks of Lord Bridge in Bugdaycay v Secretary of State 1987(1) All ER 940 at 952b. \n\n 2 See paragraph 82 of Chaskalson P\u2019s judgment. \n\n139 \n\n\f \n \n\nLANGA J \nto deal with the other requirements of section 33(1) of the Constitution. \n\n \n[218] The emphasis I place on the right to life is, in part, influenced by the recent experiences of our \npeople in this country. The history of the past decades has been such that the value of \nlife and human dignity have been demeaned. Political, social and other factors created a \nclimate of violence resulting in a culture of retaliation and vengeance. In the process, \nrespect for life and for the inherent dignity of every person became the main casualties. \nThe State has been part of this degeneration, not only because of its role in the conflicts \nof the past, but also by retaining punishments which did not testify to a high regard for \nthe dignity of the person and the value of every human life. \n\n \n[219] The primacy of the right to life and its relationship to punishment needs to be emphasized also in \nview of our constitutional history. The doctrine of parliamentary sovereignty meant, \nvirtually, that the State could do anything, enact any law, subject only to procedural \ncorrectness.3 \n\n \n[220] When the Constitution was enacted, it signalled a dramatic change in the system of governance \nfrom one based on rule by parliament to a constitutional state in which the rights of \nindividuals are guaranteed by the Constitution. It also signalled a new dispensation, as it \nwere, where rule by force would be replaced by democratic principles and a \ngovernmental system based on the precepts of equality and freedom. \n\n \n[221] It may well be that for millions in this country, the effect of the change has yet to be felt in a \nmaterial sense. For all of us though, a framework has been created in which a new \nculture must take root and develop. \n\n \n\n 3 S v Tuhadeleni and Others 1969(1) SA 153 (A) at 172D - 173F; Baxter, Administrative Law, page 30 \n(1984). \n\n \n \n\n140 \n\n\fLANGA J \n\n \n \n \n[222] Implicit in the provisions and tone of the Constitution are values of a more mature society, \nwhich relies on moral persuasion rather than force; on example rather than coercion. In \nthis new context, then, the role of the State becomes clear. For good or for worse, the \nState is a role model for our society.4 A culture of respect for human life and dignity, \nbased on the values reflected in the Constitution, has to be engendered, and the State \nmust take the lead. In acting out this role, the State not only preaches respect for the law \nand that the killing must stop, but it demonstrates in the best way possible, by example, \nsociety\u2019s own regard for human life and dignity by refusing to destroy that of the \ncriminal. Those who are inclined to kill need to be told why it is wrong. The reason \nsurely must be the principle that the value of human life is inestimable, and it is a value \nwhich the State must uphold by example as well. As pointed out by Mr Justice Schaefer \nof the Supreme Court of Illinois:5 \n\n \n\n \n\n\"The methods we employ in the enforcement of our criminal law have aptly been called \nthe measures by which the quality of our civilisation may be judged.\" \n\n \n\n \n\n 4 Brandeis J in his dissenting opinion in Olmstead v United States, 277 US 438, 485 (1928) put it succinctly: \n\"Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole of our people \nby its example.\" \n\n 5 In his Oliver Wendell Holmes lecture at the Harvard Law School, reprinted under the heading Federalism \nand State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956). The passage was referred to with approval in \nCoppedge v United States, 369 US 438, 449 (1962). \n\n \n \n\n141 \n\n\fLANGA J \n\n \n \n[223] The ethos of the new culture is expressed in the much-quoted provision on National Unity and \nReconciliation which forms part of the Constitution. Chaskalson P quotes the various \ncomponents of it in paragraphs 7 and 130 of his judgment. It describes the Constitution \nas a \"bridge\" between the past and the future; from \"the past of a deeply divided society \ncharacterised by strife, conflict, untold suffering and injustice, and a future founded on \nthe recognition of human rights, ... for all South Africans ...\"; and finally, it suggests a \nchange in mental attitude from vengeance to an appreciation of the need for \nunderstanding, from retaliation to reparation and from victimisation to ubuntu. The \nConstitution does not define this last-mentioned concept. \n\n \n[224] The concept is of some relevance to the values we need to uphold. It is a culture which places \nsome emphasis on communality and on the interdependence of the members of a \ncommunity. It recognises a person's status as a human being, entitled to unconditional \nrespect, dignity, value and acceptance from the members of the community such person \nhappens to be part of. It also entails the converse, however. The person has a \ncorresponding duty to give the same respect, dignity, value and acceptance to each \nmember of that community. More importantly, it regulates the exercise of rights by the \nemphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by \nall. It is perhaps best illustrated in the following remarks in the judgment of the Court of \nAppeal of the Republic of Tanzania in DPP v Pete,6 \n\n \n\n \n\n\"The second important principle or characteristic to be borne in mind when interpreting \nour Constitution is a corollary of the reality of co-existence of the individual and society, \nand also the reality of co-existence of rights and duties of the individual on the one hand, \nand the collective of communitarian rights and duties of society on the other. In effect \nthis co-existence means that the rights and duties of the individual are limited by the \nrights and duties of society, and vice versa.\" \n\n[225] An outstanding feature of ubuntu in a community sense is the value it puts on life and human \ndignity. The dominant theme of the culture is that the life of another person is at least as \nvaluable as one's own. Respect for the dignity of every person is integral to this concept. \n During violent conflicts and times when violent crime is rife, distraught members of \n\n \n\n 6 [1991] LRC (Const) 553 at 566b-d, per Nyalali CJ, Makame and Ramadhani JJA. \n\n \n \n\n142 \n\n\f \n \n\nsociety decry the loss of ubuntu. Thus heinous crimes are the antithesis of ubuntu. \nTreatment that is cruel, inhuman or degrading is bereft of ubuntu. \n\nLANGA J \n\n \n[226] We have all been affected, in some way or other, by the \"strife, conflict, untold suffering and \ninjustice\" of the recent past. Some communities have been ravaged much more than \nothers. In some, there is hardly anyone who has not been a victim in some way or who \nhas not lost a close relative in senseless violence. Some of the violence has been \nperpetrated through the machinery of the State, in order to ensure the perpetuation of a \nstatus quo that was fast running out of time. But all this was violence on human beings \nby human beings. Life became cheap, almost worthless. \n\n \n[227] It was against a background of the loss of respect for human life and the inherent dignity with \nattaches to every person that a spontaneous call has arisen among sections of the \ncommunity for a return to ubuntu. A number of references to ubuntu have already been \nmade in various texts but largely without explanation of the concept.7 It has however \nalways been mentioned in the context of it being something to be desired, a \ncommendable attribute which the nation should strive for. \n\n \n[228] At first blush, it may sound odd that the issue of the right to life is being decided on the basis of \npersons condemned to death for killing other human beings. In this regard, it is relevant \nto note that there are some 400 people presently under sentence of death for acts of \nviolence. That in itself means that there are probably an equivalent number of victims \nwhose lives have been prematurely, violently, terminated. They died without having had \nany recourse to law. For them there was no \"due process.\" \n\n \n[229] That is why, during argument, a tentative proposition was made that a person who has killed \nanother has forfeited the right to life. Although the precise implications of this \nsuggestion were not thoroughly canvassed, this cannot be so. The test of our \n\n \n \n\n 7 See paragraphs 130 and 131 of Chaskalson P's judgment. The concept has been referred to also by Madala \nJ, Mahomed J and Mokgoro J in their separate concurring judgments in this matter. \n\n \n \n\n143 \n\n\f \n \n\ncommitment to a culture of rights lies in our ability to respect the rights not only of the \nweakest, but also of the worst among us. A person does not become \"fair game\" to be \nkilled at the behest of the State, because he has killed. \n\nLANGA J \n\n \n[230] The protection afforded by the Constitution is applicable to every person. That includes the \nweak, the poor and the vulnerable. It includes others as well who might appear not to \nneed special protection; it includes criminals and all those who have placed themselves \non the wrong side of the law. The Constitution guarantees them their right, as persons, to \nlife, to dignity and to protection against torture or cruel, inhuman or degrading \npunishment or treatment. \n\n \n[231] The violent acts of those who destroy life cannot be condoned, neither should anyone think that \nthe abolition of the sentence of death means that the crime is regarded as anything but \none of extreme seriousness. The sentence itself was an indication of society's abhorrence \nfor the cruel and inhuman treatment of others. That moral outrage has been expressed in \nthe strongest terms that society could muster. \n\n \n[232] Severe punishments must be meted out where deserved, but they should never be excessive. As \n\nBrennan J observed in his concurring judgment in Furman v Georgia,8 \n\n \n\n \n\n\". . . a severe punishment must not be excessive. A punishment is excessive under this \nprinciple if it is unnecessary . . . [i]f there is a significantly less severe punishment \nadequate to achieve the purposes for which the punishment is inflicted, the punishment \ninflicted is unnecessary and therefore excessive.\" \n\n \n \n\n 8 408 US 238, 279 (1972). \n\n \n \n\n144 \n\n\f \n\nRighteous anger against those who destroy the human life and dignity of others must be \nappropriately expressed by the Courts;9 but in doing so, the State must not send the \nwrong message, namely, that the value of human life is variable.10 Society cannot now \nsuccumb to the doctrine of \u201can eye for an eye.\u201d Its actions must be informed by the high \nvalues which reflect the quality of this nation's civilization. \n\n \n[233] The Constitution constrains society to express its condemnation and its justifiable anger in a \nmanner which preserves society's own morality. The State should not make itself guilty \nof conduct which violates that which it is in the community's interests to nurture. The \nConstitution, in deference to our humanity and sense of dignity, does not allow us to kill \nin cold blood in order to deter others from killing. Nor does it allow us to \u201ckill criminals \nsimply to get even with them.\"11 We are not to stoop to the level of the criminal. \n\n \n[234] It follows from the remarks above that as a \u2018punishment\u2019 the death penalty is a violation of the \nright to life. It is cruel, inhuman and degrading. It is also a severe affront to human \ndignity. The \u2018death row phenomenon\u2019 merely aggravates the position. Section 277 of \nthe Criminal Procedure Act cannot be saved by the provisions of section 33(1) of the \nConstitution in respect of any of the rights affected. The punishment is not reasonable \non any basis. In view of the available alternative sentence of a long term of \n\n \n\n 9 See R v Karg 1961(1) SA 231(A) at 236A. \n\n 10 Brennan J in Furman v Georgia, supra, at 273 expressed himself thus: \". . . even the vilest criminal \nremains a human being possessed of common human dignity.\" \n\n 11 Per Brennan J in Furman v Georgia, supra, at 305. \n\n \n \n\n145 \n\n\f \n\nimprisonment, it is also unnecessary. \n\n \n \n[235] MADALA J: I am in agreement with the views expressed in the judgment of Chaskalson P and \nwith his decision on the unconstitutionality of the death penalty. The punishment, is in \nmy view, clearly offensive to the cardinal principles for which our Constitution stands. \n\n \n\nHowever, while I concur, as aforesaid, I believe that there are some additional matters \nthat need to be mentioned and aspects that should be emphasised, and I proceed to do so \nbriefly. \n\n \n[236] The death penalty is unique. As stated by Stewart J in Furman v Georgia 408 US at 306: \n \n\n\"The penalty of death differs from all other forms of criminal punishment, not in degree \nbut in kind. It is unique in its total irrevocability. It is unique in its rejection of \nrehabilitation of the convict as a basic purpose of criminal justice. And it is unique, \nfinally, in its absolute renunciation of all that is embodied in our concept of humanity.\" \n\n \n\nThis statement was more recently (1991) re-affirmed by Scalia J, who delivered the \njudgment of the court in Harmelin v Michigan 501 US 957, and noted that even the most \nsevere sentence of life imprisonment cannot compare with death. \n\n \n[237] The Constitution in its post-amble declares: \n \n\n\"... there is a need for understanding but not vengeance, and for reparation but not for \nretaliation, a need for ubuntu but not victimisation.\" \n\n \n\nThe concept \"ubuntu\" appears for the first time in the post-amble, but it is a concept that \npermeates the Constitution generally and more particularly Chapter Three which \nembodies the entrenched fundamental human rights. The concept carries in it the ideas \nof humaneness, social justice and fairness. \n\n \n[238] It was argued by Mr Bizos, on behalf of the Government, that the post-amble enjoins the people \nof South Africa to open a new chapter which envisages the country playing a leading role \n\n \n \n\n146 \n\n\f \n \n\nMADALA J \n\nin the upholding of human rights. He submitted further, that the Government favoured \nthe abolition of the death penalty because it believed that such punishment could not be \nreconciled with the fundamental rights contained in the Constitution, and that its \napplication diminished the dignity of our society as a whole. \n\n \n[239] In my rejection of the death penalty as a form of punishment, I do not intend, nor do my \ncolleagues, to condone murder, rape, armed robbery with aggravating circumstances and \nthose other crimes which are punishable by a sentence of death in terms of Section 277 \nof the Criminal Procedure Act 51 of 1977. These criminal acts are, and remain, as \nheinous, vicious and as reprehensible as they ever were, and do not belong in civilised \nsociety. The death penalty is a punishment which involves so much pain and suffering \nthat civilised society ought not to tolerate it even in spite of the present high rate of \ncrime. And society ought to tolerate the death penalty even less when considering that it \nhas not been proved that it has any greater deterrent effect on would-be murderers than \nlife imprisonment. \n\n \n[240] The aspect of irrevocability of the death penalty has been canvassed adequately in the judgment \nof Chaskalson P and I propose to say no more on that score (See paragraphs 26 and 54). \n\n \n[241] As observed before, the death penalty rejects the possibility of rehabilitation of the convicted \npersons, condemning them as \"no good\", once and for all, and drafting them to the death \nrow and the gallows. One must then ask whether such rejection of rehabilitation as a \npossibility accords with the concept of ubuntu. \n\n \n[242] One of the relative theories of punishment (the so-called purposive theories) is the reformative \ntheory, which considers punishment to be a means to an end, and not an end in itself - \nthat end being the reformation of the criminal as a person, so that the person may, at a \ncertain stage, become a normal law-abiding and useful member of the community once \nagain. The person and the personality of the offender are the point of focus rather than \nthe crime, although the crime is, however, not forgotten. And in terms of this theory of \npunishment and as a necessary consequence of its application, the offender has to be \n\n \n \n\n147 \n\n\f \n \n\nimprisoned for a long period for the purpose of rehabilitation. By treatment and training \nthe offender is rehabilitated, or, at the very least, ceases to be a danger to society. \n\nMADALA J \n\n \n[243] This, in my view, accords fully with the concept of ubuntu which is so well enunciated in the \n\nConstitution. \n\n \n[244] Our courts have found room for the exercise of ubuntu, as appears from the many cases where \nthey have found that despite the heinousness of the offence and the brutality with which \nit was perpetrated, there were factors in the offenders' favour, indicating that they were, \nin spite of the criminal conduct of which they were convicted, responsible members of \nsociety, and were worthy and capable of rehabilitation. (See S v Mbotshwa 1993(2) \nSACR 468(A) at 468J-469F; S v Ramba 1990(2) SACR 334(A) at 335H-336E; S v \nNgcobo 1992(2) SACR 515(A) at 515H-516A; Contra: S v Bosman 1992(1) SACR \n115(A) at 116G-117F) \n\n \n[245] Against ubuntu must be seen the other side, the inhuman side of mankind, in terms of which the \ndeath penalty violates Section 11(2) of the Constitution in that it is \"cruel, inhuman or \ndegrading treatment or punishment\". \n\n \n[246] In Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe \n\n1993(4) SA 239(ZSC) at 268E-H, Gubbay CJ, observed: \n\n \n\n\"From the moment he enters the condemned cell, the prisoner is enmeshed in a \ndehumanising environment of near hopelessness. He is in a place where the sole object \nis to preserve his life so that he may be executed. The condemned prisoner is 'the living \ndead' ... He is kept only with other death sentenced prisoners - with those whose appeals \nhave been dismissed and who await death or reprieve; or those whose appeals are still to \nbe heard or are pending judgment. While the right to an appeal may raise the prospect \nof being allowed to live, the intensity of the trauma is much increased by knowledge of \nits dismissal. The hope of a reprieve is all that is left. Throughout all this time the \ncondemned prisoner constantly broods over his fate. The horrifying spectre of being \nhanged by the neck and the apprehension of being made to suffer a painful and lingering \ndeath is, if at all, never far from mind. Grim accounts exist of hangings not properly \nperformed.\" \n\n \n[247] Convicted persons in death row invariably find themselves there for a long time as they make \n\n \n \n\n148 \n\n\f \n \n\nMADALA J \n\nevery effort to exhaust all possible review avenues open to them. All this time they are \nsubjected to a fate of ever increasing fear and distress. They know not what their future \nis and whether their efforts will come to nought; they live under the sword of Damocles - \nthey will be advised any day about their appointment with the hangman. It is true that \nthey might have shown no mercy at all to their victims, but we do not and should not \ntake our standards and values from the murderer. We must, on the other hand, impose \nour standards and values on the murderer. \n\n \n[248] In the aforementioned Zimbabwe case, the court concluded that the incarceration of the \ncondemned person under those conditions was in conflict with the provisions of Section \n15(1) of the Zimbabwe Constitution, which like our Constitution, has entrenched \nguarantees against torture or inhuman and degrading punishment. \n\n \n[249] The so-called \"death row phenomenon\" also came under attack in the case of Soering v United \n\nKingdom (1989) 11 EHRR 439. \n\n \n\n \n\nFrom the statistics supplied by the Attorney-General and from what one gleans daily \nfrom the newspapers and other media, we live at a time when the high crime rate is \nunprecedented, when the streets of our cities and towns rouse fear and despair in the \nheart, rather than pride and hope, and this in turn, robs us of objectivity and personal \nconcern for our brethren. But, as Marshall J put it in Furman v Georgia (supra) at 371: \n\n\"The measure of a country's greatness is its ability to retain compassion in time of \ncrisis.\" \n\n \n[250] This, in my view, also accords with ubuntu - and calls for a balancing of the interest of society \nagainst those of the individual, for the maintenance of law and order, but not for \ndehumanising and degrading the individual. \n\n \n[251] We must stand tallest in these troubled times and realise that every accused person who is sent \nto jail is not beyond being rehabilitated - properly counselled - or, at the very least, \n\n \n \n\n149 \n\n\f \n \n\nbeyond losing the will and capacity to do evil. \n\nMADALA J \n\n[252] A further aspect which I wish to mention is the question of traditional African jurisprudence, \nand the degree to which such values have not been researched for the purposes of the \ndetermination of the issue of capital punishment. \n\n \n[253] Ms Davids, who appeared on behalf of the Black Advocates Forum, in its capacity as amicus \n\ncuriae, touched on but did not fully argue this matter. \n\n \n[254] She submitted that we could not determine the question of the constitutionality or otherwise of \nthe death sentence without reference to further evidence which would include the views, \naspirations and opinions of the historically disadvantaged and previously oppressed \npeople of South Africa, who also constitute the majority of our society. \n\n \n[255] As I understood her argument, the issue of capital punishment could not be determined in an \nopen and democratic society without the active participation of the black majority. This, \nin my view, would be tantamount to canvassing public opinion among the black \npopulation for the decisions of our courts. I do not agree with this submission, if it \nimplies that this Court or any other court must function according to public opinion. \n\n \n[256] In order to arrive at an answer as to the constitutionality or otherwise of the death penalty or any \nenactment, we do not have to canvass the opinions and attitudes of the public. Ours is to \ninterpret the provisions of the Constitution as they stand and if any matter is in conflict \nwith the Constitution, we have to strike it down. \n\n \n[257] We, as judges, are oath bound to defend the Constitution. This obligation, in turn, requires that \nany enactment of Parliament should be judged by standards laid down by the \nConstitution. The judiciary has the duty of implementing the constitutional safeguards \nthat protect individual rights. When the State seeks to take away the individual \nfundamental right to life, the safeguards of the Constitution should be examined with \nspecial diligence. When it appears that an act of Parliament conflicts with the provisions \nof the Constitution, we have no choice but to enforce the paramount commands of the \n\n \n \n\n150 \n\n\f \n\nConstitution. We are sworn to do no less. \n\n \n[258] I agree with Ms Davids' submission about the need to bring in the traditional African \njurisprudence to these matters, to the extent that such is applicable, and would not \nconfine such research to South Africa only, but to Africa in general. \n\n \n[259] For purposes of the determination of the question of the constitutionality of the death penalty, \nhowever, it is, in my view, not necessary or even desirable that public opinion should be \nsought on the matter in the manner she suggests. \n\n \n[260] In my view, the death penalty does not belong to the society envisaged in the Constitution, is \nclearly in conflict with the Constitution generally and runs counter to the concept of \nubuntu; additionally and just as importantly, it violates the provisions of Section 11(2) of \nthe Constitution and, for those reasons, should be declared unconstitutional and of no \nforce and effect. \n\n \n[261] MAHOMED J: I have had the privilege of reading the full and erudite judgment of \nChaskalson P in this matter. I agree with the order proposed by him and in general with \nthe reasons given by him for that order. Regard being had, however, to the crucial \nconsequences of the debate on capital punishment, and the multiplicity of potential \nconstitutional factors and nuances which impact on its resolution, I think it is desirable \nfor me to set out briefly some of my responses to this debate in order to explain why I \nhave come to the conclusion that capital punishment is prohibited by the Constitution. \n\n \n[262] All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared \naspirations of a nation; the values which bind its people, and which discipline its \ngovernment and its national institutions; the basic premises upon which judicial, \nlegislative and executive power is to be wielded; the constitutional limits and the \nconditions upon which that power is to be exercised; the national ethos which defines \nand regulates that exercise; and the moral and ethical direction which that nation has \nidentified for its future. In some countries, the Constitution only formalizes, in a legal \n\n \n \n\n151 \n\n\f \n \n\n \n\n \n \n\nMAHOMED J \n\ninstrument, a historical consensus of values and aspirations evolved incrementally from a \nstable and unbroken past to accommodate the needs of the future. The South African \nConstitution is different: it retains from the past only what is defensible and represents a \ndecisive break from, and a ringing rejection of, that part of the past which is \ndisgracefully racist, authoritarian, insular, and repressive and a vigorous identification of \nand commitment to a democratic, universalistic, caring and aspirationally egalitarian \nethos, expressly articulated in the Constitution. The contrast between the past which it \nrepudiates and the future to which it seeks to commit the nation is stark and dramatic. \nThe past institutionalized and legitimized racism. The Constitution expresses in its \npreamble the need for a \"new order .. in which there is equality between ... people of all \nraces\". Chapter 3 of the Constitution extends the contrast, in every relevant area of \nendeavour (subject only to the obvious limitations of section 33). The past was redolent \nwith statutes which assaulted the human dignity of persons on the grounds of race and \ncolour alone; section 10 constitutionally protects that dignity. The past accepted, \npermitted, perpetuated and \ninstitutionalized pervasive and manifestly unfair \ndiscrimination against women and persons of colour; the preamble, section 8 and the \npostamble seek to articulate an ethos which not only rejects its rationale but \nunmistakenly recognizes the clear justification for the reversal of the accumulated legacy \nof such discrimination. The past permitted detention without trial; section 11(1) \nprohibits it. The past permitted degrading treatment of persons; section 11(2) renders it \nunconstitutional. The past arbitrarily repressed the freedoms of expression, assembly, \nassociation and movement; sections 15, 16, 17 and 18 accord to these freedoms the \nstatus of \"fundamental rights\". The past limited the right to vote to a minority; section \n21 extends it to every citizen. The past arbitrarily denied to citizens on the grounds of \nrace and colour, the right to hold and acquire property; section 26 expressly secures it. \nSuch a jurisprudential past created what the postamble to the Constitution recognizes as \na society \"characterized by strife, conflict, untold suffering and injustice\". What the \nConstitution expressly aspires to do is to provide a transition from these grossly \nunacceptable features of the past to a conspicuously contrasting \n\n\"future founded on the recognition of human rights, democracy and \n\n152 \n\n\f \n \n\nMAHOMED J \n\npeaceful co-existence and development opportunities for all South \nAfricans, irrespective of colour, race, class, belief or sex\". \n\n \n \n[263] The postamble to the Constitution gives expression to the new ethos of the nation by a \ncommitment to \"open a new chapter in the history of our country\", by lamenting the \ntransgressions of \"human rights\" and \"humanitarian principles\" in the past, and \narticulating a \n\n \n\n \n \n\n\"need for understanding, but not for vengeance, a need for reparation but not retaliation, a need \nfor ubuntu but not for victimization\". \n\n\"The need for ubuntu\" expresses the ethos of an instinctive capacity for and enjoyment of \nlove towards our fellow men and women; the joy and the fulfilment involved in \nrecognizing their innate humanity; the reciprocity this generates in interaction within the \ncollective community; the richness of the creative emotions which it engenders and the \nmoral energies which it releases both in the givers and the society which they serve and \nare served by. \n\n \n[264] It is against this historical background and ethos that the constitutionality of capital punishment \n\nmust be determined. \n\n \n \n[265] The death penalty sanctions the deliberate annihilation of life. As I have previously said it \n \n\n\"is the ultimate and the most incomparably extreme form of \npunishment... It is the last, the most devastating and the most \nirreversible recourse of the criminal law, involving as it necessarily \ndoes, the planned and calculated termination of life itself; the \ndestruction of the greatest and most precious gift which is bestowed \non all humankind\" (S v Mhlongo 1994 (1) SACR 584(A) at 587 e-g). \n\nThis \"planned and calculated termination of life itself\" was permitted in the past which \npreceded the Constitution. Is it now permissible? Those responsible for the enactment \n\n153 \n\n \n \n\n \n \n\n\f \n \n\nMAHOMED J \n\nof the Constitution, could, if they had so wished, have treated the issue as a substantially \npolitical and moral issue justifying a political choice, clearly expressed in the \nConstitution, either retaining or prohibiting the death sentence. They elected not to do \nso, leaving it to this Court to resolve the issue, as a constitutional issue. \n\n \n[266] The difference between a political election made by a legislative organ and decisions reached by \na judicial organ, like the Constitutional Court, is crucial. The legislative organ exercises \na political discretion, taking into account the political preferences of the electorate which \nvotes political decision-makers into office. Public opinion therefore legitimately plays a \nsignificant, sometimes even decisive, role in the resolution of a public issue such as the \ndeath penalty. The judicial process is entirely different. What the Constitutional Court \nis required to do in order to resolve an issue, is to examine the relevant provisions of the \nConstitution, their text and their context; the interplay between the different provisions; \nlegal precedent relevant to the resolution of the problem both in South Africa and \nabroad; the domestic common law and public international law impacting on its possible \nsolution; factual and historical considerations bearing on the problem; the significance \nand meaning of the language used in the relevant provisions; the content and the sweep \nof the ethos expressed in the structure of the Constitution; the balance to be struck \nbetween different and sometimes potentially conflicting considerations reflected in its \ntext; and by a judicious interpretation and assessment of all these factors to determine \nwhat the Constitution permits and what it prohibits. \n\n \n[267] Adopting that approach, I am satisfied that the death penalty as a form of punishment violates \ncrucial sections of the Constitution and that it is not saved by the limitations permitted in \nterms of section 33. I wish briefly to set out my reasons for that conclusion. \n\n \n[268] In the first place, it offends section 9 of the Constitution which prescribes in peremptory terms \nthat \"every person shall have the right to life\". What does that mean? What is a \n\"person\"? When does \"personhood\" and \"life\" begin? Can there be a conflict between \nthe \"right to life\" in section 9 and the right of a mother to \"personal privacy\" in terms of \nsection 13 and her possible right to the freedom and control of her body? Does the \"right \n\n \n \n\n154 \n\n\f \n \n\nMAHOMED J \n\nto life\", within the meaning of section 9, preclude the practitioner of scientific medicine \nfrom withdrawing the modern mechanisms which mechanically and artificially enable \nphysical breathing in a terminal patient to continue, long beyond the point, when the \n\"brain is dead\" and beyond the point when a human being ceases to be \"human\" although \nsome unfocussed claim to qualify as a \"being\" is still retained? If not, can such a \npractitioner go beyond the point of passive withdrawal into the area of active \nintervention? When? Under what circumstances? \n\n \n[269] It is, for the purposes of the present case, unnecessary to give to the word \"life\" in section 9 a \ncomprehensive legal definition, which will accommodate the answer to these and other \ncomplex questions. Whatever be the proper resolution of such issues, should they arise \nin the future, it is possible to approach the constitutionality of the death sentence by a \nquestion with a sharper and narrower focus, thus: \n\n \n\n \n \n\n\"Does the right to life guaranteed by section 9, include the right of every person, not to \nbe deliberately killed by the State, through a systematically planned act of execution \nsanctioned by the State as a mode of punishment and performed by an executioner \nremunerated for this purpose from public funds?\" \n\nThe answer to that question, is in my view: \"Yes, every person has that right\". It \nimmediately distinguishes that right from some other obvious rights referred to in \nargument, such as for example the right of a person in life-threatening circumstances to \ntake the life of the aggressor in self-defence or even the acts of the State, in confronting \nan insurrection or in the course of War. \n\n \n[270] The deliberate annihilation of the life of a person, systematically planned by the State, as a mode \nof punishment, is wholly and qualitatively different. It is not like the act of killing in \nself-defence, an act justifiable in the defence of the clear right of the victim to the \npreservation of his life. It is not performed in a state of sudden emergency, or under the \nextraordinary pressures which operate when insurrections are confronted or when the \nState defends itself during War. It is systematically planned long after - sometimes years \nafter - the offender has committed the offence for which he is to be punished, and whilst \n\n \n \n\n155 \n\n\f \n \n\nMAHOMED J \n\nhe waits impotently in custody, for his date with the hangman. In its obvious and \nawesome finality, it makes every other right, so vigorously and eloquently guaranteed by \nChapter 3 of the Constitution, permanently impossible to enjoy. Its inherently \nirreversible consequence, makes any reparation or correction impossible, if subsequent \nevents establish, as they have sometimes done, the innocence of the executed or \ncircumstances which demonstrate manifestly that he did not deserve the sentence of \ndeath. \n\n \n[271] The death sentence must, in some measure, manifest a philosophy of indefensible despair in its \nexecution, accepting as it must do, that the offender it seeks to punish is so beyond the \npale of humanity as to permit of no rehabilitation, no reform, no repentance, no inherent \nspectre of hope or spirituality; nor the slightest possibility that he might one day, \nsuccessfully and deservedly be able to pursue and to enjoy the great rights of dignity and \nsecurity and the fundamental freedoms protected in Chapter 3 of the Constitution, the \nexercise of which is possible only if the \"right to life\" is not destroyed. The finality of \nthe death penalty allows for none of these redeeming possibilities. It annihilates the \npotential for their emergence. Moreover, it cannot accomplish its objective without \ninvading in a very deep and distressing way, the guarantee of human dignity afforded by \nsection 10 of the Constitution, as the person sought to be executed spends long periods in \ncustody, anguished by the prospect of being \"hanged by the neck until he is dead\" in the \nlanguage of section 279(4) of Act 51 of 1977. The invasion of his dignity is inherent. \nHe is effectively told: \"You are beyond the pale of humanity. You are not fit to live \namong humankind. You are not entitled to life. You are not entitled to dignity. You are \nnot human. We will therefore annihilate your life\". (See the observations of Brennan J \nin Trop v Dulles 356 US 84 at 100). \n\n \n[272] It is not necessarily only the dignity of the person to be executed which is invaded. Very \narguably the dignity of all of us, in a caring civilization, must be compromised, by the act \nof repeating, systematically and deliberately, albeit for a wholly different objective, what \nwe find to be so repugnant in the conduct of the offender in the first place (see Furman v \nGeorgia 408 US 238 at 273 (1972)(Brennan J, concurring)). \n\n \n \n\n156 \n\n\fMAHOMED J \n\n \n \n \n[273] I also have very considerable difficulty in reconciling the guarantee of the right to equality \nwhich is protected by section 8 of the Constitution, with the death penalty. I have no \ndoubt whatever that Judges seek conscientiously and sedulously to avoid, any \nimpermissibly unequal treatment between different accused whom they are required to \nsentence, but there is an inherent risk of arbitrariness in the process, which makes it \nimpossible to determine and predict which accused person guilty of a capital offence will \nescape the death penalty and which will not. The fault is not of the sentencing Court, \nbut in the process itself. The ultimate result depends not on the predictable application \nof objective criteria, but on a vast network of variable factors which include, the poverty \nor affluence of the accused and his ability to afford experienced and skillful counsel and \nexpert testimony; his resources in pursuing potential avenues of investigation, tracing \nand procuring witnesses and establishing facts relevant to his defence and credibility; \nthe temperament and sometimes unarticulated but perfectly bona fide values of the \nsentencing officer and their impact on the weight to be attached to mitigating and \naggravating factors; the inadequacy of resources which compels the pro - deo system to \ndepend substantially on the services of mostly very conscientious but inexperienced and \nrelatively junior counsel; the levels of literacy and communication skills of the different \naccused in effectively transmitting to counsel the nuances of fact and inference often \nvital to the probabilities; the level of training and linguistic facilities of busy \ninterpreters; the environmental milieu of the accused and the difference between that \nand the comparative environment of those who defend, prosecute and judge him; class, \nrace, gender and age differences which influence bona fide perceptions, relevant to the \ndetermination of the ultimate sentence; the energy, skill and intensity of police \ninvestigations in a particular case; and the forensic skills and experience of counsel for \nthe prosecution. There are many other such factors which influence the result and which \ndetermine who gets executed and who survives. The result is not susceptible to objective \nprediction. Some measure of arbitrariness seems inherent in the process. This truth has \ncaused Blackmun J, one of the most experienced Judges of the United States Supreme \nCourt, finally to conclude that it \n\n \n \n \n\n157 \n\n\f \n \n\nMAHOMED J \n\"is virtually self-evident to me now that no combination of procedural rules or \nsubstantive regulations ever can save the death penalty from its inherent constitutional \ndeficiencies. The basic question - does the system accurately and consistently determine \nwhich defendants 'deserve' to die? - cannot be answered in the affirmative\" (Callins v \nCollins 114 S. Ct. 1127; 127 L.Ed.2d 435 (1994)(Blackmun J, dissenting)). \n\n \n \n[274] It must, of course, be conceded that the factors which ensure arbitrariness in the judicial \napplication of the death sentence, must in some considerable measure also influence a \nsentence of imprisonment, but there is an enormous difference between the death \nsentence and imprisonment or any other sentence. It is a qualitative and not just a \nquantitative difference. The unfair consequences of a wrong sentence of imprisonment \ncan be reversed. Death, however, is final and irreversible. The accused, who is \nimprisoned, is still able to exercise, within the discipline of the prison, in varying \ndegrees, some of the other rights which the Constitution guarantees to every person. The \nexecuted prisoner loses the right to pursue any other right. He simply dies. \n\n \n[275] For substantially the reasons given by Chaskalson P, I am further of the view that the death \npenalty is also inconsistent with section 11(2) of the Constitution which provides that: \n\n \n\n\"No person shall be subject to torture of any kind, whether physical, mental or \nemotional, nor shall any person be subject to cruel, inhuman or degrading treatment or \npunishment.\" \n\n \n \n[276] The different parts of section 11(2) must be read disjunctively. The death sentence would \n\n(subject to section 33) offend section 11(2) if it constitutes \n\n(a) \n(b) \n(c) \n(d) \n(e) \n(f) \n(g) \n\ntorture; or \ncruel treatment; or \ncruel punishment; or \ninhuman treatment; or \ninhuman punishment; or \ndegrading treatment; or \ndegrading punishment. \n\n(See Ex Parte Attorney-General, Namibia: In re Corporal Punishment 1991 (3) SA 76 \n(NmSC) at 86B-D) \n\n158 \n\n \n \n\n\f \n \n \n[277] In my view, the death sentence does indeed constitute cruel, inhuman or degrading punishment \n\nMAHOMED J \n\nwithin the meaning of those expressions in section 11(2). \n\n \n[278] Undoubtedly, this conclusion does involve in some measure a value judgment, but it is a value \njudgment which requires objectively to be formulated, having regard to the ordinary \nmeaning of the words used in section 11(2); its consistency with the other rights \nprotected by the Constitution and the constitutional philosophy and humanism expressed \nboth in the preamble and the postamble to the Constitution; its harmony with the \nnational ethos which the Constitution identifies; the historical background to the \nstructures and objectives of the Constitution; the discipline of proportionality to which it \nmust legitimately be subject; the effect of the death sentence on the right to life \nprotected by the Constitution; its inherent arbitrariness in application; its impact on \nhuman dignity; and its consistency with constitutional perceptions evolving both within \nSouth Africa and the world outside with which our country shares emerging values \ncentral to the permissible limits and objectives of punishment in the civilized \ncommunity. \n\n \n[279] I have dealt with some of these issues, in analysing the proper approach to the interpretation of \nthe Constitution, and in focusing on the rights protected by sections 8, 9 and 10 of the \nConstitution. Some of the other issues relevant to the exercise, have been dealt with in \nthe comprehensive judgment of the President and the persuasive comments of some of \nmy colleagues. \n\n \n[280] Applying the relevant considerations which emerge from the proper approach in assessing \nwhether capital punishment is \"cruel, inhuman or degrading punishment\", I share the \nconclusions arrived at by the United Nations Committee on Human Rights, and the \nHungarian Constitutional Court, (Decision 23/1990 (X31) AB) that the death sentence is \ncruel and degrading punishment and the conclusion of the Californian Supreme Court \nthat it is \"impermissibly cruel\" (People v Anderson 493 P.2d 880 (1972)). \n\n \n \n \n\n159 \n\n\fMAHOMED J \n\n \n \n[281] In my view, it also constitutes inhuman punishment. It invades irreversibly the humanity of the \noffender by annihilating the minimum content of the right to life protected by section 9; \nby degrading impermissibly the humanity inherent in his right to dignity; by the \ninevitable arbitrariness with which its objective is implemented; by the continuing and \ncorrosive denigration of his humanity in the long periods preceding his formal execution; \n by the inescapable denial of his humanity inherently involved in a sentence which \ndirects his elimination from society. \n\n \n[282] I am accordingly of the view that the death penalty does prima facie invade the right to life; the \nright to equality; the right to dignity; and the right not to be subject to cruel inhuman or \ndegrading punishment, respectively protected by sections 9, 8, 10 and 11(2) of the \nConstitution. \n\n \n[283] Notwithstanding that conclusion however, it would be our duty to uphold the constitutionality of \nthe death penalty if it was saved by section 33 of the Constitution, which provides that \nthe rights entrenched by Chapter 3 may be limited by a law of general application, \nprovided that such limitation \n\n \n\n \n \n\nshall be permissible only to the extent that it is \n(i) \n(ii) \n\nreasonable; and \njustifiable in an open and democratic society based on freedom and \nequality; and \n\nshall not negate the essential content of the right in question, \n\nand provided that any limitation to \n\na right entrenched in section 10, 11, 12, 14(1), 21, 25 or 30(1)(d) or (e) or (2); \nor \n......... \n\n \n\nshall in addition to being reasonable as required in paragraph (a)(i) also be necessary\". \n\n\"(a) \n\n(b) \n\n(aa) \n\n(bb) \n\nOn a proper construction of section 33, a \"law of general application\" which invades a \nright entrenched in Chapter 3, will be declared unconstitutional unless the party relying \non such law is able to establish that it fulfils each of the conditions prescribed by this \nsection, for its justification. \n\n \n[284] In order to qualify as a permissible limitation in terms of section 33 the State must therefore \n \n \n\n160 \n\n\f \n \n\nMAHOMED J \n\nestablish that the invasions on the right to life, the right to be protected from unfair \ndiscrimination, the right to dignity and the right to be protected from cruel, inhuman or \ndegrading punishment, which the application of the death penalty causes, satisfy at least \nthe three separate elements specified in sections 33(1)(a)(i), (ii) and 33(1)(b). In the case \nof a limitation on the right to dignity and the right to be protected from cruel, inhuman or \ndegrading punishment, the fourth element of \"necessity\" contained in section 33(1)(aa) \nmust further be satisfied. \n\n \n[285] The most plausible argument in support of the submission that the death penalty does satisfy \nthese onerous conditions prescribed by section 33 is the submission that it acts as a \ndeterrent. That argument has dominated perceptions in support of the death penalty, both \nin South Africa and abroad. \n\n \n[286] It must readily be conceded that if it could be established that the death sentence does indeed \ndeter the commission of serious offences in respect of which the death penalty is a \ncompetent sentence, it would indeed be a very relevant and at least a potentially \npersuasive consideration in support of its justification in terms of section 33. There are, \nhowever, some serious difficulties involved in the acceptance of the proposition that the \ndeath penalty is, or ever has been, a demonstrable deterrence. \n\n \n[287] The legitimacy of the argument must to a substantial degree be premised on an assumption \nwhich appears to me to be fallacious and at the least, highly speculative and rationally \nunconvincing. That assumption is that a criminal, contemplating the commission of a \nserious offence, weighs the risk that he might be sentenced to death against the risk that \nhe might not be sentenced to death but only to a long term of imprisonment of twenty \nyears or more. The assumption is that he would decide to commit the offence even at the \nrisk of receiving a long term of imprisonment but that if the death sentence was the risk, \nhe would refrain from committing the offence at all. I have serious difficulties with \nthese assumptions. In the first place they are not supported by any empirical evidence or \nresearch in this country or abroad. Secondly, this argument attributes to the offender a \ncapacity for reflection and contemplation and a maturity of analysis which appears to me \n\n \n \n\n161 \n\n\f \n \n\nMAHOMED J \n\nto be unrealistic. Thirdly, and more fundamentally, it ignores what is possibly the real \nfactor in any risk assessment which might activate a potentially serious offender: the \nrisk which he considers is that he will not be caught. If he believed that there was a real \nrisk of being apprehended, charged and convicted he would not willingly assume the \nprospect of many years of quite punishing imprisonment. \n\n \n[288] If, as I believe, such offenders commit the crimes contemplated because of a belief that they \nwill probably not be apprehended at all, it is a belief which is regrettably justified. On \nthe information that was common cause in argument before us, sixty or seventy percent \nof offenders who commit serious crimes are not apprehended at all and a substantial \nproportion of those who are, are never convicted. The risk is therefore worth taking, not \nbecause the death penalty would, in the perception of the offender, not be imposed but \nbecause no punishment is likely to result at all. The levels of serious crimes committed \nin South Africa are indeed disturbing. For many in the community, life has become \ndangerous and intolerable. Criminals do need vigorously to be deterred from conduct \nwhich endangers the security and freedom of citizens to a very distressing degree but, on \nthe available evidence, it is facile to assume that the retention of the death penalty will \nprovide the deterrence which is clearly needed. I have analysed such statistics as were \ndebated in argument. In comparisons between States in the United States of America \nwhich retained the death penalty and those which did not, there is no manifest proof that \nthe rate of serious crime was greater in the States which did not sanction capital \npunishment. In the case of those which did abolish capital punishment, there was no \nconvincing proof that the rate of serious crime was greater after such act of abolition \n(Peterson and Bailey, \"Murder and Capital Punishment in the context of the Post-\nFurman Era (1988)66 Social Forces 774; Thorsten Sellin, The Death Penalty, 1982). \n\n \n[289] Following a survey of research findings the United Nations concluded that - \n \n\n\"this research has failed to provide scientific proof that executions have a greater \ndeterrent effect than life imprisonment - such proof is unlikely to be following. The \nevidence as a whole still gives no possible support to the deterrent hypothesis\". (United \nNations: The Question of the Death Penalty and the New Contributions of Criminal \nScience to the Matter (1988) at 110). \n\n162 \n\n \n \n\n\fMAHOMED J \n\n \n \n \n \n[290] We were not furnished with any reliable research dealing with the relationship between the rate \nof serious offences and the proportion of successful apprehensions and convictions \nfollowing on the commission of serious offences. This would have been a significant \nenquiry. It appears to me to be an inherent probability that the more successful the \npolice are in solving serious crimes and the more successful they are in apprehending the \ncriminals concerned and securing their convictions, the greater will be the perception of \nrisk for those contemplating such offences. That increase in the perception of risk, \ncontemplated by the offender, would bear a relationship to the rate at which serious \noffences are committed. Successful arrest and conviction must operate as a deterrent and \nthe State should, within the limits of its undoubtedly constrained resources, seek to deter \nserious crime by adequate remuneration for the police force; by incentives to improve \ntheir training and skill; by augmenting their numbers in key areas; and by facilitating \ntheir legitimacy in the perception of the communities in which they work. \n\n[291] Successful deterrence of serious crime also involves the need for substantial redress in the socio-\neconomic conditions of those ravaged by poverty, debilitated by disease and malnutrition \nand disempowered by illiteracy. Rapid amelioration in these areas must have some \nconcomitant effect on the levels of crime. There has to be a corresponding campaign \namong the communities affected by serious crime to harness their own legitimacy and \ntheir own infrastructures, in interaction with the security agencies of the State. The \npower and influence of agencies of moral authority such as teachers, school principals \nand religious leaders must rapidly be restored. Crime is a multi-faceted phenomenon. It \nhas to be assaulted on a multi-dimensional level to facilitate effective deterrence. \n\n \n[292] The moratorium on the execution of the death penalty, which has been effectively in operation \nsince 1990, is also relevant in offering some insight into the veracity of the proposition \nthat executions for capital crimes operate as a deterrent. That proposition, as Didcott J \nhas correctly analysed, is not cogently supported by the statistics made available to us for \nthe period following upon the moratorium; nor is it supported by the rate at which crime \nlevels increased during periods in our history when executions were administered with \n\n \n \n\n163 \n\n\f \n \n\nvigour. \n\nMAHOMED J \n\n \n[293] Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been \npersuaded that the fear of the death penalty rationally or practically operates as a \ndemonstrable deterrent for offenders seeking to perpetrate serious crimes. It remains, for \nthe reasons I have previously discussed, an impermissibly cruel invasion of rights, the \nsustenance of which is fundamental to a defensible civilization, protected in South Africa \nby the ethos of a Constitution, which is manifestly humanistic and caring in its content. \n\n \n[294] Even if the fallacious and speculative assumptions which motivate the argument in support of \nthe proposition that the death sentence does act as a deterrent against serious crime were \nto be accepted, rationally the fear of the death penalty would only operate on the mind of \nthe potential offender if there was a serious risk that he could be so punished. On the \ninformation made available to us, however, that risk is in any event so minimal, as to \nconstitute a remote statistical possibility, which, as Mr Trengove argued, might be no \nmore significant than the risk of dying in a motor accident. It is difficult to appreciate \nhow such a remote statistical possibility acts as a deterrent on the minds of potential \noffenders. \n\n \n[295] On a judicial application of all the relevant considerations and the facts made available to us, I \ntherefore cannot conclude that the State has successfully established that the death \npenalty per se has any deterrent effect on the potential perpetrators of serious offences. \n[296] Is there any other basis on which the death penalty can be justified? The only serious alternative \nbasis suggested in argument was that it is justifiable as an act of retribution. Retribution \nhas indeed constituted one of the permissible objects of criminal punishment because \nthere is an inherent legitimacy about the claim that the individual victims and society \ngenerally should, and are entitled to, enforce punishment as an expression of their moral \noutrage and sense of grievance. I have, however, some serious difficulties with the \njustification of the death sentence as a form of retribution. The proper approach is not to \ncontrast the legitimacy of the death sentence as a form of retribution against no \nretribution at all. That is plainly untenable and manifestly indefensible. The relevant \n\n \n \n\n164 \n\n\f \n \n\nMAHOMED J \n\ncontrast is between the death sentence and the alternative of a very lengthy period of \nimprisonment, in appropriate cases. It is difficult to appreciate why a sentence which \ncompels the offender to spend years and years in prison, away from his family, in \nconditions of deliberate austerity and rigid discipline, substantially and continuously \nimpeding his enjoyment of the elementary riches and gifts of civilized living, is not an \neffective and adequate expression of moral outrage. The unarticulated fallacy in the \nargument that it is not, is the proposition that it must indeed be equivalent in form to the \noffence committed. That is an impermissible argument. The burning of the house of the \noffender is not a permissible punishment for arson. The rape of the offender is not a \npermissible punishment of a rapist. Why should murder be a permissible punishment for \nmurder? Indeed, there are good reasons why it should not, because its execution might \ndesensitize respect for life per se. More crucially, within the context of the South \nAfrican Constitution, it appears to be at variance with its basic premise and ethos which I \nanalysed earlier in this judgment. On these considerations, I find it difficult to hold that \nthe death sentence has been demonstrated by the State to be \"justifiable in an open and \ndemocratic society based on freedom and equality\". \n\n \n[297] That conclusion should make it unnecessary for me to deal with the other elements of \njustification set out in section 33, but I am in any event of the view that the State has not \nestablished that the limitations the death penalty imposes on the relevant rights in \nChapter 3, which I have discussed, can be said to be \"necessary\". That is a material \nelement for justification in terms of section 33 where what is limited is the right to \nhuman dignity in section 10 or the right to be protected from cruel, inhuman or \ndegrading punishment in terms of section 11(2). The failure to satisfy that element is \nfatal to the attempt to establish justification in terms of section 33. Section 277(1)(a) of \nAct 51 of 1977 must therefore be the constitutional casualty of this conclusion and \ntherefore be struck down. The reasons which have prompted that conclusion are \nsubstantially also of application to sub-paragraphs (c) (d) (e) and (f) of section 277(1) \nand must therefore endure the same fate. For the reasons given by Chaskalson P, I agree \nthat the issue as to whether section 277(1)(b) is unconstitutional should be left open. \n\n \n \n \n\n165 \n\n\f \n[298] It also follows from my approach and the conclusions to which I have arrived, that it is \nunnecessary to decide whether or not the death penalty does \"negate the essential content \nof the right in question\" within the meaning of section 33(1)(b). I also prefer to leave \nthis question open. In the absence of full argument, I do not consider it desirable to \ndetermine what the meaning of the reference to the \"essential content of the right\" is. \nChaskalson P, in paragraph 132 of his judgment, has, without deciding, referred to two \napproaches which he describes as the \"objective\" and \"subjective\" determination of the \nessential content. Arguably, it is possible to consider a third angle which focuses on the \ndistinction between the \"essential content\" of a right and some other content. This \ndistinction might justify a relative approach to the determination of what is the essential \ncontent of a right by distinguishing the central core of the right from its peripheral \noutgrowth and subjecting \"a law of general application\" limiting an entrenched right, to \nthe discipline of not invading the core, as distinct from the peripheral outgrowth. In this \nregard, there may conceivably be a difference between rights which are inherently \ncapable of incremental invasion and those that are not. We have not heard proper \nargument on any of these distinctions which justify debate in the future in a proper case. \nI say no more. \n\n \n[299] Consistent with my approach to the judicial process involved in the determination of the \nconstitutionality of the death sentence, I am accordingly privileged to concur in the order \nsupported by all my colleagues. \n\n \n \n[300] MOKGORO J: I am in agreement with the judgement of Chaskalson P, its reasoning, and its \nconclusions, and I concur in the order that gives effect to those conclusions. I give this \nbrief concurring opinion to highlight what I regard as important: namely that, when our \ncourts promote the underlying values of an open and democratic society in terms of \nSection 35 when considering the constitutionality of laws, they should recognise that \nindigenous South African values are not always irrelevant nor unrelated to this task. In \nmy view, these values are embodied in the Constitution and they impact directly on the \ndeath penalty as a form of punishment. \n\n \n \n\n166 \n\n\f \n \n \n[301] Now that constitutionalism has become central to the new emerging South African \njurisprudence, legislative interpretation will be radically different from what it used to be \nin the past legal order. In that legal order, due to the sovereignty of parliament, the \nsupremacy of legislation and the absence of judicial review of parliamentary statutes, \ncourts engaged in simple statutory interpretation, giving effect to the clear and \nunambiguous language of the legislative text - no matter how unjust the legislative \nprovision. The view of the court in Bongopi v Council of the State, Ciskei 1992(3) SA \n250 (CK) at 265 H - I, as per Pickard CJ is instructive in this regard: \n\n \n\n\u2018This court has always stated openly that it is not the maker of laws. It will \nenforce the law as it finds it. To attempt to promote policies that are not to be \nfound in the law itself or to prescribe what it believes to be the current public \nattitudes or standards in regard to these policies is not its function\u2019. \n\n \n \n[302] With the entrenchment of a Bill of Fundamental Rights and Freedoms in a supreme constitution, \nhowever, the interpretive task frequently involves making constitutional choices by \nbalancing competing fundamental rights and freedoms. This can often only be done by \nreference to a system of values extraneous to the constitutional text itself, where these \nprinciples constitute the historical context in which the text was adopted and which help \nto explain the meaning of the text. The constitution makes it particularly imperative for \ncourts to develop the entrenched fundamental rights in terms of a cohesive set of values, \nideal to an open and democratic society. To this end common values of human rights \nprotection the world over and foreign precedent may be instructive. \n\n \n[303] While it is important to appreciate that in the matter before us the court had been called upon to \ndecide an issue of constitutionality and not to engage in debate on the desirability of \nabolition or retention, it is equally important to appreciate that the nature of the court\u2019s \nrole in constitutional interpretation, and the duty placed on courts by Section 35, will of \nnecessity draw them into the realm of making necessary value choices. \n\n \n \n \n\n167 \n\n\fMOKGORO J \n\n \n \n[304] The application of the limitation clause embodied in Section 33(1) to any law of general \napplication which competes with a Chapter 3 right is essentially also an exercise in \nbalancing opposing rights. To achieve the required balance will of necessity involve \nvalue judgements. This is the nature of constitutional interpretation. Indeed Section \n11(2) which is the counterpart of Section 15(1) of the Constitution of Zimbabwe1, and \nprovides protection against cruel, inhuman or degrading punishment, embodies broad \nidealistic notions of dignity and humanity. If applied to determine whether the death \npenalty was a form of torture, treatment or punishment which is cruel, inhuman or \ndegrading it also involves making value choices, as was held per Gubbay CJ in Catholic \nCommision for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe, 1993(4) \nSA 239(ZS) at 241. In order to guard against what Didcott J, in his concurring \njudgement terms the trap of undue subjectivity, the interpretation clause prescribes that \ncourts seek guidance in international norms and foreign judicial precedent, reflective of \nthe values which underlie an open and democratic society based on freedom and \nequality. By articulating rather than suppressing values which underlie our decisions, we \nare not being subjective. On the contrary, we set out in a transparent and objective way \nthe foundations of our interpretive choice and make them available for criticism. Section \n35 seems to acknowledge the paucity of home-grown judicial precedent upholding \nhuman rights, which is not surprising considering the repressive nature of the past legal \norder. It requires courts to proceed to public international law and foreign case law for \nguidance in constitutional interpretation, thereby promoting the ideal and internationally \naccepted values in the cultivation of a human rights jurisprudence for South Africa. \nHowever, I am of the view that our own (ideal) indigenous value systems are a premise \nfrom which we need to proceed and are not wholly unrelated to our goal of a society \nbased on freedom and equality. This, in my view too, is the relevance of the submissions \nof Adv. Davids, appearing as amicus curiae on behalf of the Black Advocates\u2019 Forum, \nalbeit that these submissions were inappropriately presented. \n\n \n[305] In Dudgeon v United Kingdom (1982) 4 EHRR 149, the European Court of Human Rights, per \n \n\n 1 Act No 12 of 1979. \n\n \n \n\n168 \n\n\f \n \n\n \n\n \n\n \n\n \n \n\n \n\nWalsh J, expressed the view that: \n\nMOKGORO J \n\n\u201c... in a democracy the law cannot afford to ignore the moral consensus of the \ncommunity. If the law is out of touch with the moral consensus of the \ncommunity, whether by being either too far below it or too far above it, the law \nis brought into contempt\u201d (at 184). \n\nAlthough this view was expressed in relation to the legislative process, in as far as courts \nhave to comply with the requirements of Section 35 of the Constitution the approach it \nembodies is not wholly inapplicable in constitutional adjudication. Enduring values, \nhowever, are not the same as fluctuating public opinion. In his argument before the \ncourt, the Attorney General submitted that: \n\n\u201c... the overwhelming public opinion in favour of the retention of the death \nsentence is sufficiently well-known to be accepted as the true voice of the \nSouth African society. This opinion of the South African public is evidenced \nby newspaper articles, letters to newspapers, debates in the media and \nrepresentations to the authorities...\u201d \n\nThe described sources of public opinion can hardly be regarded as scientific. Yet even if \nthey were, constitutional adjudication is quite different from the legislative process, \nbecause \u201cthe court is not a politically responsible institution\u201d2 to be seized every five \nyears by majoritarian opinion. The values intended to be promoted by Section 35 are not \nfounded on what may well be uninformed or indeed prejudiced public opinion. One of \nthe functions of the court is precisely to ensure that vulnerable minorities are not \ndeprived of their constitutional rights. \n\n \n\n 2 See Jesse Choper quoted in Rights and Constitutionalism; The New South African Legal Order; Van Wyk \nD. et al, Juta, 1994 p. 9. The suggestion is that the judiciary is not wholly removed from the political process, \nwhere it plays a supervisory role, restraining the majority will through judicial review. \n\n \n \n\n169 \n\n\fMOKGORO J \n\n \n \n[306] In support of her main contention, Adv. Davids quite appropriately expressed concern for the \nneed to consider the value systems of the formerly marginalised sectors of society in \ncreating a South African jurisprudence. However, for reasons outlined in the concurring \nopinion of Sachs J, the issue was regrettably not argued. Indeed even if her submissions \nmight not have influenced the final decision of the court, the opportunity to present and \nargue properly adduced evidence of those undistorted values historically disregarded in \nSouth African judicial law-making would have created an opportunity of important \nhistorical value, injecting such values into the mainstream of South African \njurisprudence. The experience would, in my view, also have served to emphasise that \nthe need to develop an all-inclusive South African jurisprudence is not only incumbent \nupon the judiciary, let alone the Constitutional Court. The broad legal profession, \nacademia and those sectors of organised civil society particularly concerned with public \ninterest law, have an equally important responsibility and role to play by combining \nefforts and resources to place the required evidence in argument before the courts. It is \nnot as if these resources are lacking; what has been absent has been the will, and the \nacknowledgment of the importance of the material concerned. \n\n \n[307] In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an all-\ninclusive value system, or common values in South Africa, can form a basis upon which \nto develop a South African human rights jurisprudence. Although South Africans have a \nhistory of deep divisions characterised by strife and conflict, one shared value and ideal \nthat runs like a golden thread across cultural lines, is the value of ubuntu - a notion now \ncoming to be generally articulated in this country. It is well accepted that the transitional \nConstitution is a culmination of a negotiated political settlement. It is a bridge between a \nhistory of gross violations of human rights and humanitarian principles, and a future of \nreconstruction and reconciliation. The post-amble of the Constitution expressly \nprovides, \n\n \n\n \n \n\n \n \n\n\u201c... there is a need for understanding but not for vengeance, a need for \nreparation but not for retaliation, a need for ubuntu but not for victimisation...\u201d \n\n170 \n\n\f \n \n\nMOKGORO J \n\nNot only is the notion of ubuntu expressly provided for in the epilogue of the \nConstitution, the underlying idea and its accompanying values are also expressed in the \npreamble. These values underlie, first and foremost, the whole idea of adopting a Bill of \nFundamental Rights and Freedoms in a new legal order. They are central to the \ncoherence of all the rights entrenched in Chapter 3 - where the right to life and the right \nto respect for and protection of human dignity are embodied in Sections 9 and 10 \nrespectively. \n\n \n[308] Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates as \npersonhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu \nngabantu, describing the significance of group solidarity on survival issues so central to \nthe survival of communities. While it envelops the key values of group solidarity, \ncompassion, respect, human dignity, conformity to basic norms and collective unity, in \nits fundamental sense it denotes humanity and morality. Its spirit emphasises respect for \nhuman dignity, marking a shift from confrontation to conciliation.3 In South Africa \nubuntu has become a notion with particular resonance in the building of a democracy. It \nis part of our \u201crainbow\u201d heritage, though it might have operated and still operates \ndifferently in diverse community settings. In the Western cultural heritage, respect and \nthe value for life, manifested in the all-embracing concepts of humanity and \nmenswaardigheid are also highly priced. It is values like these that Section 35 requires \nto be promoted. They give meaning and texture to the principles of a society based on \nfreedom and equality. \n\n \n[309] In American jurisprudence, courts have recognised that the dignity of the individual in American \nsociety is the supreme value. Even the most evil offender, it has been held, \u201cremains a \nhuman being possessed of a common human dignity\u201d (Furman v Georgia 408 US 238 at \n273 (1972)), thereby making the calculated process of the death penalty inconsistent with \nthis basic, fundamental value. In Hungarian jurisprudence, the right to life and the right \n\n \n\n 3 Mbigi, L., with J. Maree, UBUNTU - The Spirit of African Transformation Management, Knowledge \nResources, 1995, pp. 1-16. \n\n \n \n\n171 \n\n\f \n \n\nMOKGORO J \n\nto human dignity are protected as twin rights in Section 54(1) of that Constitution4. They \nare viewed as an inseparable unity of rights. Not only are they regarded as a unity of \nindivisible rights, but they also have been held to be the genesis of all rights. In \ninternational law, on the other hand, human dignity is generally considered the fountain \nof all rights. The International Covenant on Civil and Political Rights (1966) G.A. Res \n2200 (XXI), 21 U.N. GAOR, SUPP. (No, 16) at 52, U.N. DOC. A/6316(1966), in its \npreamble, makes references to \u201cthe inherent dignity of all members of the human family\u201d \nand concludes that \u201chuman rights derive from the inherent dignity of the human person\u201d. \n This, in my view, is not different from what the spirit of ubuntu embraces. \n\n \n[310] It is common cause, however, that the legal system in South Africa, and the socio-political \nsystem within which it operated, has for decades traumatised the human spirit. In many \nways, it trampled on the basic humanity of citizens. We cannot in all conscience declare, \nas did a United States Supreme Court justice in Furman v Georgia 408 US 238, at 296 \n(1972) with reference to the American context, that respect for and protection of human \ndignity has been a central value in South African jurisprudence. We cannot view the \ndeath penalty as fundamentally inconsistent with our harsh legal heritage. Indeed, it was \nan integral part of a system of law enforcement that imposed severe penalties on those \nwho aspired to achieve the values enshrined in our Constitution today. \n\n \n[311] South Africa now has a new constitution however, which creates a constitutional state. This \nstate is in turn founded on the recognition and protection of basic human rights, and \nalthough this constitutes a revolutionary change in legal terms, the idea is consistent with \nthe inherited traditional value systems of South Africans in general - traditional values \nwhich hardly found the chance to bring South Africa on par with the rest of the world. \n\n \n\n 4 See analysis in the English translation of Decision No 23/1990 (X31) AB of the Hungarian Constitutional \nCourt. \n\n \n \n\n172 \n\n\fMOKGORO J \n\nAs this constitution evolves to overcome the culture of gross human rights violations of \nthe past, jurisprudence in South Africa will simultaneously develop a culture of respect \nfor and protection of basic human rights. Central to this commitment is the need to \nrevive the value of human dignity in South Africa, and in turn re-define and recognise \nthe right to and protection of human dignity as a right concomitant to life itself and \ninherent in all human beings, so that South Africans may also appreciate that \u201ceven the \nvilest criminal remains a human being\u201d(Furman v Georgia, supra). In my view, life and \ndignity are like two sides of the same coin. The concept of ubuntu embodies them both. \n[312] In the past legal order, basic human rights in South Africa, including the right to life and human \ndignity, were not protected in a Bill of Fundamental Rights and Freedoms, in a supreme \nconstitution, as is the case today. Parliament then was sovereign, and could pass any law \nit deemed fit. Legislation was supreme, and due to the absence of judicial review, no \ncourt of law could set aside any statute or its provision on grounds of violating \nfundamental rights. Hence, Section 277 of the Criminal Procedure Act, 51 of 1977, \ncould survive untested to this day. \n\n \n[313] Our new Constitution, unlike its dictatorial predecessor, is value-based. Among other things, it \nguarantees the protection of basic human rights, including the right to life and human \ndignity, two basic values supported by the spirit of ubuntu and protected in Sections 9 \nand 10 respectively. In terms of Section 35, this Constitution now commits the state to \nbase the worth of human beings on the ideal values espoused by open democratic \nsocieties the world over and not on race colour, political, economic and social class. \nAlthough it has been argued that the currently high level of crime in the country is \nindicative of the breakdown of the moral fabric of society, it has not been conclusively \nshown that the death penalty, which is an affront to these basic values, is the best \navailable practical form of punishment to reconstruct that moral fabric. In the second \nplace, even if the end was desirable, that would not justify the means. The death penalty \nviolates the essential content of the right to life embodied in Section 9, in that it \nextinguishes life itself. It instrumentalises the offender for the objectives of state policy. \n That is dehumanising. It is degrading and it violates the rights to respect for and \nprotection of human dignity embodied in Section 10 of the Constitution. \n\n \n \n\n \n \n\n173 \n\n\fMOKGORO J \n\n \n \n \n[314] Once the life of a human being is taken in the deliberate and calculated fashion that characterises \nthe described methods of execution the world over, it constitutes the ultimate cruelty \nwith which any living creature could ever be treated. This extreme level of cruel \ntreatment of a human being, however despicably such person might have treated another \nhuman being, is still inherently cruel. It is inhuman and degrading to the humanity of the \nindividual, as well as to the humanity of those who carry it out. \n\n \n[315] Taking the life of a human being will always be reprehensible. Those citizens who kill deserve \nthe most severe punishment, if it deters and rehabilitates and therefore effectively \naddresses deviance of this nature. Punishment by death cannot achieve these objectives. \n The high rate of crime in this country is indeed disturbing and the state has a duty to \nprotect the lives of all citizens - including those who kill. However, it should find more \nhumane and effective integrated approaches to manage its penal system, and to \nrehabilitate offenders. \n\n \n[316] The state is representative of its people and in many ways sets the standard for moral values \nwithin society. If it sanctions by law punishment for killing by killing, it sanctions \nvengeance by law. If it does so with a view to deterring others, it dehumanises the \nperson and objectifies him or her as a tool for crime control. This objectification through \nthe calculated killing of a human being, to serve state objectives, strips the offender of \nhis or her human dignity and dehumanises, such a person constituting a violation of \nSection 10 of the Constitution. \n\n \n[317] Although the Attorney General placed great reliance on the deterrent nature of the death penalty \nin his argument, it was conceded that this has not been conclusively proven. It has also \nnot been shown that this form of punishment was the best available option for the \nrehabilitation of the offender. Retaining the death penalty for this purpose is therefore \nunnecessary. Section 277(1) which authorises the death penalty under these \nunnecessarily inhuman and degrading circumstances is inconsistent with the right to life \nand human dignity embodied in Sections 9 and 10 of the Constitution, respectively, and \n\n \n \n\n174 \n\n\f \n\nis in direct conflict with the values that Section 35 aims to promote in the interpretation \nof these sections. Taking the life of a person under such deliberate and calculated \ncircumstances, with the methods already described in the judgement of Chaskalson P, is \ncruel, inhuman or degrading treatment or punishment. It is inconsistent with Section \n11(2) of the Constitution. In my view, therefore, the death penalty is unconstitutional. \nNot only does it violate the right not be subjected to cruel, inhuman or degrading \ntreatment or punishment, it also violates the right to life and human dignity. \n\n \n[318] O'REGAN J: I have read the judgment of Chaskalson P and I agree with the order that he \nproposes. However, although I agree that the death sentence constitutes a breach of \nsection 11(2) of the Constitution that is not justified in terms of section 33, it is my view \nthat it also constitutes a breach of section 9 (the right to life) and section 10 (the right to \ndignity) for the reasons that are given in this judgment. \n\n \n[319] The crimes of which the two prisoners whose case has been referred to this court have been \nconvicted were committed during a robbery from a bank security vehicle which was \ndelivering monthly wages to the Coronation Hospital in Johannesburg. It appears from \nthe judgment of the Appellate Division that the two prisoners were part of a group of \nrobbers who had cold-bloodedly planned the robbery. All the robbers had been armed \nwith AK-47s and had opened fire on the security vehicle and the accompanying vehicle \nwhen they had driven into the hospital parking area. As a result of the shooting, two \npolicemen and two bank security officials were shot dead. \n\n \n[320] There is no doubt that the crimes committed by the two prisoners were abhorrent. Our society \ncannot and does not condone brutal murder or robbery. Perpetrators of crimes such as \nthese must be punished severely according to our system of criminal justice. In this case, \nthe prisoners have been tried, convicted and sentenced. The question that this court must \nanswer is not whether the prisoners committed these crimes, nor whether they should be \npunished. It has been established by the proper courts that they did commit crimes, and \nfor that they must be punished. What this court must consider is whether the form of \npunishment that has been imposed is constitutional. Does our constitution permit any \n\n \n \n\n175 \n\n\f \n \n\nO\u2019REGAN J \nconvicted criminal, however heinous the crime, to be put to death by the government as \npunishment for that crime? \n\n \n\n \n[321] The Constitution entrenches certain fundamental rights. Included amongst these are the right to \nlife (section 9), the right to the respect for and protection of dignity (section 10) and the \nright not to be subjected to cruel, inhuman or degrading punishment (section 11(2)). The \nprisoners allege that the death penalty is in conflict with each of these. The language of \neach of these rights is broad and capable of different interpretations. How is this court to \ndetermine the content and scope of these rights? This question is at least partially \nanswered by section 35(1) of the constitution which enjoins this court in interpreting the \nrights contained in the Constitution to 'promote the values which underlie an open and \ndemocratic society based on freedom and equality'. \n\n \n[322] No-one could miss the significance of the hermeneutic standard set. The values urged upon the \ncourt are not those that have informed our past. Our history is one of repression not \nfreedom, oligarchy not democracy, apartheid and prejudice not equality, clandestine not \nopen government. As the epilogue to the constitution states: \n\n \n\n`This constitution provides a historic bridge between the past of a deeply divided society \ncharacterised by strife, conflict, untold suffering and injustice, and a future founded on \nthe recognition of human rights, democracy and peaceful co-existence and development \nopportunities for all South Africans, irrespective of colour, race, class, belief or sex.' \n\n \n[323] In interpreting the rights enshrined in chapter 3, therefore, the court is directed to the future: to \nthe ideal of a new society which is to be built on the common values which made a \npolitical transition possible in our country and which are the foundation of its new \nconstitution. This is not to say that there is nothing from our past which should be \nretained. Of course this is not so. As Kentridge AJ described in the first judgment of \nthis court(S v Zuma unreported judgment of this court, 5 April 1995), many of the rights \nentrenched in section 25 of the constitution concerning criminal justice are longstanding \nprinciples of our law, although eroded by statute and judicial decision. In interpreting \nthe rights contained in section 25, those common law principles will be useful guides. \n\n \n \n\n176 \n\n\f \n \n\n \n\nO\u2019REGAN J \n\nBut generally section 35(1) instructs us, in interpreting the constitution, to look forward \nnot backward, to recognise the evils and injustices of the past and to avoid their \nrepetition. \n\n \n[324] Section 9 of the Constitution provides that: \n \n\n'Every person shall have the right to life.' \n\n \n\nThis formulation of the right to life is not one which has been used in the constitutions of \nother countries or in international human rights conventions. In choosing this \nformulation, the drafters have specifically avoided either expressly preserving the death \npenalty, or expressly outlawing it. In addition, they have not used the language so \ncommon in other constitutions, which provides that no-one may be deprived of life \narbitrarily or without due process of law.1 To the extent that the formulation of the right \nis different from that adopted in other jurisdictions, their jurisprudence will be of less \nvalue. The question is thus left for us to determine whether this right, or any of the others \nenshrined in chapter 3, would prima facie prohibit the death penalty. \n\n \n[325] In giving meaning to section 9, we must seek the purpose for which it was included in the \n\n \n\n 1 The Universal Declaration of Human Rights contains an unconditional form of the right: article 3 provides \nthat `Everyone has the right to life, liberty and security of the person.' On the other hand, many other \ninternational rights instruments contain qualified protections of the right to life. Article 6(1) of the International \nConvention on Civil and Political Rights stipulates that `Every human being has the inherent right to life. This \nright shall be protected by law. No-one shall be arbitrarily deprived of his life.' Subsections 2 - 5 of article 6 then \nprovide for minimum standards for countries which have not abolished the death penalty, and article 6(6) \nprovides that: `Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by \nany state party to the present covenant.' In addition in 1989 an optional protocol was adopted by the General \nAssembly of the United Nations, article 1 of which provides that `No-one within the jurisdiction of state parties \nto the present optional protocol shall be executed'. \n\nArticle 4 of the Banjul Charter on Human and People's Rights (African Charter) provides that `Human \nbeings are inviolable. Every human being shall be entitled to respect for his life and the integrity of the person. \nNo one may be arbitrarily deprived of this right.' \n\nArticle 2(1) of the European Convention on Human Rights provides that ` Everyone's right to life shall \n\nbe protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a \ncourt following his conviction of a crime for which this penalty is provided by law.' But in 1983 a protocol to the \nConvention was adopted which provided that capital punishment should be abolished. The protocol has been \nwidely ratified. See Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights \n2nd ed (1990) pp 502 -3. \n\n \n \n\n177 \n\n\f \n \n\n \n\nO\u2019REGAN J \n\nConstitution.2 This purposive or teleological approach to the interpretation of rights may \nat times require a generous meaning to be given to provisions of chapter 3 of the \nConstitution, and at other times a narrower or specific meaning. It is the responsibility \nof the courts, and ultimately this court, to develop fully the rights entrenched in the \nConstitution. But that will take time. Consequently any minimum content which is \nattributed to a right may in subsequent cases be expanded and developed. \n\n \n[326] The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without \nlife in the sense of existence, it would not be possible to exercise rights or to be the \nbearer of them. But the right to life was included in the Constitution not simply to \nenshrine the right to existence. It is not life as mere organic matter that the Constitution \ncherishes, but the right to human life: the right to live as a human being, to be part of a \nbroader community, to share in the experience of humanity. This concept of human life \nis at the centre of our constitutional values. The constitution seeks to establish a society \nwhere the individual value of each member of the community is recognised and \ntreasured. The right to life is central to such a society. \n\n \n[327] The right to life, thus understood, incorporates the right to dignity. So the rights to human \ndignity and life are entwined. The right to life is more than existence, it is a right to be \ntreated as a human being with dignity: without dignity, human life is substantially \ndiminished. Without life, there cannot be dignity. This was recognised by the Hungarian \nconstitutional court in the case in which it considered the constitutionality of the death \n\n \n\n 2 See S v Zuma (unreported judgment of the Constitutional Court, 5 April 1995) para 15 in which Kentridge \nAJ referred to the judgment of Dickson J in R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 395 - 6 with \napproval. See also Law Society of British Columbia and another v Andrews and another (1989) 36 CRR 193 \n(SCC) at 224 - 225. \n\n \n \n\n178 \n\n\f \n \n\n \n\npenalty: \n\n \n\nO\u2019REGAN J \n\n`It is the untouchability and equality contained in the right to human dignity that results \nin man's right to life being a specific right to human life (over and above animals' and \nartificial subjects' right to being); on the other hand, dignity as a fundamental right does \nnot have meaning for the individual if he or she is dead. ... Human dignity is a naturally \naccompanying quality of human life.' (Decision No 23/1990, (X.31.) AB, George Feher \ntranslation) \n\n \n[328] The right to dignity is enshrined in our Constitution in section 10: \n \n\n`Every person shall have the right to respect for and protection of his \nor her dignity'. \n\nThe importance of dignity as a founding value of the new Constitution cannot be \noveremphasised. Recognising a right to dignity is an acknowledgement of the intrinsic \nworth of human beings: human beings are entitled to be treated as worthy of respect and \nconcern.3 This right therefore is the foundation of many of the other rights that are \nspecifically entrenched in chapter 3. As Brennan J held when speaking of forms of cruel \nand unusual punishments in the context of the American constitution: \n\n \n\n \n\n`The true significance of these punishments is that they treat members of the human race \nas non-humans, as objects to be toyed with and discarded. They are thus inconsistent \nwith the fundamental premise of the Clause that even the vilest criminal remains a \nhuman being possessed of common human dignity.' (Furman v Georgia 408 US 238 at \n272,3 (1972)) \n\n \n[329] Respect for the dignity of all human beings is particularly important in South Africa. For \napartheid was a denial of a common humanity. Black people were refused respect and \ndignity and thereby the dignity of all South Africans was diminished. The new \nconstitution rejects this past and affirms the equal worth of all South Africans. Thus \nrecognition and protection of human dignity is the touchstone of the new political order \nand is fundamental to the new constitution. \n\n \n \n\n 3See, for discussion of the right to dignity and the death penalty, the judgment of Solyom J in the Hungarian \ncase concerning the constitutionality of the death penalty (Decision no 23/1990 (X.31.) AB, George Feher \ntranslation). \n\n \n \n\n179 \n\n\f \n\n \n \n[330] But human dignity is important to all democracies. In an aphorism coined by Ronald Dworkin \n`Because we honour dignity, we demand democracy'.4 Its importance was recognised \ntoo by Cory J in Kindler v Canada (1992) 6 CRR (2nd) 193 (SCC) at 237 in which he \nheld that `[i]t is the dignity and importance of the individual which is the essence and the \ncornerstone of democratic government'.5 \n\nO\u2019REGAN J \n\n \n[331] The Attorney-General argued that the prisoners, and others like them, who are convicted of \ncrimes for which the death penalty is currently competent, have forfeited their right to \nlife and dignity. This cannot be correct. It is a fundamental premise of our constitution \nthat the rights in chapter 3 are available to all South Africans no matter how atrocious \ntheir conduct. As Gubbay CJ held in Catholic Commission for Justice and Peace, \nZimbabwe v Attorney-General, Zimbabwe 1993 (4) SA 239 (ZS) at 247 g -h: \n\n \n\n`It cannot be doubted that prison walls do not keep out fundamental rights and \nprotections. Prisoners are not, by mere reason of a conviction, denuded of all the rights \nthey otherwise possess. No matter the magnitude of the crime, they are not reduced to \nnon-persons. They retain all basic rights, save those inevitably removed from them by \nlaw, expressly or by implication.' \n\n \n[332] It must be emphasised that the entrenchment of a Bill of Rights, enforceable by a judiciary, is \ndesigned, in part, to protect those who are the marginalised, the dispossessed and the \noutcasts of our society. They are the test of our commitment to a common humanity and \ncannot be excluded from it. \n\n \n\n \n\n 4See Ronald Dworkin Life's Dominion: An argument about abortion and euthanasia (1993) at 239. \n\n 5 See also S v Ncube 1988 (2) SA 702 (ZS) at 717 B - D. \n\n \n \n\n180 \n\n\f \n\nO\u2019REGAN J \n\n \n \n[333] Are the rights to life and dignity breached by the death penalty? The death sentence has been \npart of South African law since the colonial era. Not only has the law permitted the death \nsentence, but it has been regularly imposed by courts and carried out by the government. \n For many years, South Africa had the doubtful honour of being a world leader in the \nnumber of judicial executions carried out. Although there is some uncertainty about the \nstatistics, it appears that between 1981 and 1990 approximately 1100 people were \nexecuted in South Africa, including the Transkei, Ciskei, Bophuthatswana and Venda.6 \nThe death sentence was imposed sometimes for crimes that were motivated by political \nideals. In this way the death penalty came to be seen by some as part of the repressive \nmachinery of the former government. Towards the end of the 1980s there were several \nmajor public campaigns to halt the execution of people who were perceived to be \npolitical opponents of the government. There is no doubt that these campaigns to \nprevent the execution of amongst others, the 'Sharpeville Six' and the 'Upington 26' were \npartly responsible for the government's decision in 1990 to suspend the implementation \nof sentences of death. \n\n \n[334] The purpose of the death penalty is to kill convicted criminals. Its very purpose lies in the \ndeprivation of existence. Its inevitable result is the denial of human life. It is hard to see \nhow this methodical and deliberate destruction of life by the government can be anything \nother than a breach of the right to life. \n\n \n[335] The implementation of the death penalty is also a denial of the individual's right to dignity. The \n\nexecution of the death penalty was described by Professor Chris Barnard as follows: \n\n \n\n`The man's spinal cord will rupture at the point where it enters the skull, electrochemical \ndischarges will send his limbs flailing in a grotesque dance, eyes and tongue will start \nfrom the facial apertures under the assault of the rope and his bowels and bladder may \nsimultaneously void themselves to soil the legs and drip on the floor....' (Rand Daily \nMail 12 June 1978, cited in Appellants' heads) \n\n \n\n \n\n 6 See Murray `Hangings in Southern Africa: The last ten years' (1990) 6 SAJHR 439 - 441; Keightley \n`Hangings in Southern Africa: the last ten years' (1991) 7 SAJHR 347 - 349; `The Death Penalty in SA: \nStatistics' (1989) 2 SACJ 251; Amnesty International `When the State Kills... The Death Penalty vs Human \nRights' (1989) 204 - 207. \n\n \n \n\n181 \n\n\f \n \n \n\n \n\nO\u2019REGAN J \n\nThis frank description of the execution process leaves little doubt that it is one which is \ndestructive of human dignity. As Cory J held in Kindler v Canada (1992) 6 CRR (2nd) \n193 (SCC) at 241: \n\n`The death penalty not only deprives the prisoner of all vestiges of human dignity, it is \nthe ultimate desecration of the individual as a human being. It is the annihilation of the \nvery essence of human dignity.' \n\n \n[336] But it is not only the manner of execution which is destructive of dignity, the circumstances in \nwhich convicted criminals await the execution of their sentence also constitutes a breach \nof dignity. These circumstances have been amply and aptly described by Gubbay CJ in \nCatholic Commission for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe \n1993(4) SA 239 (ZS) at 268-9. Although little evidence has been placed before us to \ndescribe the experience of condemned prisoners in South Africa, it seems all too \nprobable that it resembles the conditions described by Gubbay CJ. Indeed, the \nmoratorium on the implementation of the death sentence described by Chaskalson P has \nprobably aggravated the conditions of condemned prisoners considerably. \n\n \n[337] Section 277 of the Criminal Procedure Act is therefore not only a breach of section 11(2) of the \nConstitution as held by Chaskalson P, but it is also a breach of section 9 (the right to life) \nand section 10 (the right to dignity). It is unnecessary and would be inappropriate to \nconsider the further scope of these rights. \n\n \n[338] The Constitution does recognise in section 33 that the rights it entrenches may be limited by law \nof general application if a law is reasonable and justifiable (and in some circumstances, \nnecessary) in an open and democratic society based on freedom and equality. The \ninfringement of the rights to life and dignity occasioned by section 277 of the Criminal \nProcedure Act needs to be measured against this test. In this regard, it should be noted \nthat a law which infringes the right to dignity must be shown to be a reasonable, \njustifiable and necessary limitation, whereas a law which contains a limitation upon the \nright to life need only be shown to be reasonable and justifiable. \n\n \n \n \n\n182 \n\n\f \n\nO\u2019REGAN J \n\n \n \n[339] The purpose of the bifurcated levels of justification need not detain us here. What is clear is that \nsection 33 introduces different levels of scrutiny for laws which cause an infringement of \nrights. The requirement of reasonableness and justifiability which attaches to some of \nthe section 33 rights clearly envisages a less stringent constitutional standard than does \nthe requirement of necessity. In both cases, the enquiry concerns proportionality: to \nmeasure the purpose, effects and importance of the infringing legislation against the \ninfringement caused. In addition, it will need to be shown that the ends sought by the \nlegislation cannot be achieved sufficiently and realistically by other means which would \nbe less destructive of entrenched rights. Where the constitutional standard is necessity, \nthe considerations are similar, but the standard is more stringent. \n\n \n[340] In determining whether the breaches of sections 9 and 10 are justified in terms of section 33, the \nrelevant considerations are the same as those traversed by Chaskalson P at paragraphs \n116 - 131 of his judgment albeit only in the context of a breach of section 11(2). The \nAttorney-General argued that the purpose of section 277 was the deterrence and \nprevention of crime, and retribution. Although deterrence is an important goal, as \nChaskalson P has described, the deterrent effect of the death penalty remains unproven, \nperhaps unprovable. \n\n \n[341] The question of retribution is a more complex one. I agree with Chaskalson P that in a \ndemocratic society retribution as a goal of punishment should not be given undue weight. \nIndeed, I am unconvinced that, where the punishment is held to constitute a breach of a \nfundamental right, retribution would ever, on its own, be a sufficient ground for \njustification. As Marshall J noted in Furman v Georgia 408 US 238 at 344-5 (1972): \n\n \n\n \n \n \n\n`To preserve the integrity of the Eighth Amendment, the Court has consistently \ndenigrated retribution as a permissible goal of punishment. It is undoubtedly correct that \nthere is a demand for vengeance on the part of many persons in a community against one \nwho is convicted of a particularly offensive act. At times a cry is heard that morality \nrequires vengeance to evidence society's abhorrence of the act. But the Eighth \nAmendment is our insulation from our baser selves. The `cruel and unusual' language \nlimits the avenues through which vengeance can be channelled. Were this not so, the \nlanguage would be empty and a return to the rack and other tortures would be possible in \na given case.' \n\n183 \n\n\f \n\nO\u2019REGAN J \n\n \n \n[342] It remains then to balance the purposes of section 277 with the infringement of sections 9 and 10 \nit causes. In this exercise, it is undeniable that sections 9 and 10 are rights which lie at \nthe heart of our constitutional framework and that section 277 grievously infringes the \nambit of these rights. They weigh very heavily in the scales of proportionality. On the \nother hand, while the goals of deterrence and prevention which are the purpose of section \n277 are important legislative purposes, it has not been satisfactorily demonstrated that \nthey could not be sufficiently and realistically achieved by other means. After a careful \nconsideration of the nature of the rights, the extent of the infringement of those rights, \nand the purposes of section 277, I remain unpersuaded that section 277 is a \nconstitutionally acceptable limitation upon the rights to life and dignity. \n\n[343] Section 33(1)(b) provides that, in addition to being reasonable and justifiable (and where \nappropriate, necessary) a limitation upon a right should not negate the essential contents \nof the right in question. As section 277 does not meet the requirements of \nreasonableness, justifiability and necessity, it is not necessary and it would be \ninadvisable to consider whether it negates the essential contents of the rights in question. \n\n \n[344] In conclusion, then, the death penalty is unconstitutional. It is a breach of the rights to life and \ndignity that are entrenched in sections 9 and 10 of our Constitution, as well as a breach \nof the prohibition of cruel, inhuman and degrading punishment contained in section \n11(2). The new Constitution stands as a monument to this society's commitment to a \nfuture in which all human beings will be accorded equal dignity and respect. We cannot \npostpone giving effect to that commitment. \n\n \n \n[345] SACHS J: I agree fully with the judgment of the President of the court, and wish merely to \nelaborate on two matters, both of emphasis rather than substance, which I feel merit \nfurther treatment. \n\n \n\n[346] The first relates to the balance between the right to life and the right to dignity. The judgment \nappropriately regards the two rights as mutually re-enforcing, but places greater reliance \non the prohibition against cruel, inhuman or degrading punishment than it does on the \n\n \n \n\n184 \n\n\f \n\nright to life. For reasons which I will outline, I think the starting-off point for an analysis \nof capital punishment should be the right to life. \n\n \n[347] Secondly, I think it important to say something about the source of values which, in terms of \n\nsection 35 of the Constitution, our interpretation is required to promote. \n\n \n \n \n\nThe Right to Life and Proportionality \n\n \n[348] Decent people throughout the world are divided over which arouses the greatest horror: the \nthought of the State deliberately killing its citizens, or the idea of allowing cruel killers \nto co-exist with honest citizens. For some, the fact that we cold-bloodedly kill our own \nkind, taints the whole of our society and makes us all accomplices to the premeditated \nand solemn extinction of human life. For others, on the contrary, the disgrace is that we \nplace a higher value on the life and dignity of the killer than on that of the victim. A third \ngroup prefer a purely pragmatic approach which emphasises not the moral issues, but the \ninordinate stress that capital punishment puts on the judicial process and, ultimately, on \nthe Presidency, as well as the morbid passions it arouses in the public; from a purely \npractical point of view, they argue, capital punishment appears to offer an illusory \nsolution to crime, and as such actually detracts from really effective measures to protect \nthe public. \n\n \n[349] We are not called upon to decide between these positions. They are essentially emotional, moral \nand pragmatic in character and will no doubt occupy the attention of the Constitutional \nAssembly. Our function is to interpret the text of the Constitution as it stands. \nAccordingly, whatever our personal views on this fraught subject might be, our response \nmust be a purely legal one. \n\n[350] This court is unlikely to get another case which is emotionally and philosophically more elusive, \nand textually more direct. Section 9 states: \"Every person shall have the right to life.\" \nThese unqualified and unadorned words are binding on the State (sections 4 and 7) and, \n\n \n \n\n185 \n\n\f \n \n\non the face of it, outlaw capital punishment. Section 33 does allow for limitations on \nfundamental rights; yet, in my view, executing someone is not limiting that person's life, \nbut extinguishing it. \n\nSACHS J \n\n \n[351] Life is different. In the vivid phrase used by Mahomed J in the course of argument, the right to \nlife is not subject to incremental invasion. Life cannot be diminished for an hour, or a \nday, or 'for life'. While its enjoyment can be qualified, its existence cannot. Similarly, \ndeath is different. It is total and irreversible. Just, as there are no degrees of life, so \nthere are no degrees of death (though, as we shall see, there were once degrees of \nseverity in relation to how the sentence of death should be carried out). A level of \narbitrariness and the possibilities of mistake that might be inescapable and therefore \ntolerable in relation to other forms of punishment, burst the parameters of \nconstitutionality when they impact on the deliberate taking of life. The life of any \nhuman being is inevitably subject to the ultimate vagaries of the due processes of nature; \n our Constitution does not permit it to be qualified by the unavoidable caprices of the due \nprocesses of law.1 \n\n \n[352] In the case of other constitutional rights, proportionate balances can be struck between the \nexercise of the right and permissible derogations from it. In matters such as torture, \nwhere no derogations are allowed, thresholds of permissible and impermissible conduct \ncan be established. When it comes to execution, however, there is no scope for \nproportionality, while the only relevant threshold is, tragically, that to eternity. \n\n \n[353] Even if one applies an objective approach in relation to the enjoyment of the right to life, \nnamely, that the State is under a duty to create conditions to enable all persons to enjoy \n\n \n\n \n\n 1The issue, of course, is whether inescapable caprice prevents the process from being 'due' when the \nconsequences are so drastic. \n\n \n \n\n186 \n\n\f \n \n\nSACHS J \n\nthe right, in my view this cannot mean that the State's function can be extended to \nencompass complete, intentional and avoidable obliteration of any person's subjective \nright. Subject to further argument on the matter, my initial view is that the objective \napproach can be used to qualify the subjective enjoyment of the right, but not to \neliminate it completely, and certainly not to eliminate the subject. It can provide the \nbasis for limiting enjoyment of other subjective rights - to dignity, personal freedom, \nmovement - for a period, or in relation to a concrete situation, or in respect of a physical \nspace, if the requirements of section 33 are met. Yet, life by its very nature cannot be \nrestricted, qualified, abridged, limited or derogated from in the same way. You are either \nalive or dead. \n\n \n[354] In my view, section 33 permits limitations on rights, not their extinction. Our Constitution in \nthis sense is different from those that expressly authorise deprivation of life if due \nprocess of law is followed, or those that prohibit the arbitrary taking of life. The \nunqualified statement that 'every person has the right to life', in effect outlaws capital \npunishment. Instead of establishing a constitutional framework within which the State \nmay deprive citizens of their lives, as it could have done, our Constitution commits the \nState to affirming and protecting life. Because section 33 is not concerned with creating \ncircumstances in which the right of any person may be disregarded altogether, nor with \nestablishing exceptions which qualify the nature of the right itself, or exclude its \noperation, it cannot be invoked as an authorization for capital punishment. \n\n \n[355] A full conceptualization of the right to life will have to await examination of a multitude of \ncomplex issues, each of which has its own contextual setting and particularities. In \ncontrast to capital punishment, there are circumstances relating to the right to life where \nproportionality could well play an important role in balancing out competing interests. \nWhether or not section 33 would be applicable in each case, or whether proportionality \nwill enter into the definition of the ambit of the right itself, or whether it relates simply to \ncompetition between two or more people to exercise the right when it is under immediate \nthreat, need not be decided here. Thus, the German Constitutional Court has relied \nheavily on the principle of proportionality in relation to the question of when person-\n\n \n \n\n187 \n\n\f \n \n\nSACHS J \n\nhood and legally protected life begin and, in particular of how to balance foetal rights as \nagainst the rights of the woman concerned.2 Force used by the State in cases of self-\ndefence or dealing with hostage-takers or mutineers, must be proportionate to the danger \napprehended; the issue arises because two or more persons compete for the right to life; \nfor the one to live, the other must die. The imminence of danger is fundamental: to kill \nan assailant or hostage-taker or prisoner of war after he or she has been disarmed, is \nregarded as murder. \n\n \n[356] Executing a trussed human being long after the violence has ended, totally lacks proportionality \nin relation to the use of force, and does not fall within the principles of self-defence. \nFrom one point of view capital punishment, unless cruelly performed, is a contradiction \nin terms. The 'capital' part ends rather than expresses the 'punishment', in the sense that \nthe condemned person is eliminated, not punished. A living being held for years in \nprison is punished; a corpse cannot be punished, only mutilated. Thus, execution ceases \nto be a punishment of a human being in terms of the Constitution, and becomes instead \nthe obliteration of a sub-human from the purview of the Constitution. \n\n \n[357] At its core, constitutionalism is about the protection and development of rights, not their \nextinction. In the absence of the clearest contextual indications that the framers of the \nConstitution intended that the State's sovereignty should be so extended as to allow it \ndeliberately to take of the life of its citizens, Section 9 should be read to mean exactly \nwhat it says: Every person shall have the right to life. If not, the killer unwittingly \nachieves a final and perverse moral victory by making the state a killer too, thus reducing \nsocial abhorrence at the conscious extinction of human beings. \n\n \n\nThe Source of Values \n\n \n \n\n 288 BVerfGE 203 (2nd Abortion Case). \n\n \n \n\n188 \n\n\f \n \n[358] The second issue that caused me special concern was the source of the values that we are to \napply in assessing whether or not capital punishment is a cruel, inhuman or degrading \npunishment as constitutionally understood. The matter was raised in an amicus brief and \nargued orally before us by Ms. Davids on behalf of the Black Advocates Forum. \n\nSACHS J \n\n \n[359] Her main contention was that we should not pronounce on the subject of capital punishment \nuntil we had been apprised by sociological analysis of the relevant expectations, \nsensitivities and interests of society as a whole. In the past, she stated, the all-white \nminority had imposed Eurocentric values on the majority, and an all-white judiciary had \ntaken cognisance merely of the interests of white society. Now, for the first time, she \nadded, we had the opportunity to nurture an open and democratic society and to have due \nregard to an emerging national consensus on values to be upheld in relation to \npunishment. \n\n \n[360] Many of the points she made had a political rather than a legal character, and as such should \nhave been directed to the Constitutional Assembly rather than to the Constitutional \nCourt. Nevertheless, much of her argument has a bearing on the way this court sees its \nfunctions, and deserves the courtesy of a reply. \n\n \n[361] To begin with, I wish firmly to express my agreement with the need to take account of the \ntraditions, beliefs and values of all sectors of South African society when developing our \njurisprudence. \n\n \n[362] In broad terms, the function given to this court by the Constitution is to articulate the \nfundamental sense of justice and right shared by the whole nation as expressed in the text \nof the Constitution. The Constitution was the first public document of legal force in \nSouth African history to emerge from an inclusive process in which the overwhelming \nmajority were represented. Reference in the Constitution to the role of public \ninternational law [sections 35(1) and 231] underlines our common adherence to \ninternationally accepted principles. Whatever the status of earlier legislation and \njurisprudence may be, the Constitution speaks for the whole of society and not just one \n\n \n \n\n189 \n\n\f \n \n\nsection. \n\nSACHS J \n\n \n[363] The preamble, postamble and the principles of freedom and equality espoused in sections 8, 33 \nand 35 of the Constitution, require such an amplitude of vision. The principle of \ninclusivity shines through the language provisions in section 3, and underlies the \nprovisions which led to the adoption of the new flag and anthem, and the selection of \npublic holidays. \n\n \n[364] The secure and progressive development of our legal system demands that it draw the best from \nall the streams of justice in our country. This would include benefiting from the learning \nof those judges who in the previous era managed to articulate a sense of justice that \ntranscended the limits of race, as well as acknowledging the challenging writings of \nacademics such as the late Dr. Barend van Niekerk, who bravely broke the taboos on \ncriticism of the legal system.3 \n\n \n[365] Above all, however, it means giving long overdue recognition to African law and legal thinking \nas a source of legal ideas, values and practice. We cannot, unfortunately, extend the \nequality principle backwards in time to remove the humiliations and indignities suffered \nby past generations, but we can restore dignity to ideas and values that have long been \nsuppressed or marginalized. \n\n \n[366] Redressing the balance in a conceptually sound, methodologically secure and functionally \nefficient way, will be far from easy. Extensive research and public debate will be \nrequired. Legislation will play a key role; indeed, the Constitution expressly \nacknowledges situations where legal pluralism based on religion can be recognised \n[14(3)], and where indigenous law can be applied (s.181). Constitutional Principle XIII \ndeclares that \"...... Indigenous law, like common law, shall be recognised and applied by \n\n \n\n 3Cf. 1969 SALJ 455 and 1970 SALJ 60; S v Van Niekerk 1970 (3) SA 655. \n\n \n \n\n190 \n\n\f \n \n\nthe courts, subject to the fundamental rights contained in the Constitution and to \nlegislation dealing specifically therewith\". \n\nSACHS J \n\n \n[367] Yet the issue raised by Ms Davids goes beyond the question of achieving recognition of \n\ndifferent systems of personal law. \n\n \n[368] In interpreting Chapter 3 of the Constitution, which deals with fundamental rights, all courts \nmust promote the values of an open and democratic society based on freedom and \nequality [s.35(1)]. One of the values of an open and democratic society is precisely that \nthe values of all sections of society must be taken into account and given due weight \nwhen matters of public import are being decided. Ms. David's concern is that when it \ncomes to interpreting Chapter 3, and in particular, the concept of punishment, the values \nof only one section of the community are taken into account. \n\n[369] Paul Sieghart points out that \"the hallmarks of a democratic society are pluralism, tolerance and \nbroad-mindedness. Although individual interests must on occasion be subordinated to \nthose of a group, democracy does not mean that the views of a majority must always \nprevail: a balance must be achieved which ensures the fair and proper treatment of \nminorities and avoids any abuse of a dominant position\".4 The principle that cognisance \nmust be taken of minority opinions should apply with at least equal force to majority \nopinions; if one of the functions of the Constitution is to protect unpopular minorities \nfrom abuse, another must surely be to rescue the majority from marginalization. \n\n \n[370] In a democratic society such as we are trying to establish, this is primarily the task of \nParliament, where the will of the majority can be directly expressed within the \nframework of a system of fundamental rights. Our function as members of this court - as \nI see it - is, when interpreting the Constitution, to pay due regard to the values of all \nsections of society, and not to confine ourselves to the values of one portion only, \n\n \n\n 4The International Law of Human Rights, Oxford 1983, reprinted 1992, at p. 93 referring to James, Young \nand Webster v U.K. Judgment of the European Court of Human Rights on 13/08/81. \n\n \n \n\n191 \n\n\f \n \n\nhowever, exalted or subordinate it might have been in the past. \n\nSACHS J \n\n \n[371] It is a distressing fact that our law reports and legal textbooks contain few references to African \nsources as part of the general law of the country. That is no reason for this court to \ncontinue to ignore the legal institutions and values of a very large part of the population, \nmoreover, of that section that suffered the most violations of fundamental rights under \nprevious legal regimes, and that perhaps has the most to hope for from the new \nconstitutional order. \n\n \n[372] Appropriate source material is limited and any conclusions that individual members of this court \nmight wish to offer would inevitably have to be tentative rather than definitive. We \nwould certainly require much fuller research and argument than we had in the present \ncase. The paucity of materials, however, is a reason for putting the issue on the agenda, \nnot a justification for postponing it. \n\n \n[373] The evolution of core values in all sections of the community is particularly relevant to the \ncharacterization of what at any moment are regarded as cruel, inhuman and degrading \npunishments [s.11(2)]. In my view, s.35(1) requires this court not only to have regard to \npublic international law and foreign case law, but also to all the dimensions of the \nevolution of South African law which may help us in our task of promoting freedom and \nequality. This would require reference not only to what in legal discourse is referred to \nas 'our common law' but also to traditional African jurisprudence. \n\n \n[374] I must stress that what follows relates to matters not properly canvassed in argument. The \nstatements I make should not be regarded as an attempt on my part to 'lay down the law' \non subjects that might well be controversial. Rather, the materials are presented for their \npossible relevance to the search for core and enduring values consistent with the text and \nspirit of the Constitution. It is unfortunate they were not placed before us to enable their \nreliability and their merits to be debated; they are intended to indicate that, speaking for \nmyself, these are the kinds of scholarly sources which I would have regarded as helpful \nin determining questions such as the present one, if Ms. Davids had presented them to us \n\n \n \n\n192 \n\n\f \n \n\nSACHS J \n\nrather than complain about their absence. I might add that there is nothing to indicate \nthat had these sources been properly presented and subjected to the rigorous analysis \nwhich our judicial procedure calls for, the decision of this Court would have been \ndifferent. There does not appear to be any foundation for her plea that we postpone the \nmatter. On the contrary, the materials that I will refer to point to a source of values \nentirely consistent with the overall thrust of the President's judgment, and, in particular, \nwith his reference to the constitutionally acknowledged principle of ubuntu.5 \n\n \n[375] Our libraries contain a large number of studies by African and other scholars of repute, which \ndelineate in considerable detail how disputes were resolved and punishments meted out in \ntraditional African society. There are a number of references to capital punishment and I can \nonly repeat that it is unfortunate that their import was never canvassed in the present matter. \n\n \n\n \n\n 5See the postamble, also referred to as the epilogue or afterword, where reference is made to the \"need for \nubuntu\". \n\n \n \n\n193 \n\n\fSACHS J \n\n \n \n[376] In the first place, the sources indicate that it is necessary to acknowledge that systems of law \nenforcement based on rational procedures were well entrenched in traditional society. In his \nclassic study of the Tsonga-speaking people, Henri Junod observes that \"... the Bantus possess a \nstrong sense of justice. They believe in social order and in the observance of the laws, and, \nalthough these laws were not written, they are universal and perfectly well known\".6 The Cape \nLaw Journal, in a long and admiring report on what it refers to as a Kafir Law Suit, declares that \nin a typical trial 'the Socratic method of debate appears in all its perfection.'7 John Henderson \nSoga points out that offences were considered to be against the community or tribe rather than \nthe individual, and punishment of a constructive or corrective nature was administered for \ndisturbing the balance of tribal life.8 \n\n \n[377] More directly for our purposes, the materials suggest that amongst the Cape Nguni, the death \npenalty was practically confined to cases of suspected witchcraft, and was normally \nspontaneously carried out after accusation by the diviners.9 Soga says that the death penalty was \nnever imposed, the reasoning being as follows: 'Why sacrifice a second life for one already \nlost?'10 Professor Z.K. Mathews is in broad agreement.11 The Cape Law Journal notes that \nsummary executions were usually inflicted for assault on the wives of chiefs or aggravated cases \nof witchcraft, but otherwise the death sentence 'seldom followed even murder, when committed \nwithout the aid of supernatural powers; and as banishment, imprisonment and corporal \npunishment are all unknown in (African) jurisprudence, the property of the people constitutes the \ngreat fund out of which debts of justice are paid'.12 \n\n \n\n 6Junod, Henri A - The Life of a South African Tribe 2nd Edition published Macmillan 1927 at p. 436. \n\n 71889 CLJ 87 - Extracts from Maclean's Handbook. \n\n 8John Henderson Soga - The Ama-Xosa: Life and Customs, published Lovedale Press , South Africa; \nLondon, Kegan Paul, at p. 46. \n\n 9Hammond-Tooke D: The 'other side' of frontier history: a model of Cape Nguni political process, in African \nSocieties in Southern Africa ed. Leonard Thompson, London 1969, at p. 255. \n\n 10Soga supra at p. 46. \n\n 11Bantu Law and Western Civilisation in South Africa - a study in the clash of cultures (1934 Yale University \nMA Thesis). \n\n 121889 CLJ 89, 1890 CLJ 23 at 34. \n\n \n \n\n194 \n\n\fSACHS J \n\n \n \n \n[378] Similar approaches were apparently followed in other African communities. The Sotho King \nMoshoeshoe was said to be well known for his opposition to capital punishment, even for \nsupposed witchcraft,13 as was Montshiwa during his long reign as King of the Barolong.14 The \nabsence of capital punishment among the Zulu people apparently angered Shepstone, Lieutenant \nGovernor of Natal. Donald Morris writes as follows: \n \n\n'Hearken to Shepstone on November 25, 1850, substituting capital punishment for the \nnative system of cattle fines in the case of murder: \n\n[379] \n\n \n\n \n\n 13J M Orpen: History of the Basutus of South Africa, Cape Argus 1857, Reprinted UCT 1955. \n\n 14Molema SM: Montshiwa (1815 - 1896) Barolong Chief and Patriot (published C. Struik 1966). \n\n \n \n\n195 \n\n\fSACHS J \n\n \n \n[380] \n\n \n\n \n\n\"... Know ye all .... a man's life has no price : no cattle can pay for it. \n He who intentionally kills another, whether for Witchcraft or \notherwise, Shall die himself.\"'15 \n\n \n[381] Thus, if these sources are reliable, it would appear that the relatively well-developed judicial \nprocesses of indigenous societies did not in general encompass capital punishment for murder. \nSuch executions as took place were the frenzied, extra-judicial killings of supposed witches, a \nspontaneous and irrational form of crowd behaviour that has unfortunately continued to this day \nin the form of necklacing and witch-burning. In addition, punishments by military leaders in \nterms of military discipline were frequently of the harshest kind and accounted for the lives of \nmany persons. Yet, the sources referred to above indicate that, where judicial procedures were \nfollowed, capital punishment was in general not applied as a punishment for murder. \n\n \n[382] In seeking the kind of values which should inform our broad approach to interpreting the \nConstitution, I have little doubt as to which of these three contrasted aspects of tradition we \nshould follow and which we should reject. The rational and humane adjudicatory approach is \nentirely consistent with and re-enforcing of the fundamental rights enshrined in our Constitution; \nthe exorcist and militarist concepts are not. \n\n \n[383] We do not automatically invoke each and every aspect of traditional law as a source of values, \njust as we do not rely on all features of the common law. Thus, we reject the once powerful \ncommon law traditions associated with patriarchy and the subordination of servants to masters, \nwhich are inconsistent with freedom and equality, and we uphold and develop those many \naspects of the common law which feed into and enrich the fundamental rights enshrined in the \nConstitution. I am sure that there are many aspects and values of traditional African law which \nwill also have to be discarded or developed in order to ensure compatibility with the principles \n\n \n\n 15Donald R Morris: The washing of the Spears - A History of the Rise of the Zulu Nation under Shaka and its \nFall in the Zulu war of 1879. Jonathan Cape 1965, Random House 1995, p. 174-5. \n\n \n \n\n196 \n\n\f \n \n\nof the new constitutional order. \n\nSACHS J \n\n[384] It is instructive to look at the evolution of values in the colonial settlement as well as in African \nsociety. In the Dutch settlement, as yet unaffected by the changes sweeping Europe, torture was \nused until the end of the 18th century as an integral part of the judicial process.16 Persons were \nnot only condemned to death, the judges specified in detail gruesome modes of execution \ndesigned to produce maximum pain and greatest indignity over the longest period of time. The \nconcept of a dignified execution was seen as a contradiction in terms. The public was invited to \nwitness the lingering death, the mutilation and the turning of human beings into carrion for the \nbirds. This is logical. If executions are to deter, they should receive the maximum publicity, and \nthe killers should undergo an agony equal to that to which they subjected their victims. \n\n \n[385] Yet the British colonial administration that took over at the time of the Napoleonic wars, adopted \na different position. Torture was abolished. The multiple degrees of severity of capital \npunishment were replaced by the single relatively swift mode of hanging. The reason for this \nwas that torture and cruel modes of execution were regarded as barbaric in themselves and \ndegrading to the society which practised them. The incumbent judges protested that whatever \nmight have been appropriate in Britain, in the conditions of the Cape to rely merely on hangings, \ncorporal punishment and prison was to invite slave uprisings and mayhem. The public \nexecutioner was so distressed that he hanged himself. All this is a matter of record.17 \n\n \n 16C. Graham Botha 1915 SALJ 319. More generally, see footnote 15. These matters were referred to but not \ndeveloped in Applicants' written argument. \n\n 17Sir John Barrow, FRS: Travels into the Interior of Southern Africa Volume 2 p. 138 -9. London 1806 \nquoted in C. Graham Botha 1915 SALJ 322, also by E. Kahn, the Death Penalty 1970 THRHR, p. 110. Letter \nby British Commander to Cape Court of Justice quoted by C. Graham Botha 1913 SALJ 294; reply by Court \nquoted in 1915 SALJ 327; see also, V. de Kock - Those in Bondage, an account of the life of the slave at the \nCape, George Allen and Unwin, London 1950 p 158-60. For punishments generally see de V Roos 1897 CLJ \n11-23, C.H. van Zyl 1907 SALJ 352, 370; 1908 SALJ 4, 264. \n\n \n \n\n197 \n\n\fSACHS J \n\n \n \n\n \n[386] Two centuries have passed since then, and it would not be surprising if the framers of the \nConstitution felt that a further qualitative evolution had taken place. Current practices in the \nSouthern African region as a whole with regard to capital punishment, testify to such an \nevolution. Information placed before this court18 showed that of six countries sharing a frontier \nwith South Africa, only one has carried out executions in recent years (Zimbabwe). The last \njudicial execution in Lesotho was in 1984, in Swaziland in 1983 and in Botswana in 1986, \nalthough capital punishment still remains on the statute books and people have in fact been \nsentenced to death in these countries. Mozambique and Namibia both expressly outlaw capital \npunishment in their constitutions. \n\n \n[387] The positions adopted by the framers of the Mozambican and Namibian constitutions were not \napparently based on bending the knee to foreign ideas, as was implicit in Ms. David's contention, \nbut rather on memories of massacres and martyrdom in their own countries. As Churchill is \nreputed to have said, the grass never grows green under the gallows.19 Germany after Nazism, \nItaly after fascism, and Portugal, Peru, Nicaragua, Brazil, Argentina, the Philippines and Spain \nall abolished capital punishment for peacetime offences after emerging from periods of severe \nrepression. They did so mostly through constitutional provisions.20 \n\n \n[388] It is not unreasonable to think that similar considerations influenced the framers of our \nConstitution as well. In avoiding any direct or indirect reference to the death sentence, they \nwere able to pay due regard to the fact that one of this country's greatest assets was the passion \nfor freedom, democracy and human rights amongst the generation of persons who fought hardest \nagainst injustice in the past. Included in this was a deep respect, amounting to veneration, for \nlife. The emerging nation could squander this precious asset at its peril. The framers could not \n\n \n 18Applicants' heads of argument, taken from When the State Kills - The Death Penalty v. Human Rights, \nAmnesty International, London 1989. \n\n 19This is confirmed by South African experience ranging from Slachters Nek to the Cape Rebels to the 1922 \nStrike leaders to Vuyisile Mini and Solomon Mahlangu in recent times. \n\n 20Amnesty International op cit. There has also been a marked move away from capital punishment in the \ncountries of Eastern Europe after the ending of authoritarian one-party rule there. \n\n \n \n\n198 \n\n\f \nSACHS J \n \nhave been unaware of the fact that the time to guard against future repression was when \nmemories of past injustice and pain were still fresh. If they chose sweeping language in favour \nof life, this could well in part have been because of a realisation that this was the moment to \nremove any temptation in coming years to attempt to solve grave social and political problems \nby means of executing opponents. \n\n \n[389] Historically, constitutionalism was a product of the age of enlightenment. It was associated with \nthe overthrow of arbitrary power and the attempt to ensure that government functioned according \nto established principles and processes and in the light of enduring values. It came together with \nthe abolition of torture and the opening up of dungeons. It based itself on the twin propositions \nthat all persons had certain inherent rights that came with their humanity, and that no one had a \nGod-given right to rule over others. \n\n \n[390] The second great wave of constitutionalism after World War II, was also a reaction to gross \nabuse of power, institutionalised inhumanity and organised disrespect for life. Human rights \nwere not merely declared to exist: against the background of genocide and crimes against \nhumanity committed in the name of a racial ideology linked to state sovereignty, firm \nconstitutional limits were placed on state power. In particular, the more that life had been \ncheapened and the human personality disregarded, the greater the entrenchment of the rights to \nlife and dignity. \n\n \n[391] Constitutionalism in our country also arrives simultaneously with the achievement of equality \nand freedom, and of openness, accommodation and tolerance. When reviewing the past, the \nframers of our Constitution rejected not only the laws and practices that imposed domination and \nkept people apart, but those that prevented free discourse and rational debate, and those that \nbrutalised us as people and diminished our respect for life. \n\n \n[392] Accordingly, the idealism that we uphold with this judgment is to be found not in the minds of \nthe judges, but in both the explicit text of the Constitution itself, and the values it enshrines. I \nhave no doubt that even if, as the President's judgment suggests, the framers subjectively \nintended to keep the issue open for determination by this court, they effectively closed the door \n \n \n\n199 \n\n\f \nSACHS J \n \nby the language they used and the values they required us to uphold. It is difficult to see how \nthey could have done otherwise. In a founding document dealing with fundamental rights, you \neither authorize the death sentence or you do not. In my view, the values expressed by section 9 \nare conclusive of the matter. Everyone, including the most abominable of human beings, has the \nright to life, and capital punishment is therefore unconstitutional. \n\n \n \n \nCASE NO \n \nCOUNSEL FOR APPLICANT \n\n \n\n \n\n \n\n \nINSTRUCTED BY \n\n \n\n \n\n \n\n \n\n \n\n \nCOUNSEL FOR RESPONDENT \n\n: \n\n: \n\n: \n\n: \n\nCCT/3/94 \n\nW. Trengove SC \nGJ Marcus \nPHJ Van Vuuren \n\nGM Budlender \nNDB Orleyn-Sekete \nLegal Resources Center \n\nKPCO Von Lieres und Wilkau SC \nTP McNally SC \nJSM Henning SC \nHE Van Jaarsveld \nR Bhika \nRJ Chinner \nPP Stander \nAJ Van Rensburg \nAAL Neill \nPJ Wasserman \n\n \nCOUNSEL FOR THE GOVERNMENT OF \n: \nTHE REPUBLIC OF SOUTH AFRICA \n\n \n \n\nG Bizos SC \nL M Molopa \n\n200 \n\n\f \n \n \nINSTRUCTED BY \n \nCOUNSEL FOR AMICUSCURIAE - \nBLACK ADVOCATES FORUM (BAFO) : \n\n: \n\n \n\n \n\nSACHS J \n\nThe State Attorney \n\nFE Davids \nGM Makhanya \n\n \n\n \n\n \n\n \nINSTRUCTED BY \n \nCOUNSEL FOR AMICUS CURIAE - \nLAWYERS FOR HUMAN RIGHTS, \nCENTRE FOR APPLIED LEGAL \nSTUDIES, AND THE SOCIETY FOR \nTHE ABOLITION OF THE DEATH \nPENALTY IN SOUTH AFRICA \n\n \n\n \n\n \n\n \nINSTRUCTED BY \n \nCOUNSEL FOR AMICUS \nCURIAE - IAN GLAUBER \n \nINSTRUCTED BY \n \n \n\n \n\n \n\n \n\n: \n\n \n\n: \n\nNat A Victor \n\n: \n\n: \n\nDM Davis \nDI Berger \n\nA Motala & S Ebrahim \n\nE Zar SC \n\n: \n\nK Mundell \n\n \n \n\n201 \n\n\f \n \n\n \n \n\n202 \n\n\f"}, "id": "faa9ecd1-9984-472b-b209-7750ce9065aa", "update_date": "2021-03-15 17:08:56.815429", "year": "1995", "judgement_paragraphs": ["Case No. CCT/3/94 IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA In the matter of: THE STATE versus T MAKWANYANE AND M MCHUNU Heard on: Delivered on: ________________________________________________________________ ________________________________________________________________ [1] JUDGMENT 15 February to 17 February 1995 6 June 1995 CHASKALSON P: The two accused in this matter were convicted in the Witwatersrand Local Division of the Supreme Court on four counts of murder, one count of attempted murder and one count of robbery with aggravating circumstances. They were sentenced to death on each of the counts of murder and to long terms of imprisonment on the other counts. They appealed to the Appellate Division of the Supreme Court against the convictions and sentences. The Appellate Division dismissed the appeals against the convictions and came to the conclusion that the circumstances of the murders were such that the accused should receive the heaviest sentence permissible according to law. [2] Section 277(1)(a) of the Criminal Procedure Act No. 51 of 1977 prescribes that the death penalty is a competent sentence for murder. Counsel for the accused was invited by the Appellate Division to consider whether this provision was consistent with the Republic of South Africa Constitution, 1993, which had come into force subsequent to the conviction and sentence by the trial court. He argued that it was not, contending that it was in conflict with the provisions of sections 9 and 11(2) of 1 \fthe Constitution. The Appellate Division dismissed the appeals against the sentences on the counts of attempted murder and robbery, but postponed the further hearing of the appeals against the death sentence until the constitutional issues are decided by this Court. See: S v Makwanyane en \u2018n Ander 1994 (3) SA 868 (A). Two issues were raised: the constitutionality of section 277(1)(a) of the Criminal Procedure Act, and the implications of section 241(8) of the Constitution. Although there was no formal reference of these issues to this Court in terms of section 102(6) of the Constitution, that was implicit in the judgment of the Appellate Division, and was treated as such by the parties. The trial was concluded before the 1993 Constitution came into force, and so the question of the constitutionality of the death sentence did not arise at the trial. Because evidence which might possibly be relevant to that issue would not have been led, we asked counsel appearing before this Court to consider whether evidence, other than undisputed information placed before us in argument, would be relevant to the determination of the question referred to us by the Appellate Division. Apart from the issue of public opinion, with which I will deal later in this judgment, counsel were not able to point to specific material that had not already been placed before us which might be relevant to the decision on the constitutional issues raised in this case. I am satisfied that no good purpose would be served by referring the case back to the trial court for the hearing of further evidence and that we should deal with the matter on the basis of the information and arguments that have been presented to us. It would no doubt have been better if the framers of the Constitution had stated specifically, either that the death sentence is not a competent penalty, or that it is permissible in circumstances sanctioned by law. This, however, was not done and it has been left to this Court to decide whether the penalty is consistent with the provisions of the Constitution. That is the extent and limit of the Court's power in this case. 2 [3] [4] [5] \f[6] No executions have taken place in South Africa since 1989.1 There are apparently over 300 persons, and possibly as many as 400 if persons sentenced in the former Transkei, Bophuthatswana and Venda are taken into account, who have been sentenced to death by the Courts and who are on death row waiting for this issue to be resolved. Some of these convictions date back to 1988, and approximately half of the persons on death row were sentenced more than two years ago.2 This is an intolerable situation and it is essential that it be resolved one way or another without further delay.3 The Relevant Provisions of the Constitution [7] The Constitution 1 The last execution in South Africa occurred on 14 November 1989. See infra note 26. 2 This information was contained in the written argument filed on behalf of the South African Government and was not disputed. 3 The mental anguish suffered by convicted persons awaiting the death sentence is well documented. A prolonged delay in the execution of a death sentence may in itself be cause for the invalidation of a sentence of death that was lawfully imposed. In India, Zimbabwe and Jamaica, where the death sentence is not unconstitutional, sentences of death have been set aside on these grounds. The relevant authorities are collected and discussed by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe and Others 1993 (4) SA 239 (ZSC), and by Lord Griffiths in Pratt v Attorney-General for Jamaica [1993] 3 WLR 995 (JPC). 3 \f... provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.4 It is a transitional constitution but one which itself establishes a new order in South Africa; an order in which human rights and democracy are entrenched and in which the Constitution: ... shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.5 Chapter Three of the Constitution sets out the fundamental rights to which every person is entitled under the Constitution and also contains provisions dealing with the way in which the Chapter is to be interpreted by the Courts. It does not deal specifically with the death penalty, but in section 11(2), it prohibits \"cruel, inhuman or degrading treatment or punishment.\" There is no definition of what is to be regarded as \"cruel, inhuman or degrading\" and we therefore have to give meaning to these words ourselves. [8] 4 These words are taken from the first paragraph of the provision on National Unity and Reconciliation with which the Constitution concludes. Section 232(4) provides that for the purposes of interpreting the Constitution, this provision shall be deemed to be part of the substance of the Constitution, and shall not have a lesser status than any other provision of the Constitution. 5 Section 4(1) of the Constitution. 4 \f[9] In S v Zuma and Two Others,6 this Court dealt with the approach to be adopted in the interpretation of the fundamental rights enshrined in Chapter Three of the Constitution. It gave its approval to an approach which, whilst paying due regard to the language that has been used, is \"generous\" and \"purposive\" and gives expression to the underlying values of the Constitution. Kentridge AJ, who delivered the judgment of the Court, referred with approval7 to the following passage in the Canadian case of R v Big M Drug Mart Ltd: The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concept enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be...a generous rather than legalistic one, aimed at fulfilling the purpose of a guarantee and securing for individuals the full benefit of the Charter's protection.8 6 Constitutional Court Case No. CCT/5/94 (5 April 1995). 7 Id. at para. 15. 8 (1985) 13 CRR 64 at 103. As O'Regan J points out in her concurring judgment, there may possibly be instances where the \"generous\" and \"purposive\" interpretations do not coincide. That problem does not arise in the present case. 5 \f[10] Without seeking in any way to qualify anything that was said in Zuma's case, I need say no more in this judgment than that section 11(2) of the Constitution must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter Three of which it is part.9 It must also be construed in a way which secures for \"individuals the full measure\" of its protection.10 Rights with which section 11(2) is associated in Chapter Three of the Constitution, and which are of particular importance to a decision on the constitutionality of the death penalty are included in section 9, \"every person shall have the right to life\", section 10, \"every person shall have the right to respect for and protection of his or her dignity\", and section 8, \"every person shall have the right to equality before the law and to equal protection of the law.\" Punishment must meet the requirements of sections 8, 9 and 10; and this is so, whether these sections are treated as giving meaning to Section 11(2) or as prescribing separate and independent standards with which all punishments must comply.11 [11] Mr. Bizos, who represented the South African government at the hearing of this matter, informed us that the government accepts that the death penalty is a cruel, inhuman and degrading punishment and that it should be declared unconstitutional. The Attorney General of the Witwatersrand, whose office is independent of the government, took a different view, and contended that the death penalty is a necessary and acceptable form of punishment and that it is not cruel, inhuman or degrading within the meaning of section 11(2). He argued that if the framers of the Constitution had wished to make the death penalty unconstitutional they would have said so, and 9 Jaga v D\u00f6nges, N.O. and Another 1950 (4) SA 653 (A) at 662-663. 10 Minister of Home Affairs (Bermuda) v Fisher [1980] AC 319 (PC) at 328-329. 11 In the analysis that follows sections 8, 9 and 10 are treated together as giving meaning to section 11(2), which is the provision of Chapter Three that deals specifically with punishment. 6 \fthat their failure to do so indicated an intention to leave the issue open to be dealt with by Parliament in the ordinary way. It was for Parliament, and not the government, to decide whether or not the death penalty should be repealed, and Parliament had not taken such a decision. Legislative History [12] The written argument of the South African government deals with the debate which took place in regard to the death penalty before the commencement of the constitutional negotiations. The information that it placed before us was not disputed. It was argued that this background information forms part of the context within which the Constitution should be interpreted. [13] Our Courts have held that it is permissible in interpreting a statute to have regard to the purpose and background of the legislation in question. Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of this principle. The first is that \"the context\", as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.12 [14] Debates in Parliament, including statements made by Ministers responsible for legislation, and explanatory memoranda providing reasons for new bills have not been admitted as background material. It is, however, permissible to take notice of the report of a judicial commission of enquiry for the limited purpose of ascertaining \"the mischief aimed at [by] the statutory enactment in question.\"13 These principles were 12 Per Schreiner JA in Jaga v D\u00f6nges, N.O. and Another, supra note 9, at 662G-H. 13 Attorney-General, Eastern Cape v Blom and Others 1988 (4) SA 645 (A) at 668H-669F; Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986(2) SA 555(A) at 562C-563A. 7 \fderived in part from English law. In England, the courts have recently relaxed this exclusionary rule and have held, in Pepper (Inspector of Taxes) v Hart14 that, subject to the privileges of the House of Commons: ...reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.15 14 1993 AC 593 HL (E). 15 Per Lord Browne-Wilkinson at 634D-E, who went on to say that \"as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria\". 8 \f[15] As the judgment in Pepper's case shows, a similar relaxation of the exclusionary rule has apparently taken place in Australia and New Zealand.16 Whether our Courts should follow these examples and extend the scope of what is admissible as background material for the purpose of interpreting statutes does not arise in the present case. We are concerned with the interpretation of the Constitution, and not the interpretation of ordinary legislation. A constitution is no ordinary statute. It is the source of legislative and executive authority. It determines how the country is to be governed and how legislation is to be enacted. It defines the powers of the different organs of State, including Parliament, the executive, and the courts as well as the fundamental rights of every person which must be respected in exercising such powers. 16 Id. at 637 F. 9 \f[16] In countries in which the constitution is similarly the supreme law, it is not unusual for the courts to have regard to the circumstances existing at the time the constitution was adopted, including the debates and writings which formed part of the process. The United States Supreme Court pays attention to such matters, and its judgments frequently contain reviews of the legislative history of the provision in question, including references to debates, and statements made, at the time the provision was adopted.17 The German Constitutional Court also has regard to such evidence.18 The Canadian Supreme Court has held such evidence to be admissible, and has referred to the historical background including the pre-confederation debates for the purpose of interpreting provisions of the Canadian Constitution, although it attaches less weight to such information than the United States Supreme Court does.19 It also has regard to ministerial statements in Parliament in regard to the purpose of particular legislation.20 In India, whilst speeches of individual members of Parliament or the Convention are apparently not ordinarily admissible, the reports of drafting committees can, according to Seervai, \"be a helpful extrinsic aid to construction.\"21 Seervai cites Kania CJ in A. K. Gopalan v The State22 for the proposition that whilst not taking \"...into consideration the individual opinions of Members of Parliament or Convention to construe the meaning of a particular clause, when a question is raised whether a certain phrase or expression was up for consideration at all or not, a reference to debates may be permitted.\" The European Court of Human Rights and the United Nations Committee on Human Rights all allow their deliberations to be 17 ROTUNDA AND NOWAK, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE \u00a723.6 (2d ed. 1992). 18 In the decision on the constitutionality of life imprisonment, [1977] 45 BVerfGE 187, the German Federal Constitutional Court took into account that life imprisonment was seen by the framers of the constitution as the alternative to the death sentence when they decided to abolish capital punishment. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 315 (1989). 19 Reference re s.94(2) of the Motor Vehicle Act (British Columbia) (1986) 18 CRR 30 at 47-50; United States v Cotroni (1990) 42 CRR 101 at 109; Mahe v Alberta (1990) 46 CRR 193 at 214. 20 Irwin Toy Ltd. v Quebec (AG) (1989) 39 CRR 193 at 241. 21 H M SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3rd ed. (1983) Vol. I, para. 2.35 et seq. 22 (1950) SCR 88 at 111, as cited in Seervai, id., Vol. II, para. 24.7, note 25. 10 \finformed by travaux pr\u00e9paratoires.23", "Our Constitution was the product of negotiations conducted at the Multi-Party Negotiating Process. The final draft adopted by the forum of the Multi-Party Negotiating Process was, with few changes, adopted by Parliament. The Multi-Party Negotiating Process was advised by technical committees, and the reports of these committees on the drafts are the equivalent of the travaux pr\u00e9paratoires, relied upon by the international tribunals. Such background material can provide a context for the interpretation of the Constitution and, where it serves that purpose, I can see no reason why such evidence should be excluded. The precise nature of the evidence, and the purpose for which it may be tendered, will determine the weight to be given to it. [18] It has been said in respect of the Canadian constitution that: 23 Article 32 of the Vienna Convention of Treaties 1969, 8 ILM 679 (1969) permits the use of travaux pr\u00e9paratoires for the purpose of interpreting treaties. For examples of the application of this principle, see Keith Cox v Canada, United Nations Committee on Human Rights, Communication No. 539/1993, 3 November 1993, at 19, stating: Nonetheless, when giving a broad interpretation to any human rights treaty, care must be taken not to frustrate or circumvent the ascertainable will of the drafters. Here the rules of interpretation set forth in article 32 of the Vienna Convention on the Law of Treaties help us by allowing the use of the travaux pr\u00e9paratoires. Ng v Canada, United Nations Committee on Human Rights, Communication No 469/1991, 5 November 1993, at 9; Young, James and Webster v United Kingdom (1981) 3 EHRR 20, para. 166; Lithgow v United Kingdom (1986) 8 EHRR 329, para. 117; and more generally J.G. STARKE, INTRODUCTION TO INTERNATIONAL LAW 481 (10th ed., Butterworths)(1989). 11 \f...the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors ... the comments of a few federal civil servants can in any way be determinative.24 Our Constitution is also the product of a multiplicity of persons, some of whom took part in the negotiations, and others who as members of Parliament enacted the final draft. The same caution is called for in respect of the comments of individual actors in the process, no matter how prominent a role they might have played. [19] Background evidence may, however, be useful to show why particular provisions were or were not included in the Constitution. It is neither necessary nor desirable at this stage in the development of our constitutional law to express any opinion on whether it might also be relevant for other purposes, nor to attempt to lay down general principles governing the admissibility of such evidence. It is sufficient to say that where the background material is clear, is not in dispute, and is relevant to 24 Reference re s.94(2) of the Motor Vehicle Act (British Columbia), supra note 19, at 49. 12 \fshowing why particular provisions were or were not included in the Constitution, it can be taken into account by a Court in interpreting the Constitution. These conditions are satisfied in the present case. [20] Capital punishment was the subject of debate before and during the constitution- making process, and it is clear that the failure to deal specifically in the Constitution with this issue was not accidental.25 25 The brief account that follows is taken from the written submissions of the South African Government. These facts were not disputed at the hearing. 13 \f[21] [22] In February 1990, Mr F W de Klerk, then President of the Republic of South Africa, stated in Parliament that \"the death penalty had been the subject of intensive discussion in recent months\", which had led to concrete proposals for reform under which the death penalty should be retained as an option to be used in \"extreme cases\", the judicial discretion in regard to the imposition of the death sentence should be broadened, and an automatic right of appeal allowed to those under sentence of death.26 These proposals were later enacted into law by the Criminal Law Amendment Act No. 107 of 1990. In August 1991, the South African Law Commission in its Interim Report on Group and Human Rights described the imposition of the death penalty as \"highly controversial\".27 A working paper of the Commission which preceded the Interim Report had proposed that the right to life be recognised in a bill of rights, subject to the proviso that the discretionary imposition of the sentence of death be allowed for the most serious crimes. As a result of the comments it received, the Law Commission decided to change the draft and to adopt a \"Solomonic solution\"28 under which a constitutional court would be required to decide whether a right to life expressed in unqualified terms could be circumscribed by a limitations clause 26 Address to Parliament on 2 February 1990. In this speech it was said that the last execution in South Africa had been on 14 November 1989. 27 South African Law Commission, Interim Report on Group and Human Rights, Project 58, August 1991, para. 7.31. 28 \"The Commission ... considers that a Solomonic solution is necessary: a middle course between the retention of capital punishment and the abolition thereof must be chosen in the proposed bill of rights.\" Id. at 7.33. 14 \fcontained in a bill of rights.29 \"This proposed solution\" it said \"naturally imposes an onerous task on the Constitutional Court. But it is a task which this Court will in future have to carry out in respect of many other laws and executive and administrative acts. The Court must not shrink from this task, otherwise we shall be back to parliamentary sovereignty.\"30 In March 1992, the then Minister of Justice issued a press statement in which he said: [23] 29 Id. at para. 7.36. 30 Id. at para. 7.37. 15 \fOpinions regarding the death penalty differ substantially. There are those who feel that the death penalty is a cruel and inhuman form of punishment. Others are of the opinion that it is in some extreme cases the community's only effective safeguard against violent crime and that it gives effect in such cases to the retributive and deterrent purposes of punishment.31 He went on to say that policy in regard to the death penalty might be settled during negotiations on the terms of a Bill of Fundamental Rights, and that pending the outcome of such negotiations, execution of death sentences which had not been commuted, would be suspended. He concluded his statement by saying that: The government wishes to see a speedy settlement of the future constitutionality of this form of punishment and urges interested parties to join in the discussions on a Bill of Fundamental Rights.32 [24] The moratorium was in respect of the carrying out, and not the imposition, of the death sentence. The death sentence remained a lawful punishment and although the courts may possibly have been influenced by the moratorium, they continued to impose it in cases in which it was considered to be the \"only proper\" sentence. According to the statistics provided to us by the Attorney General, 243 persons have been sentenced to death since the amendment to section 277 in 1990, and of these sentences, 143 have been confirmed by the Appellate Division. 31 South African Government Heads of Argument, Vol 1, authorities, 32-34. 32 Id. 16 \f[25] In the constitutional negotiations which followed, the issue was not resolved. Instead, the \"Solomonic solution\" was adopted.33 The death sentence was, in terms, neither sanctioned nor excluded, and it was left to the Constitutional Court to decide whether the provisions of the pre-constitutional law making the death penalty a competent sentence for murder and other crimes are consistent with Chapter Three of the Constitution. If they are, the death sentence remains a competent sentence for murder 33 This is apparent from the reports of the Technical Committee on Fundamental Rights and, in particular, the Fourth to the Seventh reports, which were brought to our attention by counsel. The reports show that the question whether the death penalty should be made an exception to the right to life was \"up for debate\" in the Negotiating Council. The Sixth Report contained the following references to the right to life: Life: (1) Every person shall have the right to life. (2) A law in force at the commencement of subsection (1) relating to capital punishment or abortion shall remain in force until repealed or amended by the [legislature]. (3) No sentence of death shall be carried out until the [Constitutional Assembly] has pronounced finally on the abolition or retention of capital punishment. [Comment: The Council still has to decide on the inclusion of this right and if so whether its formulation should admit of qualification of the type suggested above. The unqualified inclusion of the right will result in the [Constitutional Court] having to decide on the validity of any law relating to capital punishment or abortion.] Sixth Report, 15 July 1993 at 5. In the Seventh Report the right to life was formulated in the terms in which it now appears in section 9 of the Constitution. The report contained the following comment: [Comment: The Ad Hoc Committee appointed by the Planning Committee recommends the unqualified inclusion of this right in the Chapter. We support this proposal.] Seventh Report, 29 July 1993 at 3. 17 \fin cases in which those provisions are applicable, unless and until Parliament otherwise decides; if they are not, it is our duty to say so, and to declare such provisions to be unconstitutional. Section 11(2) - Cruel, Inhuman or Degrading Punishment", "Death is the most extreme form of punishment to which a convicted criminal can be subjected. Its execution is final and irrevocable. It puts an end not only to the right to life itself, but to all other personal rights which had vested in the deceased under Chapter Three of the Constitution. It leaves nothing except the memory in others of what has been and the property that passes to the deceased's heirs. In the ordinary meaning of the words, the death sentence is undoubtedly a cruel punishment. Once sentenced, the prisoner waits on death row in the company of other prisoners under sentence of death, for the processes of their appeals and the procedures for clemency to be carried out. Throughout this period, those who remain on death row are uncertain of their fate, not knowing whether they will ultimately be reprieved or taken to the gallows. Death is a cruel penalty and the legal processes which necessarily involve waiting in uncertainty for the sentence to be set aside or carried out, add to the cruelty. It is also an inhuman punishment for it \"...involves, by its very nature, a denial of the executed person's humanity\",34 and it is degrading because it strips the convicted person of all dignity and treats him or her as an object to be eliminated by the state. The question is not, however, whether the death sentence is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution.35 The accused, who rely on section 11(2) of the 34 Furman v. Georgia, 408 U.S. 238, 290 (1972)(Brennan, J., concurring). 35 This has been the approach of certain of the justices of the United States Supreme Court. Thus, White, J., concurring, who said in Furman v. Georgia, supra note 34, at 312, that \"[T]he imposition and execution of the death penalty are obviously cruel in the dictionary sense\", was one of the justices who held in Gregg v Georgia, infra note 60, that capital punishment was not per se cruel and unusual punishment within the meaning of the Fifth and Fourteenth Amendments of the United States Constitution. Burger, CJ., dissenting, refers in Furman's case at 379, 380, and 382 to a punishment being cruel \"in the constitutional sense\". See also, comments by Justice Stewart, concurring in Furman's case at 309, \"... the death sentences now before us are the product of a 18 \fConstitution, carry the initial onus of establishing this proposition.36 The Contentions of the Parties [27] The principal arguments advanced by counsel for the accused in support of their contention that the imposition of the death penalty for murder is a \"cruel, inhuman or degrading punishment,\" were that the death sentence is an affront to human dignity, is inconsistent with the unqualified right to life entrenched in the Constitution, cannot be corrected in case of error or enforced in a manner that is not arbitrary, and that it negates the essential content of the right to life and the other rights that flow from it. The Attorney General argued that the death penalty is recognised as a legitimate form of punishment in many parts of the world, it is a deterrent to violent crime, it meets society's need for adequate retribution for heinous offences, and it is regarded by South African society as an acceptable form of punishment. He asserted that it is, therefore, not cruel, inhuman or degrading within the meaning of section 11(2) of the Constitution. These arguments for and against the death sentence are well known and have been considered in many of the foreign authorities and cases to which we were referred. We must deal with them now in the light of the provisions of our own Constitution. The Effect of the Disparity in the Laws Governing Capital Punishment legal system that brings them, I believe, within the very core of the... guarantee against cruel and unusual punishments...it is clear that these sentences are 'cruel' in the sense that they excessively go beyond, not in degree but in kind, the punishments that the legislatures have determined to be necessary [citing Weems v. United States, 217 U.S. 349 (1910)]...death sentences [imposed arbitrarily] are cruel and unusual in the same way that being struck by lightning is cruel and unusual\". 36 Matinkinca and Another v Council of State, Ciskei and Another 1994 (1) BCLR 17 (Ck) at 34B-D; Qozeleni v Minister of Law and Order and Another 1994 (1) BCLR 75(E) at 87D-E. Cf. Kindler v Canada (Minister of Justice) (1992) 6 CRR (2d) 193 at 214. 19 \f [28] One of the anomalies of the transition initiated by the Constitution is that the Criminal Procedure Act does not apply throughout South Africa. This is a consequence of section 229 of the Constitution which provides: Subject to this Constitution, all laws which immediately before the commencement of this Constitution were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority. [29] Prior to the commencement of the Constitution, the Criminal Procedure Act was in force only in the old Republic of South Africa. Its operation did not extend to the former Transkei, Bophuthatswana, Venda or Ciskei, which were then treated by South African law as independent states and had their own legislation. Although their respective Criminal Procedure statutes were based on the South African legislation, there were differences, including differences in regard to the death penalty. The most striking difference in this regard was in Ciskei, where the death sentence was abolished on June 8, 1990 by the military regime,37 the de facto government of the territory, and it ceased from that date to be a competent sentence.38 These differences still exist,39 which means that the law governing the imposition of the death sentence in South Africa is not uniform. The greatest disparity is in the Eastern Cape Province. A person who commits murder and is brought to trial in that part of the province which was formerly Ciskei, cannot be sentenced to death, whilst a person who commits murder and is brought to trial in another part of the same province, can be sentenced to death. There is no rational reason for this distinction, which is the result 37 The Criminal Procedure Second Amendment Decree, 1990, Decree No. 16 of 1990 of the Council of State of the Republic of Ciskei, 8 June 1990, as amended. 38 S v Qeqe and Another 1990 (2) SACR 654 (CkAD). 39 In the former Transkei, Bophuthatswana and Venda the death sentence was a competent verdict for murder but the provisions of the relevant statutes in Transkei and Bophuthatswana are not identical to section 277. For the purposes of this judgment it is not necessary to analyse the differences, which relate in the main to the procedure prescribed for appeals and the powers of the court on appeal, procedures that are now subject to the provisions of section 241(1) and (1A) of the Constitution, as amended by the Constitution of the Republic of South Africa Third Amendment Act No. 13 of 1994. 20 \fof history, and we asked for argument to be addressed to us on the question whether this difference has a bearing on the constitutionality of section 277(1)(a) of the Criminal Procedure Act. [30] Counsel for the accused argued that it did. They contended that in the circumstances section 277 was not a law of general application (which is a requirement under section 33(1) for the validity of any law which limits a Chapter Three right), and that the disparate application of the death sentence within South Africa discriminates unfairly between those prosecuted in the former Ciskei and those prosecuted elsewhere in South Africa, and offends against the right to \"equality before the law and to equal protection of the law.\"40 [31] If the disparity had been the result of legislation enacted after the Constitution had come into force the challenge to the validity of section 277 on these grounds may well have been tenable. Criminal law and procedure is a national competence and the national government could not without very convincing reasons have established a \"safe haven\" in part of one of the provinces in which the death penalty would not be enforced. The disparity is not, however, the result of the legislative policy of the new Parliament, but a consequence of the Constitution which brings together again in one country the parts that had been separated under apartheid. The purpose of section 229 was to ensure an orderly transition, and an inevitable consequence of its provisions is that there will be disparities in the law reflecting pre-existing regional variations, and that this will continue until a uniform system of law has been established by the national and provincial legislatures within their fields of competence as contemplated by Chapter Fifteen of the Constitution. 40 See section 8 of the Constitution. 21 \f[32] The requirement of section 229 that existing laws shall continue to be in force subject to the Constitution, makes the Constitution applicable to existing laws within each of the geographic areas. These laws have to meet all the standards prescribed by Chapter Three, and this no doubt calls for consistency and parity of laws within the boundaries of each of the different geographic areas. It does not, however, mean that there has to be consistency and parity between the laws of the different geographic areas themselves.41 Such a construction would defeat the apparent purpose of section 229, which is to allow different legal orders to exist side by side until a process of rationalisation has been carried out, and would inappropriately expose a substantial part if not the entire body of our statutory law to challenges under section 8 of the Constitution. It follows that disparities between the legal orders in different parts of the country, consequent upon the provisions of section 229 of the Constitution, cannot for that reason alone be said to constitute a breach of the equal protection provisions of section 8, or render the laws such that they are not of general application. International and Foreign Comparative Law 41 AK Entertainment CC v Minister of Safety and Security and Others 1995 (1) SACLR 130 (E) at 135-136. 22 \f[33] The death sentence is a form of punishment which has been used throughout history by different societies. It has long been the subject of controversy.42 As societies became more enlightened, they restricted the offences for which this penalty could be imposed.43 The movement away from the death penalty gained momentum during the second half of the present century with the growth of the abolitionist movement. In some countries it is now prohibited in all circumstances, in some it is prohibited save in times of war, and in most countries that have retained it as a penalty for crime, its use has been restricted to extreme cases. According to Amnesty International, 1,831 executions were carried out throughout the world in 1993 as a result of sentences of death, of which 1,419 were in China, which means that only 412 executions were carried out in the rest of the world in that year.44 Today, capital punishment has been abolished as a penalty for murder either specifically or in practice by almost half the countries of the world including the democracies of Europe and our neighbouring countries, Namibia, Mozambique and Angola.45 In most of those countries where it is retained, as the Amnesty International statistics show, it is seldom used. In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution, [34] 42 An account of the history of the death sentence, the growth of the abolitionist movement, and the application of the death sentence by South African courts is given by Prof. B. van Niekerk in Hanged by the Neck Until You Are Dead, (1969) 86 SALJ 457; Professor E. Kahn in The Death Penalty in South Africa, (1970) 33 THRHR 108; and by Professor G. Devenish in The historical and jurisprudential evolution and background to the application of the death penalty in South Africa and its relationship with constitutional and political reform, SACJ (1992) 1. For analysis of trends in capital punishment internationally, see AMNESTY INTERNATIONAL, WHEN THE STATE KILLS...THE DEATH PENALTY V. HUMAN RIGHTS (1989). 43 See generally, Amnesty International, The Death Penalty: List of Abolitionist and Retentionist Countries (December 1, 1993), AI Index ACT 50/02/94. 44 Amnesty International, Update to Death Sentences and executions in 1993, AI Index ACT 51/02/94. 45 Supra note 43. 23 \fwhich states: In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. [35] Customary international law and the ratification and accession to international agreements is dealt with in section 231 of the Constitution which sets the requirements for such law to be binding within South Africa. In the context of section 35(1), public international law would include non-binding as well as binding law.46 They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which Chapter Three can be evaluated and understood, and for that purpose, decisions of tribunals dealing with comparable instruments, such as the United Nations Committee on Human Rights,47 the Inter-American Commission on Human Rights,48 the Inter-American Court of Human Rights,49 the European Commission on Human Rights,50 and the European Court of Human Rights,51 and in appropriate cases, reports 46 J. Dugard in RIGHTS AND CONSTITUTIONALISM: THE NEW SOUTH AFRICAN LEGAL ORDER 192-195 (Dawid van Wyk et al.eds., Juta & Co., Ltd., 1994). Professor Dugard suggests, at 193-194, that section 35 requires regard to be had to \"all the sources of international law recognised by article 38(1) of the Statute of the International Court of Justice, ie: (a) (b) (c) (d) international conventions, whether general or particular, establishing rules expressly recognised by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; [and] ... judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.\" 47 Established under article 28 of the International Covenant on Civil and Political Rights (ICCPR or International Covenant) 1966. 48 Established in terms of article 33 of the American Convention on Human Rights 1969. 49 Id. 50 Established in terms of article 19 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (\"European Convention\"). 51 Id. 24 \fof specialised agencies such as the International Labour Organisation may provide guidance as to the correct interpretation of particular provisions of Chapter Three. [36] Capital punishment is not prohibited by public international law, and this is a factor that has to be taken into account in deciding whether it is cruel, inhuman or degrading punishment within the meaning of section 11(2). International human rights agreements differ, however, from our Constitution in that where the right to life is expressed in unqualified terms they either deal specifically with the death sentence, or authorise exceptions to be made to the right to life by law.52 This has influenced the way international tribunals have dealt with issues relating to capital punishment, and is relevant to a proper understanding of such decisions. 52 The pertinent part of article 6 of the ICCPR reads: 1. 2. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. ...sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present covenant ... Article 4(2) of the American Convention on Human Rights and article 2 of the European Convention of Human Rights contain similar provisions. Article 4 of the African Charter of Human an People's Rights provides: Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right. (Emphasis supplied) 25 \f[37] Comparative \"bill of rights\" jurisprudence will no doubt be of importance, particularly in the early stages of the transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw. Although we are told by section 35(1) that we \"may\" have regard to foreign case law, it is important to appreciate that this will not necessarily offer a safe guide to the interpretation of Chapter Three of our Constitution.53 This has already been pointed out in a number of decisions of the Provincial and Local Divisions of the Supreme Court,54 and is implicit in the injunction given to the Courts in section 35(1), which in permissive terms allows the Courts to \"have regard to\" such law. There is no injunction to do more than this. [38] When challenges to the death sentence in international or foreign courts and tribunals have failed, the constitution or the international instrument concerned has either directly sanctioned capital punishment or has specifically provided that the right to life is subject to exceptions sanctioned by law. The only case to which we were referred in which there were not such express provisions in the Constitution, was the decision of the Hungarian Constitutional Court. There the challenge succeeded and the death penalty was declared to be unconstitutional.55 53 See S v Zuma and Two Others, supra note 6. 54 See, e.g., Qozeleni, supra note 36, at 80B-C; S v Botha and Others 1994 (3) BCLR 93 (W) at 110F-G. 55 Decision No. 23/1990 (X.31.) AB of the (Hungarian) Constitutional Court (George Feher trans.). 26 \f[39] Our Constitution expresses the right to life in an unqualified form, and prescribes the criteria that have to be met for the limitation of entrenched rights, including the prohibition of legislation that negates the essential content of an entrenched right. In dealing with comparative law, we must bear in mind that we are required to construe the South African Constitution, and not an international instrument or the constitution of some foreign country, and that this has to be done with due regard to our legal system, our history and circumstances, and the structure and language of our own Constitution.56 We can derive assistance from public international law and foreign case law, but we are in no way bound to follow it. Capital Punishment in the United States of America 56 The judgment of Kentridge AJ in S v Zuma and Two Others, supra note 6, discusses the relevance of foreign case law in the context of the facts of that case, and demonstrates the use that can be made of such authorities in appropriate circumstances. 27 \f[40] The earliest litigation on the validity of the death sentence seems to have been pursued in the courts of the United States of America. It has been said there that the \"Constitution itself poses the first obstacle to [the] argument that capital punishment is per se unconstitutional\".57 From the beginning, the United States Constitution recognised capital punishment as lawful. The Fifth Amendment (adopted in 1791) refers in specific terms to capital punishment and impliedly recognises its validity. The Fourteenth Amendment (adopted in 1868) obliges the states, not to \"deprive any person of life, liberty, or property, without due process of law\" and it too impliedly recognises the right of the states to make laws for such purposes.58 The argument that capital punishment is unconstitutional was based on the Eighth Amendment, which prohibits cruel and unusual punishment.59 Although the Eighth Amendment \"has not been regarded as a static concept\"60 and as drawing its meaning \"from the evolving standards of decency that mark the progress of a maturing society\",61 the fact that the Constitution recognises the lawfulness of capital punishment has proved to be an obstacle in the way of the acceptance of this argument, and this is stressed in some of the judgments of the United States Supreme Court.62 [41] Although challenges under state constitutions to the validity of the death sentence have been successful,63 the federal constitutionality of the death sentence as a legitimate form of punishment for murder was affirmed by the United States Supreme 57 Furman v. Georgia, supra note 34, at 418 (Powell, J., joined by Burger, CJ., Blackmun, J. and Rehnquist, J., dissenting). 58 See Furman v. Georgia, supra note 34. 59 Id. 60 Gregg v. Georgia, 428 U.S. 153, 173 (1976)(Stewart, Powell and Stevens, JJ.). 61 Trop v. Dulles, 356 U.S. 86, 101 (1958). 62 See Furman v. Georgia, supra note 34, at 380-384, and at 417-420 (Burger, CJ., and Powell, J., respectively, dissenting). See also, Gregg v. Georgia, supra note 60, at 176-180; and Callins v Collins, 114 S.Ct. 1127 (1994)(judgement denying cert.)(Scalia, J., concurring). Those who take the contrary view say that these provisions do no more than recognise the existence of the death penalty at the time of the adoption of the Constitution, but do not exempt it from the cruel and unusual punishment clause. Furman v Georgia at 283-284 (Brennan, J., concurring); People v. Anderson, 493 P.2d 880, 886 (Cal. 1972)(Wright, CJ.). 63 See infra paras. 91-92. 28 \fCourt in Gregg v. Georgia.64 Both before and after Gregg's case, decisions upholding and rejecting challenges to death penalty statutes have divided the Supreme Court, and have led at times to sharply-worded judgments.65 The decisions ultimately turned on the votes of those judges who considered the nature of the discretion given to the sentencing authority to be the crucial factor. 64 Supra note 60, at 187. 65 See, e.g., the concurring opinion of Scalia, J., in Callins v. Collins, supra note 62; the opinions of Rehnquist, J., concurring in part and dissenting in part, in Lockett v. Ohio, supra note 66, at 628 et seq., and dissenting in Woodson v. North Carolina, supra note 66, at 308 et seq. 29 \f[42] Statutes providing for mandatory death sentences, or too little discretion in sentencing, have been rejected by the Supreme Court because they do not allow for consideration of factors peculiar to the convicted person facing sentence, which may distinguish his or her case from other cases.66 For the same reason, statutes which allow too wide a discretion to judges or juries have also been struck down on the grounds that the exercise of such discretion leads to arbitrary results.67 In sum, therefore, if there is no discretion, too little discretion, or an unbounded discretion, the provision authorising the death sentence has been struck down as being contrary to the Eighth Amendment; where the discretion has been \"suitably directed and limited so as to minimise the risk of wholly arbitrary and capricious action\",68 the challenge to the statute has failed.69 Arbitrariness and Inequality [43] Basing his argument on the reasons which found favour with the majority of the United States Supreme Court in Furman v. Georgia, Mr Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional. [44] Section 277 of the Criminal Procedure Act provides: Sentence of death (1) The sentence of death may be passed by a superior court only and only in 66 Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976), reh'g denied 429 U.S. 890 (1976); Lockett v. Ohio, 438 U.S. 586 (1978)(system for imposing death sentences invalid to the extent it precludes consideration by sentencing jury or judge of potentially mitigating factors). 67 See Green v. Georgia 442 U.S. 95 (1979). 68 Gregg v. Georgia, supra note 60, at 189. 69 Id. See also, Proffitt v. Florida, 428 U.S. 242 (1976). The nature of the offence for which the sentence is imposed is also relevant. Coker v. Georgia, 433 U.S. 584 (1977). 30 \f the case of a conviction for- (a) (b) (c) (d) (e) (f) murder; treason committed when the Republic is in a state of war; robbery or attempted robbery, if the court finds aggravating circumstances to have been present; kidnapping; child-stealing; rape. (2) The sentence of death shall be imposed- (a) after the presiding judge conjointly with the assessors (if any), subject to the provisions of s 145(4)(a), or, in the case of a trial by a special superior court, that court, with due regard to any evidence and argument on sentence in terms of section 274, has made a finding on the presence or absence of any mitigating or aggravating factors; and (b) if the presiding judge or court, as the case may be, with due regard to that finding, is satisfied that the sentence of death is the proper sentence. (3) (a) (b) The sentence of death shall not be imposed upon an accused who was under the age of 18 years at the time of the commission of the act which constituted the offence concerned. If in the application of paragraph (a) the age of an accused is placed in issue, the onus shall be on the State to show beyond reasonable doubt that the 31 \faccused was 18 years of age or older at the relevant time. [45] Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal to persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge. The Appellate Division is empowered to set the sentence aside if it would not have imposed such sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts.70 If the person sentenced to death does not appeal, the Appellate Division is nevertheless required to review the case and to set aside the death sentence if it is of the opinion that it is not a proper sentence.71 70 Criminal Procedure Act No. 51 of 1977, section 322(2A)(as amended by section 13 of Act No. 107 of 1990). 71 Id. section 316A(4)(a). 32 \f[46] Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond reasonable doubt the existence of aggravating factors, and to negative beyond reasonable doubt the presence of any mitigating factors relied on by the accused.72 Due regard must be paid to the personal circumstances and subjective factors which might have influenced the accused person's conduct,73 and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.74 In this process \"[e]very relevant consideration should receive the most scrupulous care and reasoned attention\",75 and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.76 [47] There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate 72 S v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A. 73 S v Masina and Others 1990 (4) SA 709 (A) at 718G-H. 74 S v J 1989 (1) SA 669 (A) at 682G. \"Generally speaking, however, retribution has tended to yield ground to the aspects of correction and prevention, and it is deterrence (including prevention) which has been described as the 'essential', 'all important', 'paramount' and 'universally admitted' object of punishment\". Id. at 682I-J (cited with approval in S v P 1991 (1) SA 517 (A) at 523G-H). Cf. R v Swanepoel 1945 AD 444 at 453-455. 75 Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I-32A in the context of the approach to sentencing under section 322(2A)(b) of the Criminal Procedure Act No. 51 of 1977). 76 S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra note 72, at 749A-D. 33 \fDivision for the imposition of the death sentence. The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised. [48] The argument that the imposition of the death sentence under section 277 is arbitrary and capricious does not, however, end there. It also focuses on what is alleged to be the arbitrariness inherent in the application of section 277 in practice. Of the thousands of persons put on trial for murder, only a very small percentage are sentenced to death by a trial court, and of those, a large number escape the ultimate penalty on appeal.77 At every stage of the process there is an element of chance. The outcome may be dependent upon factors such as the way the case is investigated by the police, the way the case is presented by the prosecutor, how effectively the accused is defended, the personality and particular attitude to capital punishment of the trial judge and, if the matter goes on appeal, the particular judges who are selected to hear the case. Race78 and poverty are also alleged to be factors. 77 According to the statistics referred to in the amicus brief of the South African Police approximately 9 000 murder cases are brought to trial each year. In the more than 40 000 cases that have been heard since the amendment to section 277 of the Criminal Procedure Act, only 243 persons were sentenced to death, and of these sentences, only 143 were ultimately confirmed on appeal. See also, Devenish, supra note 42, at 8 and 13. 78 In the amicus brief of Lawyers for Human Rights, Centre for Applied Legal Studies and the Society for the Abolition of the Death Penalty in South Africa it is pointed out that the overwhelming majority of those 34 \f sentenced to death are poor and black. There is an enormous social and cultural divide between those sentenced to death and the judges before whom they appear, who are presently almost all white and middle class. This in itself gives rise to problems which even the most meticulous judge cannot avoid. The formal trial proceedings are recorded in English or Afrikaans, languages which the judges understand and speak, but which many of the accused may not understand, or of which they may have only an imperfect understanding. The evidence of witnesses and the discourse between the judge and the accused often has to be interpreted, and the way this is done influences the proceedings. The differences in the backgrounds and culture of the judges and the accused also comes into the picture, and is particularly relevant when the personal circumstances of the accused have to be evaluated for the purposes of deciding upon the sentence. All this is the result of our history, and with the demise of apartheid this will change. Race and class are, however, factors that run deep in our society and cannot simply be brushed aside as no longer being relevant. 35 \f[49] Most accused facing a possible death sentence are unable to afford legal assistance, and are defended under the pro deo system. The defending counsel is more often than not young and inexperienced, frequently of a different race to his or her client, and if this is the case, usually has to consult through an interpreter. Pro deo counsel are paid only a nominal fee for the defence, and generally lack the financial resources and the infrastructural support to undertake the necessary investigations and research, to employ expert witnesses to give advice, including advice on matters relevant to sentence, to assemble witnesses, to bargain with the prosecution, and generally to conduct an effective defence. Accused persons who have the money to do so, are able to retain experienced attorneys and counsel, who are paid to undertake the necessary investigations and research, and as a result they are less likely to be sentenced to death than persons similarly placed who are unable to pay for such services.79 [50] It needs to be mentioned that there are occasions when senior members of the bar act pro deo in particularly difficult cases - indeed the present case affords an example of that, for Mr Trengove and his juniors have acted pro deo in the proceedings before us, and the Legal Resources Centre who have acted as their instructing attorneys, have done so without charge. An enormous amount of research has gone into the preparation of the argument and it is highly doubtful that even the wealthiest members of our society could have secured a better service than they have provided. But this is the exception and not the rule. This may possibly change as a result of the provisions of section 25(3)(e) of the Constitution, but there are limits to the available financial and human resources, limits which are likely to exist for the foreseeable future, and which will continue to place poor accused at a significant disadvantage in defending themselves in capital cases. 79 I do not want to be understood as being critical of the pro deo counsel who perform an invaluable service, often under extremely difficult conditions, and to whom the courts are much indebted. But the unpalatable truth is that most capital cases involve poor people who cannot afford and do not receive as good a defence as those who have means. In this process, the poor and the ignorant have proven to be the most vulnerable, and are the persons most likely to be sentenced to death. 36 \f It cannot be gainsaid that poverty, race and chance play roles in the outcome of capital cases and in the final decision as to who should live and who should die. It is sometimes said that this is understood by the judges, and as far as possible, taken into account by them. But in itself this is no answer to the complaint of arbitrariness; on the contrary, it may introduce an additional factor of arbitrariness that would also have to be taken into account. Some, but not all accused persons may be acquitted because such allowances are made, and others who are convicted, but not all, may for the same reason escape the death sentence.80 In holding that the imposition and the carrying out of the death penalty in the cases then under consideration constituted cruel and unusual punishment in the United States, Justice Douglas, concurring in Furman v. Georgia, said that \"[a]ny law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment.\" Discretionary statutes are:", "[52] 80 See the comments of Curlewis, J in [1991] SAJHR, Vol. 7, p. 229, arguing that judges who do not impose the death sentence when they should do so are not doing their duty. \"Let me return to the point that troubles the authors: 'that a person's life may depend upon who sits in judgment.' Of course this happens. I do not know why the authors are so hesitant in saying so. Their own reasoning, let alone their tables, proves this\". Id. at 230. 37 \f...pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on \"cruel and unusual\" punishments.81 It was contended that we should follow this approach and hold that the factors to which I have referred, make the application of section 277, in practice, arbitrary and capricious and, for that reason, any resulting death sentence is cruel, inhuman and degrading punishment. [53] 81 Furman v. Georgia, supra note 34, at 257. 38 \f[54] The differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence, between severe and lenient judges, between judges who favour capital punishment and those who do not, and the subjective attitudes that might be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts, and is almost certainly present to some degree in all court systems. Such factors can be mitigated, but not totally avoided, by allowing convicted persons to appeal to a higher court. Appeals are decided on the record of the case and on findings made by the trial court. If the evidence on record and the findings made have been influenced by these factors, there may be nothing that can be done about that on appeal. Imperfection inherent in criminal trials means that error cannot be excluded; it also means that persons similarly placed may not necessarily receive similar punishment. This needs to be acknowledged. What also needs to be acknowledged is that the possibility of error will be present in any system of justice and that there cannot be perfect equality as between accused persons in the conduct and outcome of criminal trials. We have to accept these differences in the ordinary criminal cases that come before the courts, even to the extent that some may go to gaol when others similarly placed may be acquitted or receive non-custodial sentences. But death is different, and the question is, whether this is acceptable when the difference is between life and death. Unjust imprisonment is a great wrong, but if it is discovered, the prisoner can be released and compensated; but the killing of an innocent person is irremediable.82 82 \"While this court has the power to correct constitutional or other errors retroactively...it cannot, of course, raise the dead.\" Suffolk District v. Watson and Others, 381 Mass. 648, 663 (1980)(Hennessy, CJ.)(plurality decision holding the death penalty unconstitutionally cruel under the Massachusetts State Constitution). \"Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of the qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case\". Woodson v. North Carolina, supra note 66, at 305 (Stewart, Powell and Stevens, JJ.). 39 \f[55] In the United States, the Supreme Court has addressed itself primarily to the requirement of due process. Statutes have to be clear and discretion curtailed without ignoring the peculiar circumstances of each accused person. Verdicts are set aside if the defence has not been adequate,83 and persons sentenced to death are allowed wide rights of appeal and review. This attempt to ensure the utmost procedural fairness has itself led to problems. The most notorious is the \"death row phenomenon\" in which prisoners cling to life, exhausting every possible avenue of redress, and using every device to put off the date of execution, in the natural and understandable hope that there will be a reprieve from the Courts or the executive. It is common for prisoners in the United States to remain on death row for many years, and this dragging out of the process has been characterised as being cruel and degrading.84 The difficulty of 83 Voyles v. Watkins, 489 F.Supp 901 (D.D.C.: N.D.Miss. 1980). See also, People v. Frierson, 599 P.2d. 587 (1979). Cf. Powell v. Alabama, 287 U.S. 45 (1932). 84 Furman v. Georgia, supra note 34, at 288-289 (Brennan, J., concurring). Although in the United States prolonged delay extending even to more than ten years has not been held, in itself, a reason for setting aside a death sentence, Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990)(rejecting a claim that execution after sixteen years on death row would constitute curel and unusual punishment in violation of the Eighth and Fourteenth Amendments), in other jurisdictions a different view is taken. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate hearings over a period of years, the fault is to attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment. The death row phenomenon must not become established as a part of our jurisprudence. Pratt v Attorney-General for Jamaica, supra note 3, at 1014. 40 \fimplementing a system of capital punishment which on the one hand avoids arbitrariness by insisting on a high standard of procedural fairness, and on the other hand avoids delays that in themselves are the cause of impermissible cruelty and inhumanity, is apparent. Justice Blackmun, who sided with the majority in Gregg's case, ultimately came to the conclusion that it is not possible to design a system that avoids arbitrariness.85 To design a system that avoids arbitrariness and delays in carrying out the sentence is even more difficult. 85 Callins v. Collins, supra note 62, (Blackmun, J., dissenting). 41 \f[56] The United States jurisprudence has not resolved the dilemma arising from the fact that the Constitution prohibits cruel and unusual punishments, but also permits, and contemplates that there will be capital punishment. The acceptance by a majority of the United States Supreme Court of the proposition that capital punishment is not per se unconstitutional, but that in certain circumstances it may be arbitrary, and thus unconstitutional, has led to endless litigation. Considerable expense and interminable delays result from the exceptionally-high standard of procedural fairness set by the United States courts in attempting to avoid arbitrary decisions. The difficulties that have been experienced in following this path, to which Justice Blackmun and Justice Scalia have both referred,86 but from which they have drawn different conclusions, persuade me that we should not follow this route. The Right to Dignity [57] Although the United States Constitution does not contain a specific guarantee of human dignity, it has been accepted by the United States Supreme Court that the concept of human dignity is at the core of the prohibition of \"cruel and unusual punishment\" by the Eighth and Fourteenth Amendments.87 For Brennan J this was decisive of the question in Gregg v. Georgia. The fatal constitutional infirmity in the punishment of death is that it treats 86 Id. (compare Scalia, J., concurring, with Blackmun, J., dissenting). 87 Trop v. Dulles, supra note 61, at 100. See also, Furman v. Georgia, supra note 34, at 270-281 (Brennan, J., concurring); Gregg v Georgia, supra note 60, at 173; People v. Anderson, supra note 62, at 895 (\"The dignity of man, the individual and the society as a whole, is today demeaned by our continued practice of capital punishment.\"). 42 \f\"members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.\"88 [58] Under our constitutional order the right to human dignity is specifically guaranteed. It can only be limited by legislation which passes the stringent test of being 'necessary'. The weight given to human dignity by Justice Brennan is wholly consistent with the values of our Constitution and the new order established by it. It is also consistent with the approach to extreme punishments followed by courts in other countries. [59] In Germany, the Federal Constitutional Court has stressed this aspect of punishment. 88 Gregg v. Georgia, supra note 60, at 230 (Brennan, J., dissenting) (quoting his opinion in Furman v. Georgia, at 273). See also, Furman v. Georgia, supra note 34, at 296, where Brennan, J., concurring, states: \"The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death.\" 43 \fRespect for human dignity especially requires the prohibition of cruel, inhuman, and degrading punishments. [The state] cannot turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth and respect.89 [60] That capital punishment constitutes a serious impairment of human dignity has also been recognised by judgments of the Canadian Supreme Court. Kindler v Canada90 was concerned with the extradition from Canada to the United States of two fugitives, Kindler, who had been convicted of murder and sentenced to death in the United States, and Ng who was facing a murder charge there and a possible death sentence. Three of the seven judges who heard the cases expressed the opinion that the death penalty was cruel and unusual: It is the supreme indignity to the individual, the ultimate corporal punishment, the final and complete lobotomy and the absolute and irrevocable castration. [It is] the ultimate desecration of human dignity...91 [61] Three other judges were of the opinion that: 89 [1977] 45 BVerfGE 187, 228 (Life Imprisonment case)(as translated in Kommers, supra note 18, at 316). The statement was made in the context of a discussion on punishment to be meted out in respect of murders of wanton cruelty. It was held that a life sentence was a competent sentence as long as it allowed the possibility of parole for a reformed prisoner rehabilitated during his or her time in prison. 90 (1992) 6 CRR (2d) 193 SC. 91 Id. at 241 (per Cory, J, dissenting with Lamer, CJC, concurring). See also, Sopinka, J, dissenting (with Lamer, CJC, concurring) at 220. 44 \f[t]here is strong ground for believing, having regard to the limited extent to which the death penalty advances any valid penological objectives and the serious invasion of human dignity it engenders, that the death penalty cannot, except in exceptional circumstances, be justified in this country.92 In the result, however, the majority of the Court held that the validity of the order for extradition did not depend upon the constitutionality of the death penalty in Canada, or the guarantee in its Charter of Rights against cruel and unusual punishment. The Charter was concerned with legislative and executive acts carried out in Canada, and an order for extradition neither imposed nor authorised any punishment within the borders of Canada. [62] The issue in Kindler's case was whether the action of the Minister of Justice, who had authorised the extradition without any assurance that the death penalty would not be imposed, was constitutional. It was argued that this executive act was contrary to section 12 of the Charter which requires the executive to act in accordance with fundamental principles of justice. The Court decided by a majority of four to three that in the particular circumstances of the case the decision of the Minister of Justice could not be set aside on these grounds. In balancing the international obligations of Canada in respect of extradition, and another purpose of the extradition legislation - to prevent Canada from becoming a safe haven for criminals, against the likelihood that the fugitives would be executed if returned to the United States, the view of the majority was that the decision to return the fugitives to the United States could not be said to be contrary to the fundamental principles of justice. In their view, it would not shock the conscience of Canadians to permit this to be done. The International Covenant on Civil and Political Rights [63] Ng and Kindler took their cases to the Human Rights Committee of the United Nations, contending that Canada had breached its obligations under the International 92 Id. at 202 (per La Forest, J)(L'Heureux-Dube and Gonthier, JJ concurring). 45 \fCovenant on Civil and Political Rights. Once again, there was a division of opinion within the tribunal. In Ng's case it was said: The Committee is aware that, by definition, every execution of a sentence of death may be considered to constitute cruel and inhuman treatment within the meaning of article 7 of the covenant.93 93 Ng v Canada, supra note 23, at 21. 46 \f[64] There was no dissent from that statement. But the International Covenant contains provisions permitting, with some qualifications, the imposition of capital punishment for the most serious crimes. In view of these provisions, the majority of the Committee were of the opinion that the extradition of fugitives to a country which enforces the death sentence in accordance with the requirements of the International Covenant, should not be regarded as a breach of the obligations of the extraditing country. In Ng's case, the method of execution which he faced if extradited was asphyxiation in a gas chamber. This was found by a majority of the Committee to involve unnecessary physical and mental suffering and, notwithstanding the sanction given to capital punishment, to be cruel punishment within the meaning of article 7 of the International Covenant. In Kindler's case, in which the complaint was delivered at the same time as that in the Ng's case, but the decision was given earlier, it was held that the method of execution which was by lethal injection was not a cruel method of execution, and that the extradition did not in the circumstances constitute a breach of Canada's obligations under the International Covenant.94 [65] The Committee also held in Kindler's case that prolonged judicial proceedings giving rise to the death row phenomenon does not per se constitute cruel, inhuman or degrading treatment. There were dissents in both cases. Some Commissioners in Ng's case held that asphyxiation was not crueller than other forms of execution. Some in Kindler's case held that the provision of the International Covenant against the arbitrary deprivation of the right to life took priority over the provisions of the International Covenant which allow the death sentence, and that Canada ought not in the circumstances to have extradited Kindler without an assurance that he would not be executed. [66] It should be mentioned here that although articles 6(2) to (5) of the International Covenant specifically allow the imposition of the death sentence under strict controls 94 Joseph Kindler v Canada, United Nations Committee on Human Rights, Communication No 470/1991, 30 July 1993. 47 \f\"for the most serious crimes\" by those countries which have not abolished it, it provides in article 6(6) that \"[n]othing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.\" The fact that the International Covenant sanctions capital punishment must be seen in this context. It tolerates but does not provide justification for the death penalty. [67] Despite these differences of opinion, what is clear from the decisions of the Human Rights Committee of the United Nations is that the death penalty is regarded by it as cruel and inhuman punishment within the ordinary meaning of those words, and that it was because of the specific provisions of the International Covenant authorising the imposition of capital punishment by member States in certain circumstances, that the words had to be given a narrow meaning. The European Convention on Human Rights [68] Similar issues were debated by the European Court of Human Rights in Soering v United Kingdom.95 This case was also concerned with the extradition to the United States of a fugitive to face murder charges for which capital punishment was a competent sentence. It was argued that this would expose him to inhuman and degrading treatment or punishment in breach of article 3 of the European Convention on Human Rights. Article 2 of the European Convention protects the right to life but makes an exception in the case of \"the execution of a sentence of a court following [the] conviction of a crime for which this penalty is provided by law.\" The majority of the Court held that article 3 could not be construed as prohibiting all capital punishment, since to do so would nullify article 2. It was, however, competent to test the imposition of capital punishment in particular cases against the requirements of article 3 -- the manner in which it is imposed or executed, the personal circumstances of the condemned person and the disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, were capable of 95 (1989) 11 EHRR 439 at paras. 103, 105 and 111. 48 \fbringing the treatment or punishment received by the condemned person within the proscription. [69] On the facts, it was held that extradition to the United States to face trial in Virginia would expose the fugitive to the risk of treatment going beyond the threshold set by article 3. The special factors taken into account were the youth of the fugitive (he was 18 at the time of the murders), an impaired mental capacity, and the suffering on death row which could endure for up to eight years if he were convicted. Additionally, although the offence for which extradition was sought had been committed in the United States, the fugitive who was a German national was also liable to be tried for the same offence in Germany. Germany, which has abolished the death sentence, also sought his extradition for the murders. There was accordingly a choice in regard to the country to which the fugitive should be extradited, and that choice should have been exercised in a way which would not lead to a contravention of article 3. What weighed with the Court was the fact that the choice facing the United Kingdom was not a choice between extradition to face a possible death penalty and no punishment, but a choice between extradition to a country which allows the death penalty and one which does not. We are in a comparable position. A holding by us that the death penalty for murder is unconstitutional, does not involve a choice between freedom and death; it involves a choice between death in the very few cases which would otherwise attract that penalty under section 277(1)(a), and the severe penalty of life imprisonment. Capital Punishment in India [70] In the amicus brief of the South African Police, reliance was placed on decisions of the Indian Supreme Court, and it is necessary to refer briefly to the way the law has developed in that country. [71] Section 302 of the Indian Penal Code authorises the imposition of the death sentence 49 \fas a penalty for murder. In Bachan Singh v State of Punjab,96 the constitutionality of this provision was put in issue. Article 21 of the Indian Constitution provides that: No person shall be deprived of his life or personal liberty except according to procedure established by law. [72] The wording of this article presented an obstacle to a challenge to the death sentence, because there was a \"law\" which made provision for the death sentence. Moreover, article 72 of the Constitution empowers the President and Governors to commute sentences of death, and article 134 refers to the Supreme Court's powers on appeal in cases where the death sentence has been imposed. It was clear, therefore, that capital punishment was specifically contemplated and sanctioned by the framers of the Indian Constitution, when it was adopted by them in November 1949.97 [73] Counsel for the accused in Bachan Singh's case sought to overcome this difficulty by contending that article 21 had to be read with article 19(1), which guarantees the freedoms of speech, of assembly, of association, of movement, of residence, and the freedom to engage in any occupation. These fundamental freedoms can only be restricted under the Indian Constitution if the restrictions are reasonable for the attainment of a number of purposes defined in sections 19(2) to (6). It was contended that the right to life was basic to the enjoyment of these fundamental freedoms, and that the death sentence restricted them unreasonably in that it served no social purpose, its deterrent effect was unproven and it defiled the dignity of the individual. 96 (1980) 2 SCC 684. 97 Id. at 730, para. 136. 50 \f[74] The Supreme Court analysed the provisions of article 19(1) and came to the conclusion, for reasons that are not material to the present case, that the provisions of section 302 of the Indian Penal Code did \"not have to stand the test of article 19(1) of the Constitution.\"98 It went on, however, to consider \"arguendo\" what the outcome would be if the test of reasonableness and public interest under article 19(1) had to be satisfied. 98 Id. at 709, para. 61. 51 \f[75] The Supreme Court had recognised in a number of cases that the death sentence served as a deterrent, and the Law Commission of India, which had conducted an investigation into capital punishment in 1967, had recommended that capital punishment be retained. The court held that in the circumstances it was \"for the petitioners to prove and establish that the death sentence for murder is so outmoded, unusual or excessive as to be devoid of any rational nexus with the purpose and object of the legislation.\"99 [76] The Court then dealt with international authorities for and against the death sentence, and with the arguments concerning deterrence and retribution.100 After reviewing the arguments for and against the death sentence, the court concluded that: ...the question whether or not [the] death penalty serves any penological purpose is a difficult, complex and intractable issue [which] has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provisions as to death penalty ... on the grounds of reasonableness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or another, as to which of these antithetical views, held by the Abolitionists and the Retentionists, is correct. It is sufficient to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is ground among others, for rejecting the petitioners' 99 Id. at 712, para. 71. 100 I have not yet dealt specifically with the issues of deterrence, prevention and retribution, on which the Attorney General placed reliance in his argument. These are all factors relevant to the purpose of punishment and are present both in capital punishment, and in the alternative of imprisonment. Whether they serve to make capital punishment a more effective punishment than imprisonment is relevant to the argument on justification, and will be considered when that argument is dealt with. For the moment it is sufficient to say that they do not have a bearing on the nature of the punishment, and need not be taken into account at this stage of the enquiry. 52 \fargument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose.101 It accordingly held that section 302 of the Indian Penal Code \"violates neither the letter nor the ethos of Article 19.\"102", "The Court then went on to deal with article 21. It said that if article 21 were to be expanded in accordance with the interpretative principle applicable to legislation limiting rights under Article 19(1), article 21 would have to be read as follows: No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by a valid law. 101 Supra note 96, at 729, para. 132. 102 Id. 53 \fAnd thus expanded, it was clear that the State could deprive a person of his or her life, by \"fair, just and reasonable procedure.\" In the circumstances, and taking into account the indications that capital punishment was considered by the framers of the constitution in 1949 to be a valid penalty, it was asserted that \"by no stretch of the imagination can it be said that death penalty...either per se or because of its execution by hanging constitutes an unreasonable, cruel or unusual punishment\" prohibited by the Constitution.103 [78] The wording of the relevant provisions of our Constitution are different. The question we have to consider is not whether the imposition of the death sentence for murder is \"totally devoid of reason and purpose\", or whether the death sentence for murder \"is devoid of any rational nexus\" with the purpose and object of section 277(1)(a) of the Criminal Procedure Act. It is whether in the context of our Constitution, the death penalty is cruel, inhuman or degrading, and if it is, whether it can be justified in terms of section 33. 103 Supra note 96, at 730-731, para. 136. For similar reasons, the death penalty was held not to be inconsistent with the Constitution of Botswana, or with the Constitution of the former Bophuthatswana. S v Ntesang 1995 (4) BCLR 426 (Botswana); S v Chabalala 1986 (3) SA 623 (B AD). 54 \f[79] The Indian Penal Code leaves the imposition of the death sentence to the trial judge's discretion. In Bachan Singh's case there was also a challenge to the constitutionality of the legislation on the grounds of arbitrariness, along the lines of the challenges that have been successful in the United States. The majority of the Court rejected the argument that the imposition of the death sentence in such circumstances is arbitrary, holding that a discretion exercised judicially by persons of experience and standing, in accordance with principles crystallized by judicial decisions, is not an arbitrary discretion.104 To complete the picture, it should be mentioned that long delays in carrying out the death sentence in particular cases have apparently been held in India to be unjust and unfair to the prisoner, and in such circumstances the death sentence is liable to be set aside.105 The Right to Life [80] The unqualified right to life vested in every person by section 9 of our Constitution is another factor crucially relevant to the question whether the death sentence is cruel, inhuman or degrading punishment within the meaning of section 11(2) of our Constitution. In this respect our Constitution differs materially from the Constitutions of the United States and India. It also differs materially from the European Convention and the International Covenant. Yet in the cases decided under these constitutions and treaties there were judges who dissented and held that notwithstanding the specific language of the constitution or instrument concerned, capital punishment should not be permitted. 104 Id. at 740, para. 165. Bhagwati J dissented. The dissenting judgement is not available to me, but according to AMNESTY INTERNATIONAL, WHEN THE STATE KILLS, supra note 42, at 147, Bhagwati J asserted in his judgement that \"[t]he prevailing standards of human decency are incompatible with [the] death penalty.\" 105 Triveniben v State of Gujarat [1992] LRC(Const.) 425 (Sup. Ct. of India); Daya Singh v Union of India [1992] LRC(Const.) 452 (Sup. Ct. of India). 55 \f [81] [82] In some instances the dissent focused on the right to life. In Soering's case before the European Court of Human Rights, Judge de Meyer, in a concurring opinion, said that capital punishment is \"not consistent with the present state of European civilisation\"106 and for that reason alone, extradition to the United States would violate the fugitive's right to life. In a dissent in the United Nations Human Rights Committee in Kindler's case, Committee member B. Wennergren also stressed the importance of the right to life. 106 Supra note 95, at 484. 56 \fThe value of life is immeasurable for any human being, and the right to life enshrined in article 6 of the Covenant is the supreme human right. It is an obligation of States [P]arties to the Covenant to protect the lives of all human beings on their territory and under their jurisdiction. If issues arise in respect of the protection of the right to life, priority must not be accorded to the domestic laws of other countries or to (bilateral) treaty articles. Discretion of any nature permitted under an extradition treaty cannot apply, as there is no room for it under Covenant obligations. It is worth repeating that no derogation from a State's obligations under article 6, paragraph 1, is permitted. This is why Canada, in my view, violated article 6, paragraph 1, by consenting to extradite Mr. Kindler to the United States, without having secured assurances that Mr. Kindler would not be subjected to the execution of the death sentence.107 [83] An individual's right to life has been described as \"[t]he most fundamental of all human rights\",108 and was dealt with in that way in the judgments of the Hungarian Constitutional Court declaring capital punishment to be unconstitutional.109 The challenge to the death sentence in Hungary was based on section 54 of its Constitution which provides: [84] (1) In the Republic of Hungary everyone has the inherent right to life and to human dignity, and no one shall be arbitrarily deprived of these rights. (2) No one shall be subjected to torture or to cruel or inhuman or degrading punishment Section 8, the counterpart of section 33 of our Constitution, provides that laws shall not impose any limitations on the essential content of fundamental rights. According to the finding of the Court, capital punishment imposed a limitation on the essential 107 Joseph Kindler v Canada, supra note 94, at 23. 108 Per Lord Bridge in R v Home Secretary, Ex parte Bugdaycay (1987) AC 514 at 531G. 109 Supra note 55. 57 \fcontent of the fundamental rights to life and human dignity, eliminating them irretrievably. As such it was unconstitutional. Two factors are stressed in the judgment of the Court. First, the relationship between the rights of life and dignity, and the importance of these rights taken together. Secondly, the absolute nature of these two rights taken together. Together they are the source of all other rights. Other rights may be limited, and may even be withdrawn and then granted again, but their ultimate limit is to be found in the preservation of the twin rights of life and dignity. These twin rights are the essential content of all rights under the Constitution. Take them away, and all other rights cease. I will deal later with the requirement of our Constitution that a right shall not be limited in ways which negate its essential content. For the present purposes it is sufficient to point to the fact that the Hungarian Court held capital punishment to be unconstitutional on the grounds that it is inconsistent with the right to life and the right to dignity. [85] Our Constitution does not contain the qualification found in section 54(1) of the Hungarian constitution, which prohibits only the arbitrary deprivation of life. To that extent, therefore, the right to life in section 9 of our Constitution is given greater protection than it is by the Hungarian Constitution. [86] The fact that in both the United States and India, which sanction capital punishment, the highest courts have intervened on constitutional grounds in particular cases to prevent the carrying out of death sentences, because in the particular circumstances of such cases, it would have been cruel to do so, evidences the importance attached to the protection of life and the strict scrutiny to which the imposition and carrying out of death sentences are subjected when a constitutional challenge is raised. The same concern is apparent in the decisions of the European Court of Human Rights and the United Nations Committee on Human Rights. It led the Court in Soering's case to order that extradition to the United States, in the circumstances of that case, would result in inhuman or degrading punishment, and the Human Rights Committee to declare in Ng's case that he should not be extradited to face a possible death by asphyxiation in a gas chamber in California. 58 \fPublic Opinion [87] The Attorney General argued that what is cruel, inhuman or degrading depends to a large extent upon contemporary attitudes within society, and that South African society does not regard the death sentence for extreme cases of murder as a cruel, inhuman or degrading form of punishment. It was disputed whether public opinion, properly informed of the different considerations, would in fact favour the death penalty. I am, however, prepared to assume that it does and that the majority of South Africans agree that the death sentence should be imposed in extreme cases of murder. The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence. [88] Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected. [89] This Court cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution by making choices on the basis that they will find favour 59 \fwith the public.110 Justice Powell's comment in his dissent in Furman v Georgia bears repetition: ...the weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess amorphous ebb and flow of public opinion generally on this volatile issue, this type of inquiry lies at the periphery - not the core - of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, and not a judicial, function.111 So too does the comment of Justice Jackson in West Virginia State Board of Education v Barnette: 110 \"The cruel or unusual punishment clause of the California Constitution, like other provisions of the Declaration of Rights, operates to restrain legislative and executive action and to protect fundamental individual and minority rights against encroachment by the majority. It is the function of the court to examine legislative acts in the light of such constitutional mandates to ensure that the promise of the Declaration of Rights is a reality to the individual (citations omitted)...Were it otherwise, the Legislature would ever be the sole judge of the permissible means and extent of punishment and article I, section 6, of the Constitution would be superfluous.\" People v. Anderson, supra note 62, at 888. This was also the approach of the President of the Hungarian Constitutional Court in his concurring opinion on the constitutionality of capital punishment, where he said: \"The Constitutional Court is not bound either by the will of the majority or by public sentiments.\" Supra note 55, at 12. See also, Gregg v. Georgia, supra note 60, at 880. In the decisive judgment of the Court, Justices Stewart, Powell and Stevens, accepted that \"...the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment.\" (citation omitted) 111 Supra note 34, at 443. 60 \fThe very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.112 Cruel, Inhuman and Degrading Punishment [90] The United Nations Committee on Human Rights has held that the death sentence by definition is cruel and degrading punishment. So has the Hungarian Constitutional Court, and three judges of the Canadian Supreme Court. The death sentence has also been held to be cruel or unusual punishment and thus unconstitutional under the state constitutions of Massachusetts and California.113 112 319 U.S. 624, 638 (1943). 113 The Californian Constitution was subsequently amended to sanction capital punishment. 61 \f[91] The California decision is People v. Anderson.114 Capital punishment was held by six of the seven judges of the Californian Supreme Court to be \"impermissibly cruel\"115 under the California Constitution which prohibited cruel or unusual punishment. Also, [92] It degrades and dehumanizes all who participate in its processes. It is unnecessary to any legitimate goal of the state and is incompatible with the dignity of man and the judicial process.116 In the Massachusetts decision in District Attorney for the Suffolk District v. Watson,117 where the Constitution of the State of Massachusetts prohibited cruel or unusual punishment, the death sentence was also held, by six of the seven judges, to be impermissibly cruel.118 114 Supra note 62. 115 Id. at 899. The cruelty lay \"...not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to the execution during which the judicial and administrative procedures essential to due process of law are carried out.\" Id. at 894 (citations omitted). 116 Id. at 899. 117 381 Mass. 648 (1980). 118 \"...[T]he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror.\" Id. at 664. \"All murderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are inescapably capricious when applied to murders and murderers.\" Id. at 665. \"...[A]rbitrariness and 62 \f [93] In both cases the disjunctive effect of \"or\" was referred to as enabling the Courts to declare capital punishment unconstitutional even if it was not \"unusual\". Under our Constitution it will not meet the requirements of section 11(2) if it is cruel, or inhuman, or degrading. discrimination...inevitably persist even under a statute which meets the demands of Furman.\" Id. at 670. \"...[T]he supreme punishment of death, inflicted as it is by chance and caprice, may not stand.\" Id. at 671. \"The death sentence itself is a declaration that society deems the prisoner a nullity, less than human and unworthy to live. But that negation of his personality carries through the entire period between sentence and execution.\" Id. at 683 (Liacos, J., concurring). 63 \f[94] Proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading.119 No Court would today uphold the constitutionality of a statute that makes the death sentence a competent sentence for the cutting down of trees or the killing of deer, which were capital offences in England in the 18th Century.120 But murder is not to be equated with such \"offences.\" The wilful taking of an innocent life calls for a severe penalty, and there are many countries which still retain the death penalty as a sentencing option for such cases. Disparity between the crime and the penalty is not the only ingredient of proportionality; factors such as the enormity and irredeemable character of the death sentence in circumstances where neither error nor arbitrariness can be excluded, the expense and difficulty of addressing the disparities which exist in practice between accused persons facing similar charges, and which are due to factors such as race, poverty, and ignorance, and the other subjective factors which have been mentioned, are also factors that can and should be taken into account in dealing with this issue. It may possibly be that none alone would be sufficient under our Constitution to justify a finding that the death sentence is cruel, inhuman or degrading. But these factors are not to be evaluated in isolation. They must be taken together, and in order to decide whether the threshold set by section 11(2) has been crossed121 they must be evaluated with other relevant factors, including the two fundamental rights on which the accused rely, the right to dignity and the right to life. 119 E.g., Coker v. Georgia, 433 U.S. 782 (1977)(imposition of the death penalty for rape violates due process guarantees because the sentence is grossly disproportionate punishment for a nonlethal offence). See also, Gregg v. Georgia, supra note 60, at 187 (\"[W]e must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed.\"), and Furman v. Georgia, supra note 34, at 273 (\"...a punishment may be degrading simply by reason of its enormity.\"). 120 The Black Act: 9 George I. C.22, as cited in E.P. THOMPSON, WHIGS AND HUNTERS, THE ORIGIN OF THE BLACK ACT 211 (Pantheon). The author notes that these provisions were described by Lord Chief Justice Hardwicke as \"necessary for the present state and condition of things and to suppress mischiefs, which were growing frequent among us.\" 121 This was the approach of Brennan, J., in Furman v. Georgia, supra note 34, at 282 (\"The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society [a determination he makes based on the infrequency of use in relation to the number of offences for which such punishment may apply], and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the [clause prohibiting cruel and unusual punishment].\"). 64 \f[95] The carrying out of the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable. Taking these factors into account, as well as the assumption that I have made in regard to public opinion in South Africa, and giving the words of section 11(2) the broader meaning to which they are entitled at this stage of the enquiry, rather than a narrow meaning,122 I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment. Is capital punishment for murder justifiable? [96] The question that now has to be considered is whether the imposition of such punishment is nonetheless justifiable as a penalty for murder in the circumstances contemplated by sections 277(1)(a), 316A and 322(2A) of the Criminal Procedure Act. 122 S v Zuma and Two Others, supra note 6, para. 21. 65 \f[97] [98] It is difficult to conceive of any circumstances in which torture, which is specifically prohibited under section 11(2), could ever be justified. But that does not necessarily apply to capital punishment. Capital punishment, unlike torture, has not been absolutely prohibited by public international law. It is therefore not inappropriate to consider whether the death penalty is justifiable under our Constitution as a penalty for murder. This calls for an enquiry similar to that undertaken by Brennan J in Furman's case123 in dealing with the contention that \"death is a necessary punishment because it prevents the commission of capital crimes more effectively than any less severe punishment.\"124 The same question is addressed and answered in the negative in the judgment of Wright CJ in People v Anderson.125 Under the United States Constitution and the Californian Constitution, which have no limitation clauses, this enquiry had to be conducted within the larger question of the definition of the right. With us, however, the question has to be dealt with under section 33(1). Section 33(1) of the Constitution provides, in part, that: The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation- (a) shall be permissible only to the extent that it is- (i) (ii) reasonable; and justifiable in an open and democratic society based on freedom and equality; and 123 Furman v. Georgia, supra note 34, at 300. Brennan, J., was dealing here with the proposition that \"an unusually severe and degrading punishment may not be excessive in view of the purposes for which it is inflicted.\" 124 Id. 125 \"The People concede that capital punishment is cruel to the individual involved. They argue, however, that only \"unnecessary\" cruelty is constitutionally proscribed, and that if a cruel punishment can be justified it is not forbidden by article I, section 6, of the California Constitution.\" Supra note 62, at 895. 66 \f (b) shall not negate the essential content of the right in question. [99] Section 33(1)(b) goes on to provide that the limitation of certain rights, including the rights referred to in section 10 and section 11 \"shall, in addition to being reasonable as required in paragraph (a)(I), also be necessary.\" The Two-Stage Approach", "Our Constitution deals with the limitation of rights through a general limitations clause. As was pointed out by Kentridge AJ in Zuma's case,126 this calls for a \"two-stage\" approach, in which a broad rather than a narrow interpretation is given to the fundamental rights enshrined in Chapter Three, and limitations have to be justified through the application of section 33. In this it differs from the Constitution of the United States, which does not contain a limitation clause, as a result of which courts in that country have been obliged to find limits to constitutional rights through a narrow interpretation of the rights themselves. Although the \"two-stage\" approach may often produce the same result as the \"one-stage\" approach,127 this will not always be the case. [101] The practical consequences of this difference in approach are evident in the present case. In Gregg v. Georgia, the conclusion reached in the judgment of the plurality was summed up as follows: 126 S v Zuma and Two Others, supra note 6. 127 Attorney-General of Hong Kong v Lee Kwong-Kut, (1993) AC 951 at 970-972 (PC). 67 \fIn sum, we cannot say that the judgment of the Georgia legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular state the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification, and is thus not unconstitutionally severe.128 [102] Under our Constitution, the position is different. It is not whether the decision of the State has been shown to be clearly wrong; it is whether the decision of the State is justifiable according to the criteria prescribed by section 33. It is not whether the infliction of death as a punishment for murder \"is not without justification\", it is whether the infliction of death as a punishment for murder has been shown to be both reasonable and necessary, and to be consistent with the other requirements of section 33. It is for the legislature, or the party relying on the legislation, to establish this justification, and not for the party challenging it to show that it was not justified.129 The Application of Section 33 [103] The criteria prescribed by section 33(1) for any limitation of the rights contained in section 11(2) are that the limitation must be justifiable in an open and democratic society based on freedom and equality, it must be both reasonable and necessary and it must not negate the essential content of the right. 128 Supra note 60, at 186-187. 129 S v Zuma and Two Others, supra note 6. 68 \f[104] The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality.130 This is implicit in the provisions of section 33(1). The fact that different rights have different implications for democracy, and in the case of our Constitution, for \"an open and democratic society based on freedom and equality\", means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question. In the process regard must be had to the provisions of section 33(1), and the underlying values of the Constitution, bearing in mind that, as a Canadian Judge has said, \"the role of the Court is not to second-guess the wisdom of policy choices made by legislators.\"131 Limitation of Rights in Canada 130 A proportionality test is applied to the limitation of fundamental rights by the Canadian courts, the German Federal Constitutional Court and the European Court of Human Rights. Although the approach of these Courts to proportionality is not identical, all recognise that proportionality is an essential requirement of any legitimate limitation of an entrenched right. Proportionality is also inherent in the different levels of scrutiny applied by United States courts to governmental action. 131 Reference re ss. 193 and 195(1)(c) of the Criminal Code of Manitoba, infra note 135. 69 \f[105] In dealing with this aspect of the case, Mr Trengove placed considerable reliance on the decision of the Canadian Supreme Court in R v Oakes.132 The Canadian Charter of Rights, as our Constitution does, makes provision for the limitation of rights through a general clause. Section 1 of the Charter permits such reasonable limitations of Charter rights \"as can be demonstrably justified in a free and democratic society.\" In Oakes' case it was held that in order to meet this requirement a limitation of a Charter right had to be directed to the achievement of an objective of sufficient importance to warrant the limitation of the right in question, and that there had also to be proportionality between the limitation and such objective. In a frequently-cited passage, Dickson CJC described the components of proportionality as follows: There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair \"as little as possible\" the right or freedom in question: R v Big M Drug Mart Ltd. at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of \"sufficient importance\".133", "Although there is a rational connection between capital punishment and the purpose for which it is prescribed, the elements of arbitrariness, unfairness and irrationality in the imposition of the penalty, are factors that would have to be taken into account in the application of the first component of this test. As far as the second component is concerned, the fact that a severe punishment in the form of life imprisonment is available as an alternative sentence, would be relevant to the question whether the death sentence impairs the right as little as possible. And as I will show later, if all relevant considerations are taken into account, it is at least doubtful whether a 132 (1986) 19 CRR 308. 133 Id. at 337. 70 \fsentence of capital punishment for murder would satisfy the third component of the Oakes test. [107] The second requirement of the Oakes test, that the limitation should impair the right \"as little as possible\" raises a fundamental problem of judicial review. Can, and should, an unelected court substitute its own opinion of what is reasonable or necessary for that of an elected legislature? Since the judgment in R v Oakes, the Canadian Supreme Court has shown that it is sensitive to this tension, which is particularly acute where choices have to be made in respect of matters of policy. In Irwin Toy Ltd v Quebec (Attorney General),134 Dickson CJ cautioned that courts, \"must be mindful of the legislature's representative function.\" In Reference re ss. 193 and 195 (1)(c) of the Criminal Code (Manitoba),135 it was said that \"the role of the Court is not to second- guess the wisdom of policy choices made by ...legislators\"; and in R v Chaulk, that the means must impair the right \"as little as is reasonably possible\".136 Where choices have to be made between \"differing reasonable policy options\", the courts will allow the government the deference due to legislators, but \"[will] not give them an unrestricted licence to disregard an individual's Charter Rights. Where the government cannot show that it had a reasonable basis for concluding that it has complied with the requirement of minimal impairment in seeking to attain its objectives, the legislation will be struck down.\"137 Limitation of Rights in Germany 134 (1989) 39 CRR 193 at 248. 135 (1990) 48 CRR 1 at 62. 136 (1991) 1 CRR (2d) 1 at 30. 137 Per La Forest J in Tetreault-Gadoury v Canada (Employment and Immigration Commission) (1991), 4 CRR(2d) 12 at 26. See also, Rodriquez v British Columbia (AG) (1994) 17 CRR(2d) 192 at 222 and 247. 71 \f [108] The German Constitution does not contain a general limitations clause but permits certain basic rights to be limited by law. According to Professor Grimm,138 the Federal Constitutional Court allows such limitation \"only in order to make conflicting rights compatible or to protect the rights of other persons or important community interests...any restriction of human rights not only needs constitutionally valid reasons but also has to be proportional to the rank and importance of the right at stake.\" Proportionality is central to the process followed by the Federal Constitutional Court in its adjudication upon the limitation of rights. The Court has regard to the purpose of the limiting legislation, whether the legislation is suitable for the achievement of such purpose, which brings into consideration whether it in fact achieves that purpose, is necessary therefor, and whether a proper balance has been achieved between the purpose enhanced by the limitation, and the fundamental right that has been limited.139 The German Constitution also has a provision similar to section 33(1)(b) of our Constitution, but the Court apparently avoids making use of this provision,140 preferring to deal with extreme limitations of rights through the 138 Dieter Grimm, Human Rights and Judicial Review in Germany, in HUMAN RIGHTS AND JUDICIAL REVIEW: A COMPARATIVE PERSPECTIVE 267, 275 (David H. Beatty, ed., Martinus Nijhoff publ.)(1994). Prof. Grimm is presently a member of the German Federal Constitutional Court. 139 Id. For a discussion of the application of the principle of proportionality in German Constitutional jurisprudence, see CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 18-20, 307-310 (Univ. of Chicago Press)(1994). Prof. Currie outlines the genesis of proportionality, intimated in the Magna Carta and generally described by Blackstone, and notes that it was further developed by Carl Gottleib Svarez, a celebrated thinker of the German Enlightenment. \"Svarez insisted on proportionality both between ends and means and between costs and benefits; both aspects of the principle are reflected in the jurisprudence of the Constitutional Court.\" Currie at 307. 140 Currie, id., at 178, note 15 and accompanying text. See also infra note 161. 72 \fproportionality test. Limitation of Rights Under the European Convention [109] The European Convention also has no general limitations clause, but makes certain rights subject to limitation according to specified criteria. The proportionality test of the European Court of Human Rights calls for a balancing of ends and means. The end must be a \"pressing social need\" and the means used must be proportionate to the attainment of such an end. The limitation of certain rights is conditioned upon the limitation being \"necessary in a democratic society\" for purposes defined in the relevant provisions of the Convention. The national authorities are allowed a discretion by the European Court of Human Rights in regard to what is necessary - a margin of appreciation - but not unlimited power. The \"margin of appreciation\" that is allowed varies depending upon the nature of the right and the nature and ambit of the restriction. A balance has to be achieved between the general interest, and the interest of the individual.141 Where the limitation is to a right fundamental to democratic society, a higher standard of justification is required;142 so too, where a law interferes with the \"intimate aspects of private life.\"143 On the other hand, in areas such as morals or social policy greater scope is allowed to the national authorities.144 The jurisprudence of the European Court of Human Rights provides some guidance as to what may be considered necessary in a democratic society, but the margin of appreciation allowed to national authorities by the European Court must be understood as finding its place in an international agreement which has to accommodate the sovereignty of the member states. It is not necessarily a safe guide as to what would be appropriate under section 33 of our Constitution. 141 R v France (1993) 16 EHRR 1, para. 63. 142 Handyside v United Kingdom (1979-80) 1 EHRR 737, para. 49. 143 Dudgeon v United Kingdom (1981) 4 EHRR 149, para. 52; Norris v Ireland (1988) 13 EHRR 186, para. 46; Modinos v Cyprus (1993) 16 EHRR 485. 144 \"...[T]he margin of appreciation available to the legislature in implementing social and economic policies should be a wide one...\" James v United Kingdom (1986) 8 EHRR 123, para. 46. See also, Lithgow v United Kingdom (1986) 8 EHRR 329, para. 122. 73 \f Is Capital Punishment for Murder Justifiable under the South African Constitution? [110] In Zuma's case, Kentridge AJ pointed out that the criteria developed by the Canadian Courts for the interpretation of section 1 of the Canadian Charter of Rights may be of assistance to our Courts, but that there are differences between our Constitution and the Canadian Charter which have a bearing on the way in which section 33 should be dealt with. This is equally true of the criteria developed by other courts, such as the German Constitutional Court and the European Court of Human Rights. Like Kentridge AJ, \"I see no reason in this case... to attempt to fit our analysis into the Canadian pattern,\"145 or for that matter to fit it into the pattern followed by any of the other courts to which reference has been made. Section 33 prescribes in specific terms the criteria to be applied for the limitation of different categories of rights and it is in the light of these criteria that the death sentence for murder has to be justified. [111] \"Every person\" is entitled to claim the protection of the rights enshrined in Chapter Three, and \"no\" person shall be denied the protection that they offer. Respect for life and dignity which are at the heart of section 11(2) are values of the highest order under our Constitution. The carrying out of the death penalty would destroy these and all other rights that the convicted person has, and a clear and convincing case must be made out to justify such action. 145 S v Zuma and Two Others, supra note 122, para. 35. 74 \f[112] The Attorney General contended that the imposition of the death penalty for murder in the most serious cases could be justified according to the prescribed criteria. The argument went as follows. The death sentence meets the sentencing requirements for extreme cases of murder more effectively than any other sentence can do. It has a greater deterrent effect than life imprisonment; it ensures that the worst murderers will not endanger the lives of prisoners and warders who would be at risk if the \"worst of the murderers\" were to be imprisoned and not executed; and it also meets the need for retribution which is demanded by society as a response to the high level of crime. In the circumstances presently prevailing in the country, it is therefore a necessary component of the criminal justice system. This, he said, is recognised by the Appellate Division, which only confirms a death sentence if it is convinced that no other sentence would be a proper sentence.146 The Judgements of the Appellate Division [113] The decisions of the Appellate Division to which the Attorney General referred are only of limited relevance to the questions that have to be decided in the present case. The law which the Appellate Division has applied prescribes that the death sentence is a competent sentence for murder in a proper case. The Appellate Division has reserved this sentence for extreme cases in which the maximum punishment would be the appropriate punishment. Were it to have done otherwise, and to have refused to pass death sentences, it would in effect have been saying that the death sentence is never a proper sentence, and that section 277(1)(a) should not be enforced. This was not within its competence. The criteria set by the Appellate Division for the passing of a death sentence for murder are relevant to the argument on arbitrariness, and also provide a basis for testing the justifiability of such a penalty. They do not, however, do more than that. The Judgement of the Tanzanian Court of Appeal 146 S v Senonohi, supra note 76, at 734F-G. 75 \f[114] There is support for part of the Attorney General's argument in the judgment of the Tanzanian Court of Appeal in Mbushuu and Another v The Republic.147 It was held in this case that the death sentence amounted to cruel and degrading punishment, which is prohibited under the Tanzanian Constitution, but that despite this finding, it was not unconstitutional. The Constitution authorised derogations to be made from basic rights for legitimate purposes, and a derogation was lawful if it was not arbitrary, and was reasonably necessary for such purpose. The legitimate purposes to which the death sentence was directed was a constitutional requirement that \"everyone's right to life shall be protected by law.\" The death sentence was a mandatory penalty for murder, but it was not considered by the Court to be arbitrary because decisions as to guilt or innocence are taken by judges. There was no proof one way or the other that the death sentence was necessarily a more effective punishment than a long period of imprisonment. In the view of the Court, however, it was for society and not the courts to decide whether the death sentence was a necessary punishment. The Court was satisfied that society favoured the death sentence, and that in the circumstances \"the reasonable and necessary\" standard had been met. Accordingly, it held that the death sentence was a lawful derogation from the prohibition of cruel and degrading punishment, and thus valid. 147 Criminal Appeal No. 142 of 1994; 30 January 1995. 76 \f[115] The approach of the Tanzanian Court of Appeal to issues concerning the limitation of basic rights seems to have been influenced by the language of the Tanzanian Constitution,148 and rules of interpretation developed by the Courts to deal with that language. The relevant provisions of our Constitution are different and the correct approach to the interpretation of the limitations clause must be found in the language of section 33 construed in the context of the Constitution as a whole. It is for the Court, and not society or Parliament, to decide whether the death sentence is justifiable under the provisions of section 33 of our Constitution.149 In doing so we can have regard to societal attitudes in evaluating whether the legislation is reasonable and necessary, but ultimately the decision must be ours. If the decision of the Tanzanian Court of Appeal is inconsistent with this conclusion, I must express my disagreement with it. Deterrence [116] The Attorney General attached considerable weight to the need for a deterrent to violent crime. He argued that the countries which had abolished the death penalty were on the whole developed and peaceful countries in which other penalties might be sufficient deterrents. We had not reached that stage of development, he said. If in years to come we did so, we could do away with the death penalty. Parliament could decide when that time has come. At present, however, so the argument went, the death sentence is an indispensable weapon if we are serious about combatting violent crime. 148 Id., wherein Ramadhani JA., highlights with respect to the Republic of Tanzania Constitution, that article 30(2) provides that laws, and actions taken in accordance with such laws, shall not be invalidated under the Constitution if such laws (or actions) make provision, inter alia, for \"ensuring that the rights and freedom of other or the public interest are not prejudiced by the misuse of the individual rights and freedom.\" Id. at p. 23. The judgment refers to \"derogations\" and not to \"limitations\". 149 See discussion on public opinion supra paras. 87 to 89. 77 \f[117] The need for a strong deterrent to violent crime is an end the validity of which is not open to question. The state is clearly entitled, indeed obliged, to take action to protect human life against violation by others. In all societies there are laws which regulate the behaviour of people and which authorise the imposition of civil or criminal sanctions on those who act unlawfully. This is necessary for the preservation and protection of society. Without law, society cannot exist. Without law, individuals in society have no rights. The level of violent crime in our country has reached alarming proportions. It poses a threat to the transition to democracy, and the creation of development opportunities for all, which are primary goals of the Constitution. The high level of violent crime is a matter of common knowledge and is amply borne out by the statistics provided by the Commissioner of Police in his amicus brief. The power of the State to impose sanctions on those who break the law cannot be doubted. It is of fundamental importance to the future of our country that respect for the law should be restored, and that dangerous criminals should be apprehended and dealt with firmly. Nothing in this judgment should be understood as detracting in any way from that proposition. But the question is not whether criminals should go free and be allowed to escape the consequences of their anti-social behaviour. Clearly they should not; and equally clearly those who engage in violent crime should be met with the full rigour of the law. The question is whether the death sentence for murder can legitimately be made part of that law. And this depends on whether it meets the criteria prescribed by section 33(1). [118] The Attorney General pointed to the substantial increase in the incidence of violent crime over the past five years during which the death sentence has not been enforced. He contended that this supported his argument that imprisonment is not a sufficient deterrent, and that we have not yet reached the stage of development where we can do without the death sentence. Throughout this period, however, the death sentence remained a lawful punishment, and was in fact imposed by the courts although the sentences were not carried out.150 The moratorium was only announced formally on 150 S v W 1993(2) SACR 74, at 76H-I. 78 7 March 1992.151 A decision could have been taken at any time to terminate the moratorium on executions, and none of the criminals had any assurance that the moratorium would still be in place if they were to be caught, brought to trial, convicted and sentenced to death. 151 In the Statement of Minister of Justice dated 27 March 1992, supra note 31, para. 22. 79 \f[119] The cause of the high incidence of violent crime cannot simply be attributed to the failure to carry out the death sentences imposed by the courts. The upsurge in violent crime came at a time of great social change associated with political turmoil and conflict, particularly during the period 1990 to 1994. It is facile to attribute the increase in violent crime during this period to the moratorium on executions.152 It was a progression that started before the moratorium was announced. There are many factors that have to be taken into account in looking for the cause of this phenomenon. It is a matter of common knowledge that the political conflict during this period, particularly in Natal and the Witwatersrand, resulted in violence and destruction of a kind not previously experienced. No-go areas, random killings on trains, attacks and counter attacks upon political opponents, created a violent and unstable environment, manipulated by political dissidents and criminal elements alike. [120] Homelessness, unemployment, poverty and the frustration consequent upon such conditions are other causes of the crime wave. And there is also the important factor that the police and prosecuting authorities have been unable to cope with this. The statistics presented in the police amicus brief show that most violent crime is not solved, and the Attorney General confirmed that the risk of a criminal being apprehended and convicted for such offences is somewhere between 30 and 40 per cent. Throughout the period referred to by the Attorney General the death sentence remained on the statute book and was imposed on convicted murderers when the Courts considered it appropriate to do so. [121] We would be deluding ourselves if we were to believe that the execution of the few persons sentenced to death during this period, and of a comparatively few other people each year from now onwards will provide the solution to the unacceptably high rate of crime. There will always be unstable, desperate, and pathological people for whom 152 Indeed, such a hypothesis is not born out by the statistics analysed by Justice Didcott in his concurring opinion at para 182. 80 \fthe risk of arrest and imprisonment provides no deterrent, but there is nothing to show that a decision to carry out the death sentence would have any impact on the behaviour of such people, or that there will be more of them if imprisonment is the only sanction. No information was placed before us by the Attorney General in regard to the rising crime rate other than the bare statistics, and they alone prove nothing, other than that we are living in a violent society in which most crime goes unpunished - something that we all know. [122] The greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished. It is that which is presently lacking in our criminal justice system; and it is at this level and through addressing the causes of crime that the State must seek to combat lawlessness. [123] In the debate as to the deterrent effect of the death sentence, the issue is sometimes dealt with as if the choice to be made is between the death sentence and the murder going unpunished. That is of course not so. The choice to be made is between putting the criminal to death and subjecting the criminal to the severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment.153 Both are deterrents, and the question is whether the possibility of being sentenced to death, rather than being sentenced to life imprisonment, has a marginally greater deterrent effect, and whether the Constitution sanctions the limitation of rights affected thereby. 153 Since 1991, section 64 of the Correctional Service Act 8 of 1959 has provided that a person sentenced to life imprisonment may only be released from prison in the following circumstances: (a) the advisory release board \"with due regard to the interest of society\", recommends that the prisoner be released and (b) the Minister of Correctional Services accepts that recommendation and authorizes the release of the prisoner. This means that the Minister of Correctional Services must accept responsibility for the release of the prisoner, and can only do so if the advisory release board is in favour of the prisoner being released. 81 \f[124] In the course of his argument the Attorney General contended that if sentences imposed by the Courts on convicted criminals are too lenient, the law will be brought into disrepute, and members of society will then take the law into their own hands. Law is brought into disrepute if the justice system is ineffective and criminals are not punished. But if the justice system is effective and criminals are apprehended, brought to trial and in serious cases subjected to severe sentences, the law will not fall into disrepute. We have made the commitment to \"a future founded on the recognition of human rights, democracy and peaceful co-existence...for all South Africans.\"154 Respect for life and dignity lies at the heart of that commitment. One of the reasons for the prohibition of capital punishment is \"that allowing the State to kill will cheapen the value of human life and thus [through not doing so] the State will serve in a sense as a role model for individuals in society.\"155 Our country needs such role models. [125] The Attorney General also contended that if even one innocent life should be saved by the execution of perpetrators of vile murders, this would provide sufficient justification for the death penalty.156 The hypothesis that innocent lives might be saved must be weighed against the values underlying the Constitution, and the ability of the State to serve \"as a role model\". In the long run more lives may be saved through the inculcation of a rights culture, than through the execution of murderers. [126] The death sentence has been reserved for the most extreme cases, and the overwhelming majority of convicted murderers are not and, since extenuating circumstances became a relevant factor sixty years ago, have not been sentenced to death in South Africa. I 154 This statement is taken from the provision on National Reconciliation. 155 Sopinka J (La Forest, Gonthier, Iacobucci and Major JJ, concurring) in Rodriquez v British Columbia (1994) 17 CRR(2d) 193 at 218. 156 This proposition is advanced in greater detail by J Price, (1995) \"De Rebus\" 89. 82 \freferred earlier to the figures provided by the Attorney General which show that between the amendment of the Criminal Procedure Act in 1990, and January 1995, which is the date of his written argument in the present case, 243 death sentences were imposed, of which 143 were confirmed by the Appellate Division. Yet, according to statistics placed before us by the Commissioner of Police and the Attorney General, there were on average approximately 20 000 murders committed, and 9 000 murder cases brought to trial, each year during this period. Would the carrying out of the death sentence on these 143 persons have deterred the other murderers or saved any lives? [127] It was accepted by the Attorney General that this is a much disputed issue in the literature on the death sentence. He contended that it is common sense that the most feared penalty will provide the greatest deterrent, but accepted that there is no proof that the death sentence is in fact a greater deterrent than life imprisonment for a long period. It is, he said, a proposition that is not capable of proof, because one never knows about those who have been deterred; we know only about those who have not been deterred, and who have committed terrible crimes. This is no doubt true, and the fact that there is no proof that the death sentence is a greater deterrent than imprisonment does not necessarily mean that the requirements of section 33 cannot be met. It is, however, a major obstacle in the way of the Attorney General's argument, for he has to satisfy us that the penalty is reasonable and necessary, and the doubt which exists in regard to the deterrent effect of the sentence must weigh heavily against his argument. \"A punishment as extreme and as irrevocable as death cannot be predicated upon speculation as to what the deterrent effect might be...\"157 I should add that this obstacle would not be removed by the implementation of a suggestion in one of the amicus briefs, that section 277(1) of the Criminal Procedure Act should be made more specific, and should identify the extreme categories of murder for which the death sentence would be a permissible punishment. Prevention 157 Wright, CJ., in People v. Anderson, supra note 62, at 897. 83 \f [128] Prevention is another object of punishment. The death sentence ensures that the criminal will never again commit murders, but it is not the only way of doing so, and life imprisonment also serves this purpose. Although there are cases of gaol murders, imprisonment is regarded as sufficient for the purpose of prevention in the overwhelming number of cases in which there are murder convictions, and there is nothing to suggest that it is necessary for this purpose in the few cases in which death sentences are imposed. Retribution [129] Retribution is one of the objects of punishment, but it carries less weight than deterrence.158 The righteous anger of family and friends of the murder victim, reinforced by the public abhorrence of vile crimes, is easily translated into a call for vengeance. But capital punishment is not the only way that society has of expressing its moral outrage at the crime that has been committed. We have long outgrown the literal application of the biblical injunction of \"an eye for an eye, and a tooth for a tooth\". Punishment must to some extent be commensurate with the offence, but there is no requirement that it be equivalent or identical to it. The state does not put out the eyes of a person who has blinded another in a vicious assault, nor does it punish a rapist, by castrating him and submitting him to the utmost humiliation in gaol. The state does not need to engage in the cold and calculated killing of murderers in order to express moral outrage at their conduct. A very long prison sentence is also a way of expressing outrage and visiting retribution upon the criminal. [130] Retribution ought not to be given undue weight in the balancing process. The Constitution is premised on the assumption that ours will be a constitutional state founded on the recognition of human rights.159 The concluding provision on National Unity and 158 S v P 1991 (1) SA 517 (A) at 523D-F. See also supra note 74. 159 The Preamble to the Constitution records that the new order will be a \"constitutional state in which...all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.\" The commitment to recognition of human rights is reaffirmed in the concluding provision on National Unity and Reconciliation. 84 \f Reconciliation contains the following commitment: The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. (Emphasis supplied) [131] Although this commitment has its primary application in the field of political reconciliation, it is not without relevance to the enquiry we are called upon to undertake in the present case. To be consistent with the value of ubuntu ours should be a society that \"wishes to prevent crime...[not] to kill criminals simply to get even with them.\"160 The Essential Content of the Right 160 Brennan, J., in Furman v. Georgia, supra note 34, at 305. 85 \f[132] Section 33(1)(b) provides that a limitation shall not negate the essential content of the right. There is uncertainty in the literature concerning the meaning of this provision. It seems to have entered constitutional law through the provisions of the German Constitution, and in addition to the South African constitution, appears, though not precisely in the same form, in the constitutions of Namibia, Hungary, and possibly other countries as well. The difficulty of interpretation arises from the uncertainty as to what the \"essential content\" of a right is, and how it is to be determined. Should this be determined subjectively from the point of view of the individual affected by the invasion of the right, or objectively, from the point of view of the nature of the right and its place in the constitutional order, or possibly in some other way? Professor Currie draws attention to the large number of theories which have been propounded by German scholars as to the how the \"essence\" of a right should be discerned and how the constitutional provision should be applied.161 The German Federal Constitutional Court has apparently avoided to a large extent having to deal with this issue by subsuming the enquiry into the proportionality test that it applies and the precise scope and meaning of the provision is controversial.162 [133] If the essential content of the right not to be subjected to cruel, inhuman or degrading punishment is to be found in respect for life and dignity, the death sentence for murder, if viewed subjectively from the point of view of the convicted prisoner, clearly negates the essential content of the right. But if it is viewed objectively from 161 Currie, supra note 139, refers to an analysis of the 'remarkable variety of views' on the meaning of 'essence'. Id. at 178 (citing 2 Maunz/Durig, Art. 19, Abs. II, Rdnr. 16). 162 Grimm, supra note 138, at page 276 states, \"operating at an earlier stage than the essential content limit in Article 19(2), the proportionality principle has rendered the former almost insignificant.\" Currie, supra note 139, notes that the German Federal Constitutional Court has remarked in at least one case that dealt with the 'essential content' question that the Court \"state[d] an alternative ground that, because of its greater stringency [the proportionality test], has made it unnecessary in most cases to inquire whether a restriction invades the 'essential content' of a basic right.\" Currie, supra note 139, at 306-307 (citing 22 BVerfGE 180, 220 (1967)). 86 \fthe point of view of a constitutional norm that requires life and dignity to be protected, the punishment does not necessarily negate the essential content of the right. It has been argued before this Court that one of the purposes of such punishment is to protect the life and hence the dignity of innocent members of the public, and if it in fact does so, the punishment will not negate the constitutional norm. On this analysis it would, however, have to be shown that the punishment serves its intended purpose. This would involve a consideration of the deterrent and preventative effects of the punishment and whether they add anything to the alternative of life imprisonment. If they do not, they cannot be said to serve a life protecting purpose. If the negation is viewed both objectively and subjectively, the ostensible purpose of the punishment would have to be weighed against the destruction of the individual's life. For the purpose of that analysis the element of retribution would have to be excluded and the \"life saving\" quality of the punishment would have to be established. [134] It is, however, not necessary to solve this problem in the present case. At the very least the provision evinces concern that, under the guise of limitation, rights should not be taken away altogether. It was presumably the same concern that influenced Dickson CJC to say in R v Oakes that rights should be limited \"as little as possible\",163 and the German Constitutional Court to hold in the life imprisonment case that all possibility of parole ought not to be excluded.164 The Balancing Process [135] In the balancing process, deterrence, prevention and retribution must be weighed against the alternative punishments available to the state, and the factors which taken together make capital punishment cruel, inhuman and degrading: the destruction of life, the 163 R v Oakes, supra note 132, at 337 (citing R v Big M Drug Mart Ltd., supra, at 352). 164 See Kommers supra note 18. 87 \fannihilation of dignity, the elements of arbitrariness, inequality and the possibility of error in the enforcement of the penalty. [136] The Attorney General argued that the right to life and the right to human dignity were not absolute concepts. Like all rights they have their limits. One of those limits is that a person who murders in circumstances where the death penalty is permitted by section 277, forfeits his or her right to claim protection of life and dignity. He sought to support this argument by reference to the principles of self-defence. If the law recognises the right to take the life of a wrongdoer in a situation in which self- defence is justified, then, in order to deter others, and to ensure that the wrongdoer does not again kill an innocent person, why should it not recognise the power of the state to take the life of a convicted murderer? Conversely, if the death sentence negates the essential content of the right to life, how can the taking of the life of another person in self-defence, or even to protect the State itself during war or rebellion, ever be justified. [137] This argument is fallacious. The rights vested in every person by Chapter Three of the Constitution are subject to limitation under section 33. In times of emergency, some may be suspended in accordance with the provisions of section 34 of the Constitution.165 But subject to this, the rights vest in every person, including criminals convicted of vile crimes. Such criminals do not forfeit their rights under the Constitution and are entitled, as all in our country now are, to assert these rights, including the right to life, the right to dignity and the right not to be subjected to cruel, inhuman or degrading punishment. Whether or not a particular punishment is inconsistent with these rights depends upon an interpretation of the relevant provisions of the Constitution, and not upon a moral judgment that a murderer should not be allowed to claim them. 165 Sections 8(2), 9, 10 and 11(2) are in fact non-derogable rights and in terms of section 34(5)(c) cannot be suspended during an emergency. 88 \f[138] Self-defence is recognised by all legal systems. Where a choice has to be made between the lives of two or more people, the life of the innocent is given preference over the life of the aggressor. This is consistent with section 33(1). To deny the innocent person the right to act in self-defence would deny to that individual his or her right to life. The same is true where lethal force is used against a hostage taker who threatens the life of the hostage. It is permissible to kill the hostage taker to save the life of the innocent hostage. But only if the hostage is in real danger. The law solves problems such as these through the doctrine of proportionality, balancing the rights of the aggressor against the rights of the victim, and favouring the life or lives of innocents over the life or lives of the guilty.166 But there are strict limits to the taking of life, even in the circumstances that have been described, and the law insists upon these limits being adhered to. In any event, there are material respects in which killing in self-defence or necessity differ from the execution of a criminal by the State. Self- defence takes place at the time of the threat to the victim's life, at the moment of the emergency which gave rise to the necessity and, traditionally, under circumstances in which no less-severe alternative is readily available to the potential victim. Killing by the State takes place long after the crime was committed, at a time when there is no emergency and under circumstances which permit the careful consideration of alternative punishment. 166 Self-defence is treated in our law as a species of private defence. It is not necessary for the purposes of this judgement to examine the limits of private defence. Until now, our law has allowed killing in defence of life, but also has allowed killing in defence of property, or other legitimate interest, in circumstances where it is reasonable and necessary to do so. S v Van Wyk 1967 (1) SA 488 (A). Whether this is consistent with the values of our new legal order is not a matter which arises for consideration in the present case. What is material is that the law applies a proportionality test, weighing the interest protected against the interest of the wrongdoer. These interests must now be weighed in the light of the Constitution. 89 \f[139] The examples of war and rebellion are also not true analogies. War and rebellion are special cases which must be dealt with in terms of the legal principles governing such situations. It is implicit in any constitutional order that the State can act to put down rebellion and to protect itself against external aggression. Where it is necessary in the pursuit of such ends to kill in the heat of battle the taking of life is sanctioned under the Constitution by necessary implication, and as such, is permissible in terms of section 4(1).167 But here also there are limits. Thus prisoners of war who have been captured and who are no longer a threat to the State cannot be put to death; nor can lethal force be used against rebels when it is not necessary to do so for the purposes of putting down the rebellion. [140] The case of a police officer shooting at an escaping criminal was also raised in argument. This is permitted under section 49(2) of the Criminal Procedure Act as a last resort if it is not possible to arrest the criminal in the ordinary way. Once again, there are limits. It would not, for instance, be permissible to shoot at point blank range at a criminal who has turned his or her back upon a police officer in order to abscond, when other methods of subduing and arresting the criminal are possible. We are not concerned here with the validity of section 49(2) of the Criminal Procedure Act, and I specifically refrain from expressing any view thereon. Greater restriction on the use of lethal force may be one of the consequences of the establishment of a constitutional state which respects every person's right to life. Shooting at a fleeing criminal in the heat of the moment, is not necessarily to be equated with the execution of a captured criminal. But, if one of the consequences of this judgment might be to 167 \"The inherent right of the State to assume extraordinary powers and to use all means at its disposal in order to defend itself when its existence is at stake is recognized by our common law as an exceptional and extreme constitutional tool.\" Per Selikowitz J in End Conscription Campaign v Minister of Defence 1989 (2) SA 180(C) at 199H. Here too it is not necessary to examine the limits of this \"inherent right\", or the limitations (if any) imposed on it by the Constitution. All that need be said is that it is of an entirely different character than the alleged \"right\" of the State to execute murderers, and subject to different considerations. 90 \frender the provisions of section 49(2) unconstitutional, the legislature will have to modify the provisions of the section in order to bring it into line with the Constitution. In any event, the constitutionality of the death sentence for murder does not depend upon whether it is permissible for life to be taken in other circumstances currently sanctioned by law. It depends upon whether it is justifiable as a penalty in terms of section 33 of the Constitution. In deciding this question, the fact that the person sentenced to death is denied his or her right to life is of the greatest importance. [141] The Attorney General argued that all punishment involves an impairment of dignity. Imprisonment, which is the alternative to the death sentence, severely limits a prisoner's fundamental rights and freedoms. There is only the barest freedom of movement or of residence in prison, and other basic rights such as freedom of expression and freedom of assembly are severely curtailed. [142] Dignity is inevitably impaired by imprisonment or any other punishment, and the undoubted power of the state to impose punishment as part of the criminal justice system, necessarily involves the power to encroach upon a prisoner's dignity. But a prisoner does not lose all his or her rights on entering prison. [Prisoners retain] those absolute natural rights relating to personality, to which every man is entitled. True [their] freedom had been greatly impaired by the legal process of imprisonment but they were entitled to demand respect for what remained. The fact that their liberty had been legally curtailed could afford no excuse for a further legal encroachment upon it. [It was] contended that the [prisoners] once in prison could claim only such rights as the Ordinance and the regulations conferred. But the directly opposite view is surely the correct one. They were entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed.168 168 Innes J in Whittaker v Roos and Bateman 1912 AD 92 at 122-123. See also, Goldberg and Others v Minister of Prisons and Others 1979 (1) SA 14 (A) at 39H-40C; Nestor and Others v Minister of Police and Others 1984 (4) SA 230 (SWA) at 250F-251D. 91 \f [143] A prisoner is not stripped naked, bound, gagged and chained to his or her cell. The right of association with other prisoners, the right to exercise, to write and receive letters and the rights of personality referred to by Innes J are of vital importance to prisoners and highly valued by them precisely because they are confined, have only limited contact with the outside world, and are subject to prison discipline. Imprisonment is a severe punishment; but prisoners retain all the rights to which every person is entitled under Chapter Three subject only to limitations imposed by the prison regime that are justifiable under section 33.169 Of these, none are more important than the section 11(2) right not to be subjected to \"torture of any kind...nor to cruel, inhuman or degrading treatment or punishment.\" There is a difference between encroaching upon rights for the purpose of punishment and destroying them altogether. It is that difference with which we are concerned in the present case. Conclusion [144] The rights to life and dignity are the most important of all human rights, and the source of all other personal rights in Chapter Three. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others. And this must be demonstrated by the State in everything that it does, including the way it punishes criminals. This is not achieved by objectifying murderers and putting them to death to serve as an example to others in the expectation that they might possibly be deterred thereby. [145] In the balancing process the principal factors that have to be weighed are on the one hand the destruction of life and dignity that is a consequence of the implementation of the death sentence, the elements of arbitrariness and the possibility of error in the enforcement of capital punishment, and the existence of a severe alternative punishment (life imprisonment) and, on the other, the claim that the death sentence is 169 See also, Woods v Minister of Justice, Legal and Parliamentary Affairs and Others, 1995 BCLR 56(ZSC) at 58F-G; Turner v. Safley, 482 U.S. 78, 84-85 (1987). 92 \fa greater deterrent to murder, and will more effectively prevent its commission, than would a sentence of life imprisonment, and that there is a public demand for retributive justice to be imposed on murderers, which only the death sentence can meet. [146] Retribution cannot be accorded the same weight under our Constitution as the rights to life and dignity, which are the most important of all the rights in Chapter Three. It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out. The requirements of section 33(1) have accordingly not been satisfied, and it follows that the provisions of section 277(1)(a) of the Criminal Procedure Act, 1977 must be held to be inconsistent with section 11(2) of the Constitution. In the circumstances, it is not necessary for me to consider whether the section would also be inconsistent with sections 8, 9 or 10 of the Constitution if they had been dealt with separately and not treated together as giving meaning to section 11(2). Section 241(8) of the Constitution [147] In the present case the trial had been completed but an appeal to the Appellate Division was pending, when the 1993 Constitution came into force. The validity of the trial, and the fact that the death sentences were competent sentences at the time they were imposed, are not in issue. What is in issue before the Appellate Division is whether the death sentences can and should be confirmed. It has postponed its judgment pending the determination of the issues referred to us for our decision. [148] It is not necessary to deal with the provisions of section 241(8) in the present case. The Attorney General correctly conceded that if the death penalty for murder is unconstitutional, it would not be competent to carry out the death sentences that have been imposed on the accused. The prohibition of cruel, inhuman or degrading 93 \fpunishment is applicable to all punishments implemented after the 27th April, and can be invoked to prevent a punishment being carried out even if the punishment was lawful when it was imposed.170 The Order to be made [149] I have dealt in this judgment only with the provisions of section 277(1)(a) of the Criminal Procedure Act, but it is clear that if subsection (1)(a) is inconsistent with the Constitution, subsections (1)(c) to (1)(f) must also be unconstitutional, so too must provisions of legislation corresponding to sections 277(1)(a), (c), (d), (e) and (f) that are in force in parts of the national territory in terms of section 229 of the Constitution. Different considerations arising from section 33(1) might possibly apply to subsection (b) which makes provision for the imposition of the death sentence for treason committed when the republic is in a state of war. No argument was addressed to us on this issue, and I refrain from expressing any views thereon. [150] The proper sentence to be imposed on the accused is a matter for the Appellate Division and not for us to decide. This, and other capital cases which have been postponed by the Appellate Division pending the decision of this Court on the constitutionality of the death sentence, can now be dealt with in accordance with the order made in this case. Lest there be any doubt on this score, one of the effects of our judgment is to prohibit the State, or any of its organs, from executing persons whose appeals against sentences of death have been disposed of. Such persons will remain in custody under the sentences imposed on them until such sentences have been set aside in accordance with law, and substituted by appropriate and lawful punishments. This will form part of the order made. [151] The following order is made: 170 See Pratt v Attorney General for Jamaica; and Catholic Commission for Justice in Zimbabwe v The Attorney General, Zimbabwe, and Others, supra note 3. 94 \f 1. In terms of section 98(5) of the Constitution, and with effect from the date of this order, the provisions of paragraphs (a), (c), (d), (e) and (f) of section 277(1) of the Criminal Procedure Act, and all corresponding provisions of other legislation sanctioning capital punishment which are in force in any part of the national territory in terms of section 229, are declared to be inconsistent with the Constitution and, accordingly, to be invalid. 2. In terms of section 98(7) of the Constitution, and with effect from the date of this order: (a) (b) the State is and all its organs are forbidden to execute any person already sentenced to death under any of the provisions thus declared to be invalid; and all such persons will remain in custody under the sentences imposed on them, until such sentences have been set aside in accordance with law and substituted by lawful punishments. [152] ACKERMANN J: I concur fully in the judgment of the President, both regarding his conclusions and his reasons therefor, save in the respects hereinafter set forth. I also agree with the order proposed by him. [153] I place greater emphasis on the inevitably arbitrary nature of the decision involved in the imposition of the death penalty as a form of punishment in supporting the conclusion that it constitutes \"cruel\", \"inhuman\" and \"degrading punishment\" within the meaning of section 11(2) of the Constitution, which cannot be saved by section 33(1). [154] In paragraphs [43] to [56] of his judgment the President deals with the arbitrariness and inequality of the death penalty. He deals (more particularly in paragraphs [55] and [56]) with the difficulties faced by the US Supreme Court in trying to eliminate the dangers of arbitrariness by employing the due process provisions of the Fifth and 95 \f ACKERMANN J Fourteenth Amendments. Such efforts cause considerable expense and interminable delays, and the President concludes by expressing the view that we should not follow the United States route. I agree, but that does not mean that we ought not to accord greater weight to considerations of arbitrariness and inequality. The US Supreme Court has been obliged to follow the route it did because, so it seems to me, their Constitution postulates (by implication) that it is possible to devise due process mechanisms which can deal with the arbitrary and unequal features of death sentence imposition. We are not so constrained. Our right to life is not qualified in the way it is qualified in the Fifth and Fourteenth Amendments of the US Constitution. We are not constitutionally constrained to accept the arbitrary consequences of the imposition of the death penalty. [155] The preamble to the Constitution refers to the creation of a new order in a state, which, amongst other things, is described as a \"constitutional state.\" Section 4(1) declares the Constitution to be the \"supreme law of the Republic\" which by virtue of section 4(2) \"binds all legislative, executive and judicial organs of state at all levels of government.\" Every person's right to equality before the law is entrenched in section 8(1) and in section 8(2) a substantial number of different grounds of unfair discrimination are prohibited. The constitutional importance of equality is further underscored in section 35(1) which enjoins the courts to promote the values which underlie an open and democratic society based on freedom and equality in interpreting the provisions of Chapter 3. [156] In reaction to our past, the concept and values of the constitutional state, of the \"regstaat\", and the constitutional right to equality before the law are deeply foundational to the creation of the \"new order\" referred to in the preamble. The detailed enumeration and description in section 33(1) of the criteria which must be met before the legislature can limit a right entrenched in Chapter 3 of the Constitution emphasises the importance, in our new constitutional state, of reason and justification when rights are sought to be curtailed. We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a 96 \f ACKERMANN J constitutional state where state action must be such that it is capable of being analysed and justified rationally. The idea of the constitutional state presupposes a system whose operation can be rationally tested against or in terms of the law. Arbitrariness, by its very nature, is dissonant with these core concepts of our new constitutional order. Neither arbitrary action nor laws or rules which are inherently arbitrary or must lead to arbitrary application can, in any real sense, be tested against the precepts or principles of the Constitution171. Arbitrariness must also inevitably, by 171See in general Prof. E Mureinik 'A Bridge to Where? Introducing the Interim Bill of Rights' 10 (1994) SAJHR 31. At 32 the learned author points out that - \"If the new Constitution is a bridge away from a culture of authority, it is clear what it must be a bridge to. It must lead to a culture of justification - a culture in which every exercise of power is expected to be justified; ... If the Constitution is to be a bridge in this direction, it is plain that the Bill of Rights must be its chief strut\". At 38 he points out that Chapter 3 of the Constitution, and in particular section 24, the administrative justice clause - \"gives a lead which, properly followed, would put South Africa at the frontiers of the search for a culture of justification.\" 97 \f ACKERMANN J its very nature, lead to the unequal treatment of persons. Arbitrary action, or decision making, is incapable of providing a rational explanation as to why similarly placed persons are treated in a substantially different way. Without such a rational justifying mechanism, unequal treatment must follow. [157] It is in the context of our (textually) unqualified section 9 right to life that I find certain observations in the US decisions supportive on the issue and consequences of arbitrariness. We are free to look at the incidence and consequences of arbitrariness without being constrained by a constitutional authorization (whether explicit or implicit) of the death penalty. One must of course constantly bear in mind that the relevant criteria in the Eighth Amendment of the US Constituion also differ from those in section 11(2) of our Constitution. Whereas in the former they are \"cruel and unusual\" in the latter they are \"cruel, inhuman or degrading\". [158] In Furman v. Georgia172 the US Supreme Court had to consider a case where the determination of whether the penalty for murder and rape should be death or another punishment was left by the State of Georgia to the discretion of the judge or of the jury. In the course of his judgment173 Douglas J referred with approval to the following comments in a journal article: \"A penalty ... should be considered 'unusually' imposed if it is administered arbitrarily or discriminatingly ... [t]he extreme rarity with which applicable death penalty provisions are put to use raises a strong inference of arbitrariness.\" He further expressed the view174 that - \"[t]he high service rendered by the 'cruel and unusual' punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, 172408 US 238 (1972). 173Id. at 249. 174Id. at 256. 98 \f [159] On the issue of arbitrariness Brennan J observed in Furman175 that - non-selective, and nonarbitrary ...\" ACKERMANN J \"In determining whether a punishment comports with human dignity, we are aided also by a second principle inherent in the [Cruel and Unusual Punishments] Clause - that the State must not arbitrarily inflict a severe punishment. This principle derives from the notion that the State does not respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does not inflict upon others.\" 175Id. at 274. 99 \f He also stated176 (in a context not dissimilar to ours where a vast number of murders are committed, a large number of accused charged and convicted but relatively few ultimately executed) that - ACKERMANN J \"No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain, on that ground, the execution of such a tiny sample of those eligible ......... Nor is the distinction credible in fact.\"", "Stewart J founded his judgment on the fact that the imposition of so extreme a penalty in pursuance of the Georgia statute was inevitably arbitrary. After referring to the fact that \"the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed\" he concludes simply by holding that - \"the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed\"177 176Id. at 294. 177Id. at 309 - 310. 100 \f [161] In Callins v. Collins, cert. denied, 114 S.Ct. 1127, 127 L.Ed 435 (1994) Blackmun J filed a ACKERMANN J dissenting opinion. In it he observed that178- \"[e]xperience has taught us that the constitutional goal of eliminating arbitrariness and discrimination from the administration of death, see Furman v. Georgia, supra, can never be achieved without compromising an equally essential component of fundamental fairness - individualized sentencing. See Lockett v. Ohio, 438 U.S. 586 (1978).\" and, commenting upon its unavoidable arbitrariness, that179- \"[i]t is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question - does the system accurately and consistently determine which defendants 'deserve' to die? - cannot be answered in the affirmative.\" He further expressed the view that180- \"[a]lthough most of the public seems to desire, and the Constitution appears to permit, the penalty of death, it surely is beyond dispute that if the death penalty cannot be administered consistently and rationally, it must not be administered at all.\" (emphasis added) 178Callins v. Collins, supra, at 1129. 179Id. at 1130. 180Id. at 1131. 101 \f and that181, in the aftermath of the Furman judgment - ACKERMANN J \"[i]t soon became apparent that discretion could not be eliminated from capital sentencing without threatening the fundamental fairness due a defendant when life is at stake. Just as contemporary society was no longer tolerant of the random or discriminatory infliction of the penalty of death ... evolving standards of decency required due consideration of the uniqueness of each individual defendant when imposing society's ultimate penalty ... [T]he consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death. A step toward consistency is a step away from fairness\". [162] In considering a constitutional right to life unfettered by the restraints or interpretative problems of the right in the US Constitution, I am of the view that the above dicta are appropriate to the issue of the constitutionality of the death sentence in South Africa. As general propositions, which can be applied in the context of our Constitution, I would accept and endorse the views of Blackmun J. [163] As to the more general principle that arbitrariness conflicts with the idea of a right to equality and equality before the law I am fortified in my view by the following remarks of Bhagwati, J in Gandhi v. Union of India 1978 SC 597 at 624: \"We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348: (AIR 1974 SC 555) namely, that 'from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore violative of Article 14.'\" [164] I am mindful of the fact that it is virtually impossible (save in the case of rigidly circumscribed mandatory sentences - which present other dangers) to avoid elements of arbitrariness in the imposition of any punishment. Arbitrary elements are present in 181Id. at 1132. 102 \f ACKERMANN J the difficult decision to send an offender to prison for the first time, or in deciding what the appropriate length of the prison sentence should be in any case where it is imposed. However, the consequences of the death sentence, as a form of punishment, differ so radically from any other sentence that the death sentence differs not only in degree but also in substance from any other form of punishment. A sentence which preserves life differs incomparably from one which obliterates life. The executed person has, in fact, \"lost the right to have rights.\"182 In this sense the death sentence is unique and 182Trop v. Dulles 356 US 84 (1958) at 102 quoted with approval by Brennan J in Furman, supra note 2, at 289. See also Stewart J in Furman at 306: \"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.\" 103 \f the dimension and consequences of arbitrariness in its imposition differ fundamentally from the dimension and consequences of arbitrariness in the imposition of any other punishment183. ACKERMANN J 183In Callins v. Collins, supra, at 1132, Blackmun J, quoting from the opinion of Stewart, Powell and Stevens JJ in Woodson v. North Carolina 428 US 280 (1976) at 305, pointed out that because of the qualitative difference of the death penalty, \"there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.\" 104 \fACKERMANN J [165] In paragraphs [44] to [46] of his judgment the President has referred to the relevant statutory provisions prescribing the tests to be applied for the imposition of the death sentence and the guidelines laid down for their application by the Appellate Division of the Supreme Court. In the end, whatever guidelines are employed, a process of weighing up has to take place between \"mitigating factors\" (if any) and \"aggravating factors\" and thereafter a value judgment made as to whether \"the sentence of death is the proper sentence.\" I am not suggesting that the statutory provisions could have been better formulated or that the Appellate Division guidelines could be improved upon. The fact of the matter is that they leave such a wide latitude for differences of individual assessment, evaluation and normative judgment, that they are inescapably arbitrary to a marked degree. There must be many borderline cases where two courts, with the identical accused and identical facts, would undoubtedly come to different conclusions. I have no doubt that even on a court composed of members of the genus Hercules184 and Athena there would in many cases be differences of opinion, incapable of rational elucidation, on whether to impose the death penalty in a particular case, where its imposition was, as in the case of section 277(1) of the Criminal Procedure Act, dependant on the application of widely formulated criteria and the exercise of difficult value judgments. [166] The conclusion which I reach is that the imposition of the death penalty is inevitably arbitrary and unequal. Whatever the scope of the right to life in section 9 of the Constitution may be, it unquestionably encompasses the right not to be deliberately put to death by the state in a way which is arbitrary and unequal. I would therefore hold that section 277(1)(a) of the Criminal Procedure Act is inconsistent with the section 9 right to life. I would moreover also hold that it is inconsistent with section 184Prof. Dworkin's lawyer \"of superhuman skill, learning, patience and acumen\"; see Taking Rights Seriously (1978) 105. 105 \f ACKERMANN J 11(2). Where the arbitrary and unequal infliction of punishment occurs at the level of a punishment so unique as the death penalty, it strikes me as being cruel and inhuman. For one person to receive the death sentence, where a similarly placed person does not, is, in my assessment of values, cruel to the person receiving it. To allow chance, in this way, to determine the life or death of a person, is to reduce the person to a cypher in a sophisticated judicial lottery. This is to treat the sentenced person as inhuman. When these considerations are taken in conjunction with those set forth by the President in his judgment, they render the death penalty a cruel, inhuman and degrading punishment. For the reasons expounded by the President in his judgment, and with which I fully agree, neither the infringement of section 9 nor of section 11(2) by section 277(1)(a) of the Criminal Procedure Act, can be saved by the provisions of section 33(1) of the Constitution. Accordingly the provisions of section 277(1)(a) must be held to be inconsistent with sections 9 and 11(2) of the Constitution. [167] In paragraphs [132] to [134] of his judgment the President alludes to the provision in section 33(1)(b) of the Constitution that a limitation \"shall not negate the essential content of the right in question\" but, after referring to uncertainties concerning its meaning, finds it unnecessary to resolve the issue in the present case. In paragraph [133] he postulates, however, a subjective and an objective approach to the problem. I do not necessarily agree with his formulation of the objective approach. In my view it is unnecessary in the present case to say anything at all about the meaning to be attached to this provision. It is one which the framers of our Constitution borrowed in part from article 19(2) of the German Basic Law (\"Grundgesetz\") which provides that - \"In keinem Falle darf ein Grundrecht in seinem Wesensgehalt angetastet werden\" (\"In no case may the essence of a basic right be encroached upon\"15) 15From the official translation published by the Press and Information Office of the Federal Government, Bonn (1994). 106 \f There are obvious differences in the wording of the qualification. Nevertheless there is a wealth of German case law and scholarship on the topic16. Without the fullest ACKERMANN J 16Decisions of the Federal Constitutional Court: 2 BVerfGE 266 at 285; 6 BVerfGE 32 at 41; 7 BVerfGE 377 at 411; 13 BVerfGE 97 at 122; 15 BVerfGE 126 at 144; 16 BVerfGE 194 at 201; 21 BVerfGE 92 at 93; 22 BVerfGE 180 at 218; 27 BVerfGE 344 at 350; 30 BVerfGE 1 at 24; 30 BVerfGE 47 at 53; 31 BVerfGE 58 at 61; 32 BVerfGE 373 at 379; 34 BVerfGE 238 at 245; 58 BVerfGE 300 at 348; 61 BVerfGE 82 at 113; 80 BVerfGE 367 at 373. Decisions of the Federal Administrative Court: 1 BVerwGE 92 at 93; 1 BVerwGE 269 at 270; 2 BVerwGE 85 at 87; BVerwGE reported in 90 Deutsches Verwaltungsblatt at 709. Decisions of the Federal Court of Justice: 4 BGHSt 375 at 377 (also reported in 1955 Die \u00d6ffentliche Verwaltung at 176); 4 BGHSt 385; 5 BGHSt 375; 6 BGHZ 270 at 275; 22 BGHZ 168 at 176. General academic works: Von M\u00fcnch/Kunig Grundgesetz Kommentar (1992) 997-1004; Leibholz- Rinck-Hesselberger Grundgesetz Kommentar an Hand der Rechtsprechung des Bundesverfassungsgerichts (1994)(commentary on art.19) 16-18; Maunz-D\u00fcrig-Herzog Grundgesetz Kommentar (1991) (commentary on art.19II) 1-14; Jarass/Pieroth Grundgesetz f\u00fcr die Bundesrepublik Deutschland (1992) 336-8; J Isensee & P Kirchhof (eds) Handbuch des Staatsrechts vol 5 (1992) 795; E Denninger in Reihe Alternativkommentare Kommentar zum Grundgesetz f\u00fcr die Bundesrepublik Deutschland (1984) 1179; Schmidt-Bleibtreu-Klein Kommentar zum Grundgesetz (1990) 397-9; K Hesse Grundz\u00fcge des Verfassungsrechts der Bundesrepublik Deutschland (1991) 140; Von Mangoldt/Klein Das Bonner Grundgesetz (1966) 551; K Doehring Allgemeine 107 \f exposition of, and argument on, inter alia, the German jurisprudence in this regard, I consider it undesirable to express any view on the subject. ACKERMANN J Staatslehre (1991) 222; Maunz-Zippelius Deutsches Staatsrecht (1991) 161. Specialist literature on art.19(2) GG: P H\u00e4berle Die Wesensgehaltgarantie des Artikels 19 Abs. 2 Grundgesetz (1983); E von Hippel Grenzen und Wesensgehalt der Grundrechte (1965); H Kr\u00fcger \u2018Der Wesensgehalt der Grundrechte des Art.19 GG\u2019 (1955) Die \u00d6ffentliche Verwaltung 597; L Scheider Der Schutz des Wesensgehalts von Grundrechten nach Art.19 Abs.2 GG (1983); G Herbert \u2018Der Wesensgehalt der Grundrechte\u2019 12 (1985) Europ\u00e4ische Grundrechte Zeitschrift 321; Zivier Der Wesensgehalt der Grundrechte Diss. Berlin (1960); J Chlosta Der Wesensgehalt der Eigentumsgew\u00e4hrleistung (1975); P Lerche \u00dcbermass und Verfassungsrecht (1961); Kaufmann \u2018\u00dcber den \u2018Wesensgehalt\u2019 der Grund- und Menschenrechte\u2019 (1984) Archiv f\u00fcr Rechts- und Sozialphilosophie 384; E Denninger \u2018Zum Begriff des \u2018Wesensgehaltes\u2019 in der Rechtsprechung (Art.19.Abs.II GG)\u2019 (1960) Die \u00d6ffentliche Verwaltung 812. 108 \f ACKERMANN J [168] Members of the public are understandably concerned, often frightened, for their life and safety in a society where the incidence of violent crime is high and the rate of apprehension and conviction of the perpetrators low. This is a pressing public concern. However important it undoubtedly is to emphasise the constitutional importance of individual rights, there is a danger that the other leg of the constitutional state compact may not enjoy the recognition it deserves. I refer to the fact that in a constitutional state individuals agree (in principle at least) to abandon their right to self-help in the protection of their rights only because the state, in the constitutional state compact, assumes the obligation to protect these rights. If the state fails to discharge this duty adequately, there is a danger that individuals might feel justified in using self-help to protect their rights. This is not a fanciful possibility in South Africa. \"The need for a strong deterrent to violent crime\" is underscored by the President in his judgment as is the duty of the state, through the criminal justice system, to ensure that offenders will be apprehended and convicted, for these steps are conditions precedent to punishment.17 [169] Apart from deterring others, one of the goals of punishment is to prevent the convicted prisoner from committing crimes again. Both the preventative and reformative components of punishment are directed towards this end, although reformation obviously has the further commendable aim of the betterment of the prisoner. Society as a whole is justifiably concerned that this aim of punishment should be achieved and society fears the possibility that the violent criminal, upon release from prison, will once again harm society. Society is particularly concerned with the possibility of this happening in the case of an unreformed recidivist murderer or rapist if the death penalty is abolished. 17Para. 117. 109 \fACKERMANN J [170] The President has rightly pointed out in his judgment that in considering the deterrent effect of the death sentence the evaluation is not to be conducted by contrasting the death penalty with no punishment at all but between the death sentence and \"severe punishment of a long term of imprisonment which, in an appropriate case, could be a sentence of life imprisonment\";18 I agree with this approach. With the abolition of the death penalty society needs the firm assurance that the unreformed recidivist murderer or rapist will not be released from prison, however long the sentence served by the prisoner may have been, if there is a reasonable possibility that the prisoner will repeat the crime. Society needs to be assured that in such cases the state will see to it that such a recidivist will remain in prison permanently. [171] I appreciate the concern of not wishing to anticipate the issue as to whether life imprisonment, however executed and administered, is constitutional or not. At the same time I do not believe that the two issues can be kept in watertight separate juristic compartments. If the death penalty is to be abolished, as I believe it must, society is entitled to the assurance that the state will protect it from further harm from the convicted unreformed recidivist killer or rapist. If there is an individual right not to be put to death by the criminal justice system there is a correlative obligation on the state, through the criminal justice system, to protect society from once again being harmed by the unreformed recidivist killer or rapist. The right and the obligation are inseparably part of the same constitutional state compact. 18Para. 123. 110 \f ACKERMANN J [172] Article 102 of the German Basic Law declares that capital punishment is abolished. The German Federal Constitutional Court considered the constitutionality of life imprisonment in 197719. The provision in the criminal code which prescribes life imprisonment for murder was challenged on the basis that it conflicted with the protection afforded to human dignity (art 1.1) and personal freedom (art 2.2) in the German Basic Law. The Court upheld the law on the basis that it was not shown that the serving of a sentence of life imprisonment leads to irreparable physical or psychological damage to the prisoner's health. The Court did however find that the right to human dignity demands a humane execution of the sentence. This meant that the existing law, which made provision for executive pardon, had to be replaced by a law laying down objective criteria for the release of prisoners serving life sentences. In the course of its judgment, the Court made clear that there is nothing constitutionally objectionable to executing a life sentence in full in cases where the prisoner does not meet the criteria. At page 242 of the judgment the Court said: \"Die Menschenw\u00fcrde wird auch dann nicht verletzt, wenn der Vollzug der Strafe wegen fortdauernder Gef\u00e4hrlichkeit des Gefangenen notwendig ist und sich aus diesem Grunde eine Begnadigung verbietet. Es ist der staatlichen Gemeinschaft nicht verwehrt, sich gegen einen gemeingef\u00e4hrlichen Straft\u00e4ter durch Freiheitsentzug zu sichern.\" (\"Human dignity is not infringed when the execution of the sentence remains necessary due to the continuing danger posed by the prisoner and clemency is for this reason precluded. The state is not prevented from protecting the community from dangerous criminals by keeping them incarcerated\".) [173] DIDCOTT J: I agree with Chaskalson P that our new Constitution (Act 200 of 1993) 1945 BVerfGE 187. 111 \f outlaws capital punishment in South Africa for the crimes covered by his judgment, and I concur in the order giving effect to that conclusion which he proposes to make. DIDCOTT J [174] My grounds for believing the death penalty to be unconstitutional for the crimes in question are these. Capital punishment violates the right to life of every person that is protected by section 9 of the Constitution and contravenes the prohibition pronounced in section 11(2) against cruel, inhuman or degrading punishment, both of which bind the state and its organs in terms of section 7(1). The provisions of the Criminal Procedure Act ( 51 of 1977) that sanction sentences of death for such crimes are not saved from nullification in their consequent clash with sections 9 and 11 (2). For they fail to satisfy the conditions which paragraph (a) of section 33(1) prescribes for their survival as exceptions to the general rule, the conditions requiring that they must be reasonable in the first place and, in a society of the sort described there, justifiable in the second. Nor do they pass the further test of necessity set by paragraph (aa) for any permissible invasion of section 11(2). [175] Perhaps the essential content of the right to life is negated in addition, an effect not countenanced by paragraph (b) of section 33(1) which subjects the legitimacy of any encroachment on the right to the extra requirement that no such result may ever ensue. That point may be put aside, however, once the requirements of paragraphs (a) and (aa) are not met. Negating the essential content of a constitutional right is a concept less simple and clear than it may appear at first to be. Any definitive ruling on its import that was made now would have a profound bearing on other issues likely to confront us in the future, with implications for them which are difficult to foresee at so early a stage in the development of our jurisprudence. It is better, I therefore feel, not to go into the question on this occasion, but to leave that open for consideration and decision on a different one when it has to be answered. [176] Nor, for much the same reasons, do I think it wise to venture at present a comprehensive and exact definition of what is encompassed by the constitutional right to life. It suffices for the purposes of this case to say that the proclamation of the right and the respect 112 \f DIDCOTT J for it demanded from the state must surely entitle one, at the very least, not to be put to death by the state deliberately, systematically and as an act of policy that denies in principle the value of the victim's life. Those are hardly features of deaths which the state may happen to cause in the course of waging defensive warfare, quelling an insurrection or rescuing hostages, to cite some situations debated before us in which a constitutional protection of life was said to be inconceivable. Such hallmarks do, however, characterise every execution by the state of a criminal. [177] Whether execution ranks also as a cruel, inhuman or degrading punishment is a question that lends itself to no precise measurement. It calls for a value judgment in an area where personal opinions are prone to differ, a value judgment that can easily become entangled with or be influenced by one's own moral attitude and feelings. Judgments of that order must often be made by courts of law, however, whose training and experience warns them against the trap of undue subjectivity. Such a judgment is now required from us, at all events, and would have been inescapable whichever way the question was answered. Nor do we lack guidance on it. A provision of the Zimbabwean Constitution which banned inhuman or degrading punishment was considered by their Supreme Court in Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe, and Others 1993(4) SA 239 (ZSC). Gubbay CJ had this to say about it (at 247 I - 248 B): \"It is a provision that embodies broad and idealistic notions of dignity, humanity and decency. It guarantees that punishment.....of the individual be exercised within the ambit of civilised standards. Any punishment.....incompatible with the evolving standards of decency that mark the progress of a maturing society, or which involve the infliction of unnecessary suffering, is repulsive. What might not have been regarded as inhuman decades ago may be revolting to the new sensitivities which emerge as civilisation advances\". The same goes, I firmly believe, for our section 11(2). Gubbay CJ continued thus (at 248 B-C): 113 \f DIDCOTT J \"(A)n application of this approach to whether a form of ... punishment ... is inhuman or degrading is dependent upon the exercise of a value judgment ...; one that must not only take account of the emerging consensus of values in the civilised international community (of which this country is a part) ..., but of contemporary norms operative in Zimbabwe and the sensitivities of its people\". I take that view here too, where such norms and sensitivities are demonstrated, above all else, by the altruistic and humanitarian philosophy which animates the Constitution enjoyed by us nowadays. [178] Capital punishment was discussed at length in Furman v State of Georgia(1972) 408 US 238, a case handled by the Supreme Court of the United States of America in which a comparably liberal philosophy was expounded by a number of the judges hearing it. Stewart J described that sentence (at 306) as - \u201c.....unique ...in its absolute renunciation of all that is embodied in our concept of humanity.\u201d Brennan J agreed, declaring in the same case (at 290 and 291) that: \u201cDeath is truly an awesome punishment. The calculated killing of a human being by the state involves, by its very nature, a denial of the executed person\u2019s humanity. The contrast with the plight of a person punished by imprisonment is evident....A prisoner remains a member of the human family...In comparison to all other punishments...the deliberate extinguishment of human life by the state is uniquely degrading to human dignity\u201d. The distinctive features of the penalty were emphasised by Brennan J elsewhere in his judgment, when he wrote (at 287 and 288) that: \u201cDeath is today an unusually severe punishment, unusual in its pain, in its finality, and in its enormity. No other existing punishment is comparable to death in terms of physical and mental suffering... Since the discontinuance of flogging as a constitutionally permissible punishment..., death remains the only punishment that may involve the conscious infliction of physical pain. In addition, we know that 114 \f DIDCOTT J mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death... The unusual severity of death is manifested most clearly in its finality and enormity. Death, in these respects, is in a class by itself.\u201d In a Californian case, the one of The People v Anderson (1972) 493 P 2d 880, Wright CJ observed (at 894) that: \u201cThe cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanising effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out. Penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalising to the human spirit as to constitute psychological torture.\u201d Liacos J elaborated on that aspect of the matter in the judgment which he delivered when District Attorney for the Suffolk District v Watson and Others (1980) 381 Mass 648 was decided in Massachusetts. The passages that I shall quote (at 678 - 9, 681 and 683) are vivid. They went thus: \u201cThe ordeals of the condemned are inherent and inevitable in any system that informs the condemned person of his sentence and provides for a gap between sentence and execution. Whatever one believes about the cruelty of the death penalty itself, this violence done the prisoner\u2019s mind must afflict the conscience of enlightened government and give the civilised heart no rest... The condemned must confront this primal terror directly, and in the most demeaning circumstances. A condemned man knows, subject to the possibility of successful appeal or commutation, the time and manner of his death. His thoughts about death must necessarily be focussed more precisely than other people\u2019s. He must wait for a specific death, not merely expect death in the abstract. Apart from cases of suicide or terminal illness, this certainty is unique to those who are sentenced to death. The state puts the question of death to the condemned person, and he must grapple with it without the consolation that he will die naturally or with his humanity intact. A condemned person experiences an extreme form of debasement.... The death sentence itself is a declaration that society deems the prisoner a nullity, less than 115 \f DIDCOTT J human and unworthy to live. But that negation of his personality carries through the entire period between sentence and execution.\u201d A similar account was furnished by Gubbay CJ in the Catholic Commission case when he said (at 268 E-H): \u201cFrom the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is \u2018the living dead\u2019..... He is kept only with other death sentence prisoners - with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful....death is ....never far from mind.\u201d", "The Constitutions of California and Massachusetts forbade cruel punishments. Sentences of death were held in each state to be contraventions of the prohibition which could not stand. The decision reached in the case of the District Attorney for Suffolk was announced by Hennessey CJ, who said (at 664 and 665): \u201c(T)he death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror.... We conclude..... that the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel.....when judged by contemporary standards of decency.\u201d Executions were not outlawed altogether, on the other hand, in either Furman v State of Georgia or the case of the Catholic Commission, despite the castigation that they then underwent. The reason lay in the special provisions of the governing charters, the Constitutions of the United States and Zimbabwe, each of which impliedly authorised the punishment, or appeared at least to do so, by protecting the right to life in terms that specifically excluded deaths thus caused. So, while executions could be and were banned in the particular circumstances of the two cases, insufficient room was visible for the total embargo which Brennan J and Gubbay CJ would no doubt have preferred to impose on them. No such obstacle was presented by the Constitution of Massachusetts or found to be raised at that time by the Californian one. None of this detracts, however, from my purpose in repeating the 116 \f DIDCOTT J harrowing descriptions given on all four occasions of the ordeal suffered by criminals awaiting and experiencing execution. I am unaware of any criticism ever levelled at those descriptions, which were not disputed before us when reliance was placed on them in argument, and I have no reason to believe that they may have been inaccurate or exaggerated in any material respect. They suffice on the whole to convince me that every sentence of death must be stamped, for the purposes of section 11(2), as an intrinsically cruel, inhuman and degrading punishment. [180] I pass to the question whether capital punishment is nevertheless allowed by section 33(1) for the crimes that concern us now. I am not sure that a sentence with a sequel of such cruelty, inhumanity and degradation can ever be rightly regarded in a civilised society as a reasonable or justifiable measure, let alone a necessary one. But I shall assume that the penalty is not innately incapable of meeting those requirements. [181] The most familiar argument advanced in support of capital punishment, and the main contention we have to consider under the heading of its suggested permissibility, is that executions operate as a unique deterrent against the future commission of the crimes visited with them. That proposition, if sound indeed, deserves to be taken seriously. It then provides the strongest reason, in cases of murder at all events, for rating the sentence of death as an expedient which, though regrettable, passes constitutional muster. For section 9 protects likewise the lives of the innocent, the lives of potential victims. And that is a factor which must enter the reckoning, especially at present when the crimes of violence perpetrated here have become so prevalent and reached a level so appalling that acute anxiety is felt everywhere about the danger to life lurking around the corner. Such a time was said to be hardly propitious for, such a state of affairs to be scarcely conducive to, any relaxation in the rigour of the law. We dared not exacerbate the danger, we were warned, by reducing the force of deterrence in the combat with it. I agree that the nation cannot afford our doing so, and we would not wish it anyhow. Sight must never be lost, however, of this. The question is not whether capital punishment has a deterrent effect, but whether its deterrent effect happens to be significantly greater than that of 117 \f the alternative sentence available, a suitably severe sentence of imprisonment which not only gets passed but may also be expected to run its course. DIDCOTT J", "The debate surrounding that question, an old one both here and elsewhere, has often been marked by the production of statistical evidence tendered to show that the death penalty either does not or does serve a uniquely deterrent purpose, as the case may be. The rate of capital crimes committed in a state performing executions is compared with that of the selfsame crimes experienced contemporaneously in some place or another where none occurs. The records of countries that executed convicts formerly, but have ceased doing so, are also examined. Comparisons are then drawn between the rates of those crimes found there before the punishment was abandoned and the ones encountered afterwards. Such statistics, when analysed, have always turned out to be inconclusive in the end. The pictures that they purport to present differ in the first place. The clarity of the sketching is impaired, in the second, by all sorts of variable factors for which no allowance is or can be made. One thinks, for instance, of differences and fluctuations in moral codes and values, in the efficiency and success of police forces in preventing and investigating crimes, in the climate for the collaboration and assistance that they need to obtain from the public and the extent of it which they manage to gain, in the organisation and skills of criminal conspirators and, above all perhaps, in the social and economic conditions that have so profound a bearing everywhere on the incidence of crimes. It therefore did not surprise me to hear that no great store was set in argument by figures of that kind. Others were drawn to our attention, which related to South Africa alone. They recorded the number of alleged murders that were reported here during every year from 1988 until 1993, inclusive of both. A globular increase emerged, the rate of which over the whole period of six years amounted approximately to 35% and accordingly to an annual average of almost 6%, calculated for convenience by means of a straight division that inflates the rate slightly, to be sure, since it disregards the effect on the percentage of the change from year to year in the figure on which it ought actually to be based. Interesting to notice, however, is this. The number of alleged murders rose by a mere 1% or thereabouts during 1993, in contrast with the 118 \f DIDCOTT J average rate of 6% postulated, and by 9% during the time from the beginning of 1992 until the end of 1993, which remained lower than the corresponding average of 12% for that period of two years. The significance of the arithmetic lies in the fact that the moratorium on executions was announced, formally and firmly, in March 1992. What the exercise appears to illustrate, if statistics prove anything in such an area, is the irrelevance of the announcement to the rate of murders alleged, which had grown steadily while executions were carried out and was not accelerated by the halt in hangings. The results of my analysis, for what they are worth, may be added to the cogent and stronger reasons which Chaskalson P has supplied in paragraphs [119] and [120] for rejecting the contention addressed to us that the moratorium had contributed materially to the increase. [183] Without empirical proof of the extent to which capital punishment worked as a deterrent, neither side could present any argument on the point better than the appeal to common sense that tends to be lodged whenever the debate is conducted. That the extreme penalty must inevitably be more terrifying than anything else was said, on the one hand, to speak for itself. It spoke superficially, we were told on the other, and unrealistically too. What stood to reason was this instead. A very large proportion of murderers were in no mood or state of mind at the time to contemplate or care about the consequences of their killings which they might personally suffer. Those rational enough to take account of them gambled by and large on their escape from detection and arrest, where the odds in their favour were often rather high. The prospect of conviction and punishment was much less immediate and seldom entered their thinking. It was fanciful, should that happen on relatively rare occasions, to imagine their being daunted by the possibility of a journey to the gallows, a journey taken by only a small percentage of convicted murderers even at the height of executions in this country, but not by the probability of incarceration in a jail for many years and perhaps for the rest of their lives. The second school of thought is the one which gets to grips with the realities of the matter, in my opinion, appraising them with a lot more plausibility and persuasiveness than any that attaches to the stark proposition of the first school. 119 \fDIDCOTT J [184] It is unnecessary, however, to go so far. The protagonists of capital punishment bear the burden of satisfying us that it is permissible under section 33(1). To the extent that their case depends upon the uniquely deterrent effect attributed to it, they must therefore convince us that it indeed serves such a purpose. Nothing less is expected from them in any event when human lives are at stake, lives which may not continue to be destroyed on the mere possibility that some good will come of it. In that task they have failed and, as far as one can see, could never have succeeded. [185] In his judgment Chaskalson P has discussed retribution as another goal of punishment, and the arbitrariness and inequality contaminating our processes that culminate in executions. His treatment of the first subject will be found in paragraphs [129] to [131] and of the second one in paragraphs [48] to [54]. I share the view taken by him that retribution smacks too much of vengeance to be accepted, either on its own or in combination with other aims, as a worthy purpose of punishment in the enlightened society to which we South Africans have now committed ourselves, and that the expression of moral outrage which is its further and more defensible object can be communicated effectively by severe sentences of imprisonment. The inequality of which he has written may be curable in the long run, once it is not the result of the arbitrariness described by him. The same does not go, however, for the arbitrariness itself, a flaw in the edifice which Ackermann J has examined as well in paragraphs [158] to [165]. The problem of that is quite as intractable here as it has proved to be in the United States of America, where the courts have wrestled with it constantly and by no means to their satisfaction. For such arbitrariness is largely inherent in the nature of the proceedings from start to finish. Similar trouble may be inescapable, to be sure, in cases that are not capital ones. But in those producing sentences of death the arbitrariness is intolerable because of the irreversibility of the punishment once that gets put into force and the consequent irremediability of mistakes discovered afterwards, mistakes which do occur now and then notwithstanding the myth to the contrary. The defect then militates forcefully, I believe, against the reasonableness and justifiability of capital punishment. [186] The conclusion to which I have thus come, echoing the one reached by Chaskalson P, is that the 120 \f DIDCOTT J death penalty cannot survive our constitutional scrunity of it. The line I have taken in arriving there differs in some parts from that preferred by him, occasionally approaching a topic from another angle and sometimes placing the emphasis elsewhere. It has also called for less elaboration in the light of his meticulous research into a mountain of material and his erudite exposition of the themes developed from that. In general, however, I agree with his judgment, a profound and monumental work with which I feel proud to associate myself. [187] I wish before ending this judgment to add my voice to that of Chaskalson P in dealing with a couple of points raised in argument on which he has commented already but which I have not yet mentioned.", "Whether capital punishment ought to be abolished or retained amounted, so it was said, to a question of policy which Parliament should decide, representing as it did the citizens of the country and expressing their general will. The issue is also, however, a constitutional one. It has been put before us squarely and properly. We cannot delegate to Parliament the duty that we bear to determine it, or evade that duty otherwise, but must perform it ourselves. In doing so, we were counselled in the alternative, we had to pay great attention to public opinion, which was said to favour the retention of the death penalty. We have no means of ascertaining whether that is indeed so, but I shall assume it to be the case. One may also assume, with a fair measure of confidence, that most members of the public who support capital punishment do so primarily in the belief that, owing to its uniquely deterrent force, they and their families are safer with than without its protection. The feeling is quite understandable, given its basis. But it deserves no further homage if the premise underlying and accounting for it is fallacious or unfounded, as I consider that one to be. To allow ourselves to be influenced unduly by public opinion would, in any event, be wrong. Powell J disparaged such external pressures on constitutional adjudication when he said in Furman v State of Georgia (at 443): \u201c(T)he weight of the evidence indicates that the public generally has not accepted either the morality or the social merit of the views so passionately advocated by the articulate spokesmen for abolition. But however one may assess (the) amorphous ebb and flow of 121 \f DIDCOTT J public opinion generally on this volatile issue, this type of enquiry lies at the periphery - not the core - of the judicial process in constitutional cases. The assessment of popular opinion is essentially a legislative, not a judicial, function.\u201d In similar vein were these remarks passed by Jackson J on the earlier occasion of West Virginia State Board of Education v Barnette and Others (1942) 319 U5 624 (at 638): \u201cThe very purpose of a bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities... and to establish them as legal principles to be applied by the courts. One\u2019s right to life.... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.\u201d [189] The other point was not so much a contention as a complaint, one registered against the sympathy with murderers, and the lack of any felt for the victims and their families, which some proponents of capital punishment have seen as the motivation behind every attack on it. It is unnecessary, I hope, for this court to answer that canard. In rebuttal of the criticism, lest it be levelled at us all the same, one can do no better than to repeat the following excerpts from the judgment which Wright CJ wrote in The People v Anderson (at 896 and 899): \u201cWe are fully aware that many condemned prisoners have committed crimes of the utmost cruelty and depravity and that such persons are not entitled to the slightest sympathy from society in the administration of justice or otherwise.... Our conclusion that the death penalty may no longer be exacted in California.... is not grounded in sympathy for those who would commit crimes of violence, but in concern for the society that diminishes itself whenever it takes the life of one of its members. Lord Chancellor Gardiner reminded the House of Lords, debating abolition of capital punishment in England: \u2018When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disembowelled while still alive, and then quartered, we did not abolish that punishment because we sympathised with traitors, but because we took the view that it was a punishment no longer consistent with our self- respect\u2019.\u201d [190] South Africa has experienced too much savagery. The wanton killing must stop before it makes a mockery of the civilised, humane and compassionate society to which the nation aspires and has constitutionally pledged itself. And the state must set the example by demonstrating the priceless value it places on the lives of all its subjects, even the worst. 122 \f KENTRIDGE AJ [191] KENTRIDGE AJ: I agree with the order proposed by Chaskalson P and with the reasons for it contained in his judgment and in the judgment of Didcott J In view of the importance of the issue and in deference to the forceful submissions of Mr von Lieres SC, the Attorney- General of the Witwatersrand, I add some remarks of my own. [192] Capital punishment is an issue on which many members of the public hold strong and conflicting views. To many of them it may seem strange that so difficult and important a public issue should be decided by the eleven appointed judges of this court. It must be understood that we undertake this task not because we claim a superior wisdom for ourselves but, as Chaskalson P has explained in his judgment, because the framers of the Constitution have imposed on us the inescapable duty of deciding whether the death penalty for murder is consistent with Chapter Three of the Constitution. It should not be overlooked that a decision holding the death penalty to be constitutional would have been just as far-reaching an exercise of judicial power as the decision to strike it down. [193] Some public commentators on the question before this court have supposed that any doubt as to the unconstitutionality of the death penalty was foreclosed by section 9 of the Constitution, which proclaims in unqualified terms that every person shall have the right of life, read with section 33(1)(b), which provides that no statutory limitation on that or any other constitutional right shall \"negate the essential content of the right in question.\" The execution of a condemned prisoner, it is suggested, must negate entirely his right to life and must therefore ipso facto be in conflict with the constitution. For my part, I do not believe that this supposedly simple solution bears examination. Although the right to life is stated in unqualified terms its full scope and implications remain to be worked out in future cases. Certainly, as the President of the Court has pointed out, the right to life must accommodate the right to kill in lawful self-defence of one's own life or the lives of others, as well as the right of the State to defend itself against insurrection. The right to life may also be seen as entailing a duty on the State to protect the lives of its citizens by ensuring, as far as it is able, that unlawful killing is visited with condign punishment. That punishment like any other, must fall within the limits imposed by section 11(2) of the Constitution. As to section 33(1)(b), I agree with Chaskalson P that our decision in 123 \f KENTRIDGE AJ this case can be reached without requiring the Court to give an authoritative interpretation of that clause. We did, however, hear argument on the clause and I should like to state briefly why I do not think that it provides the short answer to the problem of the constitutionality of the death penalty. [194] The source of section 33(1)(b) is presumably the similar provision in the Constitution of the Federal Republic of Germany. As far as I am aware the German Constitutional Court has never given any definite interpretation to that clause. Varying constructions of it have been suggested by the authors cited by Chaskalson P in the footnotes to paragraphs 108 and 132 of his Judgment; see also the discussion by Rautenbach in 1991 TSAR 403. For present purposes it is sufficient to mention two possible interpretations of section 33(1)(b). The first is that it requires one to consider the effect of any State action on the individual concerned - sometimes called the subjective approach. On this basis the infliction of the death penalty must conflict with section 33(1)(b) because in destroying life it must negate the essence of the right to life. I do not find this so-called subjective interpretation convincing. It cannot accommodate the many State measures which must be necessary and justifiable in any society, such as long-term imprisonment for serious crimes. It is true that a prisoner, even one held under secure conditions, retains some residual rights. See Whittaker v Roos 1912 A.D. 92, 122-3, per Innes J. But I find it difficult to comprehend how, on any rational use of language, it could be denied that while he is in prison the essence of the prisoner's right to freedom (section 11), of his or her right to leave the Republic (section 20) or to pursue a livelihood anywhere in the national territory (section 26) is not negated. Many other examples could be given which in my view rule out the subjective approach of the sub-section. [195] The other approach (sometimes, not altogether appropriately, called the objective approach) is to examine the law which is sought to be justified under section 33. That section states that rights entrenched in Chapter Three may be limited by laws of general application provided that such limitation complies with the requirements of paragraph (a) of sub- section 1 and provided further that it does not negate the essential content of the right in question. What must pass scrutiny under section 33 is the limitation contained in the law 124 \f KENTRIDGE AJ of general application. This means in my opinion that it is the law itself which must pass the test. On this basis a law providing for imprisonment for defined criminal conduct, cannot be said to negate the essential content of the right to freedom, whatever the effect on the individual prisoner serving a sentence under that law. Similarly such a law would not negate the essential content of the right of free movement. Those are general rights entrenched in the Constitution, and a law which preserves those rights for most people at most times does not negate the essential content of those rights. An example of a law which might negate the essence of the right to freedom of movement would be a law (such as the Departure from the Republic Act, 1955) under which no person may leave the Republic without the express or implied consent of the Government. Another possible example could relate to the right of freedom of speech. A law providing for general censorship of all publications would on the face of it negate the essence of the right to freedom of speech. On the other hand a law providing penalties for what is colloquially referred to as \"hate speech\" would not, I think, negate the essence of that right. (Whether or not it would meet the other criteria of section 33 is a different question.) [196] It follows that in my opinion that the true issue for decision is whether or not the death penalty for murder is a \"cruel, inhuman or degrading punishment\", although the entrenched right to life, like the right to dignity and to equality of treatment, does illuminate the issue. As both Chaskalson P and Didcott J have emphasised, capital punishment is qualitatively something quite apart from even the longest term of imprisonment. It entails the calculated destruction of a human life. Inequalities in its incidence are probably unavoidable. In the infliction of capital punishment judicial and executive error can never be wholly excluded nor, of course, repaired. With regard to the uniquely cruel and inhuman nature of the death penalty I would refer to the ample citation of American authority by Didcott J in paragraphs 6 and 7 of his Judgment and to the various decisions of international tribunals cited by Chaskalson P. I would add to these the judgment of Blackmun J in Callins v Collins 114 S. Ct. 1127 (1994). The statement of Stewart J in Furman v Georgia 408 US 238 at 306 cited by Scalia J in Harmelin v Michigan 501 US 957 (1991), also deserves repetition: 125 \f KENTRIDGE AJ \"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.\" The \"death row\" phenomenon as a factor in the cruelty of capital punishment has been eloquently described by Lord Griffiths in Pratt v Johnson [1994] 2 AC 1 and by Gubbay CJ in Catholic Commission for Justice and Peace in Zimbabwe v Attorney General Zimbabwe 1994 (4) SA 329. Those were cases of inordinately extended delay in the carrying out of the death sentence, but the mental agony of the criminal, in its alternation of fear, hope and despair must be present even when the time between sentence and execution is measured in months or weeks rather than years. [197] It may be said that if the punishment is cruel so was the act of the murderer. That cannot and should not be denied. In the present case the Appellants committed murders of horrifying callousness motivated by nothing but greed. In some of the cases summarised in the Attorney-General's written submissions, all of them cases in which the Appellate Division had confirmed the sentence of death, the accused had, if that were possible, committed even more revolting acts of cruelty against their victims. I agree with Chaskalson P that proportionality is an ingredient to be taken into account in deciding whether a penalty is cruel, inhuman or degrading. But that does not mean that the State should respond to the murderer's cruelty with a deliberate and matching cruelty of its own. As Simon Jenkins said in a recent article on the death penalty in \"The Times\" (London), that would imply that punishment must not merely fit the crime, but repeat the crime. [198] Section 35 of the Constitution requires us to \"promote the values which underlie an open and democratic society based on freedom and equality.\" We are thus entitled and obliged to consider the practices of such societies. That exercise shows us that most of the countries which we would naturally include in that category have abolished capital punishment as a penalty for murder, either by legislation or by disuse. These countries 126 \f KENTRIDGE AJ include the neighbouring States of Namibia, Angola and Mozambique. The principal exceptions are the great democracies of India and the United States. In each of those countries the written constitution expressly contemplates the legitimacy, subject to safeguards, of the death penalty. Thus the Fifth Amendment to the Constitution of the United States begins with the words, \"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...\" There are similar express indications of the acceptability of the death sentence in Article 21 of the Constitution of India. It is therefore understandable that the Supreme Courts of those two countries have found themselves unable to hold that the death penalty is per se unconstitutional. Nonetheless, in our attempt to identify objectively the values of an open and democratic society what I find impressive is that individual judges of great distinction such as Brennan J in the United States and Bhagwati J in India have held, notwithstanding those constitutional provisions, that the death penalty is impermissible when measured against the standards of humanity and decency which have evolved since the date of their respective constitutions. Similarly, courts to which considerable respect is due, such as the Supreme Court of California in People v Anderson 493 P.2d 880 (1972) and the Supreme Judicial Court of Massachusetts in District Attorney for the Suffolk District v Watson 381 Mass 648 (1980) have held the death penalty to be a \"cruel and inhuman punishment\" and therefore in conflict with their respective State constitutions. In the California case that decision was arrived at notwithstanding clauses in the State Constitution which, like the United States Constitution, recognised the existence of capital punishment. (See Anderson's case at 886-7). [199] The reference to \"evolving standards of decency\" is taken from the judgment of Warren CJ in Trop v Dulles 356 US 86 at 101 (1958) where, speaking for the Court, he adopted as the measure of permissible punishment under the Eighth Amendment of the United States Constitution \"the evolving standards of decency that mark the progress of a maturing society.\" Commenting on this dictum in Thomson v Oklahoma 487 US 815 (1988) Scalia J (dissenting) said at 865: \"Of course, the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views.\" 127 \f KENTRIDGE AJ This is a pertinent warning which I have, I hope, kept in mind. I believe, nonetheless, that there is ample objective evidence that evolving standards of civilisation demonstrate the unacceptability of the death penalty in countries which are or aspire to be free and democratic societies. Most democratic countries have abandoned the death penalty for murder. Even in countries which have the death penalty on the statute books there is a decline in its use. Although one cannot say that the death penalty is as yet contrary to international law, Chaskalson P has demonstrated that that is the direction in which international law is developing. I shall come later to the question of public opinion and the guidance to be obtained from it, but what is clear to my mind is that in general in civilised democratic societies the imposition of the death penalty has been found to be unacceptably cruel, inhuman and degrading, not only to those subjected to it but also to the society which inflicts it. Simon Jenkins, in the article which I have already quoted, says that the State is (or should be) \"institutionalised civilisation.\" I would agree, and add that this is especially true of the State created by our new Constitution. The deliberate execution of a human, however depraved and criminal his conduct, must degrade the new society which is coming into being. [200] In the course of argument before us much was said about public opinion on the death penalty in South Africa. Both Chaskalson P and Didcott J have shown that public opinion, even if expressed in acts of Parliament, cannot be decisive. If we were simply to defer to public opinion we would be abdicating from our constitutional function. Yet, were public opinion on the question clear it could not be entirely ignored. The accepted mores of one's own society must have some relevance to the assessment whether a punishment is impermissibly cruel and inhuman. In Furman v Georgia 408 US 238 (1972) Brennan J at 277 said that one of the principles inherent in the constitutional prohibition of cruel and unusual punishments was that \"a severe punishment must not be unacceptable to contemporary society.\" Much earlier, in Weems v United States 217 US 349, 378 (1910) the United States Supreme Court had held that that provision of the Constitution was \"not fastened to the obsolete\", but might \"acquire meaning as public opinion becomes enlightened by a human justice.\" I would, with all respect, suggest that the principle propounded by Brennan J may give too much weight to prevailing opinion - an opinion 128 \f KENTRIDGE AJ which may swing with public moods and varying public concerns. But in any event, whether or not a punishment is acceptable to contemporary society is not to be judged by the results of informal public opinion polls, still less by letters to the press. In People v Anderson (supra) Wright CJ speaking for the Supreme Court of California said at 893-4: \"Public acceptance of capital punishment is a relevant but not controlling factor in assessing whether it is consonant with contemporary standards of decency. But public acceptance cannot be measured by the existence of death penalty statutes or by the fact that some juries impose death on criminal defendants. Nor are public opinion polls about a process which is far removed from the experience of those responding helpful in determining whether capital punishment would be acceptable to an informed public were it even-handedly applied to a substantial proportion of the persons potentially subject to execution.\" In Gregg v Georgia 428 US 153 (1976) a judgment given four years after Furman v Georgia, supra, Stewart J at 179-180 found that developments during that period had shown that \"a large proportion of American society continues to regard it (capital punishment) as an appropriate and necessary criminal sanction.\" The principal evidence on which Stewart J based this finding was that since the Furman case the legislatures of 35 of the United States had enacted new death penalty statutes. Further, the Congress of the United States had enacted a statute providing the death penalty for aircraft piracy. In addition, he referred to an official State-wide referendum in the State of California adopting a constitutional amendment that authorised capital punishment. [201] Needless to say, there was no similar evidence before us. Public opinion has not expressed itself in a referendum, nor in any recent legislation. Certainly, there is no evidence of a general social acceptance of the death penalty for murderers such as might conceivably have influenced our conclusions. On the contrary, developments in South Africa point in the opposite direction. It is to be noted that even at the time, during the previous decade, when South Africa had the unenviable reputation for carrying out more executions than any other country in the western world, only a proportion of those convicted of murder were sentenced to death, and of those many were reprieved. The amendment to the Criminal Procedure Act introduced by Act No 107 of 1990 drastically reduced the number of convicted murderers sentenced to death. The subsequent developments described by Chaskalson P including the official executive moratorium on the death 129 \f KENTRIDGE AJ penalty announced in March 1992, while not evidence of general opinion, do cast serious doubt on the acceptability of capital punishment in South Africa. In fact, we are informed, since 1989 there has been no judicial execution in South Africa. Thus there has been in this country no indication whatsoever of what Stewart J in Gregg's case referred to as \"society's endorsement of the death penalty for murder.\" In the Constitution itself such endorsement is markedly absent. Consequently, in all the circumstances, the appeal to public opinion could not affect our decision. [202] There is little I wish to add to what has been said by other members of the Court on the application of section 33. On the question whether a death penalty can be justified by its deterrent effect the statistical and other evidence is inconclusive, as it was bound to be. As the analysis of Chaskalson P shows the statistical evidence comes nowhere near establishing that the death penalty is an effective deterrent against murder. Nor on the other hand can it be shown that it is not a deterrent. As Mr von Lieres pointed out, only those who were not deterred enter the statistics; the number who were deterred cannot be known. In Burns' well-known lines, \"What's done we often may compute/But know not what's resisted.\" The most impressive argument of Mr von Lieres on this aspect of the case was that, statistics aside, the awfulness of the death penalty must in its nature deter some would-be murderers. In the face of the appalling murder rates in this country, he said, we cannot afford to relinquish any possible weapon in the fight against violent crime. That is a powerful argument but, given the cruelty and inhumanity of the death penalty, it is an argument which cannot in the end prevail. It relies essentially on the mere possibility that the death sentence may deter some murderers. That is not a sufficient justification for the continued existence of such an extreme punishment.", "I have little to add, too, to what Chaskalson P has said on the element of retribution as an element in punishment. The Attorney-General's argument was that the criminal law including the modes of punishment must adequately reflect the moral outrage felt by society when a vicious and cold-blooded murder is committed. This too I regard as an argument of weight. One can understand in particular the reaction of the families of victims of murderers and the feeling that the culprits \"deserve to die\". But the choice, as Chaskalson P has pointed out, is not between death penalty on the one hand and the 130 \f KENTRIDGE AJ condonation of the murderer's act on the other. The choice is between the death penalty and a long term of imprisonment which might in appropriate cases include life imprisonment in the fullest sense of the term. As a civilised society it is not open to us, in my opinion, to express our moral outrage by executing even the worst of murderers any more than we could do so by the public hangings or mutilations of a bygone time. [204] In conclusion I would endorse what Didcott J has cogently stated; the striking down of the death penalty entails no sympathy whatsoever for the murderer, nor any condonation of his crime. What our decision does entail is a recognition that even the worst and most vicious criminals are not excluded from the protections of the Constitution. In 1910 Mr Winston Churchill speaking in the House of Commons said this: \"The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State - a constant heart-searching by all charged with the duty of punishment - a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.\" [205] KRIEGLER J: I agree with the conclusions reached by Chaskalson P, endorse the bulk of his reasoning and concur in the order he has formulated. There are just two points that I wish to add though: the first by way of additional emphasis and the second to indicate a somewhat different line of reasoning. [206] The basic issue, as Chaskalson P points out in the opening and concluding paragraphs of the main judgment, is whether the Constitution1 has outlawed capital punishment in South Africa.2 The issue is not whether I favour the retention or the abolition of the death 1Constitution of The Republic of South Africa, Act No. 200 of 1993, as amended. 2As sanctioned by section 277(1) of the Criminal Procedure Act, 1977, as amended and the corresponding 131 \f KRIEGLER J penalty, nor whether this Court, Parliament or even overwhelming public opinion supports the one or the other view. The question is what the Constitution says about it. provisions of the former Transkei, Bophuthatswana and Venda. 132 \fKRIEGLER J [207] In answering that question the methods to be used are essentially legal, not moral or philosophical. To be true the judicial process cannot operate in an ethical vacuum. After all, concepts like \"good faith\", \"unconscionable\" or \"reasonable\" import value judgments into the daily grind of courts of law. And it would be foolish to deny that the judicial process, especially in the field of constitutional adjudication, calls for value judgments in which extra-legal considerations may loom large. Nevertheless, the starting point, the framework and the outcome of the exercise must be legal. The foundation of our state and all its organs, the rules which govern their interaction and the entrenchment of the rights of its people are to be found in an Act of Parliament, albeit a unique one.3 That Act entrusts the enforcement of its provisions to courts of law.4 The \"court of final instance over all matters relating to the interpretation, protection and enforcement\" of those provisions is this Court,5 appointment to which is reserved for lawyers.6 The 3Section 4 of the Constitution describes it as \"the supreme law of the Republic ... [which] shall bind all legislative, executive and judicial organs of state at all levels of government.\" Section 7 makes Chapter 3, containing fundamental rights, binding on \"all legislative and executive organs of state at all levels of government\" and provides that it \"shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution.\" 4See Chapter 7 of the Constitution. 5Section 98(2) of the Constitution. 6See section 99(2)(c) of the Constitution which requires on appointee to be a person who \"(i) is a judge of the Supreme Court or is qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least 10 years after having so qualified, practised as an advocate or an attorney or lectured in law at a university; or (ii) is a person who, by reason of his or her training and experience, has expertise in the field of constitutional 133 \f incumbents are judges, not sages; their discipline is the law, not ethics or philosophy and certainly not politics. KRIEGLER J [208] The exercise is to establish whether there is an invalid infringement of a right protected by Chapter Three. This \"calls for a 'two-stage' approach. First, has there been a contravention of a guaranteed right? If so, is it justified under the limitation clause?\"7 For the first step, one need go no further than section 9 of the Constitution, which could not possibly be plainer: \"Every person shall have the right to life.\" Whatever else section 9 may mean in other contexts, with regard to which I express no view, at the very least it indicates that the State may not deliberately deprive any person of his or her life. As against that general prohibition section 277(1) of the Criminal Procedure Act sanctions a judicial order for the deprivation of a person's life. The two provisions are clearly not reconcilable. Therefore, the latter provision is liable to be struck down under section 4(1) of the Constitution, unless it is saved by the second step of the analysis -application of the limitations clause. law relevant to the application of this Constitution and the law of the Republic.\" 7Per Kentridge AJ, in S v Zuma and Others 1995 (4) BCLR 401, 414 (SA). The \"limitation clause\" he refers to is section 33(1) of the Constitution. 134 \fKRIEGLER J [209] During the second step of the exercise one must ask whether that infringement of the right to life is reasonable and also whether it is justifiable in an open and democratic society based on freedom and equality (sections 33(1)(a)(i) & (ii)).8 As I am satisfied that section 277(1)(a) does not meet the threshold test of reasonableness, I find it unnecessary to ask whether it is justifiable in the kind of society postulated. Nor do I consider the meaning of section 33(1)(b), which is discussed in paragraphs 132, 133 and 134 of the main judgment and paragraphs 193, 194 and 195 of the judgment of Kentridge AJ.9 In respect thereof I express no opinion. 8The questions may well be asked what the distinction is between reasonable and justifiable and whether one test can be met and not the other. Be that as it may, this case is so clear that the distinction, if any, between the two criteria need not be considered. 9Relating to the meaning and effect of the prohibition in section 33(1)(b) against a limitation which \"negate[s] the essential content of the right in question.\" 135 \f [210] I also find it unnecessary to probe the outer limits of what is reasonable. At the very least the reasonableness of a provision which flies directly in the face of an entrenched right would have to be cogently established. Furthermore a provision relating to so basic and so precious a right as the right to life itself (without which all other rights are nought), would have to be manifestly reasonable.10 KRIEGLER J [211] We were favoured with literally thousands of pages of material in support of and opposed to the death penalty, ranging from the religious, ethical, philosophical and ideological to the mathematical and statistical. Mr Von Lieres, SC, who argued the retentionist cause with great skill, in essence sought to bring the death sentence within the protection of section 33(1) on the strength of its deterrent and retributive value. The main judgment deals with these two considerations11 and I merely wish to make a few additional observations regarding deterrence.12 10The reasonableness of other limitations on the right to life does not arise here. Suffice it to say that there must always be a proportionality between any right and the limitation thereof sought to be saved under section 33(1). 11Paragraphs 116 to 127 on deterrence and 129 to 131 on retribution. 12No more need be said about retribution than has been said by my colleagues. See also paragraph 203 of the judgment of Kentridge AJ and paragraph 185 of the judgment of Didcott J. 136 \f [212] Nearly a quarter of a century ago the US Supreme Court decided the watershed case of Furman v Georgia.13 In the course of a compendiously researched opinion, Marshall J reviewed virtually every scrap of Anglo-American evidence for and against capital punishment. In the course of his \"long and tedious journey\" (his own description) he made the crucial finding that 200 years of research had established KRIEGLER J \"that capital punishment serves no purpose that life imprisonment could not serve equally well.\"14 A decade later the Indian Supreme Court surveyed the international authorities for and against the death penalty in Bachan Singh's case.15 Since then a great deal more has been written in support of both the abolitionist and the retentionist schools. But when all is said and done the answer is still what it was to Marshall J in Furman's case: the death penalty has no demonstrable penological value over and above that of long-term imprisonment. No empirical study, no statistical exercise and no theoretical analysis has been able to demonstrate that capital punishment has any deterrent force greater than that of a really heavy sentence of imprisonment. That is the ineluctable conclusion to be drawn from the mass of data so thoroughly canvassed in the written and oral arguments presented to us. [213] Another equally ineluctable conclusion then is that capital punishment cannot be vindicated by the provisions of section 33(1) of the Constitution.16 It simply cannot be reasonable to 13408 US 238 (1972). 14Id. at 359. 15Bachan Singh v State of Punjab (1980) 2 SCC 684, quoted in paragraph 76 of the main judgment. 16 The provisions of section 277(1)(b), which sanction the death penalty for treason committed at a time when 137 \f sanction judicial killing without knowing whether it has any marginal deterrent value. KRIEGLER J [214] Having concluded that capital punishment is inconsistent with section 9 of the Constitution and cannot be saved by section 33(1), I find it unnecessary to consider its possible inconsistency with any other fundamental rights protected by Chapter Three. Vigilant protection of the right to human dignity (section 10) and of the immunity from cruel, inhuman or degrading punishment (section 11(2)) is undoubtedly essential. So too arbitrariness in the imposition of any sentence is fatally inconsistent with the demand for equality so emphatically mandated in sections 8(1) and (2). I do not want to be understood as disagreeing with the views expressed by any of my colleagues in regard to those rights and their importance; but in the hierarchy of values and fundamental rights guaranteed under chapter 3, I see them as ranking below the right to life. Indeed, they are subsumed by that most basic of rights. Inasmuch as capital punishment, by definition, strikes at the heart of the right to life, the debate need go no further. [215] LANGA J: I agree with the conclusions reached by Chaskalson P and generally with the reasons he advances in his exhaustive and erudite judgment. I concur in the order he has proposed. I wish to put additional emphasis on some of the aspects he has dealt with. [216] The death sentence, in terms of the provisions of section 277 of the Criminal Procedure Act, No. 51 of 1977, is unconstitutional, violating as it does: (a) the right to life which is guaranteed to every person by section 9 of the Constitution; the Republic is in a state of war, do not arise for consideration in this case. That is a wholly different situation which requires independent evaluation. 138 \f (b) (c) the right to respect for human dignity guaranteed in section 10; the right not to be subjected to cruel, inhuman and degrading punishment as set out in section 11(2). [217] For the reasons set out in Didcott J's judgment, I place more emphasis on the right to life. Section 9 of the Constitution proclaims it in unqualified terms. It is the most fundamental of all rights,1 the supreme human right.2 I do not consider it necessary or desirable to define the exact scope of the right, save to make two points, namely: (a) (b) It does mean that every person has the right not to be deliberately put to death by the State as punishment, as envisaged in section 277 of the Criminal Procedure Act. I do not exclude the application of the limitations clause to the right to life. Any law which seeks to limit the right will have to comply with the requirements of section 33(1) of the Constitution. For the reasons set out in Chaskalson P's judgment, the requirements have not been met; the State has been unable to justify the limitation which is imposed on the right to life by section 277 of the Criminal Procedure Act. I cannot accept that it is \"reasonable,\" as required by section 33(1) of the Constitution, to override what is the most fundamental of all rights, without clear proof that the deterrence value of the penalty is substantially higher than that which the imposition of a suitably long period of imprisonment has. This has not been proved. Because of the view I take, I find it unnecessary 1 See the remarks of Lord Bridge in Bugdaycay v Secretary of State 1987(1) All ER 940 at 952b. 2 See paragraph 82 of Chaskalson P\u2019s judgment. 139 \f LANGA J to deal with the other requirements of section 33(1) of the Constitution. [218] The emphasis I place on the right to life is, in part, influenced by the recent experiences of our people in this country. The history of the past decades has been such that the value of life and human dignity have been demeaned. Political, social and other factors created a climate of violence resulting in a culture of retaliation and vengeance. In the process, respect for life and for the inherent dignity of every person became the main casualties. The State has been part of this degeneration, not only because of its role in the conflicts of the past, but also by retaining punishments which did not testify to a high regard for the dignity of the person and the value of every human life. [219] The primacy of the right to life and its relationship to punishment needs to be emphasized also in view of our constitutional history. The doctrine of parliamentary sovereignty meant, virtually, that the State could do anything, enact any law, subject only to procedural correctness.3 [220] When the Constitution was enacted, it signalled a dramatic change in the system of governance from one based on rule by parliament to a constitutional state in which the rights of individuals are guaranteed by the Constitution. It also signalled a new dispensation, as it were, where rule by force would be replaced by democratic principles and a governmental system based on the precepts of equality and freedom. [221] It may well be that for millions in this country, the effect of the change has yet to be felt in a material sense. For all of us though, a framework has been created in which a new culture must take root and develop. 3 S v Tuhadeleni and Others 1969(1) SA 153 (A) at 172D - 173F; Baxter, Administrative Law, page 30 (1984). 140 \fLANGA J [222] Implicit in the provisions and tone of the Constitution are values of a more mature society, which relies on moral persuasion rather than force; on example rather than coercion. In this new context, then, the role of the State becomes clear. For good or for worse, the State is a role model for our society.4 A culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the State must take the lead. In acting out this role, the State not only preaches respect for the law and that the killing must stop, but it demonstrates in the best way possible, by example, society\u2019s own regard for human life and dignity by refusing to destroy that of the criminal. Those who are inclined to kill need to be told why it is wrong. The reason surely must be the principle that the value of human life is inestimable, and it is a value which the State must uphold by example as well. As pointed out by Mr Justice Schaefer of the Supreme Court of Illinois:5 \"The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilisation may be judged.\" 4 Brandeis J in his dissenting opinion in Olmstead v United States, 277 US 438, 485 (1928) put it succinctly: \"Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole of our people by its example.\" 5 In his Oliver Wendell Holmes lecture at the Harvard Law School, reprinted under the heading Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 26 (1956). The passage was referred to with approval in Coppedge v United States, 369 US 438, 449 (1962). 141 \fLANGA J [223] The ethos of the new culture is expressed in the much-quoted provision on National Unity and Reconciliation which forms part of the Constitution. Chaskalson P quotes the various components of it in paragraphs 7 and 130 of his judgment. It describes the Constitution as a \"bridge\" between the past and the future; from \"the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, ... for all South Africans ...\"; and finally, it suggests a change in mental attitude from vengeance to an appreciation of the need for understanding, from retaliation to reparation and from victimisation to ubuntu. The Constitution does not define this last-mentioned concept. [224] The concept is of some relevance to the values we need to uphold. It is a culture which places some emphasis on communality and on the interdependence of the members of a community. It recognises a person's status as a human being, entitled to unconditional respect, dignity, value and acceptance from the members of the community such person happens to be part of. It also entails the converse, however. The person has a corresponding duty to give the same respect, dignity, value and acceptance to each member of that community. More importantly, it regulates the exercise of rights by the emphasis it lays on sharing and co-responsibility and the mutual enjoyment of rights by all. It is perhaps best illustrated in the following remarks in the judgment of the Court of Appeal of the Republic of Tanzania in DPP v Pete,6 \"The second important principle or characteristic to be borne in mind when interpreting our Constitution is a corollary of the reality of co-existence of the individual and society, and also the reality of co-existence of rights and duties of the individual on the one hand, and the collective of communitarian rights and duties of society on the other. In effect this co-existence means that the rights and duties of the individual are limited by the rights and duties of society, and vice versa.\"", "An outstanding feature of ubuntu in a community sense is the value it puts on life and human dignity. The dominant theme of the culture is that the life of another person is at least as valuable as one's own. Respect for the dignity of every person is integral to this concept. During violent conflicts and times when violent crime is rife, distraught members of 6 [1991] LRC (Const) 553 at 566b-d, per Nyalali CJ, Makame and Ramadhani JJA. 142 \f society decry the loss of ubuntu. Thus heinous crimes are the antithesis of ubuntu. Treatment that is cruel, inhuman or degrading is bereft of ubuntu. LANGA J [226] We have all been affected, in some way or other, by the \"strife, conflict, untold suffering and injustice\" of the recent past. Some communities have been ravaged much more than others. In some, there is hardly anyone who has not been a victim in some way or who has not lost a close relative in senseless violence. Some of the violence has been perpetrated through the machinery of the State, in order to ensure the perpetuation of a status quo that was fast running out of time. But all this was violence on human beings by human beings. Life became cheap, almost worthless. [227] It was against a background of the loss of respect for human life and the inherent dignity with attaches to every person that a spontaneous call has arisen among sections of the community for a return to ubuntu. A number of references to ubuntu have already been made in various texts but largely without explanation of the concept.7 It has however always been mentioned in the context of it being something to be desired, a commendable attribute which the nation should strive for. [228] At first blush, it may sound odd that the issue of the right to life is being decided on the basis of persons condemned to death for killing other human beings. In this regard, it is relevant to note that there are some 400 people presently under sentence of death for acts of violence. That in itself means that there are probably an equivalent number of victims whose lives have been prematurely, violently, terminated. They died without having had any recourse to law. For them there was no \"due process.\" [229] That is why, during argument, a tentative proposition was made that a person who has killed another has forfeited the right to life. Although the precise implications of this suggestion were not thoroughly canvassed, this cannot be so. The test of our 7 See paragraphs 130 and 131 of Chaskalson P's judgment. The concept has been referred to also by Madala J, Mahomed J and Mokgoro J in their separate concurring judgments in this matter. 143 \f commitment to a culture of rights lies in our ability to respect the rights not only of the weakest, but also of the worst among us. A person does not become \"fair game\" to be killed at the behest of the State, because he has killed. LANGA J [230] The protection afforded by the Constitution is applicable to every person. That includes the weak, the poor and the vulnerable. It includes others as well who might appear not to need special protection; it includes criminals and all those who have placed themselves on the wrong side of the law. The Constitution guarantees them their right, as persons, to life, to dignity and to protection against torture or cruel, inhuman or degrading punishment or treatment. [231] The violent acts of those who destroy life cannot be condoned, neither should anyone think that the abolition of the sentence of death means that the crime is regarded as anything but one of extreme seriousness. The sentence itself was an indication of society's abhorrence for the cruel and inhuman treatment of others. That moral outrage has been expressed in the strongest terms that society could muster. [232] Severe punishments must be meted out where deserved, but they should never be excessive. As Brennan J observed in his concurring judgment in Furman v Georgia,8 \". . . a severe punishment must not be excessive. A punishment is excessive under this principle if it is unnecessary . . . [i]f there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive.\" 8 408 US 238, 279 (1972). 144 \f Righteous anger against those who destroy the human life and dignity of others must be appropriately expressed by the Courts;9 but in doing so, the State must not send the wrong message, namely, that the value of human life is variable.10 Society cannot now succumb to the doctrine of \u201can eye for an eye.\u201d Its actions must be informed by the high values which reflect the quality of this nation's civilization. [233] The Constitution constrains society to express its condemnation and its justifiable anger in a manner which preserves society's own morality. The State should not make itself guilty of conduct which violates that which it is in the community's interests to nurture. The Constitution, in deference to our humanity and sense of dignity, does not allow us to kill in cold blood in order to deter others from killing. Nor does it allow us to \u201ckill criminals simply to get even with them.\"11 We are not to stoop to the level of the criminal. [234] It follows from the remarks above that as a \u2018punishment\u2019 the death penalty is a violation of the right to life. It is cruel, inhuman and degrading. It is also a severe affront to human dignity. The \u2018death row phenomenon\u2019 merely aggravates the position. Section 277 of the Criminal Procedure Act cannot be saved by the provisions of section 33(1) of the Constitution in respect of any of the rights affected. The punishment is not reasonable on any basis. In view of the available alternative sentence of a long term of 9 See R v Karg 1961(1) SA 231(A) at 236A. 10 Brennan J in Furman v Georgia, supra, at 273 expressed himself thus: \". . . even the vilest criminal remains a human being possessed of common human dignity.\" 11 Per Brennan J in Furman v Georgia, supra, at 305. 145 \f imprisonment, it is also unnecessary. [235] MADALA J: I am in agreement with the views expressed in the judgment of Chaskalson P and with his decision on the unconstitutionality of the death penalty. The punishment, is in my view, clearly offensive to the cardinal principles for which our Constitution stands. However, while I concur, as aforesaid, I believe that there are some additional matters that need to be mentioned and aspects that should be emphasised, and I proceed to do so briefly. [236] The death penalty is unique. As stated by Stewart J in Furman v Georgia 408 US at 306: \"The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.\" This statement was more recently (1991) re-affirmed by Scalia J, who delivered the judgment of the court in Harmelin v Michigan 501 US 957, and noted that even the most severe sentence of life imprisonment cannot compare with death. [237] The Constitution in its post-amble declares: \"... there is a need for understanding but not vengeance, and for reparation but not for retaliation, a need for ubuntu but not victimisation.\" The concept \"ubuntu\" appears for the first time in the post-amble, but it is a concept that permeates the Constitution generally and more particularly Chapter Three which embodies the entrenched fundamental human rights. The concept carries in it the ideas of humaneness, social justice and fairness. [238] It was argued by Mr Bizos, on behalf of the Government, that the post-amble enjoins the people of South Africa to open a new chapter which envisages the country playing a leading role 146 \f MADALA J in the upholding of human rights. He submitted further, that the Government favoured the abolition of the death penalty because it believed that such punishment could not be reconciled with the fundamental rights contained in the Constitution, and that its application diminished the dignity of our society as a whole. [239] In my rejection of the death penalty as a form of punishment, I do not intend, nor do my colleagues, to condone murder, rape, armed robbery with aggravating circumstances and those other crimes which are punishable by a sentence of death in terms of Section 277 of the Criminal Procedure Act 51 of 1977. These criminal acts are, and remain, as heinous, vicious and as reprehensible as they ever were, and do not belong in civilised society. The death penalty is a punishment which involves so much pain and suffering that civilised society ought not to tolerate it even in spite of the present high rate of crime. And society ought to tolerate the death penalty even less when considering that it has not been proved that it has any greater deterrent effect on would-be murderers than life imprisonment. [240] The aspect of irrevocability of the death penalty has been canvassed adequately in the judgment of Chaskalson P and I propose to say no more on that score (See paragraphs 26 and 54). [241] As observed before, the death penalty rejects the possibility of rehabilitation of the convicted persons, condemning them as \"no good\", once and for all, and drafting them to the death row and the gallows. One must then ask whether such rejection of rehabilitation as a possibility accords with the concept of ubuntu. [242] One of the relative theories of punishment (the so-called purposive theories) is the reformative theory, which considers punishment to be a means to an end, and not an end in itself - that end being the reformation of the criminal as a person, so that the person may, at a certain stage, become a normal law-abiding and useful member of the community once again. The person and the personality of the offender are the point of focus rather than the crime, although the crime is, however, not forgotten. And in terms of this theory of punishment and as a necessary consequence of its application, the offender has to be 147 \f imprisoned for a long period for the purpose of rehabilitation. By treatment and training the offender is rehabilitated, or, at the very least, ceases to be a danger to society. MADALA J [243] This, in my view, accords fully with the concept of ubuntu which is so well enunciated in the Constitution. [244] Our courts have found room for the exercise of ubuntu, as appears from the many cases where they have found that despite the heinousness of the offence and the brutality with which it was perpetrated, there were factors in the offenders' favour, indicating that they were, in spite of the criminal conduct of which they were convicted, responsible members of society, and were worthy and capable of rehabilitation. (See S v Mbotshwa 1993(2) SACR 468(A) at 468J-469F; S v Ramba 1990(2) SACR 334(A) at 335H-336E; S v Ngcobo 1992(2) SACR 515(A) at 515H-516A; Contra: S v Bosman 1992(1) SACR 115(A) at 116G-117F) [245] Against ubuntu must be seen the other side, the inhuman side of mankind, in terms of which the death penalty violates Section 11(2) of the Constitution in that it is \"cruel, inhuman or degrading treatment or punishment\". [246] In Catholic Commission for Justice and Peace in Zimbabwe v Attorney-General, Zimbabwe 1993(4) SA 239(ZSC) at 268E-H, Gubbay CJ, observed: \"From the moment he enters the condemned cell, the prisoner is enmeshed in a dehumanising environment of near hopelessness. He is in a place where the sole object is to preserve his life so that he may be executed. The condemned prisoner is 'the living dead' ... He is kept only with other death sentenced prisoners - with those whose appeals have been dismissed and who await death or reprieve; or those whose appeals are still to be heard or are pending judgment. While the right to an appeal may raise the prospect of being allowed to live, the intensity of the trauma is much increased by knowledge of its dismissal. The hope of a reprieve is all that is left. Throughout all this time the condemned prisoner constantly broods over his fate. The horrifying spectre of being hanged by the neck and the apprehension of being made to suffer a painful and lingering death is, if at all, never far from mind. Grim accounts exist of hangings not properly performed.\" [247] Convicted persons in death row invariably find themselves there for a long time as they make 148 \f MADALA J every effort to exhaust all possible review avenues open to them. All this time they are subjected to a fate of ever increasing fear and distress. They know not what their future is and whether their efforts will come to nought; they live under the sword of Damocles - they will be advised any day about their appointment with the hangman. It is true that they might have shown no mercy at all to their victims, but we do not and should not take our standards and values from the murderer. We must, on the other hand, impose our standards and values on the murderer. [248] In the aforementioned Zimbabwe case, the court concluded that the incarceration of the condemned person under those conditions was in conflict with the provisions of Section 15(1) of the Zimbabwe Constitution, which like our Constitution, has entrenched guarantees against torture or inhuman and degrading punishment. [249] The so-called \"death row phenomenon\" also came under attack in the case of Soering v United Kingdom (1989) 11 EHRR 439. From the statistics supplied by the Attorney-General and from what one gleans daily from the newspapers and other media, we live at a time when the high crime rate is unprecedented, when the streets of our cities and towns rouse fear and despair in the heart, rather than pride and hope, and this in turn, robs us of objectivity and personal concern for our brethren. But, as Marshall J put it in Furman v Georgia (supra) at 371: \"The measure of a country's greatness is its ability to retain compassion in time of crisis.\" [250] This, in my view, also accords with ubuntu - and calls for a balancing of the interest of society against those of the individual, for the maintenance of law and order, but not for dehumanising and degrading the individual. [251] We must stand tallest in these troubled times and realise that every accused person who is sent to jail is not beyond being rehabilitated - properly counselled - or, at the very least, 149 \f beyond losing the will and capacity to do evil. MADALA J", "A further aspect which I wish to mention is the question of traditional African jurisprudence, and the degree to which such values have not been researched for the purposes of the determination of the issue of capital punishment. [253] Ms Davids, who appeared on behalf of the Black Advocates Forum, in its capacity as amicus curiae, touched on but did not fully argue this matter. [254] She submitted that we could not determine the question of the constitutionality or otherwise of the death sentence without reference to further evidence which would include the views, aspirations and opinions of the historically disadvantaged and previously oppressed people of South Africa, who also constitute the majority of our society. [255] As I understood her argument, the issue of capital punishment could not be determined in an open and democratic society without the active participation of the black majority. This, in my view, would be tantamount to canvassing public opinion among the black population for the decisions of our courts. I do not agree with this submission, if it implies that this Court or any other court must function according to public opinion. [256] In order to arrive at an answer as to the constitutionality or otherwise of the death penalty or any enactment, we do not have to canvass the opinions and attitudes of the public. Ours is to interpret the provisions of the Constitution as they stand and if any matter is in conflict with the Constitution, we have to strike it down. [257] We, as judges, are oath bound to defend the Constitution. This obligation, in turn, requires that any enactment of Parliament should be judged by standards laid down by the Constitution. The judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the State seeks to take away the individual fundamental right to life, the safeguards of the Constitution should be examined with special diligence. When it appears that an act of Parliament conflicts with the provisions of the Constitution, we have no choice but to enforce the paramount commands of the 150 \f Constitution. We are sworn to do no less. [258] I agree with Ms Davids' submission about the need to bring in the traditional African jurisprudence to these matters, to the extent that such is applicable, and would not confine such research to South Africa only, but to Africa in general. [259] For purposes of the determination of the question of the constitutionality of the death penalty, however, it is, in my view, not necessary or even desirable that public opinion should be sought on the matter in the manner she suggests. [260] In my view, the death penalty does not belong to the society envisaged in the Constitution, is clearly in conflict with the Constitution generally and runs counter to the concept of ubuntu; additionally and just as importantly, it violates the provisions of Section 11(2) of the Constitution and, for those reasons, should be declared unconstitutional and of no force and effect. [261] MAHOMED J: I have had the privilege of reading the full and erudite judgment of Chaskalson P in this matter. I agree with the order proposed by him and in general with the reasons given by him for that order. Regard being had, however, to the crucial consequences of the debate on capital punishment, and the multiplicity of potential constitutional factors and nuances which impact on its resolution, I think it is desirable for me to set out briefly some of my responses to this debate in order to explain why I have come to the conclusion that capital punishment is prohibited by the Constitution. [262] All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions; the basic premises upon which judicial, legislative and executive power is to be wielded; the constitutional limits and the conditions upon which that power is to be exercised; the national ethos which defines and regulates that exercise; and the moral and ethical direction which that nation has identified for its future. In some countries, the Constitution only formalizes, in a legal 151 \f MAHOMED J instrument, a historical consensus of values and aspirations evolved incrementally from a stable and unbroken past to accommodate the needs of the future. The South African Constitution is different: it retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a \"new order .. in which there is equality between ... people of all races\". Chapter 3 of the Constitution extends the contrast, in every relevant area of endeavour (subject only to the obvious limitations of section 33). The past was redolent with statutes which assaulted the human dignity of persons on the grounds of race and colour alone; section 10 constitutionally protects that dignity. The past accepted, permitted, perpetuated and institutionalized pervasive and manifestly unfair discrimination against women and persons of colour; the preamble, section 8 and the postamble seek to articulate an ethos which not only rejects its rationale but unmistakenly recognizes the clear justification for the reversal of the accumulated legacy of such discrimination. The past permitted detention without trial; section 11(1) prohibits it. The past permitted degrading treatment of persons; section 11(2) renders it unconstitutional. The past arbitrarily repressed the freedoms of expression, assembly, association and movement; sections 15, 16, 17 and 18 accord to these freedoms the status of \"fundamental rights\". The past limited the right to vote to a minority; section 21 extends it to every citizen. The past arbitrarily denied to citizens on the grounds of race and colour, the right to hold and acquire property; section 26 expressly secures it. Such a jurisprudential past created what the postamble to the Constitution recognizes as a society \"characterized by strife, conflict, untold suffering and injustice\". What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting \"future founded on the recognition of human rights, democracy and 152 \f MAHOMED J peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex\". [263] The postamble to the Constitution gives expression to the new ethos of the nation by a commitment to \"open a new chapter in the history of our country\", by lamenting the transgressions of \"human rights\" and \"humanitarian principles\" in the past, and articulating a \"need for understanding, but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization\". \"The need for ubuntu\" expresses the ethos of an instinctive capacity for and enjoyment of love towards our fellow men and women; the joy and the fulfilment involved in recognizing their innate humanity; the reciprocity this generates in interaction within the collective community; the richness of the creative emotions which it engenders and the moral energies which it releases both in the givers and the society which they serve and are served by. [264] It is against this historical background and ethos that the constitutionality of capital punishment must be determined. [265] The death penalty sanctions the deliberate annihilation of life. As I have previously said it \"is the ultimate and the most incomparably extreme form of punishment... It is the last, the most devastating and the most irreversible recourse of the criminal law, involving as it necessarily does, the planned and calculated termination of life itself; the destruction of the greatest and most precious gift which is bestowed on all humankind\" (S v Mhlongo 1994 (1) SACR 584(A) at 587 e-g). This \"planned and calculated termination of life itself\" was permitted in the past which preceded the Constitution. Is it now permissible? Those responsible for the enactment 153 \f MAHOMED J of the Constitution, could, if they had so wished, have treated the issue as a substantially political and moral issue justifying a political choice, clearly expressed in the Constitution, either retaining or prohibiting the death sentence. They elected not to do so, leaving it to this Court to resolve the issue, as a constitutional issue. [266] The difference between a political election made by a legislative organ and decisions reached by a judicial organ, like the Constitutional Court, is crucial. The legislative organ exercises a political discretion, taking into account the political preferences of the electorate which votes political decision-makers into office. Public opinion therefore legitimately plays a significant, sometimes even decisive, role in the resolution of a public issue such as the death penalty. The judicial process is entirely different. What the Constitutional Court is required to do in order to resolve an issue, is to examine the relevant provisions of the Constitution, their text and their context; the interplay between the different provisions; legal precedent relevant to the resolution of the problem both in South Africa and abroad; the domestic common law and public international law impacting on its possible solution; factual and historical considerations bearing on the problem; the significance and meaning of the language used in the relevant provisions; the content and the sweep of the ethos expressed in the structure of the Constitution; the balance to be struck between different and sometimes potentially conflicting considerations reflected in its text; and by a judicious interpretation and assessment of all these factors to determine what the Constitution permits and what it prohibits. [267] Adopting that approach, I am satisfied that the death penalty as a form of punishment violates crucial sections of the Constitution and that it is not saved by the limitations permitted in terms of section 33. I wish briefly to set out my reasons for that conclusion. [268] In the first place, it offends section 9 of the Constitution which prescribes in peremptory terms that \"every person shall have the right to life\". What does that mean? What is a \"person\"? When does \"personhood\" and \"life\" begin? Can there be a conflict between the \"right to life\" in section 9 and the right of a mother to \"personal privacy\" in terms of section 13 and her possible right to the freedom and control of her body? Does the \"right 154 \f MAHOMED J to life\", within the meaning of section 9, preclude the practitioner of scientific medicine from withdrawing the modern mechanisms which mechanically and artificially enable physical breathing in a terminal patient to continue, long beyond the point, when the \"brain is dead\" and beyond the point when a human being ceases to be \"human\" although some unfocussed claim to qualify as a \"being\" is still retained? If not, can such a practitioner go beyond the point of passive withdrawal into the area of active intervention? When? Under what circumstances? [269] It is, for the purposes of the present case, unnecessary to give to the word \"life\" in section 9 a comprehensive legal definition, which will accommodate the answer to these and other complex questions. Whatever be the proper resolution of such issues, should they arise in the future, it is possible to approach the constitutionality of the death sentence by a question with a sharper and narrower focus, thus: \"Does the right to life guaranteed by section 9, include the right of every person, not to be deliberately killed by the State, through a systematically planned act of execution sanctioned by the State as a mode of punishment and performed by an executioner remunerated for this purpose from public funds?\" The answer to that question, is in my view: \"Yes, every person has that right\". It immediately distinguishes that right from some other obvious rights referred to in argument, such as for example the right of a person in life-threatening circumstances to take the life of the aggressor in self-defence or even the acts of the State, in confronting an insurrection or in the course of War. [270] The deliberate annihilation of the life of a person, systematically planned by the State, as a mode of punishment, is wholly and qualitatively different. It is not like the act of killing in self-defence, an act justifiable in the defence of the clear right of the victim to the preservation of his life. It is not performed in a state of sudden emergency, or under the extraordinary pressures which operate when insurrections are confronted or when the State defends itself during War. It is systematically planned long after - sometimes years after - the offender has committed the offence for which he is to be punished, and whilst 155 \f MAHOMED J he waits impotently in custody, for his date with the hangman. In its obvious and awesome finality, it makes every other right, so vigorously and eloquently guaranteed by Chapter 3 of the Constitution, permanently impossible to enjoy. Its inherently irreversible consequence, makes any reparation or correction impossible, if subsequent events establish, as they have sometimes done, the innocence of the executed or circumstances which demonstrate manifestly that he did not deserve the sentence of death. [271] The death sentence must, in some measure, manifest a philosophy of indefensible despair in its execution, accepting as it must do, that the offender it seeks to punish is so beyond the pale of humanity as to permit of no rehabilitation, no reform, no repentance, no inherent spectre of hope or spirituality; nor the slightest possibility that he might one day, successfully and deservedly be able to pursue and to enjoy the great rights of dignity and security and the fundamental freedoms protected in Chapter 3 of the Constitution, the exercise of which is possible only if the \"right to life\" is not destroyed. The finality of the death penalty allows for none of these redeeming possibilities. It annihilates the potential for their emergence. Moreover, it cannot accomplish its objective without invading in a very deep and distressing way, the guarantee of human dignity afforded by section 10 of the Constitution, as the person sought to be executed spends long periods in custody, anguished by the prospect of being \"hanged by the neck until he is dead\" in the language of section 279(4) of Act 51 of 1977. The invasion of his dignity is inherent. He is effectively told: \"You are beyond the pale of humanity. You are not fit to live among humankind. You are not entitled to life. You are not entitled to dignity. You are not human. We will therefore annihilate your life\". (See the observations of Brennan J in Trop v Dulles 356 US 84 at 100). [272] It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find to be so repugnant in the conduct of the offender in the first place (see Furman v Georgia 408 US 238 at 273 (1972)(Brennan J, concurring)). 156 \fMAHOMED J [273] I also have very considerable difficulty in reconciling the guarantee of the right to equality which is protected by section 8 of the Constitution, with the death penalty. I have no doubt whatever that Judges seek conscientiously and sedulously to avoid, any impermissibly unequal treatment between different accused whom they are required to sentence, but there is an inherent risk of arbitrariness in the process, which makes it impossible to determine and predict which accused person guilty of a capital offence will escape the death penalty and which will not. The fault is not of the sentencing Court, but in the process itself. The ultimate result depends not on the predictable application of objective criteria, but on a vast network of variable factors which include, the poverty or affluence of the accused and his ability to afford experienced and skillful counsel and expert testimony; his resources in pursuing potential avenues of investigation, tracing and procuring witnesses and establishing facts relevant to his defence and credibility; the temperament and sometimes unarticulated but perfectly bona fide values of the sentencing officer and their impact on the weight to be attached to mitigating and aggravating factors; the inadequacy of resources which compels the pro - deo system to depend substantially on the services of mostly very conscientious but inexperienced and relatively junior counsel; the levels of literacy and communication skills of the different accused in effectively transmitting to counsel the nuances of fact and inference often vital to the probabilities; the level of training and linguistic facilities of busy interpreters; the environmental milieu of the accused and the difference between that and the comparative environment of those who defend, prosecute and judge him; class, race, gender and age differences which influence bona fide perceptions, relevant to the determination of the ultimate sentence; the energy, skill and intensity of police investigations in a particular case; and the forensic skills and experience of counsel for the prosecution. There are many other such factors which influence the result and which determine who gets executed and who survives. The result is not susceptible to objective prediction. Some measure of arbitrariness seems inherent in the process. This truth has caused Blackmun J, one of the most experienced Judges of the United States Supreme Court, finally to conclude that it 157 \f MAHOMED J \"is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question - does the system accurately and consistently determine which defendants 'deserve' to die? - cannot be answered in the affirmative\" (Callins v Collins 114 S. Ct. 1127; 127 L.Ed.2d 435 (1994)(Blackmun J, dissenting)). [274] It must, of course, be conceded that the factors which ensure arbitrariness in the judicial application of the death sentence, must in some considerable measure also influence a sentence of imprisonment, but there is an enormous difference between the death sentence and imprisonment or any other sentence. It is a qualitative and not just a quantitative difference. The unfair consequences of a wrong sentence of imprisonment can be reversed. Death, however, is final and irreversible. The accused, who is imprisoned, is still able to exercise, within the discipline of the prison, in varying degrees, some of the other rights which the Constitution guarantees to every person. The executed prisoner loses the right to pursue any other right. He simply dies. [275] For substantially the reasons given by Chaskalson P, I am further of the view that the death penalty is also inconsistent with section 11(2) of the Constitution which provides that: \"No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.\" [276] The different parts of section 11(2) must be read disjunctively. The death sentence would (subject to section 33) offend section 11(2) if it constitutes (a) (b) (c) (d) (e) (f) (g) torture; or cruel treatment; or cruel punishment; or inhuman treatment; or inhuman punishment; or degrading treatment; or degrading punishment. (See Ex Parte Attorney-General, Namibia: In re Corporal Punishment 1991 (3) SA 76 (NmSC) at 86B-D) 158 \f [277] In my view, the death sentence does indeed constitute cruel, inhuman or degrading punishment MAHOMED J within the meaning of those expressions in section 11(2). [278] Undoubtedly, this conclusion does involve in some measure a value judgment, but it is a value judgment which requires objectively to be formulated, having regard to the ordinary meaning of the words used in section 11(2); its consistency with the other rights protected by the Constitution and the constitutional philosophy and humanism expressed both in the preamble and the postamble to the Constitution; its harmony with the national ethos which the Constitution identifies; the historical background to the structures and objectives of the Constitution; the discipline of proportionality to which it must legitimately be subject; the effect of the death sentence on the right to life protected by the Constitution; its inherent arbitrariness in application; its impact on human dignity; and its consistency with constitutional perceptions evolving both within South Africa and the world outside with which our country shares emerging values central to the permissible limits and objectives of punishment in the civilized community. [279] I have dealt with some of these issues, in analysing the proper approach to the interpretation of the Constitution, and in focusing on the rights protected by sections 8, 9 and 10 of the Constitution. Some of the other issues relevant to the exercise, have been dealt with in the comprehensive judgment of the President and the persuasive comments of some of my colleagues. [280] Applying the relevant considerations which emerge from the proper approach in assessing whether capital punishment is \"cruel, inhuman or degrading punishment\", I share the conclusions arrived at by the United Nations Committee on Human Rights, and the Hungarian Constitutional Court, (Decision 23/1990 (X31) AB) that the death sentence is cruel and degrading punishment and the conclusion of the Californian Supreme Court that it is \"impermissibly cruel\" (People v Anderson 493 P.2d 880 (1972)). 159 \fMAHOMED J [281] In my view, it also constitutes inhuman punishment. It invades irreversibly the humanity of the offender by annihilating the minimum content of the right to life protected by section 9; by degrading impermissibly the humanity inherent in his right to dignity; by the inevitable arbitrariness with which its objective is implemented; by the continuing and corrosive denigration of his humanity in the long periods preceding his formal execution; by the inescapable denial of his humanity inherently involved in a sentence which directs his elimination from society. [282] I am accordingly of the view that the death penalty does prima facie invade the right to life; the right to equality; the right to dignity; and the right not to be subject to cruel inhuman or degrading punishment, respectively protected by sections 9, 8, 10 and 11(2) of the Constitution. [283] Notwithstanding that conclusion however, it would be our duty to uphold the constitutionality of the death penalty if it was saved by section 33 of the Constitution, which provides that the rights entrenched by Chapter 3 may be limited by a law of general application, provided that such limitation shall be permissible only to the extent that it is (i) (ii) reasonable; and justifiable in an open and democratic society based on freedom and equality; and shall not negate the essential content of the right in question, and provided that any limitation to a right entrenched in section 10, 11, 12, 14(1), 21, 25 or 30(1)(d) or (e) or (2); or ......... shall in addition to being reasonable as required in paragraph (a)(i) also be necessary\". \"(a) (b) (aa) (bb) On a proper construction of section 33, a \"law of general application\" which invades a right entrenched in Chapter 3, will be declared unconstitutional unless the party relying on such law is able to establish that it fulfils each of the conditions prescribed by this section, for its justification. [284] In order to qualify as a permissible limitation in terms of section 33 the State must therefore 160 \f MAHOMED J establish that the invasions on the right to life, the right to be protected from unfair discrimination, the right to dignity and the right to be protected from cruel, inhuman or degrading punishment, which the application of the death penalty causes, satisfy at least the three separate elements specified in sections 33(1)(a)(i), (ii) and 33(1)(b). In the case of a limitation on the right to dignity and the right to be protected from cruel, inhuman or degrading punishment, the fourth element of \"necessity\" contained in section 33(1)(aa) must further be satisfied. [285] The most plausible argument in support of the submission that the death penalty does satisfy these onerous conditions prescribed by section 33 is the submission that it acts as a deterrent. That argument has dominated perceptions in support of the death penalty, both in South Africa and abroad. [286] It must readily be conceded that if it could be established that the death sentence does indeed deter the commission of serious offences in respect of which the death penalty is a competent sentence, it would indeed be a very relevant and at least a potentially persuasive consideration in support of its justification in terms of section 33. There are, however, some serious difficulties involved in the acceptance of the proposition that the death penalty is, or ever has been, a demonstrable deterrence. [287] The legitimacy of the argument must to a substantial degree be premised on an assumption which appears to me to be fallacious and at the least, highly speculative and rationally unconvincing. That assumption is that a criminal, contemplating the commission of a serious offence, weighs the risk that he might be sentenced to death against the risk that he might not be sentenced to death but only to a long term of imprisonment of twenty years or more. The assumption is that he would decide to commit the offence even at the risk of receiving a long term of imprisonment but that if the death sentence was the risk, he would refrain from committing the offence at all. I have serious difficulties with these assumptions. In the first place they are not supported by any empirical evidence or research in this country or abroad. Secondly, this argument attributes to the offender a capacity for reflection and contemplation and a maturity of analysis which appears to me 161 \f MAHOMED J to be unrealistic. Thirdly, and more fundamentally, it ignores what is possibly the real factor in any risk assessment which might activate a potentially serious offender: the risk which he considers is that he will not be caught. If he believed that there was a real risk of being apprehended, charged and convicted he would not willingly assume the prospect of many years of quite punishing imprisonment. [288] If, as I believe, such offenders commit the crimes contemplated because of a belief that they will probably not be apprehended at all, it is a belief which is regrettably justified. On the information that was common cause in argument before us, sixty or seventy percent of offenders who commit serious crimes are not apprehended at all and a substantial proportion of those who are, are never convicted. The risk is therefore worth taking, not because the death penalty would, in the perception of the offender, not be imposed but because no punishment is likely to result at all. The levels of serious crimes committed in South Africa are indeed disturbing. For many in the community, life has become dangerous and intolerable. Criminals do need vigorously to be deterred from conduct which endangers the security and freedom of citizens to a very distressing degree but, on the available evidence, it is facile to assume that the retention of the death penalty will provide the deterrence which is clearly needed. I have analysed such statistics as were debated in argument. In comparisons between States in the United States of America which retained the death penalty and those which did not, there is no manifest proof that the rate of serious crime was greater in the States which did not sanction capital punishment. In the case of those which did abolish capital punishment, there was no convincing proof that the rate of serious crime was greater after such act of abolition (Peterson and Bailey, \"Murder and Capital Punishment in the context of the Post- Furman Era (1988)66 Social Forces 774; Thorsten Sellin, The Death Penalty, 1982). [289] Following a survey of research findings the United Nations concluded that - \"this research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment - such proof is unlikely to be following. The evidence as a whole still gives no possible support to the deterrent hypothesis\". (United Nations: The Question of the Death Penalty and the New Contributions of Criminal Science to the Matter (1988) at 110). 162 \fMAHOMED J [290] We were not furnished with any reliable research dealing with the relationship between the rate of serious offences and the proportion of successful apprehensions and convictions following on the commission of serious offences. This would have been a significant enquiry. It appears to me to be an inherent probability that the more successful the police are in solving serious crimes and the more successful they are in apprehending the criminals concerned and securing their convictions, the greater will be the perception of risk for those contemplating such offences. That increase in the perception of risk, contemplated by the offender, would bear a relationship to the rate at which serious offences are committed. Successful arrest and conviction must operate as a deterrent and the State should, within the limits of its undoubtedly constrained resources, seek to deter serious crime by adequate remuneration for the police force; by incentives to improve their training and skill; by augmenting their numbers in key areas; and by facilitating their legitimacy in the perception of the communities in which they work.", "Successful deterrence of serious crime also involves the need for substantial redress in the socio- economic conditions of those ravaged by poverty, debilitated by disease and malnutrition and disempowered by illiteracy. Rapid amelioration in these areas must have some concomitant effect on the levels of crime. There has to be a corresponding campaign among the communities affected by serious crime to harness their own legitimacy and their own infrastructures, in interaction with the security agencies of the State. The power and influence of agencies of moral authority such as teachers, school principals and religious leaders must rapidly be restored. Crime is a multi-faceted phenomenon. It has to be assaulted on a multi-dimensional level to facilitate effective deterrence. [292] The moratorium on the execution of the death penalty, which has been effectively in operation since 1990, is also relevant in offering some insight into the veracity of the proposition that executions for capital crimes operate as a deterrent. That proposition, as Didcott J has correctly analysed, is not cogently supported by the statistics made available to us for the period following upon the moratorium; nor is it supported by the rate at which crime levels increased during periods in our history when executions were administered with 163 \f vigour. MAHOMED J [293] Bringing to bear upon the issue, therefore, a rational and judicial judgment, I have not been persuaded that the fear of the death penalty rationally or practically operates as a demonstrable deterrent for offenders seeking to perpetrate serious crimes. It remains, for the reasons I have previously discussed, an impermissibly cruel invasion of rights, the sustenance of which is fundamental to a defensible civilization, protected in South Africa by the ethos of a Constitution, which is manifestly humanistic and caring in its content. [294] Even if the fallacious and speculative assumptions which motivate the argument in support of the proposition that the death sentence does act as a deterrent against serious crime were to be accepted, rationally the fear of the death penalty would only operate on the mind of the potential offender if there was a serious risk that he could be so punished. On the information made available to us, however, that risk is in any event so minimal, as to constitute a remote statistical possibility, which, as Mr Trengove argued, might be no more significant than the risk of dying in a motor accident. It is difficult to appreciate how such a remote statistical possibility acts as a deterrent on the minds of potential offenders. [295] On a judicial application of all the relevant considerations and the facts made available to us, I therefore cannot conclude that the State has successfully established that the death penalty per se has any deterrent effect on the potential perpetrators of serious offences. [296] Is there any other basis on which the death penalty can be justified? The only serious alternative basis suggested in argument was that it is justifiable as an act of retribution. Retribution has indeed constituted one of the permissible objects of criminal punishment because there is an inherent legitimacy about the claim that the individual victims and society generally should, and are entitled to, enforce punishment as an expression of their moral outrage and sense of grievance. I have, however, some serious difficulties with the justification of the death sentence as a form of retribution. The proper approach is not to contrast the legitimacy of the death sentence as a form of retribution against no retribution at all. That is plainly untenable and manifestly indefensible. The relevant 164 \f MAHOMED J contrast is between the death sentence and the alternative of a very lengthy period of imprisonment, in appropriate cases. It is difficult to appreciate why a sentence which compels the offender to spend years and years in prison, away from his family, in conditions of deliberate austerity and rigid discipline, substantially and continuously impeding his enjoyment of the elementary riches and gifts of civilized living, is not an effective and adequate expression of moral outrage. The unarticulated fallacy in the argument that it is not, is the proposition that it must indeed be equivalent in form to the offence committed. That is an impermissible argument. The burning of the house of the offender is not a permissible punishment for arson. The rape of the offender is not a permissible punishment of a rapist. Why should murder be a permissible punishment for murder? Indeed, there are good reasons why it should not, because its execution might desensitize respect for life per se. More crucially, within the context of the South African Constitution, it appears to be at variance with its basic premise and ethos which I analysed earlier in this judgment. On these considerations, I find it difficult to hold that the death sentence has been demonstrated by the State to be \"justifiable in an open and democratic society based on freedom and equality\". [297] That conclusion should make it unnecessary for me to deal with the other elements of justification set out in section 33, but I am in any event of the view that the State has not established that the limitations the death penalty imposes on the relevant rights in Chapter 3, which I have discussed, can be said to be \"necessary\". That is a material element for justification in terms of section 33 where what is limited is the right to human dignity in section 10 or the right to be protected from cruel, inhuman or degrading punishment in terms of section 11(2). The failure to satisfy that element is fatal to the attempt to establish justification in terms of section 33. Section 277(1)(a) of Act 51 of 1977 must therefore be the constitutional casualty of this conclusion and therefore be struck down. The reasons which have prompted that conclusion are substantially also of application to sub-paragraphs (c) (d) (e) and (f) of section 277(1) and must therefore endure the same fate. For the reasons given by Chaskalson P, I agree that the issue as to whether section 277(1)(b) is unconstitutional should be left open. 165 \f [298] It also follows from my approach and the conclusions to which I have arrived, that it is unnecessary to decide whether or not the death penalty does \"negate the essential content of the right in question\" within the meaning of section 33(1)(b). I also prefer to leave this question open. In the absence of full argument, I do not consider it desirable to determine what the meaning of the reference to the \"essential content of the right\" is. Chaskalson P, in paragraph 132 of his judgment, has, without deciding, referred to two approaches which he describes as the \"objective\" and \"subjective\" determination of the essential content. Arguably, it is possible to consider a third angle which focuses on the distinction between the \"essential content\" of a right and some other content. This distinction might justify a relative approach to the determination of what is the essential content of a right by distinguishing the central core of the right from its peripheral outgrowth and subjecting \"a law of general application\" limiting an entrenched right, to the discipline of not invading the core, as distinct from the peripheral outgrowth. In this regard, there may conceivably be a difference between rights which are inherently capable of incremental invasion and those that are not. We have not heard proper argument on any of these distinctions which justify debate in the future in a proper case. I say no more. [299] Consistent with my approach to the judicial process involved in the determination of the constitutionality of the death sentence, I am accordingly privileged to concur in the order supported by all my colleagues. [300] MOKGORO J: I am in agreement with the judgement of Chaskalson P, its reasoning, and its conclusions, and I concur in the order that gives effect to those conclusions. I give this brief concurring opinion to highlight what I regard as important: namely that, when our courts promote the underlying values of an open and democratic society in terms of Section 35 when considering the constitutionality of laws, they should recognise that indigenous South African values are not always irrelevant nor unrelated to this task. In my view, these values are embodied in the Constitution and they impact directly on the death penalty as a form of punishment. 166 \f [301] Now that constitutionalism has become central to the new emerging South African jurisprudence, legislative interpretation will be radically different from what it used to be in the past legal order. In that legal order, due to the sovereignty of parliament, the supremacy of legislation and the absence of judicial review of parliamentary statutes, courts engaged in simple statutory interpretation, giving effect to the clear and unambiguous language of the legislative text - no matter how unjust the legislative provision. The view of the court in Bongopi v Council of the State, Ciskei 1992(3) SA 250 (CK) at 265 H - I, as per Pickard CJ is instructive in this regard: \u2018This court has always stated openly that it is not the maker of laws. It will enforce the law as it finds it. To attempt to promote policies that are not to be found in the law itself or to prescribe what it believes to be the current public attitudes or standards in regard to these policies is not its function\u2019. [302] With the entrenchment of a Bill of Fundamental Rights and Freedoms in a supreme constitution, however, the interpretive task frequently involves making constitutional choices by balancing competing fundamental rights and freedoms. This can often only be done by reference to a system of values extraneous to the constitutional text itself, where these principles constitute the historical context in which the text was adopted and which help to explain the meaning of the text. The constitution makes it particularly imperative for courts to develop the entrenched fundamental rights in terms of a cohesive set of values, ideal to an open and democratic society. To this end common values of human rights protection the world over and foreign precedent may be instructive. [303] While it is important to appreciate that in the matter before us the court had been called upon to decide an issue of constitutionality and not to engage in debate on the desirability of abolition or retention, it is equally important to appreciate that the nature of the court\u2019s role in constitutional interpretation, and the duty placed on courts by Section 35, will of necessity draw them into the realm of making necessary value choices. 167 \fMOKGORO J [304] The application of the limitation clause embodied in Section 33(1) to any law of general application which competes with a Chapter 3 right is essentially also an exercise in balancing opposing rights. To achieve the required balance will of necessity involve value judgements. This is the nature of constitutional interpretation. Indeed Section 11(2) which is the counterpart of Section 15(1) of the Constitution of Zimbabwe1, and provides protection against cruel, inhuman or degrading punishment, embodies broad idealistic notions of dignity and humanity. If applied to determine whether the death penalty was a form of torture, treatment or punishment which is cruel, inhuman or degrading it also involves making value choices, as was held per Gubbay CJ in Catholic Commision for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe, 1993(4) SA 239(ZS) at 241. In order to guard against what Didcott J, in his concurring judgement terms the trap of undue subjectivity, the interpretation clause prescribes that courts seek guidance in international norms and foreign judicial precedent, reflective of the values which underlie an open and democratic society based on freedom and equality. By articulating rather than suppressing values which underlie our decisions, we are not being subjective. On the contrary, we set out in a transparent and objective way the foundations of our interpretive choice and make them available for criticism. Section 35 seems to acknowledge the paucity of home-grown judicial precedent upholding human rights, which is not surprising considering the repressive nature of the past legal order. It requires courts to proceed to public international law and foreign case law for guidance in constitutional interpretation, thereby promoting the ideal and internationally accepted values in the cultivation of a human rights jurisprudence for South Africa. However, I am of the view that our own (ideal) indigenous value systems are a premise from which we need to proceed and are not wholly unrelated to our goal of a society based on freedom and equality. This, in my view too, is the relevance of the submissions of Adv. Davids, appearing as amicus curiae on behalf of the Black Advocates\u2019 Forum, albeit that these submissions were inappropriately presented. [305] In Dudgeon v United Kingdom (1982) 4 EHRR 149, the European Court of Human Rights, per 1 Act No 12 of 1979. 168 \f Walsh J, expressed the view that: MOKGORO J \u201c... in a democracy the law cannot afford to ignore the moral consensus of the community. If the law is out of touch with the moral consensus of the community, whether by being either too far below it or too far above it, the law is brought into contempt\u201d (at 184). Although this view was expressed in relation to the legislative process, in as far as courts have to comply with the requirements of Section 35 of the Constitution the approach it embodies is not wholly inapplicable in constitutional adjudication. Enduring values, however, are not the same as fluctuating public opinion. In his argument before the court, the Attorney General submitted that: \u201c... the overwhelming public opinion in favour of the retention of the death sentence is sufficiently well-known to be accepted as the true voice of the South African society. This opinion of the South African public is evidenced by newspaper articles, letters to newspapers, debates in the media and representations to the authorities...\u201d The described sources of public opinion can hardly be regarded as scientific. Yet even if they were, constitutional adjudication is quite different from the legislative process, because \u201cthe court is not a politically responsible institution\u201d2 to be seized every five years by majoritarian opinion. The values intended to be promoted by Section 35 are not founded on what may well be uninformed or indeed prejudiced public opinion. One of the functions of the court is precisely to ensure that vulnerable minorities are not deprived of their constitutional rights. 2 See Jesse Choper quoted in Rights and Constitutionalism; The New South African Legal Order; Van Wyk D. et al, Juta, 1994 p. 9. The suggestion is that the judiciary is not wholly removed from the political process, where it plays a supervisory role, restraining the majority will through judicial review. 169 \fMOKGORO J [306] In support of her main contention, Adv. Davids quite appropriately expressed concern for the need to consider the value systems of the formerly marginalised sectors of society in creating a South African jurisprudence. However, for reasons outlined in the concurring opinion of Sachs J, the issue was regrettably not argued. Indeed even if her submissions might not have influenced the final decision of the court, the opportunity to present and argue properly adduced evidence of those undistorted values historically disregarded in South African judicial law-making would have created an opportunity of important historical value, injecting such values into the mainstream of South African jurisprudence. The experience would, in my view, also have served to emphasise that the need to develop an all-inclusive South African jurisprudence is not only incumbent upon the judiciary, let alone the Constitutional Court. The broad legal profession, academia and those sectors of organised civil society particularly concerned with public interest law, have an equally important responsibility and role to play by combining efforts and resources to place the required evidence in argument before the courts. It is not as if these resources are lacking; what has been absent has been the will, and the acknowledgment of the importance of the material concerned. [307] In interpreting the Bill of Fundamental Rights and Freedoms, as already mentioned, an all- inclusive value system, or common values in South Africa, can form a basis upon which to develop a South African human rights jurisprudence. Although South Africans have a history of deep divisions characterised by strife and conflict, one shared value and ideal that runs like a golden thread across cultural lines, is the value of ubuntu - a notion now coming to be generally articulated in this country. It is well accepted that the transitional Constitution is a culmination of a negotiated political settlement. It is a bridge between a history of gross violations of human rights and humanitarian principles, and a future of reconstruction and reconciliation. The post-amble of the Constitution expressly provides, \u201c... there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation...\u201d 170 \f MOKGORO J Not only is the notion of ubuntu expressly provided for in the epilogue of the Constitution, the underlying idea and its accompanying values are also expressed in the preamble. These values underlie, first and foremost, the whole idea of adopting a Bill of Fundamental Rights and Freedoms in a new legal order. They are central to the coherence of all the rights entrenched in Chapter 3 - where the right to life and the right to respect for and protection of human dignity are embodied in Sections 9 and 10 respectively. [308] Generally, ubuntu translates as humaneness. In its most fundamental sense, it translates as personhood and morality. Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities. While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation.3 In South Africa ubuntu has become a notion with particular resonance in the building of a democracy. It is part of our \u201crainbow\u201d heritage, though it might have operated and still operates differently in diverse community settings. In the Western cultural heritage, respect and the value for life, manifested in the all-embracing concepts of humanity and menswaardigheid are also highly priced. It is values like these that Section 35 requires to be promoted. They give meaning and texture to the principles of a society based on freedom and equality. [309] In American jurisprudence, courts have recognised that the dignity of the individual in American society is the supreme value. Even the most evil offender, it has been held, \u201cremains a human being possessed of a common human dignity\u201d (Furman v Georgia 408 US 238 at 273 (1972)), thereby making the calculated process of the death penalty inconsistent with this basic, fundamental value. In Hungarian jurisprudence, the right to life and the right 3 Mbigi, L., with J. Maree, UBUNTU - The Spirit of African Transformation Management, Knowledge Resources, 1995, pp. 1-16. 171 \f MOKGORO J to human dignity are protected as twin rights in Section 54(1) of that Constitution4. They are viewed as an inseparable unity of rights. Not only are they regarded as a unity of indivisible rights, but they also have been held to be the genesis of all rights. In international law, on the other hand, human dignity is generally considered the fountain of all rights. The International Covenant on Civil and Political Rights (1966) G.A. Res 2200 (XXI), 21 U.N. GAOR, SUPP. (No, 16) at 52, U.N. DOC. A/6316(1966), in its preamble, makes references to \u201cthe inherent dignity of all members of the human family\u201d and concludes that \u201chuman rights derive from the inherent dignity of the human person\u201d. This, in my view, is not different from what the spirit of ubuntu embraces. [310] It is common cause, however, that the legal system in South Africa, and the socio-political system within which it operated, has for decades traumatised the human spirit. In many ways, it trampled on the basic humanity of citizens. We cannot in all conscience declare, as did a United States Supreme Court justice in Furman v Georgia 408 US 238, at 296 (1972) with reference to the American context, that respect for and protection of human dignity has been a central value in South African jurisprudence. We cannot view the death penalty as fundamentally inconsistent with our harsh legal heritage. Indeed, it was an integral part of a system of law enforcement that imposed severe penalties on those who aspired to achieve the values enshrined in our Constitution today. [311] South Africa now has a new constitution however, which creates a constitutional state. This state is in turn founded on the recognition and protection of basic human rights, and although this constitutes a revolutionary change in legal terms, the idea is consistent with the inherited traditional value systems of South Africans in general - traditional values which hardly found the chance to bring South Africa on par with the rest of the world. 4 See analysis in the English translation of Decision No 23/1990 (X31) AB of the Hungarian Constitutional Court. 172 \fMOKGORO J As this constitution evolves to overcome the culture of gross human rights violations of the past, jurisprudence in South Africa will simultaneously develop a culture of respect for and protection of basic human rights. Central to this commitment is the need to revive the value of human dignity in South Africa, and in turn re-define and recognise the right to and protection of human dignity as a right concomitant to life itself and inherent in all human beings, so that South Africans may also appreciate that \u201ceven the vilest criminal remains a human being\u201d(Furman v Georgia, supra). In my view, life and dignity are like two sides of the same coin. The concept of ubuntu embodies them both. [312] In the past legal order, basic human rights in South Africa, including the right to life and human dignity, were not protected in a Bill of Fundamental Rights and Freedoms, in a supreme constitution, as is the case today. Parliament then was sovereign, and could pass any law it deemed fit. Legislation was supreme, and due to the absence of judicial review, no court of law could set aside any statute or its provision on grounds of violating fundamental rights. Hence, Section 277 of the Criminal Procedure Act, 51 of 1977, could survive untested to this day. [313] Our new Constitution, unlike its dictatorial predecessor, is value-based. Among other things, it guarantees the protection of basic human rights, including the right to life and human dignity, two basic values supported by the spirit of ubuntu and protected in Sections 9 and 10 respectively. In terms of Section 35, this Constitution now commits the state to base the worth of human beings on the ideal values espoused by open democratic societies the world over and not on race colour, political, economic and social class. Although it has been argued that the currently high level of crime in the country is indicative of the breakdown of the moral fabric of society, it has not been conclusively shown that the death penalty, which is an affront to these basic values, is the best available practical form of punishment to reconstruct that moral fabric. In the second place, even if the end was desirable, that would not justify the means. The death penalty violates the essential content of the right to life embodied in Section 9, in that it extinguishes life itself. It instrumentalises the offender for the objectives of state policy. That is dehumanising. It is degrading and it violates the rights to respect for and protection of human dignity embodied in Section 10 of the Constitution. 173 \fMOKGORO J [314] Once the life of a human being is taken in the deliberate and calculated fashion that characterises the described methods of execution the world over, it constitutes the ultimate cruelty with which any living creature could ever be treated. This extreme level of cruel treatment of a human being, however despicably such person might have treated another human being, is still inherently cruel. It is inhuman and degrading to the humanity of the individual, as well as to the humanity of those who carry it out. [315] Taking the life of a human being will always be reprehensible. Those citizens who kill deserve the most severe punishment, if it deters and rehabilitates and therefore effectively addresses deviance of this nature. Punishment by death cannot achieve these objectives. The high rate of crime in this country is indeed disturbing and the state has a duty to protect the lives of all citizens - including those who kill. However, it should find more humane and effective integrated approaches to manage its penal system, and to rehabilitate offenders. [316] The state is representative of its people and in many ways sets the standard for moral values within society. If it sanctions by law punishment for killing by killing, it sanctions vengeance by law. If it does so with a view to deterring others, it dehumanises the person and objectifies him or her as a tool for crime control. This objectification through the calculated killing of a human being, to serve state objectives, strips the offender of his or her human dignity and dehumanises, such a person constituting a violation of Section 10 of the Constitution. [317] Although the Attorney General placed great reliance on the deterrent nature of the death penalty in his argument, it was conceded that this has not been conclusively proven. It has also not been shown that this form of punishment was the best available option for the rehabilitation of the offender. Retaining the death penalty for this purpose is therefore unnecessary. Section 277(1) which authorises the death penalty under these unnecessarily inhuman and degrading circumstances is inconsistent with the right to life and human dignity embodied in Sections 9 and 10 of the Constitution, respectively, and 174 \f is in direct conflict with the values that Section 35 aims to promote in the interpretation of these sections. Taking the life of a person under such deliberate and calculated circumstances, with the methods already described in the judgement of Chaskalson P, is cruel, inhuman or degrading treatment or punishment. It is inconsistent with Section 11(2) of the Constitution. In my view, therefore, the death penalty is unconstitutional. Not only does it violate the right not be subjected to cruel, inhuman or degrading treatment or punishment, it also violates the right to life and human dignity. [318] O'REGAN J: I have read the judgment of Chaskalson P and I agree with the order that he proposes. However, although I agree that the death sentence constitutes a breach of section 11(2) of the Constitution that is not justified in terms of section 33, it is my view that it also constitutes a breach of section 9 (the right to life) and section 10 (the right to dignity) for the reasons that are given in this judgment. [319] The crimes of which the two prisoners whose case has been referred to this court have been convicted were committed during a robbery from a bank security vehicle which was delivering monthly wages to the Coronation Hospital in Johannesburg. It appears from the judgment of the Appellate Division that the two prisoners were part of a group of robbers who had cold-bloodedly planned the robbery. All the robbers had been armed with AK-47s and had opened fire on the security vehicle and the accompanying vehicle when they had driven into the hospital parking area. As a result of the shooting, two policemen and two bank security officials were shot dead. [320] There is no doubt that the crimes committed by the two prisoners were abhorrent. Our society cannot and does not condone brutal murder or robbery. Perpetrators of crimes such as these must be punished severely according to our system of criminal justice. In this case, the prisoners have been tried, convicted and sentenced. The question that this court must answer is not whether the prisoners committed these crimes, nor whether they should be punished. It has been established by the proper courts that they did commit crimes, and for that they must be punished. What this court must consider is whether the form of punishment that has been imposed is constitutional. Does our constitution permit any 175 \f O\u2019REGAN J convicted criminal, however heinous the crime, to be put to death by the government as punishment for that crime? [321] The Constitution entrenches certain fundamental rights. Included amongst these are the right to life (section 9), the right to the respect for and protection of dignity (section 10) and the right not to be subjected to cruel, inhuman or degrading punishment (section 11(2)). The prisoners allege that the death penalty is in conflict with each of these. The language of each of these rights is broad and capable of different interpretations. How is this court to determine the content and scope of these rights? This question is at least partially answered by section 35(1) of the constitution which enjoins this court in interpreting the rights contained in the Constitution to 'promote the values which underlie an open and democratic society based on freedom and equality'. [322] No-one could miss the significance of the hermeneutic standard set. The values urged upon the court are not those that have informed our past. Our history is one of repression not freedom, oligarchy not democracy, apartheid and prejudice not equality, clandestine not open government. As the epilogue to the constitution states: `This constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.' [323] In interpreting the rights enshrined in chapter 3, therefore, the court is directed to the future: to the ideal of a new society which is to be built on the common values which made a political transition possible in our country and which are the foundation of its new constitution. This is not to say that there is nothing from our past which should be retained. Of course this is not so. As Kentridge AJ described in the first judgment of this court(S v Zuma unreported judgment of this court, 5 April 1995), many of the rights entrenched in section 25 of the constitution concerning criminal justice are longstanding principles of our law, although eroded by statute and judicial decision. In interpreting the rights contained in section 25, those common law principles will be useful guides. 176 \f O\u2019REGAN J But generally section 35(1) instructs us, in interpreting the constitution, to look forward not backward, to recognise the evils and injustices of the past and to avoid their repetition. [324] Section 9 of the Constitution provides that: 'Every person shall have the right to life.' This formulation of the right to life is not one which has been used in the constitutions of other countries or in international human rights conventions. In choosing this formulation, the drafters have specifically avoided either expressly preserving the death penalty, or expressly outlawing it. In addition, they have not used the language so common in other constitutions, which provides that no-one may be deprived of life arbitrarily or without due process of law.1 To the extent that the formulation of the right is different from that adopted in other jurisdictions, their jurisprudence will be of less value. The question is thus left for us to determine whether this right, or any of the others enshrined in chapter 3, would prima facie prohibit the death penalty. [325] In giving meaning to section 9, we must seek the purpose for which it was included in the 1 The Universal Declaration of Human Rights contains an unconditional form of the right: article 3 provides that `Everyone has the right to life, liberty and security of the person.' On the other hand, many other international rights instruments contain qualified protections of the right to life. Article 6(1) of the International Convention on Civil and Political Rights stipulates that `Every human being has the inherent right to life. This right shall be protected by law. No-one shall be arbitrarily deprived of his life.' Subsections 2 - 5 of article 6 then provide for minimum standards for countries which have not abolished the death penalty, and article 6(6) provides that: `Nothing in this article shall be invoked to delay or prevent the abolition of capital punishment by any state party to the present covenant.' In addition in 1989 an optional protocol was adopted by the General Assembly of the United Nations, article 1 of which provides that `No-one within the jurisdiction of state parties to the present optional protocol shall be executed'. Article 4 of the Banjul Charter on Human and People's Rights (African Charter) provides that `Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of the person. No one may be arbitrarily deprived of this right.' Article 2(1) of the European Convention on Human Rights provides that ` Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.' But in 1983 a protocol to the Convention was adopted which provided that capital punishment should be abolished. The protocol has been widely ratified. See Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2nd ed (1990) pp 502 -3. 177 \f O\u2019REGAN J Constitution.2 This purposive or teleological approach to the interpretation of rights may at times require a generous meaning to be given to provisions of chapter 3 of the Constitution, and at other times a narrower or specific meaning. It is the responsibility of the courts, and ultimately this court, to develop fully the rights entrenched in the Constitution. But that will take time. Consequently any minimum content which is attributed to a right may in subsequent cases be expanded and developed. [326] The right to life is, in one sense, antecedent to all the other rights in the Constitution. Without life in the sense of existence, it would not be possible to exercise rights or to be the bearer of them. But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, but the right to human life: the right to live as a human being, to be part of a broader community, to share in the experience of humanity. This concept of human life is at the centre of our constitutional values. The constitution seeks to establish a society where the individual value of each member of the community is recognised and treasured. The right to life is central to such a society. [327] The right to life, thus understood, incorporates the right to dignity. So the rights to human dignity and life are entwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity. This was recognised by the Hungarian constitutional court in the case in which it considered the constitutionality of the death 2 See S v Zuma (unreported judgment of the Constitutional Court, 5 April 1995) para 15 in which Kentridge AJ referred to the judgment of Dickson J in R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 at 395 - 6 with approval. See also Law Society of British Columbia and another v Andrews and another (1989) 36 CRR 193 (SCC) at 224 - 225. 178 \f penalty: O\u2019REGAN J `It is the untouchability and equality contained in the right to human dignity that results in man's right to life being a specific right to human life (over and above animals' and artificial subjects' right to being); on the other hand, dignity as a fundamental right does not have meaning for the individual if he or she is dead. ... Human dignity is a naturally accompanying quality of human life.' (Decision No 23/1990, (X.31.) AB, George Feher translation) [328] The right to dignity is enshrined in our Constitution in section 10: `Every person shall have the right to respect for and protection of his or her dignity'. The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern.3 This right therefore is the foundation of many of the other rights that are specifically entrenched in chapter 3. As Brennan J held when speaking of forms of cruel and unusual punishments in the context of the American constitution: `The true significance of these punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.' (Furman v Georgia 408 US 238 at 272,3 (1972)) [329] Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new constitution. 3See, for discussion of the right to dignity and the death penalty, the judgment of Solyom J in the Hungarian case concerning the constitutionality of the death penalty (Decision no 23/1990 (X.31.) AB, George Feher translation). 179 \f [330] But human dignity is important to all democracies. In an aphorism coined by Ronald Dworkin `Because we honour dignity, we demand democracy'.4 Its importance was recognised too by Cory J in Kindler v Canada (1992) 6 CRR (2nd) 193 (SCC) at 237 in which he held that `[i]t is the dignity and importance of the individual which is the essence and the cornerstone of democratic government'.5 O\u2019REGAN J [331] The Attorney-General argued that the prisoners, and others like them, who are convicted of crimes for which the death penalty is currently competent, have forfeited their right to life and dignity. This cannot be correct. It is a fundamental premise of our constitution that the rights in chapter 3 are available to all South Africans no matter how atrocious their conduct. As Gubbay CJ held in Catholic Commission for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe 1993 (4) SA 239 (ZS) at 247 g -h: `It cannot be doubted that prison walls do not keep out fundamental rights and protections. Prisoners are not, by mere reason of a conviction, denuded of all the rights they otherwise possess. No matter the magnitude of the crime, they are not reduced to non-persons. They retain all basic rights, save those inevitably removed from them by law, expressly or by implication.' [332] It must be emphasised that the entrenchment of a Bill of Rights, enforceable by a judiciary, is designed, in part, to protect those who are the marginalised, the dispossessed and the outcasts of our society. They are the test of our commitment to a common humanity and cannot be excluded from it. 4See Ronald Dworkin Life's Dominion: An argument about abortion and euthanasia (1993) at 239. 5 See also S v Ncube 1988 (2) SA 702 (ZS) at 717 B - D. 180 \f O\u2019REGAN J [333] Are the rights to life and dignity breached by the death penalty? The death sentence has been part of South African law since the colonial era. Not only has the law permitted the death sentence, but it has been regularly imposed by courts and carried out by the government. For many years, South Africa had the doubtful honour of being a world leader in the number of judicial executions carried out. Although there is some uncertainty about the statistics, it appears that between 1981 and 1990 approximately 1100 people were executed in South Africa, including the Transkei, Ciskei, Bophuthatswana and Venda.6 The death sentence was imposed sometimes for crimes that were motivated by political ideals. In this way the death penalty came to be seen by some as part of the repressive machinery of the former government. Towards the end of the 1980s there were several major public campaigns to halt the execution of people who were perceived to be political opponents of the government. There is no doubt that these campaigns to prevent the execution of amongst others, the 'Sharpeville Six' and the 'Upington 26' were partly responsible for the government's decision in 1990 to suspend the implementation of sentences of death. [334] The purpose of the death penalty is to kill convicted criminals. Its very purpose lies in the deprivation of existence. Its inevitable result is the denial of human life. It is hard to see how this methodical and deliberate destruction of life by the government can be anything other than a breach of the right to life. [335] The implementation of the death penalty is also a denial of the individual's right to dignity. The execution of the death penalty was described by Professor Chris Barnard as follows: `The man's spinal cord will rupture at the point where it enters the skull, electrochemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor....' (Rand Daily Mail 12 June 1978, cited in Appellants' heads) 6 See Murray `Hangings in Southern Africa: The last ten years' (1990) 6 SAJHR 439 - 441; Keightley `Hangings in Southern Africa: the last ten years' (1991) 7 SAJHR 347 - 349; `The Death Penalty in SA: Statistics' (1989) 2 SACJ 251; Amnesty International `When the State Kills... The Death Penalty vs Human Rights' (1989) 204 - 207. 181 \f O\u2019REGAN J This frank description of the execution process leaves little doubt that it is one which is destructive of human dignity. As Cory J held in Kindler v Canada (1992) 6 CRR (2nd) 193 (SCC) at 241: `The death penalty not only deprives the prisoner of all vestiges of human dignity, it is the ultimate desecration of the individual as a human being. It is the annihilation of the very essence of human dignity.' [336] But it is not only the manner of execution which is destructive of dignity, the circumstances in which convicted criminals await the execution of their sentence also constitutes a breach of dignity. These circumstances have been amply and aptly described by Gubbay CJ in Catholic Commission for Justice and Peace, Zimbabwe v Attorney-General, Zimbabwe 1993(4) SA 239 (ZS) at 268-9. Although little evidence has been placed before us to describe the experience of condemned prisoners in South Africa, it seems all too probable that it resembles the conditions described by Gubbay CJ. Indeed, the moratorium on the implementation of the death sentence described by Chaskalson P has probably aggravated the conditions of condemned prisoners considerably. [337] Section 277 of the Criminal Procedure Act is therefore not only a breach of section 11(2) of the Constitution as held by Chaskalson P, but it is also a breach of section 9 (the right to life) and section 10 (the right to dignity). It is unnecessary and would be inappropriate to consider the further scope of these rights. [338] The Constitution does recognise in section 33 that the rights it entrenches may be limited by law of general application if a law is reasonable and justifiable (and in some circumstances, necessary) in an open and democratic society based on freedom and equality. The infringement of the rights to life and dignity occasioned by section 277 of the Criminal Procedure Act needs to be measured against this test. In this regard, it should be noted that a law which infringes the right to dignity must be shown to be a reasonable, justifiable and necessary limitation, whereas a law which contains a limitation upon the right to life need only be shown to be reasonable and justifiable. 182 \f O\u2019REGAN J [339] The purpose of the bifurcated levels of justification need not detain us here. What is clear is that section 33 introduces different levels of scrutiny for laws which cause an infringement of rights. The requirement of reasonableness and justifiability which attaches to some of the section 33 rights clearly envisages a less stringent constitutional standard than does the requirement of necessity. In both cases, the enquiry concerns proportionality: to measure the purpose, effects and importance of the infringing legislation against the infringement caused. In addition, it will need to be shown that the ends sought by the legislation cannot be achieved sufficiently and realistically by other means which would be less destructive of entrenched rights. Where the constitutional standard is necessity, the considerations are similar, but the standard is more stringent. [340] In determining whether the breaches of sections 9 and 10 are justified in terms of section 33, the relevant considerations are the same as those traversed by Chaskalson P at paragraphs 116 - 131 of his judgment albeit only in the context of a breach of section 11(2). The Attorney-General argued that the purpose of section 277 was the deterrence and prevention of crime, and retribution. Although deterrence is an important goal, as Chaskalson P has described, the deterrent effect of the death penalty remains unproven, perhaps unprovable. [341] The question of retribution is a more complex one. I agree with Chaskalson P that in a democratic society retribution as a goal of punishment should not be given undue weight. Indeed, I am unconvinced that, where the punishment is held to constitute a breach of a fundamental right, retribution would ever, on its own, be a sufficient ground for justification. As Marshall J noted in Furman v Georgia 408 US 238 at 344-5 (1972): `To preserve the integrity of the Eighth Amendment, the Court has consistently denigrated retribution as a permissible goal of punishment. It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society's abhorrence of the act. But the Eighth Amendment is our insulation from our baser selves. The `cruel and unusual' language limits the avenues through which vengeance can be channelled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.' 183 \f O\u2019REGAN J [342] It remains then to balance the purposes of section 277 with the infringement of sections 9 and 10 it causes. In this exercise, it is undeniable that sections 9 and 10 are rights which lie at the heart of our constitutional framework and that section 277 grievously infringes the ambit of these rights. They weigh very heavily in the scales of proportionality. On the other hand, while the goals of deterrence and prevention which are the purpose of section 277 are important legislative purposes, it has not been satisfactorily demonstrated that they could not be sufficiently and realistically achieved by other means. After a careful consideration of the nature of the rights, the extent of the infringement of those rights, and the purposes of section 277, I remain unpersuaded that section 277 is a constitutionally acceptable limitation upon the rights to life and dignity.", "Section 33(1)(b) provides that, in addition to being reasonable and justifiable (and where appropriate, necessary) a limitation upon a right should not negate the essential contents of the right in question. As section 277 does not meet the requirements of reasonableness, justifiability and necessity, it is not necessary and it would be inadvisable to consider whether it negates the essential contents of the rights in question. [344] In conclusion, then, the death penalty is unconstitutional. It is a breach of the rights to life and dignity that are entrenched in sections 9 and 10 of our Constitution, as well as a breach of the prohibition of cruel, inhuman and degrading punishment contained in section 11(2). The new Constitution stands as a monument to this society's commitment to a future in which all human beings will be accorded equal dignity and respect. We cannot postpone giving effect to that commitment. [345] SACHS J: I agree fully with the judgment of the President of the court, and wish merely to elaborate on two matters, both of emphasis rather than substance, which I feel merit further treatment.", "The first relates to the balance between the right to life and the right to dignity. The judgment appropriately regards the two rights as mutually re-enforcing, but places greater reliance on the prohibition against cruel, inhuman or degrading punishment than it does on the 184 \f right to life. For reasons which I will outline, I think the starting-off point for an analysis of capital punishment should be the right to life. [347] Secondly, I think it important to say something about the source of values which, in terms of section 35 of the Constitution, our interpretation is required to promote. The Right to Life and Proportionality [348] Decent people throughout the world are divided over which arouses the greatest horror: the thought of the State deliberately killing its citizens, or the idea of allowing cruel killers to co-exist with honest citizens. For some, the fact that we cold-bloodedly kill our own kind, taints the whole of our society and makes us all accomplices to the premeditated and solemn extinction of human life. For others, on the contrary, the disgrace is that we place a higher value on the life and dignity of the killer than on that of the victim. A third group prefer a purely pragmatic approach which emphasises not the moral issues, but the inordinate stress that capital punishment puts on the judicial process and, ultimately, on the Presidency, as well as the morbid passions it arouses in the public; from a purely practical point of view, they argue, capital punishment appears to offer an illusory solution to crime, and as such actually detracts from really effective measures to protect the public. [349] We are not called upon to decide between these positions. They are essentially emotional, moral and pragmatic in character and will no doubt occupy the attention of the Constitutional Assembly. Our function is to interpret the text of the Constitution as it stands. Accordingly, whatever our personal views on this fraught subject might be, our response must be a purely legal one.", "This court is unlikely to get another case which is emotionally and philosophically more elusive, and textually more direct. Section 9 states: \"Every person shall have the right to life.\" These unqualified and unadorned words are binding on the State (sections 4 and 7) and, 185 \f on the face of it, outlaw capital punishment. Section 33 does allow for limitations on fundamental rights; yet, in my view, executing someone is not limiting that person's life, but extinguishing it. SACHS J [351] Life is different. In the vivid phrase used by Mahomed J in the course of argument, the right to life is not subject to incremental invasion. Life cannot be diminished for an hour, or a day, or 'for life'. While its enjoyment can be qualified, its existence cannot. Similarly, death is different. It is total and irreversible. Just, as there are no degrees of life, so there are no degrees of death (though, as we shall see, there were once degrees of severity in relation to how the sentence of death should be carried out). A level of arbitrariness and the possibilities of mistake that might be inescapable and therefore tolerable in relation to other forms of punishment, burst the parameters of constitutionality when they impact on the deliberate taking of life. The life of any human being is inevitably subject to the ultimate vagaries of the due processes of nature; our Constitution does not permit it to be qualified by the unavoidable caprices of the due processes of law.1 [352] In the case of other constitutional rights, proportionate balances can be struck between the exercise of the right and permissible derogations from it. In matters such as torture, where no derogations are allowed, thresholds of permissible and impermissible conduct can be established. When it comes to execution, however, there is no scope for proportionality, while the only relevant threshold is, tragically, that to eternity. [353] Even if one applies an objective approach in relation to the enjoyment of the right to life, namely, that the State is under a duty to create conditions to enable all persons to enjoy 1The issue, of course, is whether inescapable caprice prevents the process from being 'due' when the consequences are so drastic. 186 \f SACHS J the right, in my view this cannot mean that the State's function can be extended to encompass complete, intentional and avoidable obliteration of any person's subjective right. Subject to further argument on the matter, my initial view is that the objective approach can be used to qualify the subjective enjoyment of the right, but not to eliminate it completely, and certainly not to eliminate the subject. It can provide the basis for limiting enjoyment of other subjective rights - to dignity, personal freedom, movement - for a period, or in relation to a concrete situation, or in respect of a physical space, if the requirements of section 33 are met. Yet, life by its very nature cannot be restricted, qualified, abridged, limited or derogated from in the same way. You are either alive or dead. [354] In my view, section 33 permits limitations on rights, not their extinction. Our Constitution in this sense is different from those that expressly authorise deprivation of life if due process of law is followed, or those that prohibit the arbitrary taking of life. The unqualified statement that 'every person has the right to life', in effect outlaws capital punishment. Instead of establishing a constitutional framework within which the State may deprive citizens of their lives, as it could have done, our Constitution commits the State to affirming and protecting life. Because section 33 is not concerned with creating circumstances in which the right of any person may be disregarded altogether, nor with establishing exceptions which qualify the nature of the right itself, or exclude its operation, it cannot be invoked as an authorization for capital punishment. [355] A full conceptualization of the right to life will have to await examination of a multitude of complex issues, each of which has its own contextual setting and particularities. In contrast to capital punishment, there are circumstances relating to the right to life where proportionality could well play an important role in balancing out competing interests. Whether or not section 33 would be applicable in each case, or whether proportionality will enter into the definition of the ambit of the right itself, or whether it relates simply to competition between two or more people to exercise the right when it is under immediate threat, need not be decided here. Thus, the German Constitutional Court has relied heavily on the principle of proportionality in relation to the question of when person- 187 \f SACHS J hood and legally protected life begin and, in particular of how to balance foetal rights as against the rights of the woman concerned.2 Force used by the State in cases of self- defence or dealing with hostage-takers or mutineers, must be proportionate to the danger apprehended; the issue arises because two or more persons compete for the right to life; for the one to live, the other must die. The imminence of danger is fundamental: to kill an assailant or hostage-taker or prisoner of war after he or she has been disarmed, is regarded as murder. [356] Executing a trussed human being long after the violence has ended, totally lacks proportionality in relation to the use of force, and does not fall within the principles of self-defence. From one point of view capital punishment, unless cruelly performed, is a contradiction in terms. The 'capital' part ends rather than expresses the 'punishment', in the sense that the condemned person is eliminated, not punished. A living being held for years in prison is punished; a corpse cannot be punished, only mutilated. Thus, execution ceases to be a punishment of a human being in terms of the Constitution, and becomes instead the obliteration of a sub-human from the purview of the Constitution. [357] At its core, constitutionalism is about the protection and development of rights, not their extinction. In the absence of the clearest contextual indications that the framers of the Constitution intended that the State's sovereignty should be so extended as to allow it deliberately to take of the life of its citizens, Section 9 should be read to mean exactly what it says: Every person shall have the right to life. If not, the killer unwittingly achieves a final and perverse moral victory by making the state a killer too, thus reducing social abhorrence at the conscious extinction of human beings. The Source of Values 288 BVerfGE 203 (2nd Abortion Case). 188 \f [358] The second issue that caused me special concern was the source of the values that we are to apply in assessing whether or not capital punishment is a cruel, inhuman or degrading punishment as constitutionally understood. The matter was raised in an amicus brief and argued orally before us by Ms. Davids on behalf of the Black Advocates Forum. SACHS J [359] Her main contention was that we should not pronounce on the subject of capital punishment until we had been apprised by sociological analysis of the relevant expectations, sensitivities and interests of society as a whole. In the past, she stated, the all-white minority had imposed Eurocentric values on the majority, and an all-white judiciary had taken cognisance merely of the interests of white society. Now, for the first time, she added, we had the opportunity to nurture an open and democratic society and to have due regard to an emerging national consensus on values to be upheld in relation to punishment. [360] Many of the points she made had a political rather than a legal character, and as such should have been directed to the Constitutional Assembly rather than to the Constitutional Court. Nevertheless, much of her argument has a bearing on the way this court sees its functions, and deserves the courtesy of a reply. [361] To begin with, I wish firmly to express my agreement with the need to take account of the traditions, beliefs and values of all sectors of South African society when developing our jurisprudence. [362] In broad terms, the function given to this court by the Constitution is to articulate the fundamental sense of justice and right shared by the whole nation as expressed in the text of the Constitution. The Constitution was the first public document of legal force in South African history to emerge from an inclusive process in which the overwhelming majority were represented. Reference in the Constitution to the role of public international law [sections 35(1) and 231] underlines our common adherence to internationally accepted principles. Whatever the status of earlier legislation and jurisprudence may be, the Constitution speaks for the whole of society and not just one 189 \f section. SACHS J [363] The preamble, postamble and the principles of freedom and equality espoused in sections 8, 33 and 35 of the Constitution, require such an amplitude of vision. The principle of inclusivity shines through the language provisions in section 3, and underlies the provisions which led to the adoption of the new flag and anthem, and the selection of public holidays. [364] The secure and progressive development of our legal system demands that it draw the best from all the streams of justice in our country. This would include benefiting from the learning of those judges who in the previous era managed to articulate a sense of justice that transcended the limits of race, as well as acknowledging the challenging writings of academics such as the late Dr. Barend van Niekerk, who bravely broke the taboos on criticism of the legal system.3 [365] Above all, however, it means giving long overdue recognition to African law and legal thinking as a source of legal ideas, values and practice. We cannot, unfortunately, extend the equality principle backwards in time to remove the humiliations and indignities suffered by past generations, but we can restore dignity to ideas and values that have long been suppressed or marginalized. [366] Redressing the balance in a conceptually sound, methodologically secure and functionally efficient way, will be far from easy. Extensive research and public debate will be required. Legislation will play a key role; indeed, the Constitution expressly acknowledges situations where legal pluralism based on religion can be recognised [14(3)], and where indigenous law can be applied (s.181). Constitutional Principle XIII declares that \"...... Indigenous law, like common law, shall be recognised and applied by 3Cf. 1969 SALJ 455 and 1970 SALJ 60; S v Van Niekerk 1970 (3) SA 655. 190 \f the courts, subject to the fundamental rights contained in the Constitution and to legislation dealing specifically therewith\". SACHS J [367] Yet the issue raised by Ms Davids goes beyond the question of achieving recognition of different systems of personal law. [368] In interpreting Chapter 3 of the Constitution, which deals with fundamental rights, all courts must promote the values of an open and democratic society based on freedom and equality [s.35(1)]. One of the values of an open and democratic society is precisely that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided. Ms. David's concern is that when it comes to interpreting Chapter 3, and in particular, the concept of punishment, the values of only one section of the community are taken into account.", "Paul Sieghart points out that \"the hallmarks of a democratic society are pluralism, tolerance and broad-mindedness. Although individual interests must on occasion be subordinated to those of a group, democracy does not mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position\".4 The principle that cognisance must be taken of minority opinions should apply with at least equal force to majority opinions; if one of the functions of the Constitution is to protect unpopular minorities from abuse, another must surely be to rescue the majority from marginalization. [370] In a democratic society such as we are trying to establish, this is primarily the task of Parliament, where the will of the majority can be directly expressed within the framework of a system of fundamental rights. Our function as members of this court - as I see it - is, when interpreting the Constitution, to pay due regard to the values of all sections of society, and not to confine ourselves to the values of one portion only, 4The International Law of Human Rights, Oxford 1983, reprinted 1992, at p. 93 referring to James, Young and Webster v U.K. Judgment of the European Court of Human Rights on 13/08/81. 191 \f however, exalted or subordinate it might have been in the past. SACHS J [371] It is a distressing fact that our law reports and legal textbooks contain few references to African sources as part of the general law of the country. That is no reason for this court to continue to ignore the legal institutions and values of a very large part of the population, moreover, of that section that suffered the most violations of fundamental rights under previous legal regimes, and that perhaps has the most to hope for from the new constitutional order. [372] Appropriate source material is limited and any conclusions that individual members of this court might wish to offer would inevitably have to be tentative rather than definitive. We would certainly require much fuller research and argument than we had in the present case. The paucity of materials, however, is a reason for putting the issue on the agenda, not a justification for postponing it. [373] The evolution of core values in all sections of the community is particularly relevant to the characterization of what at any moment are regarded as cruel, inhuman and degrading punishments [s.11(2)]. In my view, s.35(1) requires this court not only to have regard to public international law and foreign case law, but also to all the dimensions of the evolution of South African law which may help us in our task of promoting freedom and equality. This would require reference not only to what in legal discourse is referred to as 'our common law' but also to traditional African jurisprudence. [374] I must stress that what follows relates to matters not properly canvassed in argument. The statements I make should not be regarded as an attempt on my part to 'lay down the law' on subjects that might well be controversial. Rather, the materials are presented for their possible relevance to the search for core and enduring values consistent with the text and spirit of the Constitution. It is unfortunate they were not placed before us to enable their reliability and their merits to be debated; they are intended to indicate that, speaking for myself, these are the kinds of scholarly sources which I would have regarded as helpful in determining questions such as the present one, if Ms. Davids had presented them to us 192 \f SACHS J rather than complain about their absence. I might add that there is nothing to indicate that had these sources been properly presented and subjected to the rigorous analysis which our judicial procedure calls for, the decision of this Court would have been different. There does not appear to be any foundation for her plea that we postpone the matter. On the contrary, the materials that I will refer to point to a source of values entirely consistent with the overall thrust of the President's judgment, and, in particular, with his reference to the constitutionally acknowledged principle of ubuntu.5 [375] Our libraries contain a large number of studies by African and other scholars of repute, which delineate in considerable detail how disputes were resolved and punishments meted out in traditional African society. There are a number of references to capital punishment and I can only repeat that it is unfortunate that their import was never canvassed in the present matter. 5See the postamble, also referred to as the epilogue or afterword, where reference is made to the \"need for ubuntu\". 193 \fSACHS J [376] In the first place, the sources indicate that it is necessary to acknowledge that systems of law enforcement based on rational procedures were well entrenched in traditional society. In his classic study of the Tsonga-speaking people, Henri Junod observes that \"... the Bantus possess a strong sense of justice. They believe in social order and in the observance of the laws, and, although these laws were not written, they are universal and perfectly well known\".6 The Cape Law Journal, in a long and admiring report on what it refers to as a Kafir Law Suit, declares that in a typical trial 'the Socratic method of debate appears in all its perfection.'7 John Henderson Soga points out that offences were considered to be against the community or tribe rather than the individual, and punishment of a constructive or corrective nature was administered for disturbing the balance of tribal life.8 [377] More directly for our purposes, the materials suggest that amongst the Cape Nguni, the death penalty was practically confined to cases of suspected witchcraft, and was normally spontaneously carried out after accusation by the diviners.9 Soga says that the death penalty was never imposed, the reasoning being as follows: 'Why sacrifice a second life for one already lost?'10 Professor Z.K. Mathews is in broad agreement.11 The Cape Law Journal notes that summary executions were usually inflicted for assault on the wives of chiefs or aggravated cases of witchcraft, but otherwise the death sentence 'seldom followed even murder, when committed without the aid of supernatural powers; and as banishment, imprisonment and corporal punishment are all unknown in (African) jurisprudence, the property of the people constitutes the great fund out of which debts of justice are paid'.12 6Junod, Henri A - The Life of a South African Tribe 2nd Edition published Macmillan 1927 at p. 436. 71889 CLJ 87 - Extracts from Maclean's Handbook. 8John Henderson Soga - The Ama-Xosa: Life and Customs, published Lovedale Press , South Africa; London, Kegan Paul, at p. 46. 9Hammond-Tooke D: The 'other side' of frontier history: a model of Cape Nguni political process, in African Societies in Southern Africa ed. Leonard Thompson, London 1969, at p. 255. 10Soga supra at p. 46. 11Bantu Law and Western Civilisation in South Africa - a study in the clash of cultures (1934 Yale University MA Thesis). 121889 CLJ 89, 1890 CLJ 23 at 34. 194 \fSACHS J [378] Similar approaches were apparently followed in other African communities. The Sotho King Moshoeshoe was said to be well known for his opposition to capital punishment, even for supposed witchcraft,13 as was Montshiwa during his long reign as King of the Barolong.14 The absence of capital punishment among the Zulu people apparently angered Shepstone, Lieutenant Governor of Natal. Donald Morris writes as follows: 'Hearken to Shepstone on November 25, 1850, substituting capital punishment for the native system of cattle fines in the case of murder:", "13J M Orpen: History of the Basutus of South Africa, Cape Argus 1857, Reprinted UCT 1955. 14Molema SM: Montshiwa (1815 - 1896) Barolong Chief and Patriot (published C. Struik 1966). 195 \fSACHS J [380] \"... Know ye all .... a man's life has no price : no cattle can pay for it. He who intentionally kills another, whether for Witchcraft or otherwise, Shall die himself.\"'15 [381] Thus, if these sources are reliable, it would appear that the relatively well-developed judicial processes of indigenous societies did not in general encompass capital punishment for murder. Such executions as took place were the frenzied, extra-judicial killings of supposed witches, a spontaneous and irrational form of crowd behaviour that has unfortunately continued to this day in the form of necklacing and witch-burning. In addition, punishments by military leaders in terms of military discipline were frequently of the harshest kind and accounted for the lives of many persons. Yet, the sources referred to above indicate that, where judicial procedures were followed, capital punishment was in general not applied as a punishment for murder. [382] In seeking the kind of values which should inform our broad approach to interpreting the Constitution, I have little doubt as to which of these three contrasted aspects of tradition we should follow and which we should reject. The rational and humane adjudicatory approach is entirely consistent with and re-enforcing of the fundamental rights enshrined in our Constitution; the exorcist and militarist concepts are not. [383] We do not automatically invoke each and every aspect of traditional law as a source of values, just as we do not rely on all features of the common law. Thus, we reject the once powerful common law traditions associated with patriarchy and the subordination of servants to masters, which are inconsistent with freedom and equality, and we uphold and develop those many aspects of the common law which feed into and enrich the fundamental rights enshrined in the Constitution. I am sure that there are many aspects and values of traditional African law which will also have to be discarded or developed in order to ensure compatibility with the principles 15Donald R Morris: The washing of the Spears - A History of the Rise of the Zulu Nation under Shaka and its Fall in the Zulu war of 1879. Jonathan Cape 1965, Random House 1995, p. 174-5. 196 \f of the new constitutional order. SACHS J", "It is instructive to look at the evolution of values in the colonial settlement as well as in African society. In the Dutch settlement, as yet unaffected by the changes sweeping Europe, torture was used until the end of the 18th century as an integral part of the judicial process.16 Persons were not only condemned to death, the judges specified in detail gruesome modes of execution designed to produce maximum pain and greatest indignity over the longest period of time. The concept of a dignified execution was seen as a contradiction in terms. The public was invited to witness the lingering death, the mutilation and the turning of human beings into carrion for the birds. This is logical. If executions are to deter, they should receive the maximum publicity, and the killers should undergo an agony equal to that to which they subjected their victims. [385] Yet the British colonial administration that took over at the time of the Napoleonic wars, adopted a different position. Torture was abolished. The multiple degrees of severity of capital punishment were replaced by the single relatively swift mode of hanging. The reason for this was that torture and cruel modes of execution were regarded as barbaric in themselves and degrading to the society which practised them. The incumbent judges protested that whatever might have been appropriate in Britain, in the conditions of the Cape to rely merely on hangings, corporal punishment and prison was to invite slave uprisings and mayhem. The public executioner was so distressed that he hanged himself. All this is a matter of record.17 16C. Graham Botha 1915 SALJ 319. More generally, see footnote 15. These matters were referred to but not developed in Applicants' written argument. 17Sir John Barrow, FRS: Travels into the Interior of Southern Africa Volume 2 p. 138 -9. London 1806 quoted in C. Graham Botha 1915 SALJ 322, also by E. Kahn, the Death Penalty 1970 THRHR, p. 110. Letter by British Commander to Cape Court of Justice quoted by C. Graham Botha 1913 SALJ 294; reply by Court quoted in 1915 SALJ 327; see also, V. de Kock - Those in Bondage, an account of the life of the slave at the Cape, George Allen and Unwin, London 1950 p 158-60. For punishments generally see de V Roos 1897 CLJ 11-23, C.H. van Zyl 1907 SALJ 352, 370; 1908 SALJ 4, 264. 197 \fSACHS J [386] Two centuries have passed since then, and it would not be surprising if the framers of the Constitution felt that a further qualitative evolution had taken place. Current practices in the Southern African region as a whole with regard to capital punishment, testify to such an evolution. Information placed before this court18 showed that of six countries sharing a frontier with South Africa, only one has carried out executions in recent years (Zimbabwe). The last judicial execution in Lesotho was in 1984, in Swaziland in 1983 and in Botswana in 1986, although capital punishment still remains on the statute books and people have in fact been sentenced to death in these countries. Mozambique and Namibia both expressly outlaw capital punishment in their constitutions. [387] The positions adopted by the framers of the Mozambican and Namibian constitutions were not apparently based on bending the knee to foreign ideas, as was implicit in Ms. David's contention, but rather on memories of massacres and martyrdom in their own countries. As Churchill is reputed to have said, the grass never grows green under the gallows.19 Germany after Nazism, Italy after fascism, and Portugal, Peru, Nicaragua, Brazil, Argentina, the Philippines and Spain all abolished capital punishment for peacetime offences after emerging from periods of severe repression. They did so mostly through constitutional provisions.20 [388] It is not unreasonable to think that similar considerations influenced the framers of our Constitution as well. In avoiding any direct or indirect reference to the death sentence, they were able to pay due regard to the fact that one of this country's greatest assets was the passion for freedom, democracy and human rights amongst the generation of persons who fought hardest against injustice in the past. Included in this was a deep respect, amounting to veneration, for life. The emerging nation could squander this precious asset at its peril. The framers could not 18Applicants' heads of argument, taken from When the State Kills - The Death Penalty v. Human Rights, Amnesty International, London 1989. 19This is confirmed by South African experience ranging from Slachters Nek to the Cape Rebels to the 1922 Strike leaders to Vuyisile Mini and Solomon Mahlangu in recent times. 20Amnesty International op cit. There has also been a marked move away from capital punishment in the countries of Eastern Europe after the ending of authoritarian one-party rule there. 198 \f SACHS J have been unaware of the fact that the time to guard against future repression was when memories of past injustice and pain were still fresh. If they chose sweeping language in favour of life, this could well in part have been because of a realisation that this was the moment to remove any temptation in coming years to attempt to solve grave social and political problems by means of executing opponents. [389] Historically, constitutionalism was a product of the age of enlightenment. It was associated with the overthrow of arbitrary power and the attempt to ensure that government functioned according to established principles and processes and in the light of enduring values. It came together with the abolition of torture and the opening up of dungeons. It based itself on the twin propositions that all persons had certain inherent rights that came with their humanity, and that no one had a God-given right to rule over others. [390] The second great wave of constitutionalism after World War II, was also a reaction to gross abuse of power, institutionalised inhumanity and organised disrespect for life. Human rights were not merely declared to exist: against the background of genocide and crimes against humanity committed in the name of a racial ideology linked to state sovereignty, firm constitutional limits were placed on state power. In particular, the more that life had been cheapened and the human personality disregarded, the greater the entrenchment of the rights to life and dignity. [391] Constitutionalism in our country also arrives simultaneously with the achievement of equality and freedom, and of openness, accommodation and tolerance. When reviewing the past, the framers of our Constitution rejected not only the laws and practices that imposed domination and kept people apart, but those that prevented free discourse and rational debate, and those that brutalised us as people and diminished our respect for life. [392] Accordingly, the idealism that we uphold with this judgment is to be found not in the minds of the judges, but in both the explicit text of the Constitution itself, and the values it enshrines. I have no doubt that even if, as the President's judgment suggests, the framers subjectively intended to keep the issue open for determination by this court, they effectively closed the door 199 \f SACHS J by the language they used and the values they required us to uphold. It is difficult to see how they could have done otherwise. In a founding document dealing with fundamental rights, you either authorize the death sentence or you do not. In my view, the values expressed by section 9 are conclusive of the matter. Everyone, including the most abominable of human beings, has the right to life, and capital punishment is therefore unconstitutional. CASE NO COUNSEL FOR APPLICANT INSTRUCTED BY COUNSEL FOR RESPONDENT : : : : CCT/3/94 W. Trengove SC GJ Marcus PHJ Van Vuuren GM Budlender NDB Orleyn-Sekete Legal Resources Center KPCO Von Lieres und Wilkau SC TP McNally SC JSM Henning SC HE Van Jaarsveld R Bhika RJ Chinner PP Stander AJ Van Rensburg AAL Neill PJ Wasserman COUNSEL FOR THE GOVERNMENT OF : THE REPUBLIC OF SOUTH AFRICA G Bizos SC L M Molopa 200 \f INSTRUCTED BY COUNSEL FOR AMICUSCURIAE - BLACK ADVOCATES FORUM (BAFO) : : SACHS J The State Attorney FE Davids GM Makhanya INSTRUCTED BY COUNSEL FOR AMICUS CURIAE - LAWYERS FOR HUMAN RIGHTS, CENTRE FOR APPLIED LEGAL STUDIES, AND THE SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA INSTRUCTED BY COUNSEL FOR AMICUS CURIAE - IAN GLAUBER INSTRUCTED BY : : Nat A Victor : : DM Davis DI Berger A Motala & S Ebrahim E Zar SC : K Mundell 201 \f 202"], "max_length_judgement_paras": 9681}, {"title": "S v Mhlungu and Others (CCT25/94) [1995] ZACC 4; 1995 (3) SA 867 ; 1995 (7) BCLR 793 (CC) (8 June 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/4.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-4.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/4.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nCASE NO CCT/25/94\n\nIn the matter between:\n\nMHLUNGU AND FOUR OTHERS\n\nApplicants\n\nand\n\nTHE STATE\n\nHEARD ON : \n\nDELIVERED ON :\n\nRespondents\n\n23 February 1995\n\n8 June 1995\n\n \n\n \n\nJUDGMENT\n\n[1]\n\nMAHOMED J: I have had the privilege of reading the judgment of\nKentridge AJ in this matter and the comments made thereon by\nsome of my esteemed colleagues. I respectfully agree that -\n\n(a)\n\n(b)\n\nsection 102 of the Constitution of the Republic\nof South Africa, 1993 (\u201cthe Constitution\u201d) did\nnot entitle the Court a quo to refer to this\nCourt the issue of the proper interpretation of\nsection 241(8) of the Constitution;\n\nfor the reasons given by Kentridge AJ the proper\ninterpretation of section 241(8) is relevant in the\npresent proceedings and should be determined by this\nCourt.\n\n[2]\n\nI have, however, considerable difficulty with the proper\ninterpretation of section 241(8) which reads as follows:\n\n\"All proceedings which immediately before the commencement of this\nConstitution were pending before any court of law, including any\ntribunal or reviewing authority established by or under law,\nexercising jurisdiction in accordance with the law then in force,\nshall be dealt with as if this Constitution had not been passed:\nProvided that if an appeal in such proceedings is noted or review\nproceedings with regard thereto are instituted after such commencement\n\n\fMAHOMED J\n\nsuch proceedings shall be brought before the court having jurisdiction\nunder this Constitution\".\n\nThe attraction of the analysis of section 241(8) which\nKentridge AJ has made, is that it is consistent with the literal\nwords of the main part of the sub-section which could, on that\napproach, simply be reduced to read as follows:\n\n\"All proceedings which immediately before the commencement of this\nConstitution were pending ............. shall be dealt with as if this\nConstitution had not been passed.\"\n\nThis literal interpretation involves, however, a number of\nformidable difficulties.\n\nIn the first place it leads to some very unjust, perhaps even\nabsurd, consequences. Thus, merely because an accused person was\nserved with an indictment before 27 April 1994, (and even if no\nevidence whatever was lead before that date) he could not\ncontend that the provisions of section 217(1)(b)(ii) of the\nCriminal Code were unconstitutional. In the result, the Court\ncould be compelled to convict him (and in consequence thereof\neven to imprison him for a substantial period) in circumstances\nwhere it has a reasonable doubt whether his confession was\nfreely and voluntarily made and therefore even if the Court has\na reasonable doubt about his guilt. Another accused charged as\nhis co-conspirator could be acquitted simply because the\nindictment was served on him on 28 April 1994 in respect of an\noffence arising from exactly the same incident and the same\nevidence.\n\nThe right of each of these accused to a \"fair trial\" in terms of\nsection 25(3) of the Constitution (including the right to\ncounsel in terms of section 25(3)(e)) could similarly be\ndifferent because of the one day difference in the date of the\nservice of the indictment, although both accused were equally\nindigent and equally in need of counsel in order to avoid\n\"substantial injustice\". The result again may well be a\nconviction and resultant imprisonment for one accused and the\ntotal acquittal of the other, based purely on arbitrary\ncircumstances, \nobjective\nconsiderations.\n\nunjustified \n\ntotally \n\nany \n\nby \n\nA Judge passing sentence on the accused charged with committing\nexactly the same offence, on the same date and in exactly the\nsame circumstances, would be entitled to sentence one accused to\ndeath, and may be disentitled to do so in respect of the other\naccused in the same trial, merely because when the indictment\nwas sought to be served on 26 April 1994, the one accused was at\nhome and the other could not be located until the next morning.\n\n2\n\n[3]\n\n[4]\n\n[5]\n\n[6]\n\n\f[7]\n\n[8]\n\nMAHOMED J\n\nExactly the same irrational discrimination would be present if\ncorporal punishment was sought to be imposed. Such a sentence\nwould be competent in respect of the one accused and might be\nincompetent in respect of the other, on the sole ground that the\none indictment was served on the day before and the other on the\nday after the commencement of the Constitution.\n\nSouth African statutory law, prior to the enactment of the\nConstitution, is replete with the most disgraceful and offensive\nlegislation which discriminates against South Africans of colour\nand criminalizes arbitrarily and purely on the grounds of race\nand colour, perfectly innocuous acts of life and living by such\ncitizens. It is possible that a citizen charged with such an\noffence before the commencement of the Constitution could, on\nthe literal interpretation, be convicted and sentenced, even\nafter 27 April 1994, for having contravened a law, which sought\nto punish him on racial grounds, if his case was pending when\nthe Constitution came into operation. This is a plainly\noutrageous consequence. It is suggested by Kentridge AJ that\nthe legislature and the executive can avoid such a consequence\nby taking steps to repeal the law or to cause the prosecution to\nbe withdrawn. This is of scant comfort to the accused person\nconcerned, who might have no means to compel such a decision or\nwho might be exposed to the risk of a conviction before the\nbureaucratic machinery of the State reacts to afford relief. He\nis entitled to say: \"The Constitution affords every person\nequal protection against unfair racial discrimination. I claim\nthat right for myself and my family. You, the Court must\nprotect me\".\n\nWhat these and many other examples would suggest is that the\napproach favoured by Kentridge AJ would remove the protection of\nfundamental rights to substantial groups of people in the\ncountry, simply because the proceedings in which the protection\nof such rights might be crucial for a person, had begun prior to\nthe commencement of the Constitution on 27 April 1994, although\nthe substance of the proceedings takes place only after that\ndate. I would be extremely distressed to accept that this is\nwhat the Constitution intended. It seems to negate the very\nspirit and tenor of the Constitution and its widely acclaimed\nand celebrated objectives. Fundamental to that spirit and tenor\nwas the promise of the equal protection of the laws to all the\npeople of this country and a ringing and decisive break with a\npast which perpetuated inequality and irrational discrimination\nand arbitrary governmental and executive action. The literal\ninterpretation would invade all these objectives in its\narbitrary selection of one category of persons who would become\nentitled to enjoy the human rights guarantees of the\nConstitution and the arbitrary exclusion of another group of\n\n3\n\n\fMAHOMED J\n\npersons from such entitlement. The Courts must strive to avoid\nsuch a result if the language and context of the relevant\nprovision, interpreted with regard to the objectives of the\nConstitution, permits such a course. What must be avoided, if\nthis is a constitutionally permissible course, is a result which\npermits human rights guaranteed by the Constitution to be\nenjoyed by some people and denied arbitrarily to others. Such\na consequence would effectively allow substantive parts of a\ndisgraced and unacceptable culture from the past to continue\ninto a future, protected by the Constitution. In proceedings\nwhich might affect their lives and liberties, large numbers of\nSouth African citizens would, on purely fortuitous grounds, be\nunable to assert the expanding human rights guaranteed by\nChapter 3 of the Constitution, including the fundamental right\nto a fair trial protected by section 25(3). Such a result would\nbe inconsistent with the international culture of constitutional\njurisprudence which has developed to give to constitutional\ninterpretation a purposive and generous focus. It seeks to\navoid what Lord Wilberforce called\n\n\"the austerity of tabulated legalism\" (Minister o f H o m e A f f a i r s\n(Bermuda) v Fisher 1980 AC 319 at 328H).\n\nThis is because\n\n\"A Constitution is an organic instrument. Although it is enacted in\nthe form of a statute it is sui generis. It must broadly, liberally\nand purposively be interpreted so as to avoid \"the austerity of\ntabulated legalism\" and so as to enable it to continue to play a\ncreative and dynamic role in the expression and the achievement of the\nideals and aspirations of the nation, in the articulation of the\nvalues bonding its people and in disciplining its Government.\"\n(Government of the Republic of Namibia and Another v Cultura 2000 and\nAnother 1994 (1) SA 407 at 418). \n\nAn interpretation of section 241(8) which withholds the rights\nguaranteed by Chapter 3 of the Constitution from those involved\nin proceedings which fortuitously commenced before the operation\nof the Constitution would not give to that Chapter a\nconstruction which is \"most beneficial to the widest possible\namplitude\u201d and should therefore be avoided if the language and\ncontext of the relevant sections reasonably permits such a\ncourse. (S v Zuma and Others 1995(4) BCLR 401 (SA) ; James v\nCommonwealth of Australia [1936] AC 578 at 614; Minister of\nDefence, Namibia v Mwandingi 1992 (2) SA 355 (NmS) at 361-3; S\nv Acheson 1991 (2) SA 805 (Nm) at 813A-C; S v Marwane 1982 (3)\nSA 717 (A) at 748-749G; Ex parte Cabinet for the Interim\nGovernment of South West Africa: In re Advisory Opinion in\nterms of s 19(2) of Proc R101 of 1985 (RSA) (supra at 853C-G);\nHewlett v Minister of Finance and Another 1982 (1) SA 490 (ZS);\n\n4\n\n[9]\n\n\f[10]\n\n[11]\n\nMAHOMED J\n\nMinister of Home Affairs and Others v Dabengwa and Another 1982\n(4) SA 301 (ZS) at 306E-H; Minister of Home Affairs v Bickle and\nOthers 1984 (2) SA 439 (ZS) at 447C-G; Zimbabwe Township\nDevelopers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1984 (2) SA\n778(ZS); and Bull v Minister of Home Affairs 1986 (3) SA 870\n(ZH & ZS) at 872J-873C and at 880J-881C.)\n\nThe second difficulty I have with the literal approach is that\nif the death sentence or corporal punishment are held to be\nunconstitutional, the Court would be imposing sentences which\ncould not lawfully be executed in terms of section 7(2) of the\nConstitution. The lawmaker should not lightly be imputed with\nthe intention to authorise the Court to impose sentences which\ncould not lawfully be executed. Even if the Constitution had\nintended to vest in the Court, irrationally, the authority to\nimpose sentences which would not constitutionally be\nimplemented, what happens to accused persons who have received\nsuch sentences? No obvious and easy legal machinery is created\nfor the substitution of a competent sentence after the\nimplementation of the constitutionally impermissible sentence\nhas been restrained, perhaps by a Court order.\n\nThere is another problem: if pending proceedings have literally\nto be dealt with as if the whole of the Constitution had not\nbeen passed, by virtue of what law could the Court in such\nproceedings refer any question for determination by the\nConstitutional Court? It could not rely on section 102 to do so\nbecause this is a provision of the Constitution and if it relied\non it, it would not be dealing with the matter \"as if this\nConstitution had not been passed.\" It is true that if this\nCourt makes a decision on the question so referred to it by the\nSupreme Court it would be exercising a jurisdiction given to it\nin terms of the Constitution but that does not overcome the\ndifficulty that its jurisdiction can only be exercised in the\ncircumstances if there has been a proper referral and if the\nCourt making the referral had no jurisdiction to do so there\ncould not have been a proper referral. \n\n[12]\n\nOn the interpretation favoured by Kentridge AJ the reference in\nsection 241(8) to -\n\n\"any court of law, exercising jurisdiction in accordance with the law\nthen in force\"\n\nis quite incongruous and difficult to understand. If the\nintention of the section was simply that all proceedings which\nwere pending before the commencement of the Constitution before\na Court of law or other tribunal should be dealt with as if the\nwhole of the Constitution had not been passed, the qualification\nthat such a Court of law or tribunal had to be \"exercising\njurisdiction in accordance with the law then in force\" would\n\n5\n\n\f[13]\n\n[14]\n\n[15]\n\nMAHOMED J\n\nappear to be quite unnecessary. If that phrase was absent,\ncould it conceivably have been contended that the reference to\n\"any court of law\" or \u201ctribunal\u201d included a reference to illegal\ntribunals such as informal kangaroo courts? In my view, \"any\ncourt of law\" or \u201ctribunal\u201d must mean one lawfully exercising\nits jurisdiction. The qualification that it must be a \u201ccourt of\nlaw\u201d or \u201ctribunal\u201d \"exercising jurisdiction in accordance with\nthe law then in force\" would therefore add nothing to the\nmeaning of \"any court of law\" or \u201ctribunal\u201d without any\nqualification.\n\nOn the interpretation favoured by Kentridge AJ the relevant\nphrase therefore serves no purpose. On the interpretation which\nI favour and which I will deal with later, it does serve an\nimportant purpose: it serves to emphasise that the object of\nthe section is to preserve the authority of Courts dealing with\npending matters to continue to discharge their functions as such\nCourts. \n\nIn his analysis Kentridge AJ refers to various presumptions of\napplication in the interpretation of statutes and states that\n\n\"it is against this background that the purpose of section 241(8) can\nbe understood\".\n\nIncluded in the presumptions which he applies is the presumption\nthat\n\n\"a statute is as far as possible to be construed as operating only on\nfacts which come into existence after its passing\"\n\nand the presumption that a new statute is\n\n\"not to effect matters which are the subject of pending legal\nproceedings\".\n\nKentridge AJ considers these presumptions to support the\nconclusion to which he arrives in the proper construction of\nsection 241(8). I have no difficulty with his views on the\ncontent of these presumptions but if the section simply seeks to\nachieve what would in any event be the result of these\npresumptions, it would seem to me to be unnecessary. The\npresumptions do not have to be statutorily re-articulated in\norder to preserve their effect.\n\nNone of these very serious difficulties can justify a refusal to\ngive effect to the words of the section if they were not\nreasonably capable of an alternative construction. Such an\nalternative construction would have to be based not only on the\nliteral meaning of the words \"as if this Constitution had not\nbeen passed\" in isolation but, in its proper context. The\nrelevant context would be section 241(8) itself, section 241 as\na whole and the larger context of the Constitution regarded as\na holistic and integrated document with critical and important\nobjectives. The crucial question is whether, adopting this\n\n6\n\n\f[16]\n\n[17]\n\nMAHOMED J\n\napproach, such an alternative construction to section 241(8) is\nreasonably available. \n\nIn the decided cases in the Provincial and Local Divisions of\nthe Supreme Court at least three alternatives are suggested.\nThe first is the approach adopted by Cloete J in Shabalala and\nOthers v The Attorney-General of the Transvaal and Others 1994\n(6) BCLR 85 (T); 1995 (1) SA 608 (T) and followed in Jurgens v\nThe Editor, The Sunday Times Newspaper and Another 1995 (1) BCLR\n97 (W). What it amounts to is that the reference to \u201cpending\nproceedings\u201d in section 241(8) means simply the particular\nproceedings within the case which were pending immediately\nbefore the commencement of the Constitution. Thus, an\napplication made before the commencement of the Constitution for\nlegal representation at State expense, or to admit a confession\nin terms of section 217 of the Criminal Code or even an\napplication to impose the death sentence or corporal punishment\nwould have to be dealt with as if the Constitution had not been\npassed. Other applications made after the commencement of the\nConstitution, would be dealt with in terms of the Constitution.\n\nAttractive as the consequences of this approach may otherwise\nbe, I am unable to support it. What section 241(8) applies to\nis \"all proceedings which are pending\". What the approach\nfavoured by Cloete J effectively does is to limit its\napplication to interlocutory procedures within such proceedings.\nThere seems scant justification for this either in the language\nof section 241(8) or its context. Moreover it is inconsistent\nwith the use of the word \"proceedings\" in section 241(9) which\nprovides that \"any legal proceedings instituted before or after\nthe commencement of the Constitution\" by or against certain\nfunctionaries which ceased to exist after such commencement,\ncould be continued by or against the relevant functionary which\nsuperseded the original functionary. Clearly, the ambit of\n\"proceedings\" in this regard cannot be limited to interlocutory\nproceedings within the larger case. There is no persuasive\nreason why it should have such a limited meaning in section\n241(8).\n\n[18]\n\nThe second approach is that favoured by the Cape Provincial\nDivision in S v W and Others 1994 (2) BCLR 135(C); 1994 (4) SA\n126 (C). Substantially what it amounts to is that there is a\ndistinction between fundamental rights of a procedural nature\nand those of a substantive nature and that the proper meaning of\nsection 241(8) is that only fundamental rights of a procedural\nnature sanctioned by the Constitution would not be available to\nan accused person in pending proceedings.\n\n7\n\n\f[19]\n\n[20]\n\nMAHOMED J\n\nA serious difficulty which I have with this approach is that\nthere is nothing in section 241(8) which seeks to distinguish\nbetween rights of a procedural nature from those of a\nsubstantive nature. Moreover, the distinction made raises the\ncomplex problem of satisfactorily classifying what right in\nChapter 3 can be said to constitute a procedural right as\ndistinct from a substantive right. (See Yew Bon Tew v Kenderaan\nBas Mara [1982] 3 All ER 833 (PC) at 838f-g; Industrial Council\nfor the Furniture Manufacturing Industry (Natal) v Minister of\nManpower and another 1984 (2) SA 238(D) at 242F; Euromarine\nInternational of Mauren v The Ship Berg and Others 1984 (4) SA\n647 (N) at 661I-662A.) Furthermore, this distinction assumes\nthat a right is either procedural or substantive. It could be\na hybrid right involving both. What is the right set out in\nsection 25(3) to \"legal representation at State expense if\nsubstantial injustice would otherwise result\"? Is it procedural\nor substantive? If it involves both substantive and procedural\nelements, what is the dominant element? Is that the test to be\napplied in classifying the right? If it is and the dominant\nelement is procedural, how does it help the argument that\nsection 241(8) was never intended to take away fundamental\nrights in pending proceedings? Is the right to \u201clegal\nrepresentation at State expense if substantial injustice would\notherwise result\u201d any the less fundamental for being procedural?\nI find it difficult to accept that the law-maker intended to\nleave uncertain and unresolved serious disputes of this kind in\nthe crucial area of fundamental rights. \n\nA third alternative suggested by some of the cases in the\nProvincial and Local Divisions of the Supreme Court is that the\nobject of section 241(8) is to preserve the continuing\nterritorial jurisdiction of the Courts in which the case was\npending immediately before the commencement of the Constitution\n(Qozoleni v Minister of Law and Order and Another 1994 (1) BCLR\n75 (E); 1994 (3) SA 625 (E); S v Majavu 1994 (2) BCLR 56\n(CKGD); 1994 (4) SA 268 (Ck); Gardener v Whitaker 1994 (5)\nBCLR 19(E); S v Shuma 1994 (2) SACR 486 (E)). In my view, the\nspecial emphasis on \"territorial jurisdiction\" is not justified\nby section 241(8), but the emphasis on the jurisdictional\nobjectives of the section provides a basis for an alternative\napproach to the meaning of the section that can constitutionally\nbe defended.\n\n[21]\n\nWhat the section seeks to preclude is an attack on the authority\nof any Court of law or tribunal to continue dealing with\nproceedings which were pending before the commencement of the\nConstitution. What the section would then mean is that:-\n\n\"All proceedings which immediately before the commencement of this\n\n8\n\n\f[22]\n\nMAHOMED J\n\nConstitution were pending before any Court of law, including any\ntribunal or reviewing authority, established by or under law,\nexercising jurisdiction in accordance with the law then in force,\nshall be dealt with as if the passing of this Constitution had not\nimpacted on that jurisdiction: provided that if an appeal in such\nproceedings is noted or review proceedings with regard thereto are\ninstituted after such proceedings, such proceedings shall be brought\nbefore the Court having jurisdiction under this Constitution and the\nCourt or tribunal which might otherwise in terms of this section have\nhad authority to deal with such appeal or review shall have no such\nauthority.\" \n\n(See, for example, S v Smith and Another 1994 (1) BCLR 63 (SE);\n1994 (3) SA 887 (SE); S v Saib 1994 (2) BCLR 48 (D); S v\nSixaxeni 1994 (3) BCLR 75 (C); 1994 (3) SA 733 (C).)\n\nTo appreciate why sections 241(8) had to be enacted to give\neffect to this intention it is necessary to understand that what\nthe Constitution does is to establish a new legal and political\norder involving a new Parliament, a new Executive and a new\nJudiciary. In terms of Chapter 7 of the Constitution, a new\nConstitutional Court is established in section 98, a new Supreme\nCourt is established in terms of section 101 and other new\nCourts are established in terms of section 103. But, the\nmechanics of the contemplated establishment of the new Courts\nhad to await the rationalisation process contemplated by section\n242. That left a vacuum in the interim which section 241 seeks\nto fill. It does that in section 241(1) by providing that every\nCourt of law which existed immediately before the commencement\nof the Constitution shall be deemed to have been duly\nconstituted by the Constitution or the laws in force after such\ncommencement. The word \"deemed\" means that the Courts which\nexisted before the Constitution were in truth not Courts\nestablished under the Constitution or any law in force after its\ncommencement but that they should fictitiously be assumed to\nhave been so constituted (see S v Voigt 1965 (2) SA (N) 749 at\n752F-G; Queen v Norfolk County Council (1891) 60 L.J.Q.B. 379;\nChotabhai v Union Government (Minister of Justice) and Registrar\nof Asiatics 1911 AD 13 at 33).\n\n[23]\n\nThe effect of section 241(1) is that the pre-Constitution Courts\nare legitimized as new post-Constitution Courts as if there was\na separate section in the Constitution or in some law after the\nConstitution creating such Courts. Section 241(1) therefore\nwould allow a pre-Constitution Court to exercise jurisdiction in\ncases arising after the commencement of the Constitution but, it\nmight not be sufficient to authorize them to continue hearing\ncases which had commenced before the Constitution came into\noperation. It seems to me that it is for that contingency that\n\n9\n\n\fMAHOMED J\n\nsection 241(8) was enacted. I say this because what section\n241(1) \u201cdeems\" is that the pre-Constitution Courts are to be\ntaken to have been established in terms of the Constitution and\nthis must therefore mean with effect from the date of the\nConstitution. It cannot mean from some date prior to the\nConstitution because the Constitution operates prospectively in\nestablishing new Courts and not retrospectively. The\nConstitution does not contemplate that the new Legislature, the\nnew Executive or the new Judiciary should be established at any\ndate before the commencement of the Constitution. Thus\ninterpreted, a meaningful role is determined for the phrase\n\"exercising jurisdiction in accordance with the law then in\nforce\" in section 241(8). Its role is to make clear that in\nproceedings which were pending before the commencement of the\nConstitution, the authority and jurisdiction conferred on the\nrelevant Court or tribunal by \"the law then in force\", would\ncontinue unimpaired by the Constitution \"as if this Constitution\nhad not been passed\" and as if it had not impacted upon that\nauthority. This interpretation gives to what is a substantial\npart of the section, a significant purpose. The literal\ninterpretation, in my respectful view, does not. This part\ncould be omitted entirely without detracting in any way from the\npurpose of the section said to be protected on the literal\napproach.\n\nKentridge AJ, in paragraph 69 of his judgment, agrees with my\nconclusion that the reference to the relevant Court or tribunal\n\"exercising jurisdiction in accordance with the law then in\nforce\" in section 241(8) was indeed intended to preserve the\nauthority of a pre-Constitution Court to continue its function\nof adjudication after the commencement of the Constitution in\ncases which were pending before such commencement; but he\nsuggests that section 241(8) has a second purpose and that\npurpose is to ensure that such pending cases should be\ndetermined as if the Constitution had not been passed at all.\nI have some difficulty with that suggestion. If Kentridge AJ is\ncorrect in concluding that \"another purpose\" of section 241(8)\nwas to ensure that the whole of the Constitution, including the\nprotection of fundamental rights enshrined in Chapter 3, would\nbe inapplicable in pending proceedings, both these suggested\npurposes would have been achieved at the same time by providing\nthat \n\n\"all proceedings which immediately before the commencement of this\nConstitution were pending before any court of law ...shall be dealt\nwith as if this Constitution had not been passed\"\n\nwithout including the phrase\n\n\"exercising jurisdiction in accordance with the law then in force\"\n\nto qualify the Court of law referred to. If pending proceedings\n\n10\n\n[24]\n\n\f[25]\n\nMAHOMED J\n\nwere to be dealt with as if the whole of the Constitution had\nnot been passed, the Courts of law (or any other relevant\ntribunal) would in any event be \"exercising jurisdiction in\naccordance with the law then in force\" because the Constitution\nwhich impacted upon that authority would have to be ignored and\nthe authority of the pre-Constitution Courts to continue in\npending matters would therefore have remained \"as if this\nConstitution had not been passed\". In my respectful view,\ntherefore, the language of section 241(8) is not, in the\ncircumstances, cogently supportive of the suggestion that it\nhad two purposes. The proposition that its only purpose was to\npreserve the authority of pre-Constitution Courts to continue to\nfunction as Courts for the purposes of adjudication in pending\ncases, appeals to me as a more persuasive interpretation of the\nsection. At the very least it seems to me to be an\ninterpretation of the section which is reasonable and the fact\nthat it is more effective in securing the equal protection of\nthe Constitution for all persons makes it significantly more\nattractive and defensible.\n\nAlthough, on this interpretation, a Court \"exercising\njurisdiction in accordance with the law then in force\" would\nhave its authority limited to the territorial area in which it\nhas jurisdiction in terms of that law, in my view, the purpose\nof section 241(8) is not simply to regulate the territorial\njurisdiction of the relevant Court before which proceedings are\npending. That issue is sufficiently covered by section 241(1)\nand more particularly the amendment thereto introduced by\nsection 15 of Act 13 of 1994. This amendment introduces a\nproviso to section 241(1) which defines the areas of\njurisdiction of the Appellate Division, the Provincial and the\nLocal Divisions of the Supreme Court of South Africa, any other\nSupreme Court or general division thereof and any other Courts.\nSection 241(8) was therefore not introduced specifically to deal\nwith the areas of jurisdiction of the Courts before which\nproceedings were pending at the commencement of the Constitution\nbut to ensure that their authority to deal with pending cases\nwas not assailed because of the fact that the Constitution\ncreates new Court structures with effect from the commencement\nof the Constitution. Section 241(8) creates Constitutional\nlegitimacy for a pre-Constitution Court, to continue to operate\nas a Court after the commencement of the Constitution in\nrespect of pending matters. Every Court needs such\nConstitutional authority to function as a Court (see Smith and\nBrazier: Constitutional and Administrative Law 7th Ed (1994\nPenguin p. 69); Brown v Leyds N.O (1897) 4 OR 17; Madzimbamuto\nv Lardner Burke 1968 (2) SA 284 at 331-2 (AD); Madzimbamuto v\nLardner Burke (1969) 1 AC 645).\n\n11\n\n\f[26]\n\nMAHOMED J\n\nThis interpretation is also supported by the direction that\npending proceedings \"shall be dealt with\" as if the Constitution\nhad not been passed. This is an unusually colloquial expression\nto be found in a formal statutory instrument. If the intention\nof the law-maker was to say that pending proceedings should be\nadjudicated on the basis that the Constitution in all respects\nshould be ignored, it could have used clearer language. Law-\nmakers are often concerned with the problem which arises when a\nnew statutory regime replaces the old but there is a continuing\nresidue of proceedings from the old. This was the position when\nthe Criminal Procedure Act 51 of 1977 replaced the previous\nCriminal Procedure Act of 1955. Section 344(3) of the 1977 Act\nsought to protect the previous proceedings which were still\npending by directing that if such proceedings had not been\nconcluded at the commencement of the new Act \"they should be\ncontinued and concluded\" as if the previous Act had not been\nrepealed. Similar provisions appear in other statutes. This is\nillustrated by section 12(2)(e) of the Interpretation Act of\n1957 which provides in clear language that unless the contrary\nintention appears the repeal of a law \"should not affect any\ninvestigation, legal proceeding, or remedy in respect of any\nsuch right ... and any such investigation, legal proceeding or\nremedy may be instituted, continued and enforced ... as if the\nrepealing law had not been passed\". What this kind of\nphraseology emphasises is a desire by the legislature to ensure\nthat the provisions of the previous regime will in the relevant\ncircumstances apply inexorably to the final end and\ndetermination of the proceedings. \"Deal with\" is a more\nprotean, inherently more tentative idea. The New Shorter Oxford\nEnglish dictionary (Volume 1; page 601) discusses the meaning\nof the word \"deal\" when it is followed by the word \"with\" in the\nfollowing passage:\n\n\"deal... Foll. by with: be concerned with (a thing) in any way; busy\nor occupy oneself with, esp. with a view to discussion or refutation.\nAlso, take (esp. punitive or corrective) measures regarding, cope\nwith, handle (a difficult person, situation, etc.). ME. 11 v.i. Foll.\nby with or by: behave towards, treat (a person etc.) (in a specified\nway). Also absol., act towards people generally (in a specified way),\nconduct oneself. ME 12 v.i. Take action, act, proceed (in a\nmatter).ME-M17. 13 v.i. Set to work, practise (up)on. arch. rare.\nL16\".\n\nThe phrase therefore has different nuances but one of its well\nrecognized meanings is to \"Take action, act, proceed (in a\nmatter) ... Set to work, practise\". These are perfectly\nappropriate expressions to confer authority on a Court or\ntribunal to proceed with or take action under the authority\nvesting in it in terms of \"the law then in force\". The \"Oxford\nEnglish Dictionary\" to which Kentridge AJ refers also includes\nin its discussion of the phrase \"to deal with\" the meaning: \"to\n\n12\n\n\fMAHOMED J\n\ngrapple with\" and it also refers to \"deal\" as meaning \"to take\naction, act, proceed\". These meanings are consistent with my\nview of the purpose of the section. It is true that the idea of\n\"disposing\" the matter is in some contexts also a permissible\nnuance in the meaning of the phrase \"deal with\", but the very\nfact that it ordinarily bears the meaning of \"setting to work\"\nor \"proceeding\" demonstrates its inherently fluid and uncertain\ncontent. It is probably for this reason that it does not\nordinarily appear in statutes which seek to convey the idea that\nsomething should be \"continued and concluded\" as if the relevant\nlaw had not been passed. If the intention of the Constitution\nwas to say that pending matters should be \"continued and\nconcluded\" as if the Constitution had not been passed it would\nhave been a simple matter to say so in such a phrase of well-\nknown usage in our statute law instead of recourse being had to\nsomething so colloquial, flabby and uncertain as \"deal with\".\n\nI have examined the two cases mentioned by Kentridge AJ in which\nit is said that the phrase \"dealt with\" is used synonymously\nwith \"continued and concluded\" (S v Thomas and Another 1978 (1)\nSA 329 (A) at 334; Pinkey v Race Classification Board 1968(4)\nSA 628 at 636 C-D). With respect, I do not think they detract\nfrom what I have said. In Pinkey's case (supra) the Court was\nconcerned with the effect of a statutory amendment under the\nnotorious race classification procedures of Act 30 of 1950 and\nreliance had been placed on section 12 of the Interpretation Act\nof 1957 (which provided that in the absence of a contrary\nintention a repealing law shall not affect any investigation,\nlegal proceeding or remedy in respect of any right or privilege\nand \"any such investigation, legal proceeding or remedy may be\ninstituted, continued or enforced ... as if the repealing law\nhad not been passed\"). The Court held that this protected Mr\nPinkey from the statutory change made by the subsequent statute.\nIn the passage referred to by Kentridge AJ, Jansen JA stated\nthat there was no contrary intention and that \n\n\"it follows that pending cases should be dealt with... as if the\nrepealing law had not been passed\".\n\nThe Court was never called upon to apply its mind to the\ndistinction between \"dealt with\" and \"continued and concluded\".\nIt was never an issue in that case. It could never be, because\nthe relevant part of section 12(2) of the Interpretation Act\neffectively included both meanings. It allowed legal\nproceedings to \"be instituted, continued or enforced\". The case\nof S v Thomas (supra) similarly was not concerned with this\ndistinction.\n\nWhatever be the exact phraseology used, however, the basic idea\nof legitimizing the authority of the old to continue that\nauthority under a new regime has a long and very well-\n\n13\n\n[27]\n\n \n[28]\n\n\fMAHOMED J\n\nestablished constitutional history. Thus, section 116 of the\nSouth African Act, 1909, provided that all appeals to the King-\nin-Council which were pending at the establishment of the Union\nshould proceed as if that Act had not been passed. The object\nwas simply to legitimise the authority of the Privy Council to\ncontinue to hear appeals which were pending before it at the\ndate of the commencement of the Constitution. This same\nobjective was sought to be achieved by section 1(2) of the\nSpecial Courts for Blacks Abolition Act 34 of 1986 which\nprovided that an action pending in the Commissioner's Courts or\nan Appeal Court for Commissioner's Courts on the date identified\nshould be dealt with as if the section had not been introduced.\nThe purpose was to legitimize the authority of those Courts to\ndeal with cases which were pending before them. Substantially\nthe same formula is followed when Parliament purports to create\nnew States and Republics. Thus the Constitutions of the\nTranskei, Bophuthatswana, Ciskei and Venda all provide that\nproceedings which were pending before the commencement of the\nrelevant Constitutions in certain Courts (created by South\nAfrican statutes in respect of its Black citizens) should be\ncontinued and concluded as if that Constitution had not been\npassed. The object was again to legitimize the authority of\nsuch Courts to deal with cases which were pending before them\nprior to the commencement of the Constitution. (See section\n54(c)(ii) of the Republic of Transkei Constitution Act 15 of\n1976; section 91 of the Republic of Bophuthatswana Constitution\nAct 18 of 1977; section 52(1)(d) of the Republic of Venda\nConstitution Act 9 of 1979 and section 76(1)(d) of the Republic\nof Ciskei Constitution Act 20 of 1981.)\n\nThese kinds of statutory formulae were not confined to the TBVC\nStates. Apart from the provisions of the South African Act of\n1909, they also appear in section 116 of the Republic of South\nAfrica Act 32 of 1961 which seeks to sanction the authority of\nthe Courts to conclude pending proceedings which were initiated\nbefore the Constitution in the name of the Queen who ceased to\nbe the Constitutional authority in South Africa in terms of the\nConstitution.\n\nIt seems to me therefore that section 241(8) does no more than\ncarry on a well-established constitutional tradition that when\nthere is a change of legal regimes, proceedings instituted but\nuncompleted in Courts under the previous regime have to be\nprotected against a potential attack on the grounds that they\nhave no authority to dispose of such cases after the\ncommencement of the new regime. It must be conceded, however,\nthat in many of these statutes the formula adopted for the\npurposes of allowing pending proceedings to continue after the\nchange of the regime, created no comparable problems with regard\n\n14\n\n[29]\n\n[30]\n\n\f[31]\n\n[32]\n\nMAHOMED J\n\nto whether or not such Courts could ignore the provisions of the\nsubstantive law of the new regime in disposing of their pending\ncases. This is because some of these statutory instruments\ncontained no Bills of Rights and the other statutes of the\nprevious regime pertaining to substantive law were perpetuated\nby suitable provisions in the new statutes. This does not\ndetract from the fact, however, that the basic objective in\nsections analogous to section 241(8) is to confer authority on\nCourts to continue to hear cases pending before them prior to\nthe Constitution, notwithstanding the fact that the Constitution\nitself creates a new structure of Courts. This is the position\nin terms of statutes which authorize such Courts to \u201ccontinue\nand conclude\u201d pending proceedings as if the Constitution had not\nbeen passed. A fortiori this must be the position where the\nlanguage is less tight such as in the expression \u201cdealt with\u201d in\nsection 241(8).\n\nIt must also be remembered that although most of the\nConstitutions and statutory instruments to which I have referred\ndo not create fundamental rights and do not therefore involve\nthe problem of deciding whether the relevant sections also\nentitle the Courts to ignore the substantive provisions of the\nConstitutions guaranteeing such rights, some Constitutions do\nhave such fundamental rights entrenched. The Constitution of\nBophuthatswana does. Significantly, however, the formula used\nis substantially the same and it has never been contended that\nin pending cases the Courts in that territory were entitled to\nignore the guarantees conferred by the Chapter enacting\nfundamental rights. \n\nMy view of section 241(8) is also supported to some degree by\nthe proviso to section 241(8). A proviso qualifies the\nsubstantive part (Mphosi v Central Board for Co-operative\nInsurance Ltd 1974 (4) SA 634 (A) at 645; R v Dibdin [1910] P 57\nat 125). The ordinary consequence of the substantive part of\nsection 241(8) would have been that all appeals and reviews in\npending proceedings would have had to be continued in the old\nCourts established prior to the Constitution. The proviso\nreverses that consequence by directing that such appeals or\nreviews must (notwithstanding the substantive provision) be\ninstituted in the Courts which are given jurisdiction in terms\nof the Constitution and not the Courts which would have had\njurisdiction under the old law. On that interpretation the\nproviso flows naturally and logically to qualify the substantive\nprovision in section 241(8), if the substantive provision itself\nwere to be limited in its purpose to a legitimization of the old\nCourts and tribunals from the date when the proceedings before\nsuch bodies commenced. This is what attracted some of the local\nand provincial judges of the Supreme Court when they said that\n\n15\n\n\f[33]\n\nMAHOMED J\n\nthe literal interpretation of section 241(8) did not involve a\n\u201crational connection\u201d between the substantive part of section\n241(8) and the proviso (see, for example, S v Sixaxeni (supra),\nBCLR at 78D-E). I think there is merit in the suggestion that\nthe proviso in section 241(8) flows more easily and naturally if\nthe substantive part is confined to the purpose of conferring\nauthority on the Courts to continue to function as such Courts\nand tribunals in respect of matters pending before them at the\ncommencement of the Constitution. To that extent my\ninterpretation of section 241(8) is supported by the proviso.\nBut, it is not a decisive consideration : there could be a\nlogical if not particularly natural interpretation of the\nsection which would break the substantive part of section 241(8)\ninto two elements, the first dealing with the jurisdiction or\nauthority of the Courts or tribunals to continue to function in\npending cases and the other dealing with their right and\ncapacity to ignore the Constitution in so exercising their\nfunctions and the proviso could be interpreted so as to limit\nthe first element and not the second. The argument based on the\nproviso is therefore only one of many elements which must be\nweighed in the proper interpretation of section 241(8).\n\nThe literal interpretation of section 241(8) involves a very\nradical constitutional consequence because, as I have said, it\nwould deny to a substantial group of people the equal protection\nof fundamental rights guaranteed by Chapter 3. I would\ntherefore expect it to be articulated conspicuously in Chapter\n3 itself. But section 7, which deals with the application of\nthe Chapter on fundamental rights, makes no such qualification.\nIt says in section 7(2), in rather peremptory and promissory\nterms, that this Chapter shall apply to all law in force and all\nadministrative decisions and acts performed during the period of\nthe Constitution and it does not contain any qualification or\nproviso that the rights of persons in proceedings pending at the\ncommencement of the Constitution are not included in the word\n\u201call\u201d. It does not make section 7(2) subject to section 241(8);\nnor does it say that section 7(2) shall apply save in cases\nwhich were pending when the Constitution commenced. Instead, if\nthe literal interpretation is correct, that radical consequence\nis to be inferred from an obscure sub-section dealing with\ntransitional arrangements for the Judiciary and not even in\nsection 229 which deals with the transitional provisions\npertaining the continuation of Laws. I feel no confidence in\nseeking to infer from such a provision a meaning which would\nentail the radical consequences which must inevitably follow for\nso many people, if the literal approach is adopted. I am also\nnot persuaded that this would affect only a tiny segment of the\ncommunity. The present Constitution has a limited life and a\ngood deal of the litigation in the Courts might indeed be a\n\n16\n\n\f[34]\n\n[35]\n\nMAHOMED J\n\nresidue of proceedings commenced before the Constitution.\nSignificantly, section 241(8) has become relevant for this very\nreason in the majority of the cases which the Constitutional\nCourt has so far heard. Kentridge AJ, in paragraph 83 of his\njudgment, suggests that \"the tension between Chapter 3 and\nsection 241(8) is likely to arise only in the respect of the\nfair trial requirements of section 25(3)\". I am respectfully\nunable to agree. The Constitutional attacks on capital\npunishment, corporal punishment, civil imprisonment for debt and\nstatutes founded on unfair racial discrimination, for example,\nare legally vulnerable without any reliance on section 25(3).\n\nMy suggestion that the purpose of section 241(8) was indeed to\nprovide the authority for a Court in pending proceedings to\ncontinue as a Court is also supported by other sub-sections of\nsection 241. Thus, the authority of the Chief-Justice, the\nJudge President and other judges to continue in office is\nprovided in section 241(2) and 241(3). The authority of the\nAttorney-General to so continue is provided in section 241(4).\nTheir authority to continue to receive remuneration, pension\nbenefits, gratuities and similar privileges is sanctioned by\nsection 241(5). Section 241(8) appears in that context. It is\na transitional arrangement to legitimize the authority of\nimportant structures in the judicial system in circumstances\nwhere that authority might otherwise have been assailable. This\napproach to the objectives of section 241 is consistent with the\nobjectives also apparent in the preceding transitional\narrangements pertaining to Legislative authorities in section\n234, to Executive authorities in section 235, to the Public\nadministration in section 236 and to the Public service\ncommissions in terms of section 238.\n\nIt must be readily conceded that the interpretation which I have\nfavoured in this judgment is not free from difficulties. One\ndifficulty with it is section 241(10) which provides that the\nlaws and other measures which immediately before the\ncommencement of the Constitution regulated the jurisdiction of\nthe Courts of law, Court procedures and all other matters\npertaining to the establishment and functioning of Courts of\nlaw, shall continue in force subject to any amendment or repeal\nthereof by a competent authority. It could be argued that the\nterms of this sub-section are wide enough to preserve the\nauthority of the old Courts in pending proceedings to deal with\nand dispose of such matters before them and that section 241(8)\nwas therefore not needed to confer such authority, as I have\nsuggested. That argument does have merit but I think that the\nanswer to it lies in the distinction between the authority of\nsuch Courts to continue as Courts at all in order to dispose of\npending matters after the commencement of the Constitution and\n\n17\n\n\f[36]\n\nMAHOMED J\n\ntheir authority to continue in particular areas and over\nparticular persons and in terms of particular procedures (if\nthey have authority to continue to function as Courts). The\nformer authority is not sanctioned by 241(10). The latter is.\nIt is the former authority which is provided by section 241(8).\nWithout it, it could have been argued that the old Courts had no\nauthority to function in pending cases although section 241(10)\nwould have defined how and what they could do if they had such\nauthority. \n\nI am also alive to another difficulty in my interpretation of\nsection 241(8). Although it gives to the phrase \u201cexercising\njurisdiction in accordance with the law then in force\u201d a meaning\nand a role which is absent from the literal approach to the\nsection which I have described, it is not necessarily\ninconsistent with the inference that when the section directs\nthat pending proceedings \u201cshall be dealt with as if this\nConstitution had not been passed\u201d it means that the whole of the\nConstitution, including the Chapter on fundamental rights,\nshould therefore be ignored in such circumstances. That\nobservation is not without weight, but it is necessary to bear\nin mind that the relevant phrase is also not inconsistent with\nthe inference that the direction is simply a direction to\nproceed with pending cases as if the Constitution had not\nimpacted on the authority of a pre-Constitution Court to\ncontinue to function as a Court. Indeed, the phrase \u201cexercising\njurisdiction in accordance with the law then in force\u201d makes\nthis inference more probable. What the phrase emphasizes is\nthat the relevant Court must exercise jurisdiction in accordance\nwith the law then in force, not that it must, in the exercise of\nthat jurisdiction, ignore the substantive law of the\nConstitution. This reference to the exercise of jurisdiction\nimmediately precedes the direction that it should deal with the\nproceedings as if the Constitution had not been passed. It\ntherefore derives some flavour, colour, substance and purpose\nfrom its neighbour. Such an approach would also be consistent\nwith other well-known canons of construction such as the\npresumption that the law giver must not be imputed with the\nintention to enact irrational, arbitrary or unjust consequences.\n(Hleka v Johannesburg City Council 1949 (1) SA 842 (A) at 852;\nVenter v R 1907 TS 910 at 914-915 and 921; Lister v\nIncorporated Law Society Natal 1969 (1) SA 431 (N) at 434; R\nv Sachs 1953 (1) SA 392 (A) at 399).\n\n[37]\n\nI have considered whether there is perhaps another rule of\ninterpretation which might in the circumstances of this case\njustify a result different from the one which I have favoured.\nThe rule I have in mind is the presumption that, unless the\n\n18\n\n\f[38]\n\n[39]\n\nMAHOMED J\n\ncontrary intention appears, a statute does not operate\nretrospectively to impact upon pending proceedings. (Bell v\nVoorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA\n678 (A) at 683; Thom v Moulder 1974 (4) SA 894(A); Bellairs v\nHodnett and Another 1978 (1) SA 1109 (A) at 1148.)\n\nOn this approach it could be contended that since the\nConstitution was not in operation when the proceedings became\npending within the meaning of section 241(8), an interpretation\nwhich compels a Court to apply the Chapter on Fundamental Rights\nto such proceedings constitutes a breach of this presumption.\nIn my view, this is not a sound argument. In the first place\nthe presumption is not inflexible. It operates only if there is\nno contrary intention. In a very important sense a document as\nfundamental as a Constitution can itself be the basis for the\ninference of such a contrary intention. This is particularly\ntrue of the Chapter on Fundamental Rights. The presumption to\nwhich I have referred is intended as a protection against an\ninvasion of rights which might have occurred in litigation; it\nis not intended to exclude the benefits of rights sanctioned by\nnew legislation. Chapter 3 of the Constitution seeks not to\ninvade but to expand rights. The relevant presumption can have\nscant application in such circumstances (R v Sillas 1959 (4) SA\n305 (A) at 311; S v Williams 1979 (3) SA 1270 (C); Van Lear v\nVan Lear 1979 (3) SA 1162 (W) at 1167G-H; Dys v Dys 1979 (3)\nSA 1170 (O)).\n\nI have also applied my mind to the criticism that the\ninterpretation of section 241(8) favoured by me might be open to\nthe pragmatic objection that it could cause some measure of\n\"dislocation\" in the running of trials which were pending on the\ndate of the commencement of the Constitution. This objection\nundoubtedly has some merit, but the weight which must be\nattached to this consideration must, with respect, be balanced\nhaving regard to the degree of \"dislocation\" involved, the\ncapacity and the skill of the Court fairly and sensibly to\nmanage its effects and the grave consequences of any alternative\napproach denying to an important and not insubstantial sector of\nthe citizenry, the equal protection of fundamental rights\nguaranteed to all. Thus approached, I am not convinced that the\n\"dislocation\" factor is sufficiently compelling to favour the\nliteral approach to the interpretation of section 241(8). My\ninterpretation of the section does not involve any re-opening of\ntrials which were completed before the commencement of the\nConstitution. Such trials can be eliminated as potential\ntargets of \"dislocation\". Moreover, even in respect of trials\nwhich had commenced but had not been concluded before the date\nof the commencement of the Constitution, no Constitutional\n\n19\n\n\fMAHOMED J\n\nchallenge based on section 25(3) would be competent in respect\nof any decision already made during the trial but before the\ncommencement of the Constitution. If, for example, an accused\nperson had at the commencement of the trial and before the\nConstitution came into operation, applied for and been refused\nlegal representation at State expense, a challenge to that\ndecision could not competently be proffered after the\nConstitution came into operation notwithstanding section\n25(3)(e). What could be asserted would be the right of the\naccused to be so represented from a date after the commencement\nof the Constitution. If the application is granted and the\nlegal practitioner seeks to recall witnesses for cross-\nexamination it will not be on the grounds that the original\ndecision to deny such representation should be reviewed, but\nsimply another example of the experience known to all practising\nlawyers when an attorney is engaged on the third day of the\ntrial and then applies to recall witnesses. He does not assert\na right, but simply the invocation of a discretion in the\ninterests of justice. It is often allowed by the presiding\nofficer. It causes no \"disruption\". Indeed, it is often\nwelcomed because it assists the Court.\n\nOther potential \"disruptions\" of this sort can sensibly be\nmanaged in this kind of way by a balanced and mature judicial\nofficer. The danger of such disruptions is limited and\ncontainable. In my view, it is not of a magnitude sufficient to\njustify the plainly untenable denial of fundamental human rights\nto accused persons who were fortuitously charged just before the\ncommencement of the Constitution but whose trials had not yet\nbeen concluded on that date.\n\nOn my interpretation of section 241(8) appeals would not create\nany \"dislocation\" either. Appeals arising from proceedings\nwhich were commenced and concluded after the Constitution came\ninto operation should, in principle, be determined in the\nordinary course on the basis that Chapter 3 of the Constitution\nwas clearly of application and if the protection of that Chapter\nhad wrongly been denied to the Appellant, the Court on appeal\nwould take that into account in making its order. In respect of\nappeals arising from proceedings which had commenced before the\nConstitution came into operation but were only concluded\nthereafter, there should again be no \"dislocation\". If the\nparticular fundamental right relied on by the Appellant was of\noperation at the relevant time of the trial, the Appellant was\nentitled to rely on it and if it had been wrongly denied to him\nhe would be entitled to suitable relief on appeal.(Regina v\nAntoine 4 CRR 126). If it did not exist at the relevant time,\nthe Appellant would have no legitimate cause for complaint. The\nremaining category concerns appeals arising from trials which\n\n20\n\n[40]\n\n[41]\n\n\fMAHOMED J\n\nhad commenced and were completed before the Constitution came\ninto operation. In my view such appeals must be disposed\nwithout applying Chapter 3 of the Constitution, because an\nappeal inherently contains the complaint that the Court a quo\nhad erred in terms of the law which was then of application to\nit and not in terms of a law which subsequently came into\noperation. There should therefore also be no \"dislocation\"\narising from this category of appeals. There is nothing in the\nwording of section 241(8) which, on my interpretation, would\nentitle an Appellant on appeal to rely on Chapter 3 if the\nproceedings against him had been concluded before the\ncommencement of the Constitution. Such an Appellant would have\nto confine himself to the substantive law which applied during\nhis trial. The case of S v Thomas (supra) is not inconsistent\nwith that conclusion. That case was concerned with section\n344(3) of Act 51 of 1977 which provided as follows:\n\n\"Notwithstanding the repeal of any law under sub-section (1) [the\nCriminal Procedure Act of 1955 was such a law] criminal proceedings \nwhich have under such law at the date of the commencement of this Act\nbeen commenced in any ... court ... and in which evidence has at such\ndate been led in respect of the relevant charge, shall, if such\nproceedings have at that date not been concluded, be continued and\nconcluded under such law as if it had not been repealed\".\n\nIt was held that the Appellant in that case was not entitled on\nappeal to rely on the provisions of Act 51 of 1977 which\nprovided special machinery to persons suffering from\npsychopathic disorder. It therefore confirmed the approach that\nthe law to be applied on appeal was the law which was of\napplication at the time of the trial and not the law as it was\namended at the time of the appeal.\n\nIn the result there are no \"dislocations\" arising from appeals\nor any other considerations which would justify the plainly\nunequal consequences of the literal approach.\n\nI have also had regard to the fact that even on my\ninterpretation of section 241(8) not every anomaly is\neliminated. Kentridge AJ suggests some such anomalies in\nparagraph 83 of his judgment. Included in that analysis is the\nsuggestion that the results of appeals might depend on when they\nhad been noted or when they had been set down. For the reasons\nI have referred to, these are not anomalies resulting from my\ninterpretation.\n\nWhat is nevertheless true is that there may be some residual\nanomalies arising from the mere fact that some accused might\nfortuitously have been charged, convicted and sentenced just\nbefore the commencement of the Constitution without the benefit\nof one or other fundamental right identified in Chapter 3 whilst\n\n21\n\n[42]\n\n[43]\n\n[44]\n\n\f[45]\n\n[46]\n\nMAHOMED J\n\nother accused are fortuitously charged just after the\ncommencement of the Constitution and therefore have the\nadvantage of asserting such rights. But that kind of anomaly is\ninherent in any situation where one legal regime based on human\nrights values is replaced on a particular date by another legal\nregime which had denied such rights: it does not justify\nextending the anomaly to accused persons who were merely charged\nwith offences before the commencement of the Constitution, but\nwho seek to assert their fundamental rights during their trials\nat a time when the Constitution is of operation.\n\nI confess to considerable difficulties in all the theories which\nhave become manifest in the interpretation of section 241(8).\nNone of them are without problems. Its controversial nature\nmanifests itself in the diversity of opinion which has agonized\njudicial deliberations on the meaning of the section almost from\nthe very inception of the Constitution. In my view, the\ndifficulties involved in the approach adopted by Cloete J in\nShabalala\u2019s case (supra), by the Cape Provincial Division of in\nS v W and Others (supra) and by the Eastern Cape Provincial\nDivision of the Supreme Court in the case of Qozoleni (supra)\nand other cases following thereupon, are more formidable than\nthe difficulties involved in the interpretation based on the\nliteral approach and the interpretation which I have favoured in\nthis judgment. I have sought to deal with some of the\ndifficulties arising from my interpretation and contrasted them\nwith some of the difficulties inherent in the literal approach.\nI am of the view, however, that on a balance, my interpretation\nis to be preferred because it gives force and effect to the\nfundamental objectives and aspirations of the Constitution,\nbecause it is less arbitrary in its consequences and because it\nis more naturally in harmony with the context of section 241(8)\nitself and the Constitution as a whole.\n\nThe literal interpretation, in my respectful view, has none of\nthese advantages and it is not compelled by the text of the\nsection, read in its context and with regard to the objects of\nthe Constitution. It is clear from the express objectives of the\nConstitution, that it seeks to articulate and to guarantee the\nfundamental right to a fair trial to all persons; the literal\ninterpretation would deny such right to many. The Constitution\nseeks to secure for indigent persons the right to legal\nrepresentation at State expense if substantial injustice would\notherwise result; the literal approach would reserve this for an\narbitrarily delineated class. The Constitution secures the\nright to life and human dignity and guarantees protection from\ninhuman or degrading treatment or punishment to all persons; the\nliteral approach would deny reliance on this promise by those\nsought to be punished after the Constitution simply because the\n\n22\n\n\f[47]\n\nproceedings against them commenced before the Constitution. The\nConstitution expressly entrenches the presumption of innocence\nallowing an accused person the right to protection from laws\nwhich effectively reverse this presumption; the literal approach\ndenies such protection to potentially large classes of persons,\nincluding the very accused in this case. The contrast, in every\narea of legitimate concern for the ends of justice, is stark and\ndistressing. I am not persuaded that a proper reading of the\nConstitution compels me to accept these distressingly anomalous\nconsequences of the literal approach.\n\nThe result of this view is that the Applicants in the case\nbefore Page J were entitled to invoke the protection of the\nConstitution in the attack on section 217(1)(b)(ii) of the\nCriminal Procedure Act of 1977 which this Court has held to be\ninvalid in its judgment (in the Zuma case (supra)) on 5 April\n1995. Notwithstanding the fact that the trial of the accused in\nthe present matter was pending on the date of the commencement\nof the Constitution, they are entitled to contend that the onus\nwas on the State to prove that their confessions were freely and\nvoluntarily made and without any undue influence. In my view,\nthey are therefore still entitled to contend before Page J that\nin his determination of their guilt or otherwise, he should\nproceed on the basis that section 217(1)(b)(ii) is inconsistent\nwith the Constitution and therefore invalid. The Applicants are\ntherefore entitled to a declaration to that effect. I think\nalso that it would be proper to make a declaration in terms of\nsection 98(6) of the Constitution invalidating the application\nof section 217(1)(b)(ii) of Act 51 of 1977 in any criminal\nproceedings in which the final verdict of the relevant Court was\nor may be given after 27 of April 1994.\n\n[48]\n\nThese conclusions also make it necessary to deal with an issue\nwhich was deferred by Kentridge AJ in the Zuma case (supra) in\nthe following passage (in paragraph 44):\n\n\"Whether an order under section 98(6) may and should encompass\nproceedings which were pending before 27 April 1994, depends on the\nproper interpretation of the Constitution. As indicated at the\nbeginning of the judgment that issue is deferred for determination in\nthe Mhlungu case\".\n\nIt follows from what I have said that the question deferred in\nZuma's case (supra), in the passage I have quoted, should be\nanswered by saying that an order in terms of section 98(6) may\nencompass proceedings which were pending immediately before 27\nApril 1994. Because of the issues left undecided in the Zuma\ncase (supra), the order in that case invalidated the application\nof section 217(1)(b)(ii) of Act 51 of 1977 only in respect of\ncriminal trials which commenced on or after 27 April 1994 and in\nwhich the verdict had not, at the date of the order, been given.\nIt did not, however, preclude an extension of these limits in\nthe present case. In my view, the declaration should also\n\n23\n\n\fMAHOMED J\n\ninvalidate any application of section 217(1)(b)(ii) of Act 51 of\n1977 in proceedings which were pending immediately before the\ncommencement of the Constitution. It would also be arbitrary and\nirrational to deny to an accused person the right to rely on\nsuch invalidity merely because the declaration of invalidity by\nthe Court took place on a date subsequent to the date when his\npending trial was fortuitously completed. All accused persons\nwhose trials either began after the Constitution or which were\npending immediately before the Constitution commenced, are\nentitled to be treated equally. I therefore make the following\norder:\n\n1.\n\n2.\n\nIt is declared that section 241(8) does not preclude an\naccused person in a criminal trial from relying on any\nof the applicable provisions of Chapter 3 of the\nConstitution in proceedings which were pending before a\nCourt of law immediately before the commencement of the\nConstitution.\n\nIn terms of sub-section (6) of section 98 of the\nConstitution it is ordered that the declaration of\ninvalidity made by this Court in the case of S v Zuma\nand Others, 1995(4) BCLR 401 (SA) invalidates any\napplication of section 217(1)(b)(ii) of the Criminal\nProcedure Act, 1977 in any criminal trial, irrespective\nof whether it commenced before, on or after 27 April\n1994, and in which the final verdict was or may be given\nafter 27 April 1994.\n\nLanga J, Madala J, Mokgoro J and O'Regan J concur in the\njudgment of Mahomed J.\n\nKENTRIDGE AJ : This case came before this Court by way of a\nreferral by Page J in the course of a criminal trial in the\nNatal Provincial Division. It was heard in this Court at the\nsame time as the case of S v Zuma and Others 1995(4) BCLR\n401(SA), in which judgment was given on 5th April 1995. Both\nreferrals raised the question whether section 217(1)(b)(ii) of\nthe Criminal Procedure Act, 1977, is inconsistent with the\nprovisions of the Constitution of the Republic of South Africa,\n1993. The referral by Page J also raised the question of the\nproper construction of section 241(8) of the Constitution, an\nissue which did not arise in the Zuma case. In the latter case\nwe declared section 217(1)(b)(ii) of the Criminal Procedure Act\nto be invalid, but deferred the question relating to section\n241(8) for consideration in this case. This question still\nrequires resolution, as the applicability of our declaration to\n\n24\n\n \n\n[49]\n\n\f[50]\n\nKENTRIDGE AJ\n\nthe present case may depend on the interpretation of section\n241(8). In order to explain why this is so it is necessary to\nrecount what took place at the trial before Page J.\n\nThe accused were charged with murder and other crimes alleged to\nhave been committed in April 1993. An indictment in Afrikaans\nwas served on all five accused at Newcastle on 11th March 1994.\nPossibly because they did not understand Afrikaans they\nrequested a copy in English. An indictment in English was\nserved on them, but only on 4th May 1994. The accused appeared\nbefore the Circuit Court for remand on 11th May and on 18th May,\n1994 and pleaded not guilty to the charges before Page J,\nsitting with assessors. At an early stage of the trial, the\nprosecution tendered evidence of confessions made by four of the\naccused, in each case before a magistrate. In respect of three\nof them it relied on the presumptions created by proviso (b) to\nsection 217(1). Defence counsel at once informed the court that\nhe would contend that sub-paragraph (ii) of proviso (b) was in\nconflict with the provisions of section 25 of the Constitution\nand therefore no longer of any force or effect, and would if\nnecessary ask for the referral of the issue to the\nConstitutional Court. As Page J said in his judgment, given on\n28th October 1994, a question which arose at the outset of the\nenquiry was whether, in view of section 241(8) of the\nConstitution, provisions such as section 25 had any application\nto the case before him. Section 241(8) reads as follows -\n\"(8) All proceedings which immediately before the commencement of this\nConstitution were pending before any court of law, including any\ntribunal or reviewing authority established by or under law,\nexercising jurisdiction in accordance with the law then in force,\nshall be dealt with as if this Constitution had not been passed :\nProvided that if an appeal in such proceedings is noted or review\nproceedings with regard thereto are instituted after such commencement\nsuch proceedings shall be brought before the court having jurisdiction\nunder this Constitution.\"\n\nThe question raised by Page J was whether, in the first place,\nthe proceedings before him could be said to have been \"pending\"\nimmediately before the commencement of the Constitution, i.e.\n27th April 1994; and, if so, whether on its proper construction\nsection 241(8) rendered the Constitution inapplicable to those\nproceedings. Page J made no finding on either of these\nquestions.\n\n[51]\n\nWith regard to the first issue, further findings of fact may\nhave been necessary. The term \"pending\" in relation to\nproceedings may have different connotations according to its\ncontext. See Noah v Union National South British Insurance Co\nLtd 1979(1) SA 330(T), 332 per Eloff J ; Arab Monetary Fund and\nothers v Hashim, NO (No 4) [1992] 1 WLR 553. As Hoffmann J said\n\n25\n\n\f[52]\n\nKENTRIDGE AJ\n\nin the latter case at 558, in the normal meaning of the term\nproceedings \"are pending if they have begun but not yet\nfinished.\" It is clear enough that a \"pending\" proceeding is\none not yet decided. See King v King 1971(2) SA 630(O), 634;\nGroenewald v Minister van Justisie 1972(4) SA 223(O), 225. \nWhat is not so clear is when a legal proceeding may be said to\nhave begun. \n\nSection 144(4) of the Criminal Procedure Act 1977, requires an\nindictment to be served on an accused at least ten days before\nthe date appointed for trial, and section 76 states that the\nproceedings at a summary trial in a superior court shall be\ncommenced by the serving of an indictment on the accused and the\nlodging thereof with the registrar of the court concerned. \nThere is nothing in the judgment of Page J to indicate whether\nthe Afrikaans indictment was withdrawn or was lodged with the\nregistrar and, in the latter event, on what date it was lodged.\nThese matters and, in general, the date of commencement of the\nproceedings, were and are questions for the trial court to\ndecide. All that one can say at this stage is that unless a\nduly served indictment was lodged with the registrar before the\n27th April, there would appear to be no basis on which it could\nbe contended that on 27th April, 1994, the proceedings were\n\"pending\" in terms of section 241(8).1 But it does not follow\nthat, in the context of section 241(8), proceedings are pending\nas soon as the indictment is lodged. It may be that for the\npurposes of that section criminal proceedings are pending only\non plea, or when the evidence has begun. (Compare section 344\n(3) of the Criminal Procedure Act, 1977.) That is a question\nwe do not now decide. \n\n[53]\n\nAt all events, at the trial before Page J the State prima facie\nestablished that in relation to at least two of the confessions\ntendered, the requirements of section 217(1) (b)(ii) had been\nsatisfied. But before any further evidence was led, and after\nhearing argument, the learned judge decided to refer the\nconstitutional issues to this Court. His reasoning, in essence,\n\n1 In parenthesis, I point out that section 241(8) applies to civil as\nwell as criminal proceedings. In Roman Dutch law there was some controversy\nwhether civil proceedings were pending only upon litis contestatio or upon\nservice of the summons. Modern authority favours the latter view. Michaelson\nv Lowenstein 1905 TS 3241 ; Van As v Apollos and Others 1993(1) SA 606(C),\n609. See also S v Saib 1994(2) BCLR 48(D), 53; 1994(4) SA 554(D), 559 per\nThirion J.\n\n26\n\n\f[54]\n\nKENTRIDGE AJ\n\nwas that fairness to the accused required that they knew with\ncertainty where the onus lay before they decided whether to give\nevidence in the voir dire. The parties in this case having\nmade no agreement under section 101(6) of the Constitution, the\nlearned judge considered that the issue might be decisive and\nheld that it was in the interests of justice to refer the issue\nimmediately to the Constitutional Court. He accordingly did\nso, and suspended the proceedings before him in terms of section\n102(2) of the Constitution.\n\nIn this case were it not for the issue under section 241(8),\nthere would be no reason to doubt the competence of the referral\nof the issue of the validity of section 217(1)(b)(ii). That\nissue entails an inquiry into the constitutionality of a\nprovision in an Act of Parliament. In terms of sub-sections (2)\nand (3) of section 98 of the Constitution, read with section\n101(3) that enquiry is within the exclusive jurisdiction of the\nConstitutional Court. The course taken by Page J accords with\nthe provisions of sub-sections (1) and (2) of section 102 of the\nConstitution which read as follows-\n\n(1) If, in any matter before a provincial or local division of the\nSupreme Court, there is an issue which may be decisive for the case,\nand which falls within the exclusive jurisdiction of the\nConstitutional Court in terms of section 98(2) and (3), the provincial\nor local division concerned shall, if it considers it to be in the\ninterest of justice to do so, refer such matter to the Constitutional\nCourt for its decision: Provided that, if it is necessary for evidence\nto be heard for the purposes of deciding such issue, the provincial or\nlocal division concerned shall hear such evidence and make a finding\nthereon, before referring the matter to the Constitutional Court.\n\n(2) If, in any matter before a local or provincial division, there is\nany issue other than an issue referred to the Constitutional Court in\nterms of subsection (1), the provincial or local division shall, if it\nrefers the relevant issue to the Constitutional Court, suspend the\nproceedings before it, pending the decision of the Constitutional\nCourt.\n\nPage J found that the issue was one which might be decisive of\nthe case and that, for the reasons which he gave, the referral\nto this Court was in the interests of justice. As to the\nproviso to section 102(1), there was no factual finding which\nwas necessary for the determination of the validity of section\n217(1)(b)(ii). As there were other issues remaining to be\ndealt with by the trial court the judge suspended the\nproceedings as required by sub-section (2).\n\n[55]\n\nWhat is open to doubt is the basis on which the issue arising\nunder section 241(8) was referred to this Court. This Court has\njurisdiction under section 98(2) \"over all matters relating to\nthe interpretation... of the provisions of this Constitution\".\n\n27\n\n\f[56]\n\nKENTRIDGE AJ\n\nBut that, it seems to me, cannot be an exclusive jurisdiction.\nAlthough section 101(3) does not in terms give the Provincial\nand Local Divisions of the Supreme Court jurisdiction over\nmatters relating to the interpretation of the Constitution, such\njurisdiction must be implied. Otherwise they could not exercise\ntheir undoubted jurisdiction under paragraph (a) of section\n101(3) to determine whether there has been a violation of a\nfundamental right entrenched in Chapter 3. It follows that Page\nJ had jurisdiction to interpret section 241(8) of the\nConstitution and to determine its effect on the case before him.\nHe ought therefore to have made the necessary findings of fact\nto enable him to decide whether or not the case was a \"pending\"\none in terms of section 241(8). I may add that there have been\nnumerous (and conflicting) decisions in Provincial and Local\nDivisions of the Supreme Court on the interpretation of section\n241(8).\n\nWhat then of the competence of the learned judge's referral of\nthat issue? I cannot read section 102 as entitling the judge\nto refer to this Court a constitutional issue which is within\nhis own jurisdiction. In my opinion sub-section (2) of section\n102 deals only with procedure on references under sub-section\n(1). Under sub-section (2) the words \"any issue other than an\nissue referred to the Constitutional Court in terms of\nsubsection (1)\" include other constitutional issues as well as\nnon-constitutional issues. But no power to refer those other\nconstitutional issues is conferred on the judge. In contrast\nto sub-section (1), sub-section (2) contains no words granting\nsuch power. Nor does it require any finding of fact relevant\nto those other constitutional issues - a requirement which one\nwould expect if the power to refer such issues were intended.\nA similar point arises in sub-section (3), which reads as\nfollows -\n\n\"(3) If, in any matter before a provincial or local division, there\nare both constitutional and other issues, the provincial or local\ndivision concerned shall, if it does not refer an issue to the\nConstitutional Court, hear the matter, make findings of fact which may\nbe relevant to a constitutional issue within the exclusive\njurisdiction of the Constitutional Court, and give a decision on such\nissues as are within its jurisdiction.\"\n\nThat sub-section is not well drafted, but it too requires\nfindings of fact only in relation to issues within the exclusive\njurisdiction of the Constitutional Court, and it contains no\nwords which authorise any other reference. In spite of the lack\nof clarity in the sub-section the only reasonable construction,\nit seems to me, is that the words \"if it does not refer an issue\nto the Constitutional Court\" must be read as referring only to\nreferences under sub-section (1). Similarly, in sub-section\n(2) the words \"the relevant issue\" mean the issue referred under\n\n28\n\n\fsub-section (1).\n\n[57]\n\nThe only other provision authorising a reference by a Provincial\nor Local Division is sub-section (8) of section 102, which\nprovides -\n\nKENTRIDGE AJ\n\n\"(8) If any division of the Supreme Court disposes of a matter in\nwhich a constitutional issue has been raised and such court is of the\nopinion that the constitutional issue is of such public importance\nthat a ruling should be given thereon, it may, notwithstanding the\nfact that the matter has been disposed of, refer such issue to the\nConstitutional Court for a decision.\"\n\nIt may at some time have to be decided at what stage it can be\nsaid that a court has disposed of a matter under that sub-\nsection. In this case the sub-section plainly has no\napplication.\n\nThe referral of the issue of the proper interpretation of\nsection 241 (8) was therefore not competent.\n\nIt is convenient at this point to say something about the\npractice of referrals to this Court under section 102(1) of the\nConstitution. The fact that an issue within the exclusive\njurisdiction of this court arises in a Provincial or Local\nDivision does not necessitate an immediate referral to this\nCourt. Even if the issue appears to be a substantial one, the\ncourt hearing the case is required to refer it only\n\n[58]\n\n[59]\n\n(i)\n\n \n\n(ii)\n\nif the issue is one which may be decisive for the\ncase; and\nif it considers it to be in the interest of justice to\ndo so.\n\nIn section 103(4) of the Constitution, which deals with the\nreferral to this Court of matters originating in inferior\ncourts, the referring Provincial or Local Division must in\naddition be of the opinion \"that there is a reasonable prospect\nthat the relevant law or provision will be held to be invalid.\"\nIn S v W and Others 1994(2) BCLR 135(C), 147G; S v Williams and\nFive Similar Cases 1994(4) SA 126(C), 139F, Farlam J said that\nalthough that was not an express requirement of section 102(1)\nit was implicit therein. I respectfully agree. See also Matiso\nand Others v The Commanding Officer, Port Elizabeth Prison and\nOthers 1994(3) BCLR 80(SE), 89G - 90D; Matiso and Others v The\nCommanding Officer, Port Elizabeth Prison and Another 1994(4) SA\n592(SE), 599G - 600E. The reasonable prospect of success is, of\ncourse, to be understood as a sine qua non of a referral, not as\nin itself a sufficient ground. It is not always in the interest\nof justice to make a reference as soon as the relevant issue has\nbeen raised. Where the case is not likely to be of long\n\n29\n\n\fKENTRIDGE AJ\n\nduration it may be in the interests of justice to hear all the\nevidence or as much of it as possible before considering a\nreferral. Interrupting and delaying a trial, and above all a\ncriminal trial, is in itself undesirable, especially if it means\nthat witnesses have to be brought back after a break of several\nmonths. Moreover, once the evidence in the case is heard it may\nturn out that the constitutional issue is not after all\ndecisive. I would lay it down as a general principle that where\nit is possible to decide any case, civil or criminal, without\nreaching a constitutional issue, that is the course which should\nbe followed. One may conceive of cases where an immediate\nreference under section 102(1) would be in the interests of\njustice - for example, a criminal trial likely to last many\nmonths, where a declaration by this Court of the invalidity of\na statute would put an end to the whole prosecution. But those\ncases would be exceptional. One may compare the practice of the\nSupreme Court with regard to reviews of criminal trials. It is\nonly in very special circumstances that it would entertain a\nreview before verdict. See Hiemstra, Suid-Afrikaanse\nStrafproses (5de uitgawe), 764. In any event, the convenience\nof a rapid resort to this Court would not relieve the trial\njudge from making his own decision on a constitutional issue\nwithin his jurisdiction.\n \nI should make it clear that these remarks are in no way intended\nas a criticism of the decision of Page J to refer the issue on\nsection 217(1)(b)(ii). At the stage when he did so this Court\nhad not yet been convened, and no guidelines for referrals had\nbeen laid down. The issue was, moreover, one of great and\npressing concern to all criminal courts, and it was right that\nit be resolved as soon as possible.\n\nIt may be asked at this stage why it is necessary or competent\nfor this Court to consider section 241(8) in this case. The\nreason is that if the proceedings before Page J were pending\nimmediately before the 27th April 1994, and if that section\nmeans that the proceedings had to be completed in all respects\nin accordance with the law as it existed before that date, it\nwould follow that the judge would have to deal with the case in\naccordance with the requirements of section 217(1)(b)(ii),\nnotwithstanding the fact that this Court in the Zuma case\ndeclared that section to be invalid. In order to answer the\nquestion whether Page J is to apply the ruling in the Zuma case\nwhen the trial resumes, the question left open in the Zuma case\nhas to be decided, namely, whether an order in terms of section\n98(6) should encompass proceedings pending on the 27th April. To\nanswer that question the meaning of section 241(8) has to be\ndetermined. Moreover, we know that there are other criminal\n\n30\n\n[60]\n\n[61]\n\n\fKENTRIDGE AJ\n\ncases which may have been pending on the 27th April 1994, in\nwhich the same question may arise, although of course we have no\nway of knowing how many. We heard full argument on this issue\nand we are consequently able to deal with it, and it is\nappropriate that we should do so.\n\n[62]\n\nThere have been a number of competing interpretations of section\n241(8) in Provincial and Local Divisions of the Supreme Court.\nI shall not cite all those decisions, still less attempt to\nanalyse them. It will be sufficient to identify in summary form\nthe differing interpretations placed on the sub-section.\n\na) Some judges have held that section 241 (8) is intended\nto do no more than preserve the territorial jurisdiction\nof the courts in relation to cases pending on 27th April\n1994 and that the Constitution, including Chapter 3, must\notherwise be applied fully to those cases. See e.g. the\njudgments of Froneman J in Qozoleni v Minister of Law and\nOrder and Another 1994(1) BCLR 75(E); 1994(3) SA 625(E)\nand Gardener v Whitaker 1994(5) BCLR 19(E);\nb) Other judges have held that section 241(8)\npreserves the existing law in pending cases only in\nmatters of procedure. Fundamental rights of a\nsubstantive nature are thus to be applied in pending\ncases. See e.g. S v W and Others supra. In some cases\nit has been held that procedural rights which are\nfundamental are not necessarily excluded by section\n241(8), but that where existing procedures have been\nfollowed in pending cases they are to remain\nundisturbed. See e.g. Shabalala and Others v The\nAttorney-General of Transvaal and Others 1994(6) BCLR\n85(T); Shabalala v Attorney-General, Transvaal, and\nAnother 1995(1) SA 608(T).\n\nIn all the above cases the judges have concluded that, given the\nfundamental concerns and values of the Constitution, it is\nunthinkable that a court should after 27th April 1994 pronounce\nany verdict or sentence which has the effect of violating a\nfundamental constitutional right of the person before the court.\n\nc) The third line of decisions holds that section\n241(8) excludes any application of the Constitution in\ncases which were pending at its commencement. See\ne.g. Kalla and Another v The Master and Others 1994(4)\nBCLR 79(T); 1995(1) SA 261(T).\n\n[63]\n\nIn interpreting section 241(8) I would accept that it would not\nbe right to ignore what Froneman J called the \"fundamental\nconcerns\" of the Constitution, (Qozoleni's case BCLR at 86A), or\n\"the spirit and tenor of the Constitution\" (Shabalala's case\nBCLR at 95F). A purposive construction is as appropriate here\n\n31\n\n\f[64]\n\n[65]\n\nKENTRIDGE AJ\n\nas in other parts of the Constitution. Nonetheless, a purposive\nconstruction requires one to search for the specific purpose of\nsection 241(8) within its context in the Constitution. Its\nimmediate context is a section headed \"Transitional arrangements\n: Judiciary\", in a chapter (chapter 15) headed \"General and\nTransitional Provisions\".\n\nAs stated in the preamble, the Constitution creates a new legal\norder in South Africa. The afterword recites inter alia that\nthe Constitution is a bridge from a past characterised by\ninjustice to a future founded on the recognition of human\nrights. But the Constitution cannot wipe out all traces of the\npast in one blow, and does not attempt to do so. It was\nnecessary for the Constitution to consider how far the new legal\norder, especially the fundamental rights provisions of Chapter\n3, should affect actions taken or acts performed under the old\nlegal order before the Constitution came into force. This is a\nperennial legal problem, which arises whenever a new statute\nrepeals an old one. Sometimes repealing statutes contain\nprovisions which give a clear answer to the problem. All too\noften they do not, and canons of statutory interpretation have\nbeen developed over the years to assist in solving the problem.\nIn general, our courts have held that in the absence of a\ndiscernible contrary intention, it is presumed that a new\nstatute is not intended to have retroactive or retrospective\neffect. This is not the place for a detailed analysis of the\npresumption, but a reminder of its scope may help to explain the\npurpose of section 241(8).\n\nFirst, there is a strong presumption that new legislation is not\nintended to be retroactive. By retroactive legislation is meant\nlegislation which invalidates what was previously valid, or vice\nversa, i.e. which affects transactions completed before the new\nstatute came into operation. See Van Lear v Van Lear 1979(3) SA\n1162(W). It is legislation which enacts that \"as at a past date\nthe law shall be taken to have been that which it was not\". See\nShewan Tomes & Co. Ltd. v Commissioner of Customs and Excise\n1955(4) SA 305(A), 311H per Schreiner ACJ. There is also a\npresumption against reading legislation as being retrospective\nin the sense that, while it takes effect only from its date of\ncommencement, it impairs existing rights and obligations, e.g.\nby invalidating current contracts or impairing existing property\nrights. See Cape Town Municipality v F. Robb & Co. Ltd. 1966(4)\nSA 345(C), 351 per Corbett J. The general rule therefore is\nthat a statute is as far as possible to be construed as\noperating only on facts which come into existence after its\npassing. \n\n32\n\n\f[66]\n\n[67]\n\n[68]\n\nKENTRIDGE AJ\n\nThere is a different presumption where a new law effects changes\nin procedure. It is presumed that such a law will apply to\nevery case subsequently tried \"no matter when such case began or\nwhen the cause of action arose\" - Curtis v Johannesburg\nMunicipality 1906 TS 308, 312. It is, however, not always easy\nto decide whether a new statutory provision is purely procedural\nor whether it also affects substantive rights. Rather than\ncategorising new provisions in this way, it has been suggested,\none should simply ask whether or not they would affect vested\nrights if applied retrospectively. See Yew Bon Tew v Kenderaan\nBas Mara [1983] 1 AC 553 (PC), 563; Industrial Council for\nFurniture Manufacturing Industry, Natal v Minister of Manpower\nand Another 1984(2) SA 238(D), 242. \n\nThere is still another well-established rule of construction\nnamely, that even if a new statute is intended to be\nretrospective in so far as it affects vested rights and\nobligations, it is nonetheless presumed not to affect matters\nwhich are the subject of pending legal proceedings. See Bell v\nVoorsitter van die Rasklassifikasieraad en Andere 1968(2) SA\n678(A); Bellairs v Hodnett and Another 1978(1) SA 1109(A),\n1148.\n\nProblems of retrospectivity may arise in relation to new\nConstitutions as they do in relation to other new statutes.\nThey arose in relation to the introduction of the Canadian\nCharter of Rights. See R v Antoine (1983) 4 CRR 126. In the\nSouth African Constitution express provisions obviate at least\nsome of the major problems of retrospectivity. Section 4(1)\nprovides -\n\n\"This Constitution shall be the supreme law of the Republic and\nany law or act inconsistent with its provisions shall, unless\notherwise provided expressly or by necessary implication in this\nConstitution, be of no force or effect to the extent of the\ninconsistency.\"\n\nSection 7(2), which is part of Chapter 3, provides -\n\n\"This Chapter shall apply to all law in force and all\nadministrative decisions taken and acts performed during the\nperiod of operation of this Constitution.\"\n\nThese provisions mean that Chapter 3 prima facie has effect as\nfrom the commencement of the Constitution even if the result is\nto impair a vested right. In that sense it is retrospective.2\n\n2 As Chapter 3 for the most part confers rights on individuals rather\nthan removes them there will not be many instances where retrospectivity in\n\n33\n\n\f \n[69]\n\n[70]\n\nKENTRIDGE AJ\n\nThe importance of section 7(2) is that it enables any person to\ninvoke the Constitution as a protection against any\nunconstitutional official action taken against him or her, after\n27th April 1994, even if that action arises from that person's\nconduct before 27th April 1994. On the other hand it follows\nfrom section 7(2) that official acts completed before 27th April\n1994 are not invalidated by anything in the Constitution.3\n\nIt is against this background that the purpose of section 241(8)\ncan be understood. The purposes, I suggest, were twofold.\nFirst, to ensure that Courts which had derived their power to\nhear cases from the old Constitution, could continue to hear\nthem under the new Constitution. Here I am in agreement with\nMahomed J, and broadly with the reasons which he has given for\nthat conclusion. But that is not the only purpose of section\n241(8). It is clear from the language used, that there was\nanother purpose, and that was to ensure that there would be an\norderly transition from the old to the new legal order, so as to\navoid the dislocation which would be caused by introducing a\nradically different set of legal concepts in the middle of\nongoing proceedings.\n\nThere is no warrant for reading section 241(8) as merely\npreserving the territorial jurisdiction of the courts in pending\nmatters. First, the sub-section states no such limitation.\nSecond, sub-sections (1) and (10) of section 241, expressly\npreserve jurisdiction of existing Courts, in all proceedings.\nIf section 241(8) merely preserved territorial jurisdiction in\npending cases it would be entirely superfluous. The reliance\nwhich some judgments place on the proviso is in my opinion\nmisconceived. The effect of a proviso is to except something\nfrom the preceding portion of the enactment which, but for the\nproviso, would be within it. It cannot be construed as if it\nwere an enacting clause. R v Dibdin [1910] P 57, 125; Mphosi\nv Central Board for Co-Operative Insurance Ltd. 1974(4) SA\n633(A), 645. \"Pending proceedings\" include an appeal from the\noriginal proceedings - S v Thomas and Another 1978(1) SA 329(A).\nThe proviso to section 241(8) in my view does no more than\nensure that, notwithstanding the main enactment, appeals may go\n\nthe sense explained will arise. A theoretical example would be the\ninvalidation of a statute which conferred rights on a section of the\npopulation on a discriminatory basis. This might destroy the vested rights\nof those previously favoured. \n\n3 For that reason it seems to have been unnecessary to invoke section\n241(8) in Kalla v Master of the Supreme Court, supra: the case could have been\ndecided in the same way be reference to section 7(2).\n\n34\n\n\f[71]\n\n \n\nKENTRIDGE AJ\n\nto appeal Courts other than those to which they would have gone\nunder the old law. \n\nThe words in section 241(8), \"any court of law, including any\ntribunal or reviewing authority established by or under any law\"\nare qualified by the words \"exercising jurisdiction in\naccordance with the law then in force\". They lend weight to the\nview that, in the general context of section 241, sub-section\n(8) is concerned with the jurisdiction of the Courts seized of\npending proceedings. I emphasise \"jurisdiction\", because\n\"jurisdiction\" is not limited to \"territorial jurisdiction\".\nThe term embraces territorial jurisdiction but in ordinary usage\nterritorial limits are only a part of what is meant by a Court's\njurisdiction. The accepted meaning of \"jurisdiction\" is -\n\"a lawful power to decide something in a case, or to adjudicate upon\na case\".\n\nVeneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in\nliquidation) 1987(4) SA 883(A), 886D.\n\nIt is -\n\n\" ... the power vested in a court by law to adjudicate upon, determine\nand dispose of a matter.\"\n\nEwing McDonald & Co Ltd v M & M Products Co 1991(1) SA\n252(A), 256G.\n\nIn Garthwaite v Garthwaite [1964] P 356, Diplock L.J. said at\n387 -\n\n\"In its narrow and strict sense, the \"jurisdiction\" of a validly\nconstituted court connotes the limits which are imposed upon its power\nto hear and determine issues between persons seeking to avail\nthemselves of its process by reference 1) to the subject-matter of the\nissue or 2) to the persons between whom the issue is joined or 3) to\nthe kind of relief sought, or to any combination of these factors. In\nits wider sense it embraces also the settled practice of the court as\nto the way in which it will exercise its power to hear and determine\nissues which fall within its \"jurisdiction\" (in the strict sense)\n....\"\n\n[72]\n\nIf the broad purpose of section 241(8) is, as stated by Mahomed\nJ to be, \"to ensure that the jurisdiction of Courts to deal with\npending cases was not assailed because of the fact that the\nConstitution creates new Court structures with effect from the\ncommencement of the Constitution\", the drafters of the\nConstitution would have to address two matters. First, courts\nand tribunals would have to be empowered to continue and\ncomplete pending cases. Second, they would have to be told how\n\n35\n\n\f[73]\n\nKENTRIDGE AJ\n\nto deal with cases heard partly under one legal order and partly\nunder another. They could have been told to deal with pending\ncases in the period after the new Constitution comes into force,\nin accordance with the provisions of that Constitution, or to\ndeal with them as if the Constitution had not been passed.\nRightly or wrongly the framers of the Constitution chose the\nlatter option, and we are required to give effect to that\nchoice.\n\nWith all respect to the judges who have taken a different view,\nI find it difficult to see what other meaning can reasonably be\ngiven to the language used. Even if the language were to be\nread, as Mahomed J suggests it should be, as \"a direction to\nproceed with pending cases as if the Constitution had not\nimpacted on the authority of the pre-Constitution Court to\ncontinue to function as a Court ... [and] emphasizes ... that\nthe relevant Court must exercise jurisdiction in accordance with\nthe law then in force\", the conclusion would not in my view be\nany different. The power of the Court in accordance with the\nlaw in force when it commenced the proceedings did not include\nthe power to strike down an Act of Parliament. On the contrary,\nit was quite explicitly stated in section 34(3) of the Republic\nof South Africa Constitution, Act 110 of 1983 that no such power\nexisted. The power to strike down such legislation comes from\nthe 1993 Constitution. It is, subject to section 101(6), a power\nwhich can be exercised only by this Court, but a challenge to\nthe validity of an Act of Parliament can be raised in\nproceedings before other Courts and Tribunals. It is only\npursuant to powers vested in the courts by the 1993 Constitution\nthat a challenge to the validity of section 217(1)(b)(ii) of the\nCriminal Procedure Act can be raised; but section 241(8) states\nin as many words that pending proceedings shall be dealt with as\nif that Constitution had not been passed. Consequently, even if\nsection 241(8) is to be read as meaning that a court or tribunal\nbefore which proceedings were pending should exercise its\n\"jurisdiction\" \"as if this Constitution had not been passed\",\nthe result would be the same. Its jurisdiction would not\ninclude the constitutional jurisdiction conferred on the Supreme\nCourt under section 101(3), because such powers are derived from\nthe new Constitution, and did not exist under the old one. \n\n[74]\n\nEqually, I see no warrant for limiting the operation of section\n241(8) to the preservation of existing court procedure. Again,\nthere is no such limitation in the sub-section, and existing\n\"court procedures\" are expressly preserved by sub-section (10).\nNor can I find in section 25 or any other section of the\nConstitution any meaningful distinction between procedure and\nsubstance. If the lawmakers had intended that those provisions\nof the Constitution which had a procedural character were not to\n\n36\n\n\f[75]\n\n[76]\n\nKENTRIDGE AJ\n\nbe applied in pending proceedings, whereas purely substantive\nprovisions were to be applied it would not be easy to find less\nappropriate words than \"... shall be dealt with as if this\nConstitution had not been passed\".\n\nThe words which I have just quoted from section 241(8) echo\nwording used for over 100 years by legislators wishing to make\nit clear that new statutes did not affect pending proceedings.\nThus the Interpretation Act, 1957 (like the Interpretation Act,\n1910 and the English Interpretation Act, 1889) provides in\nsection 12(2)(e) that the repeal of law shall not affect (inter\nalia) any right or obligation accrued or incurred under the\nrepealed law, and shall not affect any legal proceedings in\nrespect of such right or obligation, and such legal proceedings\nmay be continued \"as if the pending law had not been passed.\"\nSection 344(3) of the Criminal Procedure Act, 1977 provides \n\n\"(3) Notwithstanding the repeal of any law under subsection (1),\ncriminal proceedings which have under such law at the date of\ncommencement of this Act been commenced in any superior court,\nregional court or magistrate's court and in which evidence has at that\ndate been led in respect of the relevant charge, shall, if such\nproceedings have at that date not been concluded, be continued and\nconcluded under such law as if it had not been repealed.\"\n\nSimilar words appear in section 115 of the Magistrate's Courts\nAct 24 of 1944 (see Janover v Registrar of Deeds 1946 TPD 35)\nand in older statutes such as the Administration of Estates Act,\n1913. See George Municipality v Freysen NO 1973(2) SA 295(C)\n300. Such provisions have often been judicially applied. It\nhas never been suggested that they relate only to territorial\njurisdiction or procedure. See e.g. S v Thomas supra; S v\nSwanepoel 1979(1) SA 478(A). \n\nAs far as I am aware the words \"shall be dealt with\", used in\nsection 241(8), are not found in the statutes to which I have\nreferred. In those the words commonly used are \"continued\" or\n\"concluded\", or both. In at least two cases in the Appellate\nDivision judges have used the phrase \"dealt with\" as synonymous\nwith \"continued\" and \"concluded\" as used in section 344(3) of\nthe Criminal Procedure Act and section 12(2)(e) of the\nInterpretation Act. See S v Thomas supra at 334H; Pinkey v Race\nClassification Board and Another 1968(4) SA 628(A), 636C-D.\nThis accords with the ordinary meaning of the words. \"Dealt\nwith\" is not a term of art. The phrase is part of colloquial\nEnglish usage. A judge, in ordinary parlance, deals with a case\nby conducting the hearing in accordance with the law of\nevidence, by finding the facts, applying the law and finally\npronouncing the decision. More shortly, he exercises his\njurisdiction in the general sense explained above. A judge\n\n37\n\n\f[77]\n\n[78]\n\nKENTRIDGE AJ\n\nbound to deal with a case as if the Constitution had not been\npassed must exercise his jurisdiction as if the Constitution had\nnot been passed. By contrast, a court does not \"deal with\"\nproceedings simply by retaining its territorial jurisdiction.\nThere is no basis in law, language or logic for giving \"dealt\nwith\" some different meaning in the context of section 241(8),\neven if a different meaning could be found.\n\nI cannot accept that the words \"dealt with\" are words of\nuncertain meaning. According to the Oxford English Dictionary\nthe ordinary meaning of these words is \"to act in regard to, to\nadminister, handle, dispose in any way (of a thing)\". In the\ncontext of section 241(8) these words quite clearly relate to\nthe conduct of a \"pending proceeding\" in the period after the\nConstitution has come into force. There is nothing \"tentative\"\nor \"uncertain\" in the injunction that \"pending proceedings shall\nbe dealt with as if this Constitution had not been passed\"; nor,\nin my view, can these words reasonably be understood as meaning\nthat in the period after the 27th April 1994 courts and tribunals\nshould deal with pending proceedings in terms of the law then in\nforce. On the contrary, they have precisely the opposite\nmeaning. \n\nThere are limits to the principle that a Constitution should be\nconstrued generously so as to allow to all persons the full\nbenefit of the rights conferred on them, and those limits are to\nbe found in the language of the Constitution itself. Thus, in\nMinister of Home Affairs (Bermuda) v Fisher and Another [1980]\nAC 319 (PC) at 329E-F, Lord Wilberforce was at pains to point\nout that a constitution is a legal instrument, and that respect\nhas to be paid to the language used. This was accepted in the\nunanimous judgment delivered by this Court in S v Zuma (supra)\nwhere it was said:\n\n\"We must heed Lord Wilberforce's reminder that even a constitution is\na legal instrument, the language of which must be respected. If the\nlanguage used by the lawgiver is ignored in favour of a general resort\nto \"values\" the result is not interpretation but divination.\"\n\nThe existence of such limits is also recognised by section 4(1)\nof the Constitution which provides that \"...any law or act\ninconsistent with [the Constitution's] provisions shall, unless\notherwise provided expressly or by necessary implication in this\nConstitution, be of no force and effect to the extent of the\ninconsistency.\" (my emphasis)\n\nSection 241(8) of the Constitution provides expressly that\npending cases shall be dealt with as if the Constitution had not\nbeen passed. When the language is clear it must be given\neffect, and this has been stressed in cases in several different\njurisdictions. See for example: S v Marwane 1982(3) SA 717(A)\n\n38\n\n\f[79]\n\nKENTRIDGE AJ\n\nat 749D-G; Bull v Minister of Home Affairs 1986(3) SA 870(ZSC)\nat 881E-H; Ex Parte Cabinet for the Interim Government of South\nWest Africa: In re Advisory Opinion in terms of S 19(2) of Proc\nR101 of 1985 (RSA) 1988(2) SA 832(SWA) at 853G; Tam Hing Yee v\nWu Tai Wai (1992) LRC (Const.) 596 (Hong Kong) at 600; Attorney-\nGeneral v Moagi 1982 (2) Botswana LR 124,184. \n\nWith all respect to the judges who have taken a different view\nI find it difficult to see what meaning other than that which I\nhave suggested can reasonably be given to the language used. \n\nIt follows that, although my reasoning is by no means identical,\nI agree with the conclusion of van Dijkhorst J in Kalla and\nOthers v The Master and Others supra, BCLR at 88C, that section\n241(8) excludes the application of the substantive provisions of\nthe Constitution in pending cases. The courts in the\nconflicting lines of cases to which I have referred have\nobjected that this interpretation would lead to anomalies and\ninjustices. Thus in S v W and Others supra BCLR at 145H, Farlam\nJ said that he was satisfied that the framers of the\nConstitution could not have intended that cruel, inhuman or\ndegrading punishment could be imposed even in pending cases. \nIn Qozoleni v Minister of Law and Order and Another supra BCLR\nat 86D, Froneman J asked whether the Constitution could\ncountenance any discrimination based on race even in pending\nproceedings, and answered his own question in the negative. The\nexample has been suggested of two accused on the same charge,\nwith the indictment served on 26th April 1994 on the one and 27th\nApril 1994 on the other. These apparent anomalies may arise in\nthe limited and reducing number of cases, civil and criminal,\nwhich were pending on 27th April 1994. They are the inevitable\nresult of a transitional provision such as section 241(8). Nor\nare they as serious as the examples given may suggest. If it be\nassumed that a Court in some \"pending proceeding\" may have felt\ncompelled to pass a sentence of a type which this Court may\nsubsequently hold to be cruel, inhuman or degrading, it\ncertainly does not follow that such sentence will be carried out\nafter such declaration has been made. The carrying out of the\nsentence would be an unconstitutional executive act which this\nCourt would restrain under section 98(7) of the Constitution,\nand no court would knowingly impose a sentence which cannot\nlawfully be carried out. Issues arising out of racial or other\ndiscrimination in civil cases may involve questions of public\npolicy which would depend, not on the enforcement of any\nConstitutional provision, but on public policy prevailing at the\ntime the case is heard. See Magna Alloys and Research (SA)\n(Pty) Ltd v Ellis 1984(4) SA 874(A).\n\n39\n\n\f[80]\n\n[81]\n\n[82]\n\nIn his judgment Mahomed J contends that if pending proceedings\nare to be dealt with literally \"as if this Constitution had not\nbeen passed\" a Supreme Court could not refer a matter to this\nCourt in terms of section 102(1) because, by utilising the\nprovisions of section 102(1) it would not in fact be dealing\nwith the proceedings as if the Constitution had not been passed.\nIn my view there is a twofold answer to this contention. In the\nfirst place the Supreme Court in referring the matter to this\nCourt pursuant to the provisions of section 102(1) is not\n\"dealing\" with proceedings, it is seeking directions from the\nConstitutional Court as to how to deal with proceedings. In the\nsecond place, even if the contention were correct, this would\nnot end the matter; for this Court could still be seized with\nthe matter on appeal after the Supreme Court had construed the\nprovisions of section 241(8), and deal with the matter in\naccordance therewith.\n\nIt is in theory possible that as late as 26th April 1994, there\ncould have been a prosecution pending for the cotravention of\n(for example) a racially discriminatory local authority by-law\nwhich had somehow survived the process of repeal of\ndiscriminatory laws. A conviction on such a charge after 27th\nApril 1994, would indeed seem to be extraordinary. But it must\nnot be forgotten that the courts are not the only organs of\nstate bound to respect and enforce the Constitution.\nLegislative and executive organs of state at all levels are\nsimilarly bound - see: sections 4(2) and 7(1) of the\nConstitution. In the hypothetical case envisaged it would be\nopen to Parliament or the appropriate Provincial legislature to\nrepeal the offending by-law. And one would expect the\nexecutive in the person of the Attorney-General having\njurisdiction, to withdraw such a prosecution. \n\nIt should be borne in mind that we are not concerned here with\nthe meaning of rights guaranteed under the Constitution, but\nwith whether guaranteed rights can be claimed in pending\nproceedings; nor are we concerned with a provision drafted with\n\"an eye to the future\", requiring it to be interpreted then in\nthe light of changed conditions. Section 241(8) is a\ntransitional provision, intended to deal with a limited number\nof cases, covering a defined and comparatively short period of\ntime. It is moreover a provision which has only limited and\nindirect application to the fundamental rights entrenched in\nChapter 3 of the Constitution. Chapter 3 governs acts performed\nand decisions taken after the Constitution comes into force, and\nthere will not ordinarily be such issues in litigation pending\non the date the Constitution came into force. \n\n[83]\n\nThe tension between Chapter 3 and section 241(8) is likely to\n\n40\n\n\fKENTRIDGE AJ\n\narise only in respect of the fair trial requirements of section\n25(3). There will be anomalies in the conduct of trials which\nflow from what I consider to be the clear meaning of section\n241(8). But there will also be anomalies flowing from the other\nconstructions that have been suggested. The \"day before\" and\n\"day after\" anomalies exist where judgement has been reserved in\ncomparable cases and is given either immediately before or\nimmediately after the 27th April; the outcome of cases in which\nconvictions were correctly imposed before the 27th April on the\nbasis of presumptions later to be declared \"unconstitutional\",\ncould depend on whether appeals had or had not been noted, or on\nthe dates when particular appeals were set down for hearing;\nproceedings could be disrupted because of the need on the 27th\nApril for unrepresented accused in part-heard cases to exercise\nrights under section 25(3)(e); witnesses may have to be recalled\nto be cross-examined by the newly appointed counsel;\nprosecutions based on partially completed cases, involving\n\"unconstitutional presumptions\" may have to be re-opened to call\nevidence which had previously been considered to be unnecessary,\nand so on. The point is that there are anomalies on both sides,\nand even if we were to think that the wrong choice was made, or\nthat on balance, there would be fewer or less serious anomalies\nif the framers of the Constitution had chosen differently, we\nwould not be entitled to depart from the clear language of the\nsection. Nor is it strange, as some judges have suggested, to\nfind that this choice is set out in section 241(8) and not in\nChapter 3. A transitional provision is precisely where one\nwould expect such a choice to be recorded, because the intention\nis not to limit rights generally, but to limit their application\nonly in respect of pending cases, affected by the transition.\n\nThe reluctance of some judges to give literal effect in\nparticular cases to the language of section 241(8) is no doubt\nunderstandable. But I believe that the anomalies which disturb\nthem are the price which the lawmakers were prepared to pay for\nthe benefit of orderly transition and for avoiding the\ndisruption which would be caused by changing the applicable law\nin the middle of a case. In the same way existing laws,\nalthough they may be held in due course to be unconstitutional,\nprima facie continue to have effect until they are actually\nstruck down - see sections 98(6) and 229 of the Constitution.\nThe danger of regarding a text as necessarily having a single\nobjective meaning has already been adverted to in the Zuma case.\nI am also fully aware that it is a Constitution and not an\nordinary statute that we are expounding. One of the\ndistinctions between them is that a constitution is drafted with\nan eye to the future. Another is that a constitutional bill of\nrights should as far as possible be read as protecting\n\n41\n\n[84]\n\n\fKENTRIDGE AJ\n\nindividual rights, if necessary against the public interest. I\nthus agree with the approach to constitutional interpretation\nfound in the judgment of the Supreme Court of Canada in Hunter\net al v Southam Inc. (1984) 9 CRR 355, at 364-5, and find the\nnarrow approach to the language of a constitution exemplified by\nGovernment of the Republic of Bophuthatswana and Others v Segale\n1990(1) SA 434(B AD), especially at 448-9, unacceptable.\nNonetheless, there are some provisions, even in a constitution,\nwhere the language used, read in its context, is too clear to be\ncapable of sensible qualification. It is the duty of all\ncourts, in terms of section 35, to promote the values which\nunderlie a democratic society based on freedom and equality. In\nthe long run, I respectfully suggest, those values are not\npromoted by doing violence to the language of the Constitution\nin order to remedy what may seem to be hard cases.\n\nThis, I fear, over-long consideration of section 241(8) is\nmotivated, if not excused, by the need to resolve the\nconsiderable conflicts of judicial opinion to which I have\nreferred. The immediate result of it is that in my view the\nretrospectivity which we gave to our ruling in the Zuma case\nunder section 98(6) must remain limited to cases in proceedings\nwhich began on or after 27th April 1994, i.e. which were not\npending on that date. We cannot override section 241(8). \nSince this is a minority judgment nothing need be said about the\nform of order.\n\nChaskalson P, Ackermann J and Didcott J concur in the judgment\nof Kentridge AJ.\n\nKRIEGLER J: In another case argued contemporaneously with this\none,4 we held that section 217(1)(b)(ii) of the Criminal\nProcedure Act, 1977 is unconstitutional because it assails the\nright of an accused to a fair trial.5 In this case the same\nquestion arose but judgment was held over because the case\nraises the further question whether an accused whose case was\npending when the Constitution came into operation is entitled to\nthe benefits it confers.\n\n[85]\n\n[86]\n\n[87]\n\nThe applicability of the Constitution to cases which were\npending when it came into operation has been considered in\n\n4 S v Zuma and Others 1995 (4) BCLR 401 (SA).\n\n5 The offending section casts the onus on an accused in certain\ncircumstances to establish the involuntariness of an extra-curial confession.\nThis was found to be an unwarranted infringement of the right to a fair trial\nguaranteed by section 25(3) of the Constitution.\n\n42\n\n\f[88]\n\n[89]\n\n[90]\n\nKRIEGLER J\n\nnumerous cases around the country.6 It would hardly be an\nexaggeration to say that the cases produced as many answers as\nthere were judgments. The present case runs true to form.\nThere is manifestly a sharp division of opinion among the\nmembers of this Court. On the one hand Kentridge AJ, supported\nby three colleagues, has concluded that the benefits of chapter\n3 do not accrue to an accused whose case was pending on 27 April\n1995. On the other hand, my colleague Mahomed J, with the\nconcurrence of a number of justices, has come to the opposite\nconclusion. Sachs J agrees with them, but for different\nreasons. Although I have come to the same conclusion as the\nlatter group and subscribe to the order formulated by Mahomed J,\nmy reasoning is somewhat different and ought to be recorded.\n\nIf one asks the wrong question, one is likely to come up with\nthe wrong answer. And to my mind, the question in this case is\nemphatically not: What is the effect of section 241(8) of the\nConstitution. The correct question is as I have formulated it\nin the opening paragraph of this judgment.\n\nThere is universal consensus that the Constitution ushered in\nthe most fundamental change in the history of our country. It\nmade everything new. The country's national territory (section\n1), its national symbols (section 2), its languages (section 3),\nand its citizenship (section 5) were created anew. The\nConstitution gave birth to a new legislature (chapter 4), a new\nexecutive (chapter 6), and a new judiciary (chapter 7). More\nsignificantly, in the present context, it created justiciable\nfundamental rights and freedoms (chapter 3). Above all, it\nestablished a constitutional democracy in which the Constitution\nitself was to be the supreme law of the land and would \"bind all\nlegislative, executive and judicial organs of state\" (section\n4). It was a fundamental metamorphosis.\n\nThe aspect of that metamorphosis with which we are most directly\nconcerned is the recognition of fundamental rights and freedoms\nin chapter 3. That chapter recognises for every person a\ncomprehensive set of rights and freedoms enforceable in a court\nof law. It commences with section 7, which imperiously makes the\nchapter binding on \"all legislative and executive organs of\nstate\" and applicable to \"all law in force ... during the period\nof operation of this Constitution\". In terms of section 251(1)\nof the Constitution that period of operation commenced on 27\nApril 1994. It must follow that on that day every person became\n\n6 The law reports reflect no less than 18 cases reported up to March\n1995. Several further cases did not make their way to the law reports. The\ngist of these cases is discussed by Kentridge AJ.\n\n43\n\n\f[91]\n\nentitled to claim the rights and freedoms contained in chapter\n3.\n\nKRIEGLER J\n\ncame \n\nConstitution \n\nBut - say the proponents of the opposite point of view - that\nisn't so. The benefits so unequivocally recognized for all with\neffect from 27 April 1994 are to be withheld from a certain\ncategory. Those accused persons whose trials were pending when\nthe \nand\nnotwithstanding the unequivocal language of sections 4, 7 and\n251(1), are not entitled to share in the bounty. If otherwise\nqualified, they became citizens of the new South Africa, owe\nallegiance to its new institutions, pay homage to its symbols\nand are eligible for office in the executive, legislative and\njudicial branches of the new state. Nevertheless, they are not\nentitled to the rights and freedoms conferred by chapter 3.\nThat disentitlement is sought to be founded on the fact that\nthey were accused persons whose cases were pending.\n\noperation, \n\nsomehow \n\ninto \n\n[92]\n\nSuch a startling proposition surely calls for very convincing\nsupport indeed. But the sole justification is found in the\nvague wording of an obscure subsection of a prosaic transitional\nprovision - namely section 241(8). Although that subsection has\nbeen quoted time without number, it is as well to quote it\nagain.\n\n\"All proceedings which immediately before the commencement of this\nConstitution were pending before any court of law, including any\ntribunal or reviewing authority established by or under law,\nexercising jurisdiction in accordance with the law then in force,\nshall be dealt with as if this Constitution has not been passed:\nProvided that if an appeal in such proceedings is noted or review\nproceedings with regard thereto are instituted after such commencement\nsuch proceedings shall be brought before the court having jurisdiction\nunder this Constitution.\"\n\n[93]\n\nIt is also as well to contextualize that subsection. Section\n241 is part and parcel of chapter 15, titled \u201cGeneral and\nTransitional Provisions\u201d. Save for section 229, which provides\nfor the continuation of existing laws until their repeal, and\nsection 230 (read with schedule 7) which repeals the panoply of\nBantustan legislation, the chapter has nothing to do with\nsubstantive law. Section 231 keeps the country's international\ntreaties extant and sections 232 and 233 deal with\ninterpretation and definitions. From there up to section 248\nthe chapter deals seriatim with the continuation of a variety of\nvital state functions. Section 234 provides for the role of\nmembers of certain legislatures to come to an end but for the\nstaff of such bodies to remain in office. Then sections 235 to\n238 make provision for the incumbents of executive authorities,\nthe civil service, and the Public Service Commission to continue\n\n44\n\n\f[94]\n\nKRIEGLER J\n\nfunctioning until replaced by their successors. Section 239\nprovides for continuity and order in the disposition of state\nassets and liabilities and section 240 for the continuation of\nthe State Revenue Fund. Then follows section 241, which deals\nwith transitional and continuity arrangements for the judiciary,\nand section 242 which makes provision for its subsequent\nrationalization. Sections 243 to 246 make transitional\narrangements regarding the Ombudsman, the Auditor General, local\ngovernment structures, and the pensions of political office\nbearers. The whole pattern of the chapter is manifestly to\nensure orderly continuity of function and authority.\n\nThat, then, is the light in which section 241 is to be read.\nQuite logically it commences in subsection (1) with continuity\nof the judiciary. This is done by the simple stratagem of\ndeeming the existing courts to be the new courts constituted in\nterms of the Constitution.7 It is followed by three provisos and\ntwo substantive subsections which were inserted later.8 The\namendments were aimed at the orderly winding down of appellate\ntribunals that had been created in the former TBVC territories.\nSubsection (2), linking up with subsection (1), then deems the\nerstwhile Supreme Court judges to have been appointed under the\nConstitution. We therefore have continuity of courts and of\ntheir judges. Subsection (3) then keeps all other judicial\nofficers in their posts, subsection (4) does the same for\nattorneys-general, while subsections (5) and (6) maintain their\nsalaries and pensions. Judges, magistrates and attorneys-\ngeneral of the old regime having been kept in office, subsection\n(7) requires them to take a fresh oath of office. By-passing\nsubsection (8) for the moment, we see that subsections (9) and\n(10) are also concerned with continuity. Subsection (9) allows\npending legal proceedings against a government body to be\ncontinued against any successor while subsection (10) keeps in\noperation for the time being all pre-existing laws relating to\nthe jurisdiction, procedures, powers, establishment and\nfunctioning of courts of law and judicial officers.\n\n[95]\n\nViewed in that matrix, subsection (8) of section 241, despite\nthe equivocal nature of its wording, should hold no terrors. It\n\n7 This was sensible because chapter 7, titled \"The Judicial Authority and\nthe Administration of Justice\", commences with the following provision:\n\n\"96.(1) The judicial authority of the Republic shall vest in the\ncourts established by this Constitution and any other law.\"\n\n8 By section 15 of the Constitution of the Republic of South Africa Third\nAmendment Act, No. 13 of 1994.\n\n45\n\n\fhas nothing to do with the substantive law to be applied by\ncourts. It nowhere mentions law, substantive or otherwise. It\ntalks of \"proceedings\", i.e. court cases, and seeks to organize\ntheir orderly and continued disposition. More specifically, it\nis concerned with proceedings which are \"pending\" when the\nConstitution comes into operation, i.e. when the old courts die\nand the new courts are born. With regard to such cases, part\nheard or still awaiting their initial hearing, the same question\narises: Who deals with them now that the old courts have gone?\nAll the subsection says is that, notwithstanding the judicial\nmetamorphosis, all cases that were pending before the old courts\nare to be dealt with by those courts as if they had not been\nreborn. The subsection does not purport to relate to the law to\nbe applied by any court, it merely designates the court which\nwill deal with the case. The subsection is concerned with the\nadministrative \nhierarchical\ndisposition of cases that were on the rolls of courts of the old\nSouth Africa. That is what the phrase \"any court of law ...\nexercising jurisdiction in accordance with the law then in\nforce\" denotes. In other words, a proceeding \"pending before\nany court\" is to be \"dealt with as if [the] Constitution had not\nbeen passed\". In the context, I suggest, there can be little\ndoubt that the subsection simply and only means that the\ntribunal having jurisdiction under the old order has to deal\nwith a pending case. Completely logically, the proviso then\nsays that an appeal or review from such new court (wearing its\nold robes) has to be brought to the new superior tribunal\ndesignated by the Constitution.\n\nchannelling, \n\nhandling \n\nand \n\n[96]\n\n[97]\n\nThere is no overlap between subsection (8) and any of the other\nsubsections of section 241. Subsection (8) deals with pending\ncases only, says by whom they are to be heard and it alone deals\nwith that topic. More importantly, though, there is no overlap\nbetween section 241(8) and any provision in chapters 2 or 3 of\nthe Constitution. There is no tension between them. Sections\n4, 7 and 251(1) confer rights on the individual and prescribe\nwhen they accrue. Section 241(8) merely prescribes which courts\nare to dispose of those cases that had not been concluded when\nthe new Constitution came into operation. \n\nEven assuming that there may be some tension between sections 4,\n7 and 251(1) on the one hand and section 241(8) on the other,\nthe tension should be resolved in light of the qualitative\ndistinction between them. They deal with clearly distinct\nmatters of fundamental constitutionalism and recognition of\nrights. They operate at a wholly different level than does\nsection 241(8). The \"international culture of constitutional\njurisprudence which has developed to give to constitutional\n\n46\n\n\f[98]\n\nKRIEGLER J\n\ninterpretation a purposive and generous focus\",9 is applicable\nto chapters 2 and 3. It has no place in the interpretation of\nsection 241(8). The former are concerned with the broad brush-\nstrokes of the constitutional canvas. Peer at them too closely\nand you lose focus, thus missing the picture. The latter has a\nnarrow, technical and brief purpose and scope. To understand\nand correctly apply it require close reading, not a generous\nperspective. \n\nThe ultimate conclusion to which I come is therefore, that no\naccused person whose case was pending on 27 April 1994 is\nprecluded from sharing in the benefits bestowed by the new\nConstitution. Such an accused is entitled to claim any one or\nmore of the rights conferred by chapter 3 and the presiding\nofficer is obliged to entertain such claim. In particular the\naccused in such a case against whom a confession had already\nbeen admitted under section 217(1)(b)(ii) of Act 51 of 1971 is\nentitled to have its admissibility reconsidered without the\napplication of that subsection by the court whether the decision\nto admit was made before or after 27 April 1995. In terms of\nsection 98(6)(a) of the Constitution10 an order invalidating an\nact of Parliament dating from the previous era does not\nautomatically invalidate anything done under such old act before\nthe declaration of invalidity. However this Court is empowered\nto order otherwise if it is \"in the interests of justice and\ngood government\" to do so. In S v Zuma and Others,11 we\nexercised that power and effectively banned the use of section\n217(1)(b)(ii) of the Criminal Procedure Act, 1977 in all\nuncompleted cases which had commenced on or after 27 April 1994.\nIn my view a corresponding order should be made extending the\nprohibition to all criminal trials, whenever they commenced. In\neffect, I therefore endorse the views expressed by Eloff JP in\n\n9 If I may quote the vivid description of Mahomed J in paragraph 8 of his\njudgment.\n\n10 Subsection 98(6)(a) reads as follows:\n\n\"(6) Unless the Constitutional Court in the interests of\njustice and good government orders otherwise, and save to\nthe extent that it so orders, the declaration of invalidity\nof a law or a provision thereof-\n\n(a) existing at the commencement of this\nConstitution, shall not invalidate anything done or\npermitted in terms thereof before the coming into\neffect of such declaration of invalidity.\"\n\n11 Supra note 4.\n\n47\n\n\fKRIEGLER J\n\nJurgens v Editor, Sunday Times Newspaper, and Another:12\n\n\"... section 241(1) legitimates all courts of law existing at the time\nwhen the Constitution came into force. Section 241(10) provides that\nall measures which regulate the functions of courts of law shall\ncontinue to remain in force until amended or repealed. Neither of\nthese subsections deal with the situation where proceedings have\nalready commenced before a Court which has been legitimised and which\nis to continue to function in terms of existing legislative measures\nin terms of section 241(0). The purpose of the first part of section\n241(8) is then to provide for the continuation of proceedings which\nwere pending on 27 April 1994. The procedure then to be followed is\nthat prescribed by laws in force up to 27 April 1994, even though the\nnew Constitution may establish principles inconsistent with the old\nprocedure.\n\n\"It is in my view significant that section 241 hardly deals with\nsubstantive law; procedure and jurisdictional matters, and the status\nand function of Judges and judicial officers are in general dealt\nwith. In that setting section 241(8) has to be seen and interpreted.\"\n\nI think the learned judge, in saying that the section \"hardly\"\ndealt with substantive law, was resorting to understatement.\n\nI have not dealt with the debate concerning interpretive\npresumptions regarding retroactivity and retrospectivity in the\ncase of statutory amendments. To my mind the adoption of a\nConstitution which operates as a supreme law does not fall to be\ninterpreted along such lines. It is not a case of one statute\nrepealing, amending or replacing one or more others. What we\nare concerned with here is a supreme statute being superimposed\non the whole of the existing legal landscape, bathing the whole\nof it in its beneficent light. In the true sense of the words,\nit is not retroactive nor retrospective. What it does mean,\nthough, is that the moment when the judicial officer has to deal\nwith a claim under chapter 3 he or she has to ask whether such\nright exists. Moreover, if the particular right or claim had\nalready been disposed of in an interlocutory order made before\nthe Constitution came into operation, such ruling would have to\nreconsidered thereafter. If, in the instant case, the\nprosecution had tendered the confessions and they had been\nadmitted under the authority of section 217(1)(b)(ii) prior to\n27 April 1994, the presiding judge would have had to reverse\nsuch ruling if a claim for such reversal were made after that\ndate but prior to verdict.\n\n[99]\n\n[100]\n\nTo sum up:\n1.\n\nI agree with Kentridge AJ (paragraphs 49-58 of his\n\n12 1995 (1) BCLR 97 at 102H-103B (W). \n\n48\n\n\fKRIEGLER J\n\njudgment) that the referral in the instant case was not legally\ncompetent.\n\n2.\nI also agree with his view (paragraphs 59-61 of his\njudgment) that the possible effect of section 241(8) of the\nConstitution is of such public importance that we ought to\nconsider and determine the issue.\n3.\nI disagree with the conclusion regarding the\ninterpretation of section 241(8) reached by Kentridge AJ and\nagree with that of Mahomed and Sachs JJ, although for different\nreasons.\n4.\nThe essence of my deviation from the reasoning of\nMahomed J is that I ascribe a more mundane function to section\n241(8) than he does. I agree with him that the creation of the\nnew courts, despite - and possibly to an extent because of - the\nPhoenix-like emergence of the old judiciary in new feathers,\ngave rise to the risk of a gap being perceived between the old\nand the new. However, as I see it, that risk is fully met by\nsubsections (1) to (3) and (10) of section 241. Subsection (8)\nserves merely to designate the fora to deal with pending cases.\n5.\nI agree with Sachs J that different parts of the\nConstitution need to be read with different spectacles. I do\nnot agree with him, however, that section 241(8) is to be\ncontrasted with or evaluated against chapter 3. On my\ninterpretation they have entirely different fields of\napplication. They are not in conflict; on the contrary, they\nsupplement one another, each in its own field.\n6.\n I share with Mahomed and Sachs JJ a profound disbelief\nthat the framers of the Constitution could conceivably have\npurported to give, with one hand, the fundamental rights and\nfreedoms to all, only, surreptitiously with the other, to\nwithhold its benefits from the many thousands of persons whose\ncriminal cases must have been pending on 27 April 1994.13\n\n[101]\n\nI therefore agree with the order formulated by Mahomed J.\n\n[102]\n\nSACHS J: I share with Mahomed J a disbelief that the framers of\nthe Constitution intended a reading of section 241(8) which\nwould produce the anomalous and unjust results to which he\nrefers. I agree with his conclusion and with the order he\nproposes. I arrive there by a different route, however, and\nbecause the issue of how to interpret our Constitution is one of\n\n13 The various criminal courts in the country deal with more than 2,5\nmillion cases each year. It can safely be postulated that the number of cases\nthat were pending when the Constitution came into operation ran to tens of\nthousands.\n\n49\n\n\f[103]\n\n[104]\n\n[105]\n\nKRIEGLER J\n\ngeneral importance, I will set out my reasons in some detail. \n\nAlmost all discussion on the subject has been dominated by the\nidea that the issue is how to construe section 241(8). In my\nview, this is an incorrect starting point which leads to a false\njourney. The real question is not what meaning to give to that\nprovision on its own, but how to interpret it in relation to the\nenjoyment of Fundamental Rights as set out in Chapter 3. This\nmeans that not one but two sets of provisions must be\ninterpreted, not consecutively and independently, but\nsimultaneously and in terms of their inter-relationship.\n\nI have had the advantage of reading lucid judgments by Kentridge\nAJ and Mahomed J, each persuasively presented within its\ninterpretive framework. The caveats that each introduces,\nresult in outcomes that are not all that far apart.\nUnfortunately, I am unable to concur unreservedly in either\njudgment.\n\nMy disagreement with Kentridge AJ's judgment is that even if it\nbases itself on the most natural and spontaneous reading of the\nsection, it gives far too little weight to the overall design\nand purpose of the Constitution, producing results which the\nframers could never have intended. My difference with the\njudgment of Mahomed J, on the other hand, stems from the feeling\nthat it unnecessarily strips section 241(8) of its more obvious\nmeaning, when the overall intent of the framers, as manifested\nby the Constitution as a whole, can most satisfactorily be\nacknowledged by accepting the 'first sight' reading proposed by\nKentridge AJ, but cutting back its full application in order to\naccommodate the equally clear and peremptory provisions of\nChapter 3.\n\n[106]\n\n[107]\n\nMy approach is accordingly similar in spirit and outcome to that\nof Mahomed J, but different in methodology. Instead of seeing\nChapter 3 as a contextual aid to the interpretation of section\n241(8), I regard it as an equal part of the text to be\ninterpreted. In my view, the issue is how to reconcile the two\nsets of provisions when they collide with each other, not how to\ninterpret each on its own. \n\nThe cases come before us in terms of Chapter 3, not section\n241(8). In practical terms, the issue is never how to construe\nsection 241(8) as an independent clause, but how to apply it as\na provision which qualifies another section of the Constitution.\nThis means that the two sets of provisions must be read together\nas part of the total constitutional scheme, not separately as\n\n50\n\n\f[108]\n\nSACHS J\n\nautonomous, free standing-clauses.14 If there is overlap and\ncollision of material between the two provisions, the essential\npurposes of each must be discerned and weighed, so that an\nappropriate resolution based on balance between the two can be\nachieved. This involves a species of interactive\nproportionality. It moves the nature of the enquiry from the\nso-called plain meaning of words looked at on their own, or even\nin context, to the interactive purposes of different provisions,\nread together.15\n\nDiscord and dissonance have their role to play in law as in\nmusic. To be justified, however, they should not be accidental,\nbut intended, not unfortunate but purposeful. A textual\nconstruction which harmonizes different provisions within the\noverall design of the Constitution is generally to be preferred\nto one which, however coherent within its own terms, produces\ndisharmony. There are indeed many provisions in the Constitution\nwhere it is clear that, for reasons of inclusivity, compromise\nand smooth transition, special arrangements were made and\nparticular textures were introduced, not all of them obviously\nconsistent with the broad general principles of the\nConstitution. These would include the so-called sunset clauses\nand provisions introduced on behalf of special interest groups.\nFor the purposes of the present discussion, it is not necessary\nto identify them. In each case, the wording and the purpose go\ntogether: the provisions were inserted to deal with special\ncases and special situations, and to go back on them would be to\nundermine finely honed texts of exceptional import to particular\nsections of the community. In these cases, any departure from\nthe text produced by reference to other sections of the\nConstitution, and any consequent strained interpretation or\ncutting down or extension of words, would require very strong\nand compelling contextual justification indeed. \n\n[109]\n\nSection 241(8) is of a totally different order. Its function is\nto be functional. It is not there to protect any particular\ninterest, or to develop any constitutional principle, or even\nnuance. It is as technical and dry a provision as one can get;\nfar from being one of the letters of the constitutional\nalphabet, it is at most a dot on the 'i' or a cross on the 't'.\nThe reason why so many judges have resorted to so many strained\n\n14 See Cachalia et al Fundamental Rights in the New Constitution Juta\n1994 Chapter 1 especially at p5.\n\n15 See Du Plessis and Corder, Understanding South Africa's Transitional\nBill of Rights, Juta 1994 Chapter 3.\n\n51\n\n\f[110]\n\n[111]\n\nSACHS J\n\ninterpretations of its text16 is that they simply cannot credit\nthat such a puny provision should be able to annihilate the\npowerful provisions that make up the heart of the constitution.\nSection 241(8) David takes on Chapter 3 Goliath, but this time\nit is Goliath who is the righteous one. Incredulity, if\nconstitutionally and not subjectively based, should be a strong\nfactor in the process of interpretive choice. It credits the\nframers with firmness of purpose and frailty of means, rather\nthan frailty of purpose and firmness of means. \n\nThe rights enshrined in Chapter 3, on the other hand, are deeply\nentrenched, not only in relation to Parliament, but in respect\nof the rest of the Constitution. In my view, the strength of\nthe Chapter 3 rights and the intensity of the values they\npromote are central to the whole constitutional scheme, and are\nfundamental to our role as defenders of the constitution. They\nlink up directly with the oath we recently took to 'uphold and\nprotect the Constitution of the Republic and the fundamental\nrights entrenched therein and in so doing administer justice to\nall persons alike' [Schedule 3]. Only the most compelling\nlanguage would justify a departure from such a clear\nresponsibility. The meaning of these words could not be\nplainer. Even on the literalist extreme of the\nliteralist/purposive continuum, one is bound to ask what happens\nwhen two sets of plain meaning come into conflict with each\nother, that of Chapter 3 on the one hand, and that of section\n241(8), on the other?\n\nThe introduction of fundamental rights and constitutionalism in\nSouth Africa represented more than merely entrenching and\nextending existing common law rights, such as might happen if\nBritain adopted a Bill of Rights. The Constitution introduces\ndemocracy and equality for the first time in South Africa. It\nacknowledges a past of intense suffering and injustice, and\npromises a future of reconciliation and reconstruction. It\nembodies compromise in the form a Government of National Unity,\nand orderly reconstruction of the constitutional order in terms\nof the two-phase process of constitution-making which it\nprovides for. It is a momentous document, intensely value-\nladen. To treat it with the dispassionate attention one might\ngive to a tax law would be to violate its spirit as set out in\nunmistakably plain language. It would be as repugnant to the\nspirit, design and purpose of the Constitution as a purely\ntechnical, positivist and value-free approach to the post-Nazi\n\n16 The different 'plain meanings' are summarised in Kentridge AJ's\njudgment.\n\n52\n\n\f[112]\n\n[113]\n\nSACHS J\n\nConstitution in Germany would have been.17\n\nThe Preamble in particular should not be dismissed as a mere\naspirational and throat-clearing exercise of little interpretive\nvalue. It connects up, reinforces and underlies all of the text\nthat follows. It helps to establish the basic design of the\nConstitution and indicate its fundamental purposes.18 (See too\nthe concluding passages)19 This is not a case of making the\nConstitution mean what we like,20 but of making it mean what the\nframers wanted it to mean; we gather their intention not from\nour subjective wishes, but from looking at the document as a\nwhole.21\n\nOne way of dealing with the two sets of mutually contradictory\nprovisions would be to apply a variant of the presumption to the\neffect that general provisions do not trump, override or\nderogate from specific ones. [Generalia specialibus non\nderogant - general provisions do not derogate from special\nprovisions]. This is normally applied when a new statute\ncontaining general words is applied to an old statute with\nspecific provisions that are not expressly repealed.22 In the\nleading English case of The Vera Cruz Lord Selborne said:\n\n\"Now if anything is certain it is this, that where there are general\nwords in a later Act capable of reasonable and sensible application\nwithout extending them to subjects specially dealt with by earlier\nlegislation, you are not to hold that earlier and special legislation\nindirectly repealed, altered, or derogated from merely by force of\nsuch general words, without any indication of a particular intention\nto do so.\"23 \n\n17 Davis, Chaskalson and de Waal in Rights and Constitutionalism ed van\nWyk, Dugard, de Villiers and Davis, Juta 1994 at p85.\n\n18 c/f Manfred Nowak, U.N. Covenant on Civil and Political Rights - CCPR\nCommentary, Engel Verlag, Kehl 1993, intro XXII p2.\n\n19 The last unnumbered passages of the Constitution, specifically given\nfull constitutional weight [see Section 232(4)]. Variously referred to as:\nPostcript, Afterword, Afteramble, Postamble and Epilogue.\n\n20 See the cautionary remarks of Kentridge AJ in S v Zuma and Others BCLR\n4041 (SA)\n\n21 This is the approach argued for in all the many commentaries on the\nnew Constitution. It is not necessary to cite them all.\n\n22 See Cross, Statutory Interpretation, Butterworths 1987 2nd ed p77-8.\n\n23 (1884) 10 App cas 59 at 68.\n\n53\n\n\fSACHS J\n\n[114]\n\n[115]\n\nA later provision in the same document is not the same as a\nlater Act in separate legislative form, yet the principle of the\nrelative intensity of general and of special words could well be\nrelevant, with preference being given to the specific ones. The\ntechnical difficulty would be to decide which was general and\nwhich specific: Chapter 3 has a specific ambit but is of\ngeneral application; section 241(8) is said to have unlimited\nambit, but has only specific application. Perhaps the answer\nwould be to allow what was specific from each to survive,\nnamely, the specific ambit of Chapter 3 to co-exist with the\nspecific application of section 241(8). Although I would regard\nthe result as satisfactory, the means are artificial and if\nemployed in other cases could lead to serious constitutional\ndeformation. \n\nIn any event, a question mark has to be placed over the\nusefulness of common law presumptions in interpreting the\nConstitution. As Wilson J pointed out in a notable dissent,24\n'such presumptions can be inconsistent with the purposive\napproach to Charter interpretation which focuses on the broad\npurposes for which the rights were designed and not on\nmechanical rules which have traditionally been employed in\ninterpreting detailed provisions of ordinary statutes in order\nto discern legislative intent'. Sir Rupert Cross suggests that\neven in relation to ordinary statutes, the increasing use of a\npurposive approach makes the role of presumptions 'necessarily\nless important than in the days of more literal\ninterpretation'.25\n\n[116]\n\nThe preferred approach, as I have indicated, is not to search\nfor what is general and what is specific, but rather to seek out\nthe essential purposes and interest to be served by the two\ncompeting sets of provisions, and then, using a species of\nproportionality, balance them against each other. The objective\nis to achieve appropriate weight for each and preserve as much\nas possible of both. To extend the analogy, there are no\ntrumps, but there are cards of higher and lower value. \n\n[117]\n\nAnother way of dealing with the tension between Chapter 3 and\nsection 241(8) would be to regard Chapter 3 as part of the\ncontext in which section 241(8) is to be construed, and,\napplying a purposive approach to interpretation, cut back the\nwide meaning of the section so as to avoid anomalies and\n\n24 Thomson Newspapers v Canada 67 DLR (4th) 161 at p192.\n\n25 At p189-90.\n\n54\n\n\fSACHS J\n\nincongruities which the framers could never have intended. A\nwell-known South African example of where 'the true intention'\nof the legislature, as determined by the context, was used to\ncut down the wide language of a provision is R v Venter.26 The\ntext under consideration in that case provided that 'any person\nentering [the Transvaal] shall be guilty of an offence ..... if\nhe has been convicted elsewhere .... of .... theft'. The court\nheld that the words 'any person' could not be given their\nordinary full meaning, since this would result in Transvaal\nresidents returning to the colony being guilty of an offence,\nwhen the context of the statute made it clear that the mischief\naimed at was the influx of criminals from abroad. Innes CJ said\nthat 'the court may depart from the ordinary effect of the words\nto the extent necessary to remove the absurdity and to give\neffect to the true intention of the legislature'.27 Both Innes\nCJ and Solomon J explain that their decision in that particular\ncase to depart from the plain meaning of the statute is not\nbased on absurdity but on identification of the mischief aimed\nat, and the need to avoid repugnancy to the intention of the\nlegislature. \n\nIt is true that, as Dr L.C. Steyn points out28 the Venter\nprinciple was subsequently watered down by most South African\njudges by restricting its operation to what was called a small\nclass of extreme cases. Yet, as Dr Steyn observes, the\njudgments were not all one way, and the Roman Dutch Authorities\nstrongly supported the approach adopted in Venter (he quotes\nDonellus as saying that \" Die wil behoort nie die woorde te dien\nnie, maar die woorde die wil. By die sake, gevalle, tye en\npersone wat nie deur die bedoeling van die wet gedek word nie,\nhou die wet ook op, en daar en tot die mate maak die woorde geen\nreg uit nie, hoe seer ook die algemene woorde hulle almal\nomvat\").29\n\n[118]\n\n[119]\n\nThe issue now is not whether the Venter principle should be more\nwidely applied in relation to the interpretation of statutes,\nbut whether the approach it adopts should be given appropriate\nscope in relation to the construction of the Constitution. In\n\n26 1907 TS 910.\n\n27 At p915.\n\n28 Die Uitleg van Wette, Chapter 11, 5th Edition p22 to 55. The whole\nchapter is devoted to 'afwyking van letterlike uitleg'.\n\n29 At p25. See too p55.\n\n55\n\n\fSACHS J\n\nmy view, it should. By emphasising the way in which context can\nmodify the plain meaning of words, it conforms to overwhelming\ninternational practice.30 \n\nIt also corresponds to what academic commentators in South\nAfrica have long been arguing for, as part of their general\ncritique of legal positivism.31\n\nFinally, it would contradict as a premature lamentation, the\nprediction of commentators on the new Constitution that South\nAfrican Courts are likely to continue to manifest 'an almost\nslavish adherence to Anglocentric legal traditions and\nconcepts'.32\n\nWhatever Anglocentric legal tradition might be, contemporary\nAnglo-centrism would in fact support rather than undermine a\ncontext-based, purposive approach. Membership of the European\nUnion has had its effect on English judges. Lord Denning\nexplained the approach of European judges in the following\nterms:\n\n\"[They] adopt a method which they call in English by strange words -\nat any rate they were strange to me - the 'schematic and teleological'\n\n[120]\n\n[121]\n\n[122]\n\n \n\n30 Summaries of the approach to interpretation in Canada, Germany and\nIndia are given in the chapter by Davis, Chaskalson and de Waal in Rights and\nConstitutionalism, ed van Wyk, Dugard, de Villiers and Davis, Juta 1994; for\nthe approach generally in Europe, see Lord Denning's summary set out below;\nfor interpretation of treaties, see Art. 31 of the Vienna Convention on the\nLaw of Treaties and commentary by Nowak op cit.\n\n31 See, generally, Devenish, Interpretation of Statutes, Juta 1993, where\nthe courts are urged to adopt a value-coherent theory of interpretation\ninvolving interpretation that is not merely technical, but rational and just -\nProfessor Devenish informs us that the oath we recently swore can be construed\nas 'a cogent legislative injunction for a teleological methodology'; and also\nMureinik (1986) 103 SALJ 615. Special attention should be paid to the\npioneering, thoughtful and well-researched studies by DV Cowen published in\n1976 TSAR 131 and 1980 (43) THRHR 374], and the path-breaking critiques by\nProfessor Dugard in Human Rights and the South African Legal Order, Princeton\nUniversity 1973 p369 and 381.\n\n32 Davis et al op cit p11; see too du Plessis and Corder, Understanding\nSouth Africa's Transitional Bill of Rights 1994 p65 - they criticise the fact\nthat language is elevated to the foremost structural element of a legislative\ntext and other elements are reckoned with only when language fails; Cachalia\net al, Fundamental Rights in the New Constitution 1994 p5, where it is\nemphasized that a constitution cannot be read clause by clause, nor can any\nclause be interpreted without an understanding of the framework of the\ninstrument. Their main point is the need to distinguish between grammatical\nexegesis and constitutional analysis. \n\n56\n\n\fSACHS J\n\nmethod of interpretation. It is not really so alarming as it sounds.\nAll it means is that the judges do not go by the literal meaning of\nthe words or by the grammatical structure of the sentence. They go by\nthe design or purpose which lies behind it. When they come upon a\nsituation which is to their minds within the spirit - but not the\nletter - of the legislation, they solve the problem by looking at the\ndesign and purpose of the legislature - at the effect it was sought to\nachieve. They then interpret the legislation so as to produce the\ndesired effect. This means they fill in gaps, quite unashamedly,\nwithout hesitation. They ask simply: what is the sensible way of\ndealing with this situation so as to give effect to the presumed\npurpose of the legislation. They lay down the law accordingly.\"33\n\n[123]\n\n[124]\n\n[125]\n\nCross quotes Lord Wilberforce as denying 'the tired old myth'\nthat English judges are more literalist and narrow than\ncontinental courts, and goes on to say that at least nowadays,\njudges in England adopt a purposive approach to statutory\ninterpretation, rather than a narrow literal one.34 \"Of course\",\nthe book observes \"a literal approach need not be a particularly\nnarrow one - an unrestrictive construction of general words may\nbe excessively literal and insufficiently purposive, but the\nusual charge under this head is one of narrow literalism\".\n\nThe general approach adopted by Cross is to urge the judges to\nfunction in an unapologetically purposive fashion and not be\nafraid to acknowledge that they can and do 'rectify' the text\nwhen the words used in a particular formulation defeat or go\nagainst the general purpose of the statute. He argues strongly\nin favour of a contextual approach and quotes with approval the\nobservation by Viscount Simonds that \" .... words, and\nparticularly general words, cannot be read in isolation; their\ncolour and content are derived from their context\".35\n\nA purposive and mischief-orientated reading as against a purely\nliteral one, always involves a degree of strain on the language.\nIn the present case, the strain comes not so much from a\ncounter-literal attempt to deal with inherent ambiguity of words\non their own, or from the need to cut back the meaning of open-\nended words, but from the tension of counter-posing the broad\nwords of limited application in section 241(8) with the narrower\nwords of wide application in Chapter 3. More concretely, it is\n\n33 James Buchanan & co Ltd v Babco Forwarding & Shipping (UK) Ltd (1977)\n2 WLR 107 at 112; c/f the comment by F.A.R. Bennion, Statutory Interpretation\n2nd ed, Butterworths, London 1984 p659 ff.\n\n34 Rupert Cross, op cit p189-90.\n\n35 A-G v Prince Ernest Augustus of Hanover [1957] AC 436 AT 461.\n\n57\n\n\f[126]\n\n[127]\n\n[128]\n\n[129]\n\nSACHS J\n\nestablished by the need to weigh the interest and purpose of\nsection 241(8) read on its own, as against the intent and\npurpose of Chapter 3. I accordingly do not apply the Venter\nprinciple as such, but rather what I consider to be the modern\nand appropriate judicial technique of proportionality.\n\nI realise that the approach I am suggesting is relatively new in\nSouth Africa, and involves a utilization of proportionality that\nis a little different from its normal employment in other\ncountries. Yet I find it particularly helpful in dealing with\ncases such as the present. \n\nWe are a new court, established in a new way, to deal with a new\nConstitution. We should not rush to lay down sweeping and\ninflexible rules governing our mode of analysis. We need to\ndevelop an appropriately South African way of dealing with our\nConstitution, one that starts with the Constitution itself,\nacknowledges the way it came into being, its language, spirit,\nstyle and inner logic, the interests it protects and the painful\nexperiences it guards against, its place in the evolution of our\ncountry, our society and our legal system, and its existence as\npart of a global development of constitutionalism and human\nrights. \n\nIt is a matter of public record that the approach of\nacknowledging problems and seeking consensual solutions based on\na fair balance of interests, played a major role in the\nelaboration of the text of the Constitution; there seems to me\nno objection in principle to applying this approach to its\nintra-textual interpretation as well. Although the two\nendeavours are quite different in nature, both are based on the\nnotion of using a balanced approach to deal with competing\ninterests, so that there are no outright winners and losers.36\n\nI might add that I regard the question of interpretation to be\none to which there can never be an absolute and definitive\nanswer and that, in particular, the search of where to locate\nourselves on the literal/purposive continuum or how to balance\nout competing provisions, will always take the form of a\nprincipled judicial dialogue, in the first place between members\nof this court, then between our court and other courts, the\nlegal profession, law schools, Parliament, and, indirectly, with\nthe public at large. \n\n[130]\n\nThe objective of my approach in the present case is to preserve\nthe essential functional core of section 241(8), while causing\n\n36 c/f Dugard op cit p381.\n\n58\n\n\f[131]\n\n[132]\n\n[133]\n\nthe minimum disturbance to the fundamental rights entrenched in\nChapter 3. In other words, instead of mechanically applying\nsection 241(8) and then lamenting, ignoring or minimizing the\ninjustices which follow, the court gives effect to the gravamen\nof the section, but construes it in such a way as best to\nharmonize with Chapter 3 and so avoid needless incongruity and\neliminate unnecessary postponement of enjoyment of fundamental\nrights.\n\nFrom its wording and in the context of transitional\narrangements, section 241(8) makes eminent sense as a stop-gap\nmeasure designed to prevent undue uncertainty about the\ncontinuity of ongoing court business. It simultaneously serves\nto establish the legitimacy of the judicial order and to deal\nwith cases that have already started in a manner which minimises\ndisruption. It also functions to remove unfair prejudice in\nrelation to people who had already instituted proceedings to\nvindicate their rights under the law as it stood. It obviates\nthe necessity of having to start trials all over again from the\nbeginning, insofar as the courts will continue to have\njurisdiction in each case. It means not only that what has\nalready transpired need not be repeated, but that the validity\nof what was done before 27 April 1994 will be judged by the pre-\nApril 27 law. \n\nThese are worthwhile and uncontroversial objectives totally\nconsistent with the goal set out in the Preamble to provide for\nthe restructuring and continued governance of South Africa.\nFurthermore, the provision would, in my view, confirm that\nproceedings already initiated before April 27 to secure then-\nexisting rights, would not be nullified. None of the above is\nproblematic - in simple lay language, what was, was. (In this\nrespect I agree fully with both Kentridge AJ and Mahomed J on\nthe question of the non-retroactivity of Chapter 3.)\n\nA straightforward reading of the section, accordingly,\nconvinces me that the basic objective of the framers of the\nConstitution was to provide jurisdictional continuity and\nprevent operational chaos. In order to do so, they employed,\nwith minor modifications, a well-worn formula used extensively\nin statutes that gave new rights and imposed new liabilities.\nThe use of an off-the-shelf formula strengthens my view that the\nmatter was not specifically adverted to with full awareness of\nand intention to achieve the drastic and incongruous results\nwhich will be referred to below. Rather, as far as court\nbusiness was concerned, the objective was a functional one and\na functional clause was introduced to achieve it. The reference\nto pending proceedings should be interpreted in a functional\nway, in the light of, and not in opposition to Chapter 3. \n\n[134]\n\nThere is nothing stated expressly or necessarily implied in the\n\n\f[135]\n\n[136]\n\n[137]\n\nSACHS J\n\ntext, save the open-endedness of the language used, to indicate\nthat the framers intended that this provision should lead to:\n\na denial of fundamental rights after April 27;\n\ndislocation between the judicial power [to impose certain\npunishments] and the executive power [to carry them out];\n\nmaking the fundamental rights of accused persons dependent on\nfortuitous factors of no constitutional merit in themselves,\nrelating to when the trial became a pending one; and\n\nrequiring courts to engage in trivial, time-consuming and at\ntimes elusive enquiries into such fortuitous factors before\ndeciding on whether to acknowledge fundamental rights or not in\nthe particular case. \n\nOn the interpretation which I propose, none of these problems\narise and none of these time-wasting enquiries should be\nnecessary. That is not merely a consequence of the purposive\nand proportionate interpretation but an element of it. \n\nEven if the cases are relatively few, that is, they only\npotentially affect some tens of thousands of people, and in\npractice only relate to a few dozen people who have actually\nraised constitutional points, the impact can be quite severe.\nIt could affect whether or not to impose the death sentence,\ncorporal punishment and imprisonment for civil debt. It could\ninvolve a court convicting someone even though it had a\nreasonable doubt as to his or her guilt, and causing substantial\ninjustice by denying counsel to an indigent person.\n\nMahomed J has dealt trenchantly with these incongruities and\ninjustices. I merely add that these are not hypothetical cases\nconjured up for the purposes of a classroom debate or a late\nnight television programme. Each and every one of the above\nissues has come before this court. In each case we have been\nhaunted - unnecessarily on my version - by section 241(8). In\neach case, the rights of an accused person in a profound way\nstood to be affected. In my view, the potential damage goes\nfurther. The narrow literal view [with its broad implications]\nof section 241(8) that divines its purpose from its words alone\nand effectively excludes the rest of the Constitution,\nunderplays the symbolical importance that a decisive break with\nthe past has for millions of people, and flattens the resonance\nfor the public at large of the promise implicit in and the hope\ninspired by Chapter 3.\n\nConclusion\n\n60\n\n\f[138]\n\n[139]\n\n[140]\n\n[141]\n\nSACHS J\n\nThere are circumstances of transition where a certain measure of\nincongruity and even injustice is inevitable. In the present\ncase, however, the incongruity flows not from the nature of the\nprocess itself, as contemplated by the framers, but from the\nmode of interpretation, as adopted by sections of the judiciary.\nIf one applies a strict literal test of section 241(8) on its\nown, and if one believes as Lord Halsbury did a century ago,\nthat the lawmaker is an ideal person who never makes a mistake,37\nthen one might have no option but to accept that the framers\nactually intended the above consequences, in the sense of\ndeliberately casting the linguistic net as wide as possible so\nas to cover all these situations.\n\nEven accepting the less idealized vision which I am sure the\nframers of today would have of themselves, there could, of\ncourse, be circumstances where the only correct interpretation\nwould be that section 241(8) must be taken to override Chapter\n3. These circumstances would include the situation where it is\nclear from the language and the context that the framers\nconsciously adverted to and accepted such a necessity. If this\ndrastic consequence was manifestly the inevitable price of\navoiding judicial disruption, then I could accept that the\nframers contemplated it, made their calculation and, if the\nexpression is not too undignified, bit the constitutional\nbullet.\n\nYet it seems to me that there is no intrinsic reason why the\nfunctional objectives of avoiding unnecessary disruption to\ncourt proceedings cannot be harmonized with the fundamental\nrights of Chapter 3 and with the protective jurisdiction given\nto this court in Chapter 7. Put another way, there is no reason\nwhy the mischief of disruption to the administration of justice\nshould not be countered without producing the counter-mischief\nof nullification of the principles that lie at the heart of the\nconstitution. \n\n[142]\n\nIn reality, the language of section 241(8) is open-ended rather\nthan compelling on this score. If the framers had intended a\nConstitution which in effect bit off its own leg, they would\nhave developed a text that left no doubt of such a drastic\nintention. \n\n[143]\n\nThe issue in the present case cannot be reduced to one of\ndeciding which interpretation gives rise to the greater or\nlesser number of anomalies. Rather, we must discern which\n\n37 Income Tax Special Purposes Commissioner v Pemsel (1891) AC 531 at 549\n\n61\n\n\f[144]\n\nSACHS J\n\nproduces anomalies most at variance with the character and\ndesign of the Constitution. In this respect, functional\ndifficulties will count for far less than what I might call\n'fundamental rights' anomalies. Practical problems can always\nbe dealt with in a practical way. Rights are of a different\norder, and it is our duty to uphold them wherever possible.\n\nThe approach I adopt therefore purposefully applies a\nrestrictive interpretation to the further reaches of section\n241(8) so as to: balance it against the specific rights\nguaranteed in Chapter 3; avoid incongruous results to which the\nframers had not adverted and which they could not reasonably be\nthought to have intended; obviate consequences that are not\nnecessary for the achievement of the objective the provision was\nintended to serve; and express rather than go against the intent\nof the Constitution looked at as a whole. In relation to\nChapter 3, my interpretation also involves a limitation, namely,\nto its reach in time, in the sense that it is not applied\nretrospectively to undermine the validity of proceedings up to\n27 April 1994, or to negate rights which had already accrued at\nthat date.\n\n[145]\n\nMore specifically, I find that a proper interpretation of\nsection 241(8) in its constitutional context requires that the\nphrase 'shall be dealt with' must be construed as if it stated\n'subject to the provisions of Chapter 3' and not as if it stated\n'notwithstanding the provisions of Chapter 3'. \n\n[146]\n\nIn this way, the two sets of provisions are harmonized, and, if\nI might put it that way, David and Goliath refrain from mortal\nstrife. \n\n62\n\n\fSACHS J\n\nCASE NO\n\nCOUNSEL FOR APPLICANTS\n\nCOUNSEL FOR RESPONDENTS\n\n:\n\n:\n\n:\n\nCCT/25/94\n\nA E POTGIETER\n\n(PRO DEO)\n\nJ W S DE VILLIERS\nJ H DU PLESSIS\nI STRETCH\n\nINSTRUCTED BY\n\n:\n\nTHE ATTORNEY GENERAL: NATAL\n\n63\n\n\f"}, "id": "cc537443-c91d-47fd-b26a-87adc0630c5f", "update_date": "2021-03-15 17:08:56.815453", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO CCT/25/94 In the matter between: MHLUNGU AND FOUR OTHERS Applicants and THE STATE HEARD ON : DELIVERED ON : Respondents 23 February 1995 8 June 1995 JUDGMENT", "MAHOMED J: I have had the privilege of reading the judgment of Kentridge AJ in this matter and the comments made thereon by some of my esteemed colleagues. I respectfully agree that - (a) (b) section 102 of the Constitution of the Republic of South Africa, 1993 (\u201cthe Constitution\u201d) did not entitle the Court a quo to refer to this Court the issue of the proper interpretation of section 241(8) of the Constitution; for the reasons given by Kentridge AJ the proper interpretation of section 241(8) is relevant in the present proceedings and should be determined by this Court.", "I have, however, considerable difficulty with the proper interpretation of section 241(8) which reads as follows: \"All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement \fMAHOMED J such proceedings shall be brought before the court having jurisdiction under this Constitution\". The attraction of the analysis of section 241(8) which Kentridge AJ has made, is that it is consistent with the literal words of the main part of the sub-section which could, on that approach, simply be reduced to read as follows: \"All proceedings which immediately before the commencement of this Constitution were pending ............. shall be dealt with as if this Constitution had not been passed.\" This literal interpretation involves, however, a number of formidable difficulties. In the first place it leads to some very unjust, perhaps even absurd, consequences. Thus, merely because an accused person was served with an indictment before 27 April 1994, (and even if no evidence whatever was lead before that date) he could not contend that the provisions of section 217(1)(b)(ii) of the Criminal Code were unconstitutional. In the result, the Court could be compelled to convict him (and in consequence thereof even to imprison him for a substantial period) in circumstances where it has a reasonable doubt whether his confession was freely and voluntarily made and therefore even if the Court has a reasonable doubt about his guilt. Another accused charged as his co-conspirator could be acquitted simply because the indictment was served on him on 28 April 1994 in respect of an offence arising from exactly the same incident and the same evidence. The right of each of these accused to a \"fair trial\" in terms of section 25(3) of the Constitution (including the right to counsel in terms of section 25(3)(e)) could similarly be different because of the one day difference in the date of the service of the indictment, although both accused were equally indigent and equally in need of counsel in order to avoid \"substantial injustice\". The result again may well be a conviction and resultant imprisonment for one accused and the total acquittal of the other, based purely on arbitrary circumstances, objective considerations. unjustified totally any by A Judge passing sentence on the accused charged with committing exactly the same offence, on the same date and in exactly the same circumstances, would be entitled to sentence one accused to death, and may be disentitled to do so in respect of the other accused in the same trial, merely because when the indictment was sought to be served on 26 April 1994, the one accused was at home and the other could not be located until the next morning. 2", "", "", "", "[7]", "MAHOMED J Exactly the same irrational discrimination would be present if corporal punishment was sought to be imposed. Such a sentence would be competent in respect of the one accused and might be incompetent in respect of the other, on the sole ground that the one indictment was served on the day before and the other on the day after the commencement of the Constitution. South African statutory law, prior to the enactment of the Constitution, is replete with the most disgraceful and offensive legislation which discriminates against South Africans of colour and criminalizes arbitrarily and purely on the grounds of race and colour, perfectly innocuous acts of life and living by such citizens. It is possible that a citizen charged with such an offence before the commencement of the Constitution could, on the literal interpretation, be convicted and sentenced, even after 27 April 1994, for having contravened a law, which sought to punish him on racial grounds, if his case was pending when the Constitution came into operation. This is a plainly outrageous consequence. It is suggested by Kentridge AJ that the legislature and the executive can avoid such a consequence by taking steps to repeal the law or to cause the prosecution to be withdrawn. This is of scant comfort to the accused person concerned, who might have no means to compel such a decision or who might be exposed to the risk of a conviction before the bureaucratic machinery of the State reacts to afford relief. He is entitled to say: \"The Constitution affords every person equal protection against unfair racial discrimination. I claim that right for myself and my family. You, the Court must protect me\". What these and many other examples would suggest is that the approach favoured by Kentridge AJ would remove the protection of fundamental rights to substantial groups of people in the country, simply because the proceedings in which the protection of such rights might be crucial for a person, had begun prior to the commencement of the Constitution on 27 April 1994, although the substance of the proceedings takes place only after that date. I would be extremely distressed to accept that this is what the Constitution intended. It seems to negate the very spirit and tenor of the Constitution and its widely acclaimed and celebrated objectives. Fundamental to that spirit and tenor was the promise of the equal protection of the laws to all the people of this country and a ringing and decisive break with a past which perpetuated inequality and irrational discrimination and arbitrary governmental and executive action. The literal interpretation would invade all these objectives in its arbitrary selection of one category of persons who would become entitled to enjoy the human rights guarantees of the Constitution and the arbitrary exclusion of another group of 3 \fMAHOMED J persons from such entitlement. The Courts must strive to avoid such a result if the language and context of the relevant provision, interpreted with regard to the objectives of the Constitution, permits such a course. What must be avoided, if this is a constitutionally permissible course, is a result which permits human rights guaranteed by the Constitution to be enjoyed by some people and denied arbitrarily to others. Such a consequence would effectively allow substantive parts of a disgraced and unacceptable culture from the past to continue into a future, protected by the Constitution. In proceedings which might affect their lives and liberties, large numbers of South African citizens would, on purely fortuitous grounds, be unable to assert the expanding human rights guaranteed by Chapter 3 of the Constitution, including the fundamental right to a fair trial protected by section 25(3). Such a result would be inconsistent with the international culture of constitutional jurisprudence which has developed to give to constitutional interpretation a purposive and generous focus. It seeks to avoid what Lord Wilberforce called \"the austerity of tabulated legalism\" (Minister o f H o m e A f f a i r s (Bermuda) v Fisher 1980 AC 319 at 328H). This is because \"A Constitution is an organic instrument. Although it is enacted in the form of a statute it is sui generis. It must broadly, liberally and purposively be interpreted so as to avoid \"the austerity of tabulated legalism\" and so as to enable it to continue to play a creative and dynamic role in the expression and the achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people and in disciplining its Government.\" (Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407 at 418). An interpretation of section 241(8) which withholds the rights guaranteed by Chapter 3 of the Constitution from those involved in proceedings which fortuitously commenced before the operation of the Constitution would not give to that Chapter a construction which is \"most beneficial to the widest possible amplitude\u201d and should therefore be avoided if the language and context of the relevant sections reasonably permits such a course. (S v Zuma and Others 1995(4) BCLR 401 (SA) ; James v Commonwealth of Australia [1936] AC 578 at 614; Minister of Defence, Namibia v Mwandingi 1992 (2) SA 355 (NmS) at 361-3; S v Acheson 1991 (2) SA 805 (Nm) at 813A-C; S v Marwane 1982 (3) SA 717 (A) at 748-749G; Ex parte Cabinet for the Interim Government of South West Africa: In re Advisory Opinion in terms of s 19(2) of Proc R101 of 1985 (RSA) (supra at 853C-G); Hewlett v Minister of Finance and Another 1982 (1) SA 490 (ZS); 4", "[10]", "MAHOMED J Minister of Home Affairs and Others v Dabengwa and Another 1982 (4) SA 301 (ZS) at 306E-H; Minister of Home Affairs v Bickle and Others 1984 (2) SA 439 (ZS) at 447C-G; Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1984 (2) SA 778(ZS); and Bull v Minister of Home Affairs 1986 (3) SA 870 (ZH & ZS) at 872J-873C and at 880J-881C.) The second difficulty I have with the literal approach is that if the death sentence or corporal punishment are held to be unconstitutional, the Court would be imposing sentences which could not lawfully be executed in terms of section 7(2) of the Constitution. The lawmaker should not lightly be imputed with the intention to authorise the Court to impose sentences which could not lawfully be executed. Even if the Constitution had intended to vest in the Court, irrationally, the authority to impose sentences which would not constitutionally be implemented, what happens to accused persons who have received such sentences? No obvious and easy legal machinery is created for the substitution of a competent sentence after the implementation of the constitutionally impermissible sentence has been restrained, perhaps by a Court order. There is another problem: if pending proceedings have literally to be dealt with as if the whole of the Constitution had not been passed, by virtue of what law could the Court in such proceedings refer any question for determination by the Constitutional Court? It could not rely on section 102 to do so because this is a provision of the Constitution and if it relied on it, it would not be dealing with the matter \"as if this Constitution had not been passed.\" It is true that if this Court makes a decision on the question so referred to it by the Supreme Court it would be exercising a jurisdiction given to it in terms of the Constitution but that does not overcome the difficulty that its jurisdiction can only be exercised in the circumstances if there has been a proper referral and if the Court making the referral had no jurisdiction to do so there could not have been a proper referral.", "On the interpretation favoured by Kentridge AJ the reference in section 241(8) to - \"any court of law, exercising jurisdiction in accordance with the law then in force\" is quite incongruous and difficult to understand. If the intention of the section was simply that all proceedings which were pending before the commencement of the Constitution before a Court of law or other tribunal should be dealt with as if the whole of the Constitution had not been passed, the qualification that such a Court of law or tribunal had to be \"exercising jurisdiction in accordance with the law then in force\" would 5 \f[13]", "", "MAHOMED J appear to be quite unnecessary. If that phrase was absent, could it conceivably have been contended that the reference to \"any court of law\" or \u201ctribunal\u201d included a reference to illegal tribunals such as informal kangaroo courts? In my view, \"any court of law\" or \u201ctribunal\u201d must mean one lawfully exercising its jurisdiction. The qualification that it must be a \u201ccourt of law\u201d or \u201ctribunal\u201d \"exercising jurisdiction in accordance with the law then in force\" would therefore add nothing to the meaning of \"any court of law\" or \u201ctribunal\u201d without any qualification. On the interpretation favoured by Kentridge AJ the relevant phrase therefore serves no purpose. On the interpretation which I favour and which I will deal with later, it does serve an important purpose: it serves to emphasise that the object of the section is to preserve the authority of Courts dealing with pending matters to continue to discharge their functions as such Courts. In his analysis Kentridge AJ refers to various presumptions of application in the interpretation of statutes and states that \"it is against this background that the purpose of section 241(8) can be understood\". Included in the presumptions which he applies is the presumption that \"a statute is as far as possible to be construed as operating only on facts which come into existence after its passing\" and the presumption that a new statute is \"not to effect matters which are the subject of pending legal proceedings\". Kentridge AJ considers these presumptions to support the conclusion to which he arrives in the proper construction of section 241(8). I have no difficulty with his views on the content of these presumptions but if the section simply seeks to achieve what would in any event be the result of these presumptions, it would seem to me to be unnecessary. The presumptions do not have to be statutorily re-articulated in order to preserve their effect. None of these very serious difficulties can justify a refusal to give effect to the words of the section if they were not reasonably capable of an alternative construction. Such an alternative construction would have to be based not only on the literal meaning of the words \"as if this Constitution had not been passed\" in isolation but, in its proper context. The relevant context would be section 241(8) itself, section 241 as a whole and the larger context of the Constitution regarded as a holistic and integrated document with critical and important objectives. The crucial question is whether, adopting this 6 \f[16]", "MAHOMED J approach, such an alternative construction to section 241(8) is reasonably available. In the decided cases in the Provincial and Local Divisions of the Supreme Court at least three alternatives are suggested. The first is the approach adopted by Cloete J in Shabalala and Others v The Attorney-General of the Transvaal and Others 1994 (6) BCLR 85 (T); 1995 (1) SA 608 (T) and followed in Jurgens v The Editor, The Sunday Times Newspaper and Another 1995 (1) BCLR 97 (W). What it amounts to is that the reference to \u201cpending proceedings\u201d in section 241(8) means simply the particular proceedings within the case which were pending immediately before the commencement of the Constitution. Thus, an application made before the commencement of the Constitution for legal representation at State expense, or to admit a confession in terms of section 217 of the Criminal Code or even an application to impose the death sentence or corporal punishment would have to be dealt with as if the Constitution had not been passed. Other applications made after the commencement of the Constitution, would be dealt with in terms of the Constitution. Attractive as the consequences of this approach may otherwise be, I am unable to support it. What section 241(8) applies to is \"all proceedings which are pending\". What the approach favoured by Cloete J effectively does is to limit its application to interlocutory procedures within such proceedings. There seems scant justification for this either in the language of section 241(8) or its context. Moreover it is inconsistent with the use of the word \"proceedings\" in section 241(9) which provides that \"any legal proceedings instituted before or after the commencement of the Constitution\" by or against certain functionaries which ceased to exist after such commencement, could be continued by or against the relevant functionary which superseded the original functionary. Clearly, the ambit of \"proceedings\" in this regard cannot be limited to interlocutory proceedings within the larger case. There is no persuasive reason why it should have such a limited meaning in section 241(8).", "The second approach is that favoured by the Cape Provincial Division in S v W and Others 1994 (2) BCLR 135(C); 1994 (4) SA 126 (C). Substantially what it amounts to is that there is a distinction between fundamental rights of a procedural nature and those of a substantive nature and that the proper meaning of section 241(8) is that only fundamental rights of a procedural nature sanctioned by the Constitution would not be available to an accused person in pending proceedings. 7 \f[19]", "MAHOMED J A serious difficulty which I have with this approach is that there is nothing in section 241(8) which seeks to distinguish between rights of a procedural nature from those of a substantive nature. Moreover, the distinction made raises the complex problem of satisfactorily classifying what right in Chapter 3 can be said to constitute a procedural right as distinct from a substantive right. (See Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 (PC) at 838f-g; Industrial Council for the Furniture Manufacturing Industry (Natal) v Minister of Manpower and another 1984 (2) SA 238(D) at 242F; Euromarine International of Mauren v The Ship Berg and Others 1984 (4) SA 647 (N) at 661I-662A.) Furthermore, this distinction assumes that a right is either procedural or substantive. It could be a hybrid right involving both. What is the right set out in section 25(3) to \"legal representation at State expense if substantial injustice would otherwise result\"? Is it procedural or substantive? If it involves both substantive and procedural elements, what is the dominant element? Is that the test to be applied in classifying the right? If it is and the dominant element is procedural, how does it help the argument that section 241(8) was never intended to take away fundamental rights in pending proceedings? Is the right to \u201clegal representation at State expense if substantial injustice would otherwise result\u201d any the less fundamental for being procedural? I find it difficult to accept that the law-maker intended to leave uncertain and unresolved serious disputes of this kind in the crucial area of fundamental rights. A third alternative suggested by some of the cases in the Provincial and Local Divisions of the Supreme Court is that the object of section 241(8) is to preserve the continuing territorial jurisdiction of the Courts in which the case was pending immediately before the commencement of the Constitution (Qozoleni v Minister of Law and Order and Another 1994 (1) BCLR 75 (E); 1994 (3) SA 625 (E); S v Majavu 1994 (2) BCLR 56 (CKGD); 1994 (4) SA 268 (Ck); Gardener v Whitaker 1994 (5) BCLR 19(E); S v Shuma 1994 (2) SACR 486 (E)). In my view, the special emphasis on \"territorial jurisdiction\" is not justified by section 241(8), but the emphasis on the jurisdictional objectives of the section provides a basis for an alternative approach to the meaning of the section that can constitutionally be defended.", "What the section seeks to preclude is an attack on the authority of any Court of law or tribunal to continue dealing with proceedings which were pending before the commencement of the Constitution. What the section would then mean is that:- \"All proceedings which immediately before the commencement of this 8 \f[22] MAHOMED J Constitution were pending before any Court of law, including any tribunal or reviewing authority, established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if the passing of this Constitution had not impacted on that jurisdiction: provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such proceedings, such proceedings shall be brought before the Court having jurisdiction under this Constitution and the Court or tribunal which might otherwise in terms of this section have had authority to deal with such appeal or review shall have no such authority.\" (See, for example, S v Smith and Another 1994 (1) BCLR 63 (SE); 1994 (3) SA 887 (SE); S v Saib 1994 (2) BCLR 48 (D); S v Sixaxeni 1994 (3) BCLR 75 (C); 1994 (3) SA 733 (C).) To appreciate why sections 241(8) had to be enacted to give effect to this intention it is necessary to understand that what the Constitution does is to establish a new legal and political order involving a new Parliament, a new Executive and a new Judiciary. In terms of Chapter 7 of the Constitution, a new Constitutional Court is established in section 98, a new Supreme Court is established in terms of section 101 and other new Courts are established in terms of section 103. But, the mechanics of the contemplated establishment of the new Courts had to await the rationalisation process contemplated by section 242. That left a vacuum in the interim which section 241 seeks to fill. It does that in section 241(1) by providing that every Court of law which existed immediately before the commencement of the Constitution shall be deemed to have been duly constituted by the Constitution or the laws in force after such commencement. The word \"deemed\" means that the Courts which existed before the Constitution were in truth not Courts established under the Constitution or any law in force after its commencement but that they should fictitiously be assumed to have been so constituted (see S v Voigt 1965 (2) SA (N) 749 at 752F-G; Queen v Norfolk County Council (1891) 60 L.J.Q.B. 379; Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 at 33).", "The effect of section 241(1) is that the pre-Constitution Courts are legitimized as new post-Constitution Courts as if there was a separate section in the Constitution or in some law after the Constitution creating such Courts. Section 241(1) therefore would allow a pre-Constitution Court to exercise jurisdiction in cases arising after the commencement of the Constitution but, it might not be sufficient to authorize them to continue hearing cases which had commenced before the Constitution came into operation. It seems to me that it is for that contingency that 9 \fMAHOMED J section 241(8) was enacted. I say this because what section 241(1) \u201cdeems\" is that the pre-Constitution Courts are to be taken to have been established in terms of the Constitution and this must therefore mean with effect from the date of the Constitution. It cannot mean from some date prior to the Constitution because the Constitution operates prospectively in establishing new Courts and not retrospectively. The Constitution does not contemplate that the new Legislature, the new Executive or the new Judiciary should be established at any date before the commencement of the Constitution. Thus interpreted, a meaningful role is determined for the phrase \"exercising jurisdiction in accordance with the law then in force\" in section 241(8). Its role is to make clear that in proceedings which were pending before the commencement of the Constitution, the authority and jurisdiction conferred on the relevant Court or tribunal by \"the law then in force\", would continue unimpaired by the Constitution \"as if this Constitution had not been passed\" and as if it had not impacted upon that authority. This interpretation gives to what is a substantial part of the section, a significant purpose. The literal interpretation, in my respectful view, does not. This part could be omitted entirely without detracting in any way from the purpose of the section said to be protected on the literal approach. Kentridge AJ, in paragraph 69 of his judgment, agrees with my conclusion that the reference to the relevant Court or tribunal \"exercising jurisdiction in accordance with the law then in force\" in section 241(8) was indeed intended to preserve the authority of a pre-Constitution Court to continue its function of adjudication after the commencement of the Constitution in cases which were pending before such commencement; but he suggests that section 241(8) has a second purpose and that purpose is to ensure that such pending cases should be determined as if the Constitution had not been passed at all. I have some difficulty with that suggestion. If Kentridge AJ is correct in concluding that \"another purpose\" of section 241(8) was to ensure that the whole of the Constitution, including the protection of fundamental rights enshrined in Chapter 3, would be inapplicable in pending proceedings, both these suggested purposes would have been achieved at the same time by providing that \"all proceedings which immediately before the commencement of this Constitution were pending before any court of law ...shall be dealt with as if this Constitution had not been passed\" without including the phrase \"exercising jurisdiction in accordance with the law then in force\" to qualify the Court of law referred to. If pending proceedings 10", "[25] MAHOMED J were to be dealt with as if the whole of the Constitution had not been passed, the Courts of law (or any other relevant tribunal) would in any event be \"exercising jurisdiction in accordance with the law then in force\" because the Constitution which impacted upon that authority would have to be ignored and the authority of the pre-Constitution Courts to continue in pending matters would therefore have remained \"as if this Constitution had not been passed\". In my respectful view, therefore, the language of section 241(8) is not, in the circumstances, cogently supportive of the suggestion that it had two purposes. The proposition that its only purpose was to preserve the authority of pre-Constitution Courts to continue to function as Courts for the purposes of adjudication in pending cases, appeals to me as a more persuasive interpretation of the section. At the very least it seems to me to be an interpretation of the section which is reasonable and the fact that it is more effective in securing the equal protection of the Constitution for all persons makes it significantly more attractive and defensible. Although, on this interpretation, a Court \"exercising jurisdiction in accordance with the law then in force\" would have its authority limited to the territorial area in which it has jurisdiction in terms of that law, in my view, the purpose of section 241(8) is not simply to regulate the territorial jurisdiction of the relevant Court before which proceedings are pending. That issue is sufficiently covered by section 241(1) and more particularly the amendment thereto introduced by section 15 of Act 13 of 1994. This amendment introduces a proviso to section 241(1) which defines the areas of jurisdiction of the Appellate Division, the Provincial and the Local Divisions of the Supreme Court of South Africa, any other Supreme Court or general division thereof and any other Courts. Section 241(8) was therefore not introduced specifically to deal with the areas of jurisdiction of the Courts before which proceedings were pending at the commencement of the Constitution but to ensure that their authority to deal with pending cases was not assailed because of the fact that the Constitution creates new Court structures with effect from the commencement of the Constitution. Section 241(8) creates Constitutional legitimacy for a pre-Constitution Court, to continue to operate as a Court after the commencement of the Constitution in respect of pending matters. Every Court needs such Constitutional authority to function as a Court (see Smith and Brazier: Constitutional and Administrative Law 7th Ed (1994 Penguin p. 69); Brown v Leyds N.O (1897) 4 OR 17; Madzimbamuto v Lardner Burke 1968 (2) SA 284 at 331-2 (AD); Madzimbamuto v Lardner Burke (1969) 1 AC 645). 11 \f[26] MAHOMED J This interpretation is also supported by the direction that pending proceedings \"shall be dealt with\" as if the Constitution had not been passed. This is an unusually colloquial expression to be found in a formal statutory instrument. If the intention of the law-maker was to say that pending proceedings should be adjudicated on the basis that the Constitution in all respects should be ignored, it could have used clearer language. Law- makers are often concerned with the problem which arises when a new statutory regime replaces the old but there is a continuing residue of proceedings from the old. This was the position when the Criminal Procedure Act 51 of 1977 replaced the previous Criminal Procedure Act of 1955. Section 344(3) of the 1977 Act sought to protect the previous proceedings which were still pending by directing that if such proceedings had not been concluded at the commencement of the new Act \"they should be continued and concluded\" as if the previous Act had not been repealed. Similar provisions appear in other statutes. This is illustrated by section 12(2)(e) of the Interpretation Act of 1957 which provides in clear language that unless the contrary intention appears the repeal of a law \"should not affect any investigation, legal proceeding, or remedy in respect of any such right ... and any such investigation, legal proceeding or remedy may be instituted, continued and enforced ... as if the repealing law had not been passed\". What this kind of phraseology emphasises is a desire by the legislature to ensure that the provisions of the previous regime will in the relevant circumstances apply inexorably to the final end and determination of the proceedings. \"Deal with\" is a more protean, inherently more tentative idea. The New Shorter Oxford English dictionary (Volume 1; page 601) discusses the meaning of the word \"deal\" when it is followed by the word \"with\" in the following passage: \"deal... Foll. by with: be concerned with (a thing) in any way; busy or occupy oneself with, esp. with a view to discussion or refutation. Also, take (esp. punitive or corrective) measures regarding, cope with, handle (a difficult person, situation, etc.). ME. 11 v.i. Foll. by with or by: behave towards, treat (a person etc.) (in a specified way). Also absol., act towards people generally (in a specified way), conduct oneself. ME 12 v.i. Take action, act, proceed (in a matter).ME-M17. 13 v.i. Set to work, practise (up)on. arch. rare. L16\". The phrase therefore has different nuances but one of its well recognized meanings is to \"Take action, act, proceed (in a matter) ... Set to work, practise\". These are perfectly appropriate expressions to confer authority on a Court or tribunal to proceed with or take action under the authority vesting in it in terms of \"the law then in force\". The \"Oxford English Dictionary\" to which Kentridge AJ refers also includes in its discussion of the phrase \"to deal with\" the meaning: \"to 12 \fMAHOMED J grapple with\" and it also refers to \"deal\" as meaning \"to take action, act, proceed\". These meanings are consistent with my view of the purpose of the section. It is true that the idea of \"disposing\" the matter is in some contexts also a permissible nuance in the meaning of the phrase \"deal with\", but the very fact that it ordinarily bears the meaning of \"setting to work\" or \"proceeding\" demonstrates its inherently fluid and uncertain content. It is probably for this reason that it does not ordinarily appear in statutes which seek to convey the idea that something should be \"continued and concluded\" as if the relevant law had not been passed. If the intention of the Constitution was to say that pending matters should be \"continued and concluded\" as if the Constitution had not been passed it would have been a simple matter to say so in such a phrase of well- known usage in our statute law instead of recourse being had to something so colloquial, flabby and uncertain as \"deal with\". I have examined the two cases mentioned by Kentridge AJ in which it is said that the phrase \"dealt with\" is used synonymously with \"continued and concluded\" (S v Thomas and Another 1978 (1) SA 329 (A) at 334; Pinkey v Race Classification Board 1968(4) SA 628 at 636 C-D). With respect, I do not think they detract from what I have said. In Pinkey's case (supra) the Court was concerned with the effect of a statutory amendment under the notorious race classification procedures of Act 30 of 1950 and reliance had been placed on section 12 of the Interpretation Act of 1957 (which provided that in the absence of a contrary intention a repealing law shall not affect any investigation, legal proceeding or remedy in respect of any right or privilege and \"any such investigation, legal proceeding or remedy may be instituted, continued or enforced ... as if the repealing law had not been passed\"). The Court held that this protected Mr Pinkey from the statutory change made by the subsequent statute. In the passage referred to by Kentridge AJ, Jansen JA stated that there was no contrary intention and that \"it follows that pending cases should be dealt with... as if the repealing law had not been passed\". The Court was never called upon to apply its mind to the distinction between \"dealt with\" and \"continued and concluded\". It was never an issue in that case. It could never be, because the relevant part of section 12(2) of the Interpretation Act effectively included both meanings. It allowed legal proceedings to \"be instituted, continued or enforced\". The case of S v Thomas (supra) similarly was not concerned with this distinction. Whatever be the exact phraseology used, however, the basic idea of legitimizing the authority of the old to continue that authority under a new regime has a long and very well- 13", "[28] \fMAHOMED J established constitutional history. Thus, section 116 of the South African Act, 1909, provided that all appeals to the King- in-Council which were pending at the establishment of the Union should proceed as if that Act had not been passed. The object was simply to legitimise the authority of the Privy Council to continue to hear appeals which were pending before it at the date of the commencement of the Constitution. This same objective was sought to be achieved by section 1(2) of the Special Courts for Blacks Abolition Act 34 of 1986 which provided that an action pending in the Commissioner's Courts or an Appeal Court for Commissioner's Courts on the date identified should be dealt with as if the section had not been introduced. The purpose was to legitimize the authority of those Courts to deal with cases which were pending before them. Substantially the same formula is followed when Parliament purports to create new States and Republics. Thus the Constitutions of the Transkei, Bophuthatswana, Ciskei and Venda all provide that proceedings which were pending before the commencement of the relevant Constitutions in certain Courts (created by South African statutes in respect of its Black citizens) should be continued and concluded as if that Constitution had not been passed. The object was again to legitimize the authority of such Courts to deal with cases which were pending before them prior to the commencement of the Constitution. (See section 54(c)(ii) of the Republic of Transkei Constitution Act 15 of 1976; section 91 of the Republic of Bophuthatswana Constitution Act 18 of 1977; section 52(1)(d) of the Republic of Venda Constitution Act 9 of 1979 and section 76(1)(d) of the Republic of Ciskei Constitution Act 20 of 1981.) These kinds of statutory formulae were not confined to the TBVC States. Apart from the provisions of the South African Act of 1909, they also appear in section 116 of the Republic of South Africa Act 32 of 1961 which seeks to sanction the authority of the Courts to conclude pending proceedings which were initiated before the Constitution in the name of the Queen who ceased to be the Constitutional authority in South Africa in terms of the Constitution. It seems to me therefore that section 241(8) does no more than carry on a well-established constitutional tradition that when there is a change of legal regimes, proceedings instituted but uncompleted in Courts under the previous regime have to be protected against a potential attack on the grounds that they have no authority to dispose of such cases after the commencement of the new regime. It must be conceded, however, that in many of these statutes the formula adopted for the purposes of allowing pending proceedings to continue after the change of the regime, created no comparable problems with regard 14", "", "[31]", "MAHOMED J to whether or not such Courts could ignore the provisions of the substantive law of the new regime in disposing of their pending cases. This is because some of these statutory instruments contained no Bills of Rights and the other statutes of the previous regime pertaining to substantive law were perpetuated by suitable provisions in the new statutes. This does not detract from the fact, however, that the basic objective in sections analogous to section 241(8) is to confer authority on Courts to continue to hear cases pending before them prior to the Constitution, notwithstanding the fact that the Constitution itself creates a new structure of Courts. This is the position in terms of statutes which authorize such Courts to \u201ccontinue and conclude\u201d pending proceedings as if the Constitution had not been passed. A fortiori this must be the position where the language is less tight such as in the expression \u201cdealt with\u201d in section 241(8). It must also be remembered that although most of the Constitutions and statutory instruments to which I have referred do not create fundamental rights and do not therefore involve the problem of deciding whether the relevant sections also entitle the Courts to ignore the substantive provisions of the Constitutions guaranteeing such rights, some Constitutions do have such fundamental rights entrenched. The Constitution of Bophuthatswana does. Significantly, however, the formula used is substantially the same and it has never been contended that in pending cases the Courts in that territory were entitled to ignore the guarantees conferred by the Chapter enacting fundamental rights. My view of section 241(8) is also supported to some degree by the proviso to section 241(8). A proviso qualifies the substantive part (Mphosi v Central Board for Co-operative Insurance Ltd 1974 (4) SA 634 (A) at 645; R v Dibdin [1910] P 57 at 125). The ordinary consequence of the substantive part of section 241(8) would have been that all appeals and reviews in pending proceedings would have had to be continued in the old Courts established prior to the Constitution. The proviso reverses that consequence by directing that such appeals or reviews must (notwithstanding the substantive provision) be instituted in the Courts which are given jurisdiction in terms of the Constitution and not the Courts which would have had jurisdiction under the old law. On that interpretation the proviso flows naturally and logically to qualify the substantive provision in section 241(8), if the substantive provision itself were to be limited in its purpose to a legitimization of the old Courts and tribunals from the date when the proceedings before such bodies commenced. This is what attracted some of the local and provincial judges of the Supreme Court when they said that 15 \f[33] MAHOMED J the literal interpretation of section 241(8) did not involve a \u201crational connection\u201d between the substantive part of section 241(8) and the proviso (see, for example, S v Sixaxeni (supra), BCLR at 78D-E). I think there is merit in the suggestion that the proviso in section 241(8) flows more easily and naturally if the substantive part is confined to the purpose of conferring authority on the Courts to continue to function as such Courts and tribunals in respect of matters pending before them at the commencement of the Constitution. To that extent my interpretation of section 241(8) is supported by the proviso. But, it is not a decisive consideration : there could be a logical if not particularly natural interpretation of the section which would break the substantive part of section 241(8) into two elements, the first dealing with the jurisdiction or authority of the Courts or tribunals to continue to function in pending cases and the other dealing with their right and capacity to ignore the Constitution in so exercising their functions and the proviso could be interpreted so as to limit the first element and not the second. The argument based on the proviso is therefore only one of many elements which must be weighed in the proper interpretation of section 241(8). The literal interpretation of section 241(8) involves a very radical constitutional consequence because, as I have said, it would deny to a substantial group of people the equal protection of fundamental rights guaranteed by Chapter 3. I would therefore expect it to be articulated conspicuously in Chapter 3 itself. But section 7, which deals with the application of the Chapter on fundamental rights, makes no such qualification. It says in section 7(2), in rather peremptory and promissory terms, that this Chapter shall apply to all law in force and all administrative decisions and acts performed during the period of the Constitution and it does not contain any qualification or proviso that the rights of persons in proceedings pending at the commencement of the Constitution are not included in the word \u201call\u201d. It does not make section 7(2) subject to section 241(8); nor does it say that section 7(2) shall apply save in cases which were pending when the Constitution commenced. Instead, if the literal interpretation is correct, that radical consequence is to be inferred from an obscure sub-section dealing with transitional arrangements for the Judiciary and not even in section 229 which deals with the transitional provisions pertaining the continuation of Laws. I feel no confidence in seeking to infer from such a provision a meaning which would entail the radical consequences which must inevitably follow for so many people, if the literal approach is adopted. I am also not persuaded that this would affect only a tiny segment of the community. The present Constitution has a limited life and a good deal of the litigation in the Courts might indeed be a 16 \f[34]", "MAHOMED J residue of proceedings commenced before the Constitution. Significantly, section 241(8) has become relevant for this very reason in the majority of the cases which the Constitutional Court has so far heard. Kentridge AJ, in paragraph 83 of his judgment, suggests that \"the tension between Chapter 3 and section 241(8) is likely to arise only in the respect of the fair trial requirements of section 25(3)\". I am respectfully unable to agree. The Constitutional attacks on capital punishment, corporal punishment, civil imprisonment for debt and statutes founded on unfair racial discrimination, for example, are legally vulnerable without any reliance on section 25(3). My suggestion that the purpose of section 241(8) was indeed to provide the authority for a Court in pending proceedings to continue as a Court is also supported by other sub-sections of section 241. Thus, the authority of the Chief-Justice, the Judge President and other judges to continue in office is provided in section 241(2) and 241(3). The authority of the Attorney-General to so continue is provided in section 241(4). Their authority to continue to receive remuneration, pension benefits, gratuities and similar privileges is sanctioned by section 241(5). Section 241(8) appears in that context. It is a transitional arrangement to legitimize the authority of important structures in the judicial system in circumstances where that authority might otherwise have been assailable. This approach to the objectives of section 241 is consistent with the objectives also apparent in the preceding transitional arrangements pertaining to Legislative authorities in section 234, to Executive authorities in section 235, to the Public administration in section 236 and to the Public service commissions in terms of section 238. It must be readily conceded that the interpretation which I have favoured in this judgment is not free from difficulties. One difficulty with it is section 241(10) which provides that the laws and other measures which immediately before the commencement of the Constitution regulated the jurisdiction of the Courts of law, Court procedures and all other matters pertaining to the establishment and functioning of Courts of law, shall continue in force subject to any amendment or repeal thereof by a competent authority. It could be argued that the terms of this sub-section are wide enough to preserve the authority of the old Courts in pending proceedings to deal with and dispose of such matters before them and that section 241(8) was therefore not needed to confer such authority, as I have suggested. That argument does have merit but I think that the answer to it lies in the distinction between the authority of such Courts to continue as Courts at all in order to dispose of pending matters after the commencement of the Constitution and 17 \f[36] MAHOMED J their authority to continue in particular areas and over particular persons and in terms of particular procedures (if they have authority to continue to function as Courts). The former authority is not sanctioned by 241(10). The latter is. It is the former authority which is provided by section 241(8). Without it, it could have been argued that the old Courts had no authority to function in pending cases although section 241(10) would have defined how and what they could do if they had such authority. I am also alive to another difficulty in my interpretation of section 241(8). Although it gives to the phrase \u201cexercising jurisdiction in accordance with the law then in force\u201d a meaning and a role which is absent from the literal approach to the section which I have described, it is not necessarily inconsistent with the inference that when the section directs that pending proceedings \u201cshall be dealt with as if this Constitution had not been passed\u201d it means that the whole of the Constitution, including the Chapter on fundamental rights, should therefore be ignored in such circumstances. That observation is not without weight, but it is necessary to bear in mind that the relevant phrase is also not inconsistent with the inference that the direction is simply a direction to proceed with pending cases as if the Constitution had not impacted on the authority of a pre-Constitution Court to continue to function as a Court. Indeed, the phrase \u201cexercising jurisdiction in accordance with the law then in force\u201d makes this inference more probable. What the phrase emphasizes is that the relevant Court must exercise jurisdiction in accordance with the law then in force, not that it must, in the exercise of that jurisdiction, ignore the substantive law of the Constitution. This reference to the exercise of jurisdiction immediately precedes the direction that it should deal with the proceedings as if the Constitution had not been passed. It therefore derives some flavour, colour, substance and purpose from its neighbour. Such an approach would also be consistent with other well-known canons of construction such as the presumption that the law giver must not be imputed with the intention to enact irrational, arbitrary or unjust consequences. (Hleka v Johannesburg City Council 1949 (1) SA 842 (A) at 852; Venter v R 1907 TS 910 at 914-915 and 921; Lister v Incorporated Law Society Natal 1969 (1) SA 431 (N) at 434; R v Sachs 1953 (1) SA 392 (A) at 399).", "I have considered whether there is perhaps another rule of interpretation which might in the circumstances of this case justify a result different from the one which I have favoured. The rule I have in mind is the presumption that, unless the 18 \f[38]", "MAHOMED J contrary intention appears, a statute does not operate retrospectively to impact upon pending proceedings. (Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968 (2) SA 678 (A) at 683; Thom v Moulder 1974 (4) SA 894(A); Bellairs v Hodnett and Another 1978 (1) SA 1109 (A) at 1148.) On this approach it could be contended that since the Constitution was not in operation when the proceedings became pending within the meaning of section 241(8), an interpretation which compels a Court to apply the Chapter on Fundamental Rights to such proceedings constitutes a breach of this presumption. In my view, this is not a sound argument. In the first place the presumption is not inflexible. It operates only if there is no contrary intention. In a very important sense a document as fundamental as a Constitution can itself be the basis for the inference of such a contrary intention. This is particularly true of the Chapter on Fundamental Rights. The presumption to which I have referred is intended as a protection against an invasion of rights which might have occurred in litigation; it is not intended to exclude the benefits of rights sanctioned by new legislation. Chapter 3 of the Constitution seeks not to invade but to expand rights. The relevant presumption can have scant application in such circumstances (R v Sillas 1959 (4) SA 305 (A) at 311; S v Williams 1979 (3) SA 1270 (C); Van Lear v Van Lear 1979 (3) SA 1162 (W) at 1167G-H; Dys v Dys 1979 (3) SA 1170 (O)). I have also applied my mind to the criticism that the interpretation of section 241(8) favoured by me might be open to the pragmatic objection that it could cause some measure of \"dislocation\" in the running of trials which were pending on the date of the commencement of the Constitution. This objection undoubtedly has some merit, but the weight which must be attached to this consideration must, with respect, be balanced having regard to the degree of \"dislocation\" involved, the capacity and the skill of the Court fairly and sensibly to manage its effects and the grave consequences of any alternative approach denying to an important and not insubstantial sector of the citizenry, the equal protection of fundamental rights guaranteed to all. Thus approached, I am not convinced that the \"dislocation\" factor is sufficiently compelling to favour the literal approach to the interpretation of section 241(8). My interpretation of the section does not involve any re-opening of trials which were completed before the commencement of the Constitution. Such trials can be eliminated as potential targets of \"dislocation\". Moreover, even in respect of trials which had commenced but had not been concluded before the date of the commencement of the Constitution, no Constitutional 19 \fMAHOMED J challenge based on section 25(3) would be competent in respect of any decision already made during the trial but before the commencement of the Constitution. If, for example, an accused person had at the commencement of the trial and before the Constitution came into operation, applied for and been refused legal representation at State expense, a challenge to that decision could not competently be proffered after the Constitution came into operation notwithstanding section 25(3)(e). What could be asserted would be the right of the accused to be so represented from a date after the commencement of the Constitution. If the application is granted and the legal practitioner seeks to recall witnesses for cross- examination it will not be on the grounds that the original decision to deny such representation should be reviewed, but simply another example of the experience known to all practising lawyers when an attorney is engaged on the third day of the trial and then applies to recall witnesses. He does not assert a right, but simply the invocation of a discretion in the interests of justice. It is often allowed by the presiding officer. It causes no \"disruption\". Indeed, it is often welcomed because it assists the Court. Other potential \"disruptions\" of this sort can sensibly be managed in this kind of way by a balanced and mature judicial officer. The danger of such disruptions is limited and containable. In my view, it is not of a magnitude sufficient to justify the plainly untenable denial of fundamental human rights to accused persons who were fortuitously charged just before the commencement of the Constitution but whose trials had not yet been concluded on that date. On my interpretation of section 241(8) appeals would not create any \"dislocation\" either. Appeals arising from proceedings which were commenced and concluded after the Constitution came into operation should, in principle, be determined in the ordinary course on the basis that Chapter 3 of the Constitution was clearly of application and if the protection of that Chapter had wrongly been denied to the Appellant, the Court on appeal would take that into account in making its order. In respect of appeals arising from proceedings which had commenced before the Constitution came into operation but were only concluded thereafter, there should again be no \"dislocation\". If the particular fundamental right relied on by the Appellant was of operation at the relevant time of the trial, the Appellant was entitled to rely on it and if it had been wrongly denied to him he would be entitled to suitable relief on appeal.(Regina v Antoine 4 CRR 126). If it did not exist at the relevant time, the Appellant would have no legitimate cause for complaint. The remaining category concerns appeals arising from trials which 20", "", "MAHOMED J had commenced and were completed before the Constitution came into operation. In my view such appeals must be disposed without applying Chapter 3 of the Constitution, because an appeal inherently contains the complaint that the Court a quo had erred in terms of the law which was then of application to it and not in terms of a law which subsequently came into operation. There should therefore also be no \"dislocation\" arising from this category of appeals. There is nothing in the wording of section 241(8) which, on my interpretation, would entitle an Appellant on appeal to rely on Chapter 3 if the proceedings against him had been concluded before the commencement of the Constitution. Such an Appellant would have to confine himself to the substantive law which applied during his trial. The case of S v Thomas (supra) is not inconsistent with that conclusion. That case was concerned with section 344(3) of Act 51 of 1977 which provided as follows: \"Notwithstanding the repeal of any law under sub-section (1) [the Criminal Procedure Act of 1955 was such a law] criminal proceedings which have under such law at the date of the commencement of this Act been commenced in any ... court ... and in which evidence has at such date been led in respect of the relevant charge, shall, if such proceedings have at that date not been concluded, be continued and concluded under such law as if it had not been repealed\". It was held that the Appellant in that case was not entitled on appeal to rely on the provisions of Act 51 of 1977 which provided special machinery to persons suffering from psychopathic disorder. It therefore confirmed the approach that the law to be applied on appeal was the law which was of application at the time of the trial and not the law as it was amended at the time of the appeal. In the result there are no \"dislocations\" arising from appeals or any other considerations which would justify the plainly unequal consequences of the literal approach. I have also had regard to the fact that even on my interpretation of section 241(8) not every anomaly is eliminated. Kentridge AJ suggests some such anomalies in paragraph 83 of his judgment. Included in that analysis is the suggestion that the results of appeals might depend on when they had been noted or when they had been set down. For the reasons I have referred to, these are not anomalies resulting from my interpretation. What is nevertheless true is that there may be some residual anomalies arising from the mere fact that some accused might fortuitously have been charged, convicted and sentenced just before the commencement of the Constitution without the benefit of one or other fundamental right identified in Chapter 3 whilst 21", "", "", "[45]", "MAHOMED J other accused are fortuitously charged just after the commencement of the Constitution and therefore have the advantage of asserting such rights. But that kind of anomaly is inherent in any situation where one legal regime based on human rights values is replaced on a particular date by another legal regime which had denied such rights: it does not justify extending the anomaly to accused persons who were merely charged with offences before the commencement of the Constitution, but who seek to assert their fundamental rights during their trials at a time when the Constitution is of operation. I confess to considerable difficulties in all the theories which have become manifest in the interpretation of section 241(8). None of them are without problems. Its controversial nature manifests itself in the diversity of opinion which has agonized judicial deliberations on the meaning of the section almost from the very inception of the Constitution. In my view, the difficulties involved in the approach adopted by Cloete J in Shabalala\u2019s case (supra), by the Cape Provincial Division of in S v W and Others (supra) and by the Eastern Cape Provincial Division of the Supreme Court in the case of Qozoleni (supra) and other cases following thereupon, are more formidable than the difficulties involved in the interpretation based on the literal approach and the interpretation which I have favoured in this judgment. I have sought to deal with some of the difficulties arising from my interpretation and contrasted them with some of the difficulties inherent in the literal approach. I am of the view, however, that on a balance, my interpretation is to be preferred because it gives force and effect to the fundamental objectives and aspirations of the Constitution, because it is less arbitrary in its consequences and because it is more naturally in harmony with the context of section 241(8) itself and the Constitution as a whole. The literal interpretation, in my respectful view, has none of these advantages and it is not compelled by the text of the section, read in its context and with regard to the objects of the Constitution. It is clear from the express objectives of the Constitution, that it seeks to articulate and to guarantee the fundamental right to a fair trial to all persons; the literal interpretation would deny such right to many. The Constitution seeks to secure for indigent persons the right to legal representation at State expense if substantial injustice would otherwise result; the literal approach would reserve this for an arbitrarily delineated class. The Constitution secures the right to life and human dignity and guarantees protection from inhuman or degrading treatment or punishment to all persons; the literal approach would deny reliance on this promise by those sought to be punished after the Constitution simply because the 22 \f[47] proceedings against them commenced before the Constitution. The Constitution expressly entrenches the presumption of innocence allowing an accused person the right to protection from laws which effectively reverse this presumption; the literal approach denies such protection to potentially large classes of persons, including the very accused in this case. The contrast, in every area of legitimate concern for the ends of justice, is stark and distressing. I am not persuaded that a proper reading of the Constitution compels me to accept these distressingly anomalous consequences of the literal approach. The result of this view is that the Applicants in the case before Page J were entitled to invoke the protection of the Constitution in the attack on section 217(1)(b)(ii) of the Criminal Procedure Act of 1977 which this Court has held to be invalid in its judgment (in the Zuma case (supra)) on 5 April 1995. Notwithstanding the fact that the trial of the accused in the present matter was pending on the date of the commencement of the Constitution, they are entitled to contend that the onus was on the State to prove that their confessions were freely and voluntarily made and without any undue influence. In my view, they are therefore still entitled to contend before Page J that in his determination of their guilt or otherwise, he should proceed on the basis that section 217(1)(b)(ii) is inconsistent with the Constitution and therefore invalid. The Applicants are therefore entitled to a declaration to that effect. I think also that it would be proper to make a declaration in terms of section 98(6) of the Constitution invalidating the application of section 217(1)(b)(ii) of Act 51 of 1977 in any criminal proceedings in which the final verdict of the relevant Court was or may be given after 27 of April 1994.", "These conclusions also make it necessary to deal with an issue which was deferred by Kentridge AJ in the Zuma case (supra) in the following passage (in paragraph 44): \"Whether an order under section 98(6) may and should encompass proceedings which were pending before 27 April 1994, depends on the proper interpretation of the Constitution. As indicated at the beginning of the judgment that issue is deferred for determination in the Mhlungu case\". It follows from what I have said that the question deferred in Zuma's case (supra), in the passage I have quoted, should be answered by saying that an order in terms of section 98(6) may encompass proceedings which were pending immediately before 27 April 1994. Because of the issues left undecided in the Zuma case (supra), the order in that case invalidated the application of section 217(1)(b)(ii) of Act 51 of 1977 only in respect of criminal trials which commenced on or after 27 April 1994 and in which the verdict had not, at the date of the order, been given. It did not, however, preclude an extension of these limits in the present case. In my view, the declaration should also 23 \fMAHOMED J invalidate any application of section 217(1)(b)(ii) of Act 51 of 1977 in proceedings which were pending immediately before the commencement of the Constitution. It would also be arbitrary and irrational to deny to an accused person the right to rely on such invalidity merely because the declaration of invalidity by the Court took place on a date subsequent to the date when his pending trial was fortuitously completed. All accused persons whose trials either began after the Constitution or which were pending immediately before the Constitution commenced, are entitled to be treated equally. I therefore make the following order: 1. 2. It is declared that section 241(8) does not preclude an accused person in a criminal trial from relying on any of the applicable provisions of Chapter 3 of the Constitution in proceedings which were pending before a Court of law immediately before the commencement of the Constitution. In terms of sub-section (6) of section 98 of the Constitution it is ordered that the declaration of invalidity made by this Court in the case of S v Zuma and Others, 1995(4) BCLR 401 (SA) invalidates any application of section 217(1)(b)(ii) of the Criminal Procedure Act, 1977 in any criminal trial, irrespective of whether it commenced before, on or after 27 April 1994, and in which the final verdict was or may be given after 27 April 1994. Langa J, Madala J, Mokgoro J and O'Regan J concur in the judgment of Mahomed J. KENTRIDGE AJ : This case came before this Court by way of a referral by Page J in the course of a criminal trial in the Natal Provincial Division. It was heard in this Court at the same time as the case of S v Zuma and Others 1995(4) BCLR 401(SA), in which judgment was given on 5th April 1995. Both referrals raised the question whether section 217(1)(b)(ii) of the Criminal Procedure Act, 1977, is inconsistent with the provisions of the Constitution of the Republic of South Africa, 1993. The referral by Page J also raised the question of the proper construction of section 241(8) of the Constitution, an issue which did not arise in the Zuma case. In the latter case we declared section 217(1)(b)(ii) of the Criminal Procedure Act to be invalid, but deferred the question relating to section 241(8) for consideration in this case. This question still requires resolution, as the applicability of our declaration to 24", "[50] KENTRIDGE AJ the present case may depend on the interpretation of section 241(8). In order to explain why this is so it is necessary to recount what took place at the trial before Page J. The accused were charged with murder and other crimes alleged to have been committed in April 1993. An indictment in Afrikaans was served on all five accused at Newcastle on 11th March 1994. Possibly because they did not understand Afrikaans they requested a copy in English. An indictment in English was served on them, but only on 4th May 1994. The accused appeared before the Circuit Court for remand on 11th May and on 18th May, 1994 and pleaded not guilty to the charges before Page J, sitting with assessors. At an early stage of the trial, the prosecution tendered evidence of confessions made by four of the accused, in each case before a magistrate. In respect of three of them it relied on the presumptions created by proviso (b) to section 217(1). Defence counsel at once informed the court that he would contend that sub-paragraph (ii) of proviso (b) was in conflict with the provisions of section 25 of the Constitution and therefore no longer of any force or effect, and would if necessary ask for the referral of the issue to the Constitutional Court. As Page J said in his judgment, given on 28th October 1994, a question which arose at the outset of the enquiry was whether, in view of section 241(8) of the Constitution, provisions such as section 25 had any application to the case before him. Section 241(8) reads as follows - \"(8) All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed : Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution.\" The question raised by Page J was whether, in the first place, the proceedings before him could be said to have been \"pending\" immediately before the commencement of the Constitution, i.e. 27th April 1994; and, if so, whether on its proper construction section 241(8) rendered the Constitution inapplicable to those proceedings. Page J made no finding on either of these questions.", "With regard to the first issue, further findings of fact may have been necessary. The term \"pending\" in relation to proceedings may have different connotations according to its context. See Noah v Union National South British Insurance Co Ltd 1979(1) SA 330(T), 332 per Eloff J ; Arab Monetary Fund and others v Hashim, NO (No 4) [1992] 1 WLR 553. As Hoffmann J said 25 \f[52] KENTRIDGE AJ in the latter case at 558, in the normal meaning of the term proceedings \"are pending if they have begun but not yet finished.\" It is clear enough that a \"pending\" proceeding is one not yet decided. See King v King 1971(2) SA 630(O), 634; Groenewald v Minister van Justisie 1972(4) SA 223(O), 225. What is not so clear is when a legal proceeding may be said to have begun. Section 144(4) of the Criminal Procedure Act 1977, requires an indictment to be served on an accused at least ten days before the date appointed for trial, and section 76 states that the proceedings at a summary trial in a superior court shall be commenced by the serving of an indictment on the accused and the lodging thereof with the registrar of the court concerned. There is nothing in the judgment of Page J to indicate whether the Afrikaans indictment was withdrawn or was lodged with the registrar and, in the latter event, on what date it was lodged. These matters and, in general, the date of commencement of the proceedings, were and are questions for the trial court to decide. All that one can say at this stage is that unless a duly served indictment was lodged with the registrar before the 27th April, there would appear to be no basis on which it could be contended that on 27th April, 1994, the proceedings were \"pending\" in terms of section 241(8).1 But it does not follow that, in the context of section 241(8), proceedings are pending as soon as the indictment is lodged. It may be that for the purposes of that section criminal proceedings are pending only on plea, or when the evidence has begun. (Compare section 344 (3) of the Criminal Procedure Act, 1977.) That is a question we do not now decide.", "At all events, at the trial before Page J the State prima facie established that in relation to at least two of the confessions tendered, the requirements of section 217(1) (b)(ii) had been satisfied. But before any further evidence was led, and after hearing argument, the learned judge decided to refer the constitutional issues to this Court. His reasoning, in essence, 1 In parenthesis, I point out that section 241(8) applies to civil as well as criminal proceedings. In Roman Dutch law there was some controversy whether civil proceedings were pending only upon litis contestatio or upon service of the summons. Modern authority favours the latter view. Michaelson v Lowenstein 1905 TS 3241 ; Van As v Apollos and Others 1993(1) SA 606(C), 609. See also S v Saib 1994(2) BCLR 48(D), 53; 1994(4) SA 554(D), 559 per Thirion J. 26 \f[54] KENTRIDGE AJ was that fairness to the accused required that they knew with certainty where the onus lay before they decided whether to give evidence in the voir dire. The parties in this case having made no agreement under section 101(6) of the Constitution, the learned judge considered that the issue might be decisive and held that it was in the interests of justice to refer the issue immediately to the Constitutional Court. He accordingly did so, and suspended the proceedings before him in terms of section 102(2) of the Constitution. In this case were it not for the issue under section 241(8), there would be no reason to doubt the competence of the referral of the issue of the validity of section 217(1)(b)(ii). That issue entails an inquiry into the constitutionality of a provision in an Act of Parliament. In terms of sub-sections (2) and (3) of section 98 of the Constitution, read with section 101(3) that enquiry is within the exclusive jurisdiction of the Constitutional Court. The course taken by Page J accords with the provisions of sub-sections (1) and (2) of section 102 of the Constitution which read as follows- (1) If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court. (2) If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitutional Court in terms of subsection (1), the provincial or local division shall, if it refers the relevant issue to the Constitutional Court, suspend the proceedings before it, pending the decision of the Constitutional Court. Page J found that the issue was one which might be decisive of the case and that, for the reasons which he gave, the referral to this Court was in the interests of justice. As to the proviso to section 102(1), there was no factual finding which was necessary for the determination of the validity of section 217(1)(b)(ii). As there were other issues remaining to be dealt with by the trial court the judge suspended the proceedings as required by sub-section (2).", "What is open to doubt is the basis on which the issue arising under section 241(8) was referred to this Court. This Court has jurisdiction under section 98(2) \"over all matters relating to the interpretation... of the provisions of this Constitution\". 27 \f[56] KENTRIDGE AJ But that, it seems to me, cannot be an exclusive jurisdiction. Although section 101(3) does not in terms give the Provincial and Local Divisions of the Supreme Court jurisdiction over matters relating to the interpretation of the Constitution, such jurisdiction must be implied. Otherwise they could not exercise their undoubted jurisdiction under paragraph (a) of section 101(3) to determine whether there has been a violation of a fundamental right entrenched in Chapter 3. It follows that Page J had jurisdiction to interpret section 241(8) of the Constitution and to determine its effect on the case before him. He ought therefore to have made the necessary findings of fact to enable him to decide whether or not the case was a \"pending\" one in terms of section 241(8). I may add that there have been numerous (and conflicting) decisions in Provincial and Local Divisions of the Supreme Court on the interpretation of section 241(8). What then of the competence of the learned judge's referral of that issue? I cannot read section 102 as entitling the judge to refer to this Court a constitutional issue which is within his own jurisdiction. In my opinion sub-section (2) of section 102 deals only with procedure on references under sub-section (1). Under sub-section (2) the words \"any issue other than an issue referred to the Constitutional Court in terms of subsection (1)\" include other constitutional issues as well as non-constitutional issues. But no power to refer those other constitutional issues is conferred on the judge. In contrast to sub-section (1), sub-section (2) contains no words granting such power. Nor does it require any finding of fact relevant to those other constitutional issues - a requirement which one would expect if the power to refer such issues were intended. A similar point arises in sub-section (3), which reads as follows - \"(3) If, in any matter before a provincial or local division, there are both constitutional and other issues, the provincial or local division concerned shall, if it does not refer an issue to the Constitutional Court, hear the matter, make findings of fact which may be relevant to a constitutional issue within the exclusive jurisdiction of the Constitutional Court, and give a decision on such issues as are within its jurisdiction.\" That sub-section is not well drafted, but it too requires findings of fact only in relation to issues within the exclusive jurisdiction of the Constitutional Court, and it contains no words which authorise any other reference. In spite of the lack of clarity in the sub-section the only reasonable construction, it seems to me, is that the words \"if it does not refer an issue to the Constitutional Court\" must be read as referring only to references under sub-section (1). Similarly, in sub-section (2) the words \"the relevant issue\" mean the issue referred under 28 \fsub-section (1).", "The only other provision authorising a reference by a Provincial or Local Division is sub-section (8) of section 102, which provides - KENTRIDGE AJ \"(8) If any division of the Supreme Court disposes of a matter in which a constitutional issue has been raised and such court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a decision.\" It may at some time have to be decided at what stage it can be said that a court has disposed of a matter under that sub- section. In this case the sub-section plainly has no application. The referral of the issue of the proper interpretation of section 241 (8) was therefore not competent. It is convenient at this point to say something about the practice of referrals to this Court under section 102(1) of the Constitution. The fact that an issue within the exclusive jurisdiction of this court arises in a Provincial or Local Division does not necessitate an immediate referral to this Court. Even if the issue appears to be a substantial one, the court hearing the case is required to refer it only", "", "(i) (ii) if the issue is one which may be decisive for the case; and if it considers it to be in the interest of justice to do so. In section 103(4) of the Constitution, which deals with the referral to this Court of matters originating in inferior courts, the referring Provincial or Local Division must in addition be of the opinion \"that there is a reasonable prospect that the relevant law or provision will be held to be invalid.\" In S v W and Others 1994(2) BCLR 135(C), 147G; S v Williams and Five Similar Cases 1994(4) SA 126(C), 139F, Farlam J said that although that was not an express requirement of section 102(1) it was implicit therein. I respectfully agree. See also Matiso and Others v The Commanding Officer, Port Elizabeth Prison and Others 1994(3) BCLR 80(SE), 89G - 90D; Matiso and Others v The Commanding Officer, Port Elizabeth Prison and Another 1994(4) SA 592(SE), 599G - 600E. The reasonable prospect of success is, of course, to be understood as a sine qua non of a referral, not as in itself a sufficient ground. It is not always in the interest of justice to make a reference as soon as the relevant issue has been raised. Where the case is not likely to be of long 29 \fKENTRIDGE AJ duration it may be in the interests of justice to hear all the evidence or as much of it as possible before considering a referral. Interrupting and delaying a trial, and above all a criminal trial, is in itself undesirable, especially if it means that witnesses have to be brought back after a break of several months. Moreover, once the evidence in the case is heard it may turn out that the constitutional issue is not after all decisive. I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. One may conceive of cases where an immediate reference under section 102(1) would be in the interests of justice - for example, a criminal trial likely to last many months, where a declaration by this Court of the invalidity of a statute would put an end to the whole prosecution. But those cases would be exceptional. One may compare the practice of the Supreme Court with regard to reviews of criminal trials. It is only in very special circumstances that it would entertain a review before verdict. See Hiemstra, Suid-Afrikaanse Strafproses (5de uitgawe), 764. In any event, the convenience of a rapid resort to this Court would not relieve the trial judge from making his own decision on a constitutional issue within his jurisdiction. I should make it clear that these remarks are in no way intended as a criticism of the decision of Page J to refer the issue on section 217(1)(b)(ii). At the stage when he did so this Court had not yet been convened, and no guidelines for referrals had been laid down. The issue was, moreover, one of great and pressing concern to all criminal courts, and it was right that it be resolved as soon as possible. It may be asked at this stage why it is necessary or competent for this Court to consider section 241(8) in this case. The reason is that if the proceedings before Page J were pending immediately before the 27th April 1994, and if that section means that the proceedings had to be completed in all respects in accordance with the law as it existed before that date, it would follow that the judge would have to deal with the case in accordance with the requirements of section 217(1)(b)(ii), notwithstanding the fact that this Court in the Zuma case declared that section to be invalid. In order to answer the question whether Page J is to apply the ruling in the Zuma case when the trial resumes, the question left open in the Zuma case has to be decided, namely, whether an order in terms of section 98(6) should encompass proceedings pending on the 27th April. To answer that question the meaning of section 241(8) has to be determined. Moreover, we know that there are other criminal 30", "", "KENTRIDGE AJ cases which may have been pending on the 27th April 1994, in which the same question may arise, although of course we have no way of knowing how many. We heard full argument on this issue and we are consequently able to deal with it, and it is appropriate that we should do so.", "There have been a number of competing interpretations of section 241(8) in Provincial and Local Divisions of the Supreme Court. I shall not cite all those decisions, still less attempt to analyse them. It will be sufficient to identify in summary form the differing interpretations placed on the sub-section. a) Some judges have held that section 241 (8) is intended to do no more than preserve the territorial jurisdiction of the courts in relation to cases pending on 27th April 1994 and that the Constitution, including Chapter 3, must otherwise be applied fully to those cases. See e.g. the judgments of Froneman J in Qozoleni v Minister of Law and Order and Another 1994(1) BCLR 75(E); 1994(3) SA 625(E) and Gardener v Whitaker 1994(5) BCLR 19(E); b) Other judges have held that section 241(8) preserves the existing law in pending cases only in matters of procedure. Fundamental rights of a substantive nature are thus to be applied in pending cases. See e.g. S v W and Others supra. In some cases it has been held that procedural rights which are fundamental are not necessarily excluded by section 241(8), but that where existing procedures have been followed in pending cases they are to remain undisturbed. See e.g. Shabalala and Others v The Attorney-General of Transvaal and Others 1994(6) BCLR 85(T); Shabalala v Attorney-General, Transvaal, and Another 1995(1) SA 608(T). In all the above cases the judges have concluded that, given the fundamental concerns and values of the Constitution, it is unthinkable that a court should after 27th April 1994 pronounce any verdict or sentence which has the effect of violating a fundamental constitutional right of the person before the court. c) The third line of decisions holds that section 241(8) excludes any application of the Constitution in cases which were pending at its commencement. See e.g. Kalla and Another v The Master and Others 1994(4) BCLR 79(T); 1995(1) SA 261(T).", "In interpreting section 241(8) I would accept that it would not be right to ignore what Froneman J called the \"fundamental concerns\" of the Constitution, (Qozoleni's case BCLR at 86A), or \"the spirit and tenor of the Constitution\" (Shabalala's case BCLR at 95F). A purposive construction is as appropriate here 31 \f[64]", "KENTRIDGE AJ as in other parts of the Constitution. Nonetheless, a purposive construction requires one to search for the specific purpose of section 241(8) within its context in the Constitution. Its immediate context is a section headed \"Transitional arrangements : Judiciary\", in a chapter (chapter 15) headed \"General and Transitional Provisions\". As stated in the preamble, the Constitution creates a new legal order in South Africa. The afterword recites inter alia that the Constitution is a bridge from a past characterised by injustice to a future founded on the recognition of human rights. But the Constitution cannot wipe out all traces of the past in one blow, and does not attempt to do so. It was necessary for the Constitution to consider how far the new legal order, especially the fundamental rights provisions of Chapter 3, should affect actions taken or acts performed under the old legal order before the Constitution came into force. This is a perennial legal problem, which arises whenever a new statute repeals an old one. Sometimes repealing statutes contain provisions which give a clear answer to the problem. All too often they do not, and canons of statutory interpretation have been developed over the years to assist in solving the problem. In general, our courts have held that in the absence of a discernible contrary intention, it is presumed that a new statute is not intended to have retroactive or retrospective effect. This is not the place for a detailed analysis of the presumption, but a reminder of its scope may help to explain the purpose of section 241(8). First, there is a strong presumption that new legislation is not intended to be retroactive. By retroactive legislation is meant legislation which invalidates what was previously valid, or vice versa, i.e. which affects transactions completed before the new statute came into operation. See Van Lear v Van Lear 1979(3) SA 1162(W). It is legislation which enacts that \"as at a past date the law shall be taken to have been that which it was not\". See Shewan Tomes & Co. Ltd. v Commissioner of Customs and Excise 1955(4) SA 305(A), 311H per Schreiner ACJ. There is also a presumption against reading legislation as being retrospective in the sense that, while it takes effect only from its date of commencement, it impairs existing rights and obligations, e.g. by invalidating current contracts or impairing existing property rights. See Cape Town Municipality v F. Robb & Co. Ltd. 1966(4) SA 345(C), 351 per Corbett J. The general rule therefore is that a statute is as far as possible to be construed as operating only on facts which come into existence after its passing. 32 \f[66]", "", "KENTRIDGE AJ There is a different presumption where a new law effects changes in procedure. It is presumed that such a law will apply to every case subsequently tried \"no matter when such case began or when the cause of action arose\" - Curtis v Johannesburg Municipality 1906 TS 308, 312. It is, however, not always easy to decide whether a new statutory provision is purely procedural or whether it also affects substantive rights. Rather than categorising new provisions in this way, it has been suggested, one should simply ask whether or not they would affect vested rights if applied retrospectively. See Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 (PC), 563; Industrial Council for Furniture Manufacturing Industry, Natal v Minister of Manpower and Another 1984(2) SA 238(D), 242. There is still another well-established rule of construction namely, that even if a new statute is intended to be retrospective in so far as it affects vested rights and obligations, it is nonetheless presumed not to affect matters which are the subject of pending legal proceedings. See Bell v Voorsitter van die Rasklassifikasieraad en Andere 1968(2) SA 678(A); Bellairs v Hodnett and Another 1978(1) SA 1109(A), 1148. Problems of retrospectivity may arise in relation to new Constitutions as they do in relation to other new statutes. They arose in relation to the introduction of the Canadian Charter of Rights. See R v Antoine (1983) 4 CRR 126. In the South African Constitution express provisions obviate at least some of the major problems of retrospectivity. Section 4(1) provides - \"This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force or effect to the extent of the inconsistency.\" Section 7(2), which is part of Chapter 3, provides - \"This Chapter shall apply to all law in force and all administrative decisions taken and acts performed during the period of operation of this Constitution.\" These provisions mean that Chapter 3 prima facie has effect as from the commencement of the Constitution even if the result is to impair a vested right. In that sense it is retrospective.2 2 As Chapter 3 for the most part confers rights on individuals rather than removes them there will not be many instances where retrospectivity in 33 \f [69]", "KENTRIDGE AJ The importance of section 7(2) is that it enables any person to invoke the Constitution as a protection against any unconstitutional official action taken against him or her, after 27th April 1994, even if that action arises from that person's conduct before 27th April 1994. On the other hand it follows from section 7(2) that official acts completed before 27th April 1994 are not invalidated by anything in the Constitution.3 It is against this background that the purpose of section 241(8) can be understood. The purposes, I suggest, were twofold. First, to ensure that Courts which had derived their power to hear cases from the old Constitution, could continue to hear them under the new Constitution. Here I am in agreement with Mahomed J, and broadly with the reasons which he has given for that conclusion. But that is not the only purpose of section 241(8). It is clear from the language used, that there was another purpose, and that was to ensure that there would be an orderly transition from the old to the new legal order, so as to avoid the dislocation which would be caused by introducing a radically different set of legal concepts in the middle of ongoing proceedings. There is no warrant for reading section 241(8) as merely preserving the territorial jurisdiction of the courts in pending matters. First, the sub-section states no such limitation. Second, sub-sections (1) and (10) of section 241, expressly preserve jurisdiction of existing Courts, in all proceedings. If section 241(8) merely preserved territorial jurisdiction in pending cases it would be entirely superfluous. The reliance which some judgments place on the proviso is in my opinion misconceived. The effect of a proviso is to except something from the preceding portion of the enactment which, but for the proviso, would be within it. It cannot be construed as if it were an enacting clause. R v Dibdin [1910] P 57, 125; Mphosi v Central Board for Co-Operative Insurance Ltd. 1974(4) SA 633(A), 645. \"Pending proceedings\" include an appeal from the original proceedings - S v Thomas and Another 1978(1) SA 329(A). The proviso to section 241(8) in my view does no more than ensure that, notwithstanding the main enactment, appeals may go the sense explained will arise. A theoretical example would be the invalidation of a statute which conferred rights on a section of the population on a discriminatory basis. This might destroy the vested rights of those previously favoured. 3 For that reason it seems to have been unnecessary to invoke section 241(8) in Kalla v Master of the Supreme Court, supra: the case could have been decided in the same way be reference to section 7(2). 34 \f[71] KENTRIDGE AJ to appeal Courts other than those to which they would have gone under the old law. The words in section 241(8), \"any court of law, including any tribunal or reviewing authority established by or under any law\" are qualified by the words \"exercising jurisdiction in accordance with the law then in force\". They lend weight to the view that, in the general context of section 241, sub-section (8) is concerned with the jurisdiction of the Courts seized of pending proceedings. I emphasise \"jurisdiction\", because \"jurisdiction\" is not limited to \"territorial jurisdiction\". The term embraces territorial jurisdiction but in ordinary usage territorial limits are only a part of what is meant by a Court's jurisdiction. The accepted meaning of \"jurisdiction\" is - \"a lawful power to decide something in a case, or to adjudicate upon a case\". Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in liquidation) 1987(4) SA 883(A), 886D. It is - \" ... the power vested in a court by law to adjudicate upon, determine and dispose of a matter.\" Ewing McDonald & Co Ltd v M & M Products Co 1991(1) SA 252(A), 256G. In Garthwaite v Garthwaite [1964] P 356, Diplock L.J. said at 387 - \"In its narrow and strict sense, the \"jurisdiction\" of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference 1) to the subject-matter of the issue or 2) to the persons between whom the issue is joined or 3) to the kind of relief sought, or to any combination of these factors. In its wider sense it embraces also the settled practice of the court as to the way in which it will exercise its power to hear and determine issues which fall within its \"jurisdiction\" (in the strict sense) ....\"", "If the broad purpose of section 241(8) is, as stated by Mahomed J to be, \"to ensure that the jurisdiction of Courts to deal with pending cases was not assailed because of the fact that the Constitution creates new Court structures with effect from the commencement of the Constitution\", the drafters of the Constitution would have to address two matters. First, courts and tribunals would have to be empowered to continue and complete pending cases. Second, they would have to be told how 35 \f[73] KENTRIDGE AJ to deal with cases heard partly under one legal order and partly under another. They could have been told to deal with pending cases in the period after the new Constitution comes into force, in accordance with the provisions of that Constitution, or to deal with them as if the Constitution had not been passed. Rightly or wrongly the framers of the Constitution chose the latter option, and we are required to give effect to that choice. With all respect to the judges who have taken a different view, I find it difficult to see what other meaning can reasonably be given to the language used. Even if the language were to be read, as Mahomed J suggests it should be, as \"a direction to proceed with pending cases as if the Constitution had not impacted on the authority of the pre-Constitution Court to continue to function as a Court ... [and] emphasizes ... that the relevant Court must exercise jurisdiction in accordance with the law then in force\", the conclusion would not in my view be any different. The power of the Court in accordance with the law in force when it commenced the proceedings did not include the power to strike down an Act of Parliament. On the contrary, it was quite explicitly stated in section 34(3) of the Republic of South Africa Constitution, Act 110 of 1983 that no such power existed. The power to strike down such legislation comes from the 1993 Constitution. It is, subject to section 101(6), a power which can be exercised only by this Court, but a challenge to the validity of an Act of Parliament can be raised in proceedings before other Courts and Tribunals. It is only pursuant to powers vested in the courts by the 1993 Constitution that a challenge to the validity of section 217(1)(b)(ii) of the Criminal Procedure Act can be raised; but section 241(8) states in as many words that pending proceedings shall be dealt with as if that Constitution had not been passed. Consequently, even if section 241(8) is to be read as meaning that a court or tribunal before which proceedings were pending should exercise its \"jurisdiction\" \"as if this Constitution had not been passed\", the result would be the same. Its jurisdiction would not include the constitutional jurisdiction conferred on the Supreme Court under section 101(3), because such powers are derived from the new Constitution, and did not exist under the old one.", "Equally, I see no warrant for limiting the operation of section 241(8) to the preservation of existing court procedure. Again, there is no such limitation in the sub-section, and existing \"court procedures\" are expressly preserved by sub-section (10). Nor can I find in section 25 or any other section of the Constitution any meaningful distinction between procedure and substance. If the lawmakers had intended that those provisions of the Constitution which had a procedural character were not to 36 \f[75]", "KENTRIDGE AJ be applied in pending proceedings, whereas purely substantive provisions were to be applied it would not be easy to find less appropriate words than \"... shall be dealt with as if this Constitution had not been passed\". The words which I have just quoted from section 241(8) echo wording used for over 100 years by legislators wishing to make it clear that new statutes did not affect pending proceedings. Thus the Interpretation Act, 1957 (like the Interpretation Act, 1910 and the English Interpretation Act, 1889) provides in section 12(2)(e) that the repeal of law shall not affect (inter alia) any right or obligation accrued or incurred under the repealed law, and shall not affect any legal proceedings in respect of such right or obligation, and such legal proceedings may be continued \"as if the pending law had not been passed.\" Section 344(3) of the Criminal Procedure Act, 1977 provides \"(3) Notwithstanding the repeal of any law under subsection (1), criminal proceedings which have under such law at the date of commencement of this Act been commenced in any superior court, regional court or magistrate's court and in which evidence has at that date been led in respect of the relevant charge, shall, if such proceedings have at that date not been concluded, be continued and concluded under such law as if it had not been repealed.\" Similar words appear in section 115 of the Magistrate's Courts Act 24 of 1944 (see Janover v Registrar of Deeds 1946 TPD 35) and in older statutes such as the Administration of Estates Act, 1913. See George Municipality v Freysen NO 1973(2) SA 295(C) 300. Such provisions have often been judicially applied. It has never been suggested that they relate only to territorial jurisdiction or procedure. See e.g. S v Thomas supra; S v Swanepoel 1979(1) SA 478(A). As far as I am aware the words \"shall be dealt with\", used in section 241(8), are not found in the statutes to which I have referred. In those the words commonly used are \"continued\" or \"concluded\", or both. In at least two cases in the Appellate Division judges have used the phrase \"dealt with\" as synonymous with \"continued\" and \"concluded\" as used in section 344(3) of the Criminal Procedure Act and section 12(2)(e) of the Interpretation Act. See S v Thomas supra at 334H; Pinkey v Race Classification Board and Another 1968(4) SA 628(A), 636C-D. This accords with the ordinary meaning of the words. \"Dealt with\" is not a term of art. The phrase is part of colloquial English usage. A judge, in ordinary parlance, deals with a case by conducting the hearing in accordance with the law of evidence, by finding the facts, applying the law and finally pronouncing the decision. More shortly, he exercises his jurisdiction in the general sense explained above. A judge 37 \f[77]", "KENTRIDGE AJ bound to deal with a case as if the Constitution had not been passed must exercise his jurisdiction as if the Constitution had not been passed. By contrast, a court does not \"deal with\" proceedings simply by retaining its territorial jurisdiction. There is no basis in law, language or logic for giving \"dealt with\" some different meaning in the context of section 241(8), even if a different meaning could be found. I cannot accept that the words \"dealt with\" are words of uncertain meaning. According to the Oxford English Dictionary the ordinary meaning of these words is \"to act in regard to, to administer, handle, dispose in any way (of a thing)\". In the context of section 241(8) these words quite clearly relate to the conduct of a \"pending proceeding\" in the period after the Constitution has come into force. There is nothing \"tentative\" or \"uncertain\" in the injunction that \"pending proceedings shall be dealt with as if this Constitution had not been passed\"; nor, in my view, can these words reasonably be understood as meaning that in the period after the 27th April 1994 courts and tribunals should deal with pending proceedings in terms of the law then in force. On the contrary, they have precisely the opposite meaning. There are limits to the principle that a Constitution should be construed generously so as to allow to all persons the full benefit of the rights conferred on them, and those limits are to be found in the language of the Constitution itself. Thus, in Minister of Home Affairs (Bermuda) v Fisher and Another [1980] AC 319 (PC) at 329E-F, Lord Wilberforce was at pains to point out that a constitution is a legal instrument, and that respect has to be paid to the language used. This was accepted in the unanimous judgment delivered by this Court in S v Zuma (supra) where it was said: \"We must heed Lord Wilberforce's reminder that even a constitution is a legal instrument, the language of which must be respected. If the language used by the lawgiver is ignored in favour of a general resort to \"values\" the result is not interpretation but divination.\" The existence of such limits is also recognised by section 4(1) of the Constitution which provides that \"...any law or act inconsistent with [the Constitution's] provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency.\" (my emphasis) Section 241(8) of the Constitution provides expressly that pending cases shall be dealt with as if the Constitution had not been passed. When the language is clear it must be given effect, and this has been stressed in cases in several different jurisdictions. See for example: S v Marwane 1982(3) SA 717(A) 38 \f[79] KENTRIDGE AJ at 749D-G; Bull v Minister of Home Affairs 1986(3) SA 870(ZSC) at 881E-H; Ex Parte Cabinet for the Interim Government of South West Africa: In re Advisory Opinion in terms of S 19(2) of Proc R101 of 1985 (RSA) 1988(2) SA 832(SWA) at 853G; Tam Hing Yee v Wu Tai Wai (1992) LRC (Const.) 596 (Hong Kong) at 600; Attorney- General v Moagi 1982 (2) Botswana LR 124,184. With all respect to the judges who have taken a different view I find it difficult to see what meaning other than that which I have suggested can reasonably be given to the language used. It follows that, although my reasoning is by no means identical, I agree with the conclusion of van Dijkhorst J in Kalla and Others v The Master and Others supra, BCLR at 88C, that section 241(8) excludes the application of the substantive provisions of the Constitution in pending cases. The courts in the conflicting lines of cases to which I have referred have objected that this interpretation would lead to anomalies and injustices. Thus in S v W and Others supra BCLR at 145H, Farlam J said that he was satisfied that the framers of the Constitution could not have intended that cruel, inhuman or degrading punishment could be imposed even in pending cases. In Qozoleni v Minister of Law and Order and Another supra BCLR at 86D, Froneman J asked whether the Constitution could countenance any discrimination based on race even in pending proceedings, and answered his own question in the negative. The example has been suggested of two accused on the same charge, with the indictment served on 26th April 1994 on the one and 27th April 1994 on the other. These apparent anomalies may arise in the limited and reducing number of cases, civil and criminal, which were pending on 27th April 1994. They are the inevitable result of a transitional provision such as section 241(8). Nor are they as serious as the examples given may suggest. If it be assumed that a Court in some \"pending proceeding\" may have felt compelled to pass a sentence of a type which this Court may subsequently hold to be cruel, inhuman or degrading, it certainly does not follow that such sentence will be carried out after such declaration has been made. The carrying out of the sentence would be an unconstitutional executive act which this Court would restrain under section 98(7) of the Constitution, and no court would knowingly impose a sentence which cannot lawfully be carried out. Issues arising out of racial or other discrimination in civil cases may involve questions of public policy which would depend, not on the enforcement of any Constitutional provision, but on public policy prevailing at the time the case is heard. See Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984(4) SA 874(A). 39 \f[80]", "", "In his judgment Mahomed J contends that if pending proceedings are to be dealt with literally \"as if this Constitution had not been passed\" a Supreme Court could not refer a matter to this Court in terms of section 102(1) because, by utilising the provisions of section 102(1) it would not in fact be dealing with the proceedings as if the Constitution had not been passed. In my view there is a twofold answer to this contention. In the first place the Supreme Court in referring the matter to this Court pursuant to the provisions of section 102(1) is not \"dealing\" with proceedings, it is seeking directions from the Constitutional Court as to how to deal with proceedings. In the second place, even if the contention were correct, this would not end the matter; for this Court could still be seized with the matter on appeal after the Supreme Court had construed the provisions of section 241(8), and deal with the matter in accordance therewith. It is in theory possible that as late as 26th April 1994, there could have been a prosecution pending for the cotravention of (for example) a racially discriminatory local authority by-law which had somehow survived the process of repeal of discriminatory laws. A conviction on such a charge after 27th April 1994, would indeed seem to be extraordinary. But it must not be forgotten that the courts are not the only organs of state bound to respect and enforce the Constitution. Legislative and executive organs of state at all levels are similarly bound - see: sections 4(2) and 7(1) of the Constitution. In the hypothetical case envisaged it would be open to Parliament or the appropriate Provincial legislature to repeal the offending by-law. And one would expect the executive in the person of the Attorney-General having jurisdiction, to withdraw such a prosecution. It should be borne in mind that we are not concerned here with the meaning of rights guaranteed under the Constitution, but with whether guaranteed rights can be claimed in pending proceedings; nor are we concerned with a provision drafted with \"an eye to the future\", requiring it to be interpreted then in the light of changed conditions. Section 241(8) is a transitional provision, intended to deal with a limited number of cases, covering a defined and comparatively short period of time. It is moreover a provision which has only limited and indirect application to the fundamental rights entrenched in Chapter 3 of the Constitution. Chapter 3 governs acts performed and decisions taken after the Constitution comes into force, and there will not ordinarily be such issues in litigation pending on the date the Constitution came into force.", "The tension between Chapter 3 and section 241(8) is likely to 40 \fKENTRIDGE AJ arise only in respect of the fair trial requirements of section 25(3). There will be anomalies in the conduct of trials which flow from what I consider to be the clear meaning of section 241(8). But there will also be anomalies flowing from the other constructions that have been suggested. The \"day before\" and \"day after\" anomalies exist where judgement has been reserved in comparable cases and is given either immediately before or immediately after the 27th April; the outcome of cases in which convictions were correctly imposed before the 27th April on the basis of presumptions later to be declared \"unconstitutional\", could depend on whether appeals had or had not been noted, or on the dates when particular appeals were set down for hearing; proceedings could be disrupted because of the need on the 27th April for unrepresented accused in part-heard cases to exercise rights under section 25(3)(e); witnesses may have to be recalled to be cross-examined by the newly appointed counsel; prosecutions based on partially completed cases, involving \"unconstitutional presumptions\" may have to be re-opened to call evidence which had previously been considered to be unnecessary, and so on. The point is that there are anomalies on both sides, and even if we were to think that the wrong choice was made, or that on balance, there would be fewer or less serious anomalies if the framers of the Constitution had chosen differently, we would not be entitled to depart from the clear language of the section. Nor is it strange, as some judges have suggested, to find that this choice is set out in section 241(8) and not in Chapter 3. A transitional provision is precisely where one would expect such a choice to be recorded, because the intention is not to limit rights generally, but to limit their application only in respect of pending cases, affected by the transition. The reluctance of some judges to give literal effect in particular cases to the language of section 241(8) is no doubt understandable. But I believe that the anomalies which disturb them are the price which the lawmakers were prepared to pay for the benefit of orderly transition and for avoiding the disruption which would be caused by changing the applicable law in the middle of a case. In the same way existing laws, although they may be held in due course to be unconstitutional, prima facie continue to have effect until they are actually struck down - see sections 98(6) and 229 of the Constitution. The danger of regarding a text as necessarily having a single objective meaning has already been adverted to in the Zuma case. I am also fully aware that it is a Constitution and not an ordinary statute that we are expounding. One of the distinctions between them is that a constitution is drafted with an eye to the future. Another is that a constitutional bill of rights should as far as possible be read as protecting 41", "KENTRIDGE AJ individual rights, if necessary against the public interest. I thus agree with the approach to constitutional interpretation found in the judgment of the Supreme Court of Canada in Hunter et al v Southam Inc. (1984) 9 CRR 355, at 364-5, and find the narrow approach to the language of a constitution exemplified by Government of the Republic of Bophuthatswana and Others v Segale 1990(1) SA 434(B AD), especially at 448-9, unacceptable. Nonetheless, there are some provisions, even in a constitution, where the language used, read in its context, is too clear to be capable of sensible qualification. It is the duty of all courts, in terms of section 35, to promote the values which underlie a democratic society based on freedom and equality. In the long run, I respectfully suggest, those values are not promoted by doing violence to the language of the Constitution in order to remedy what may seem to be hard cases. This, I fear, over-long consideration of section 241(8) is motivated, if not excused, by the need to resolve the considerable conflicts of judicial opinion to which I have referred. The immediate result of it is that in my view the retrospectivity which we gave to our ruling in the Zuma case under section 98(6) must remain limited to cases in proceedings which began on or after 27th April 1994, i.e. which were not pending on that date. We cannot override section 241(8). Since this is a minority judgment nothing need be said about the form of order. Chaskalson P, Ackermann J and Didcott J concur in the judgment of Kentridge AJ. KRIEGLER J: In another case argued contemporaneously with this one,4 we held that section 217(1)(b)(ii) of the Criminal Procedure Act, 1977 is unconstitutional because it assails the right of an accused to a fair trial.5 In this case the same question arose but judgment was held over because the case raises the further question whether an accused whose case was pending when the Constitution came into operation is entitled to the benefits it confers.", "", "", "The applicability of the Constitution to cases which were pending when it came into operation has been considered in 4 S v Zuma and Others 1995 (4) BCLR 401 (SA). 5 The offending section casts the onus on an accused in certain circumstances to establish the involuntariness of an extra-curial confession. This was found to be an unwarranted infringement of the right to a fair trial guaranteed by section 25(3) of the Constitution. 42 \f[88]", "", "KRIEGLER J numerous cases around the country.6 It would hardly be an exaggeration to say that the cases produced as many answers as there were judgments. The present case runs true to form. There is manifestly a sharp division of opinion among the members of this Court. On the one hand Kentridge AJ, supported by three colleagues, has concluded that the benefits of chapter 3 do not accrue to an accused whose case was pending on 27 April 1995. On the other hand, my colleague Mahomed J, with the concurrence of a number of justices, has come to the opposite conclusion. Sachs J agrees with them, but for different reasons. Although I have come to the same conclusion as the latter group and subscribe to the order formulated by Mahomed J, my reasoning is somewhat different and ought to be recorded. If one asks the wrong question, one is likely to come up with the wrong answer. And to my mind, the question in this case is emphatically not: What is the effect of section 241(8) of the Constitution. The correct question is as I have formulated it in the opening paragraph of this judgment. There is universal consensus that the Constitution ushered in the most fundamental change in the history of our country. It made everything new. The country's national territory (section 1), its national symbols (section 2), its languages (section 3), and its citizenship (section 5) were created anew. The Constitution gave birth to a new legislature (chapter 4), a new executive (chapter 6), and a new judiciary (chapter 7). More significantly, in the present context, it created justiciable fundamental rights and freedoms (chapter 3). Above all, it established a constitutional democracy in which the Constitution itself was to be the supreme law of the land and would \"bind all legislative, executive and judicial organs of state\" (section 4). It was a fundamental metamorphosis. The aspect of that metamorphosis with which we are most directly concerned is the recognition of fundamental rights and freedoms in chapter 3. That chapter recognises for every person a comprehensive set of rights and freedoms enforceable in a court of law. It commences with section 7, which imperiously makes the chapter binding on \"all legislative and executive organs of state\" and applicable to \"all law in force ... during the period of operation of this Constitution\". In terms of section 251(1) of the Constitution that period of operation commenced on 27 April 1994. It must follow that on that day every person became 6 The law reports reflect no less than 18 cases reported up to March 1995. Several further cases did not make their way to the law reports. The gist of these cases is discussed by Kentridge AJ. 43 \f[91] entitled to claim the rights and freedoms contained in chapter 3. KRIEGLER J came Constitution But - say the proponents of the opposite point of view - that isn't so. The benefits so unequivocally recognized for all with effect from 27 April 1994 are to be withheld from a certain category. Those accused persons whose trials were pending when the and notwithstanding the unequivocal language of sections 4, 7 and 251(1), are not entitled to share in the bounty. If otherwise qualified, they became citizens of the new South Africa, owe allegiance to its new institutions, pay homage to its symbols and are eligible for office in the executive, legislative and judicial branches of the new state. Nevertheless, they are not entitled to the rights and freedoms conferred by chapter 3. That disentitlement is sought to be founded on the fact that they were accused persons whose cases were pending. operation, somehow into", "Such a startling proposition surely calls for very convincing support indeed. But the sole justification is found in the vague wording of an obscure subsection of a prosaic transitional provision - namely section 241(8). Although that subsection has been quoted time without number, it is as well to quote it again. \"All proceedings which immediately before the commencement of this Constitution were pending before any court of law, including any tribunal or reviewing authority established by or under law, exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution has not been passed: Provided that if an appeal in such proceedings is noted or review proceedings with regard thereto are instituted after such commencement such proceedings shall be brought before the court having jurisdiction under this Constitution.\"", "It is also as well to contextualize that subsection. Section 241 is part and parcel of chapter 15, titled \u201cGeneral and Transitional Provisions\u201d. Save for section 229, which provides for the continuation of existing laws until their repeal, and section 230 (read with schedule 7) which repeals the panoply of Bantustan legislation, the chapter has nothing to do with substantive law. Section 231 keeps the country's international treaties extant and sections 232 and 233 deal with interpretation and definitions. From there up to section 248 the chapter deals seriatim with the continuation of a variety of vital state functions. Section 234 provides for the role of members of certain legislatures to come to an end but for the staff of such bodies to remain in office. Then sections 235 to 238 make provision for the incumbents of executive authorities, the civil service, and the Public Service Commission to continue 44 \f[94] KRIEGLER J functioning until replaced by their successors. Section 239 provides for continuity and order in the disposition of state assets and liabilities and section 240 for the continuation of the State Revenue Fund. Then follows section 241, which deals with transitional and continuity arrangements for the judiciary, and section 242 which makes provision for its subsequent rationalization. Sections 243 to 246 make transitional arrangements regarding the Ombudsman, the Auditor General, local government structures, and the pensions of political office bearers. The whole pattern of the chapter is manifestly to ensure orderly continuity of function and authority. That, then, is the light in which section 241 is to be read. Quite logically it commences in subsection (1) with continuity of the judiciary. This is done by the simple stratagem of deeming the existing courts to be the new courts constituted in terms of the Constitution.7 It is followed by three provisos and two substantive subsections which were inserted later.8 The amendments were aimed at the orderly winding down of appellate tribunals that had been created in the former TBVC territories. Subsection (2), linking up with subsection (1), then deems the erstwhile Supreme Court judges to have been appointed under the Constitution. We therefore have continuity of courts and of their judges. Subsection (3) then keeps all other judicial officers in their posts, subsection (4) does the same for attorneys-general, while subsections (5) and (6) maintain their salaries and pensions. Judges, magistrates and attorneys- general of the old regime having been kept in office, subsection (7) requires them to take a fresh oath of office. By-passing subsection (8) for the moment, we see that subsections (9) and (10) are also concerned with continuity. Subsection (9) allows pending legal proceedings against a government body to be continued against any successor while subsection (10) keeps in operation for the time being all pre-existing laws relating to the jurisdiction, procedures, powers, establishment and functioning of courts of law and judicial officers.", "Viewed in that matrix, subsection (8) of section 241, despite the equivocal nature of its wording, should hold no terrors. It 7 This was sensible because chapter 7, titled \"The Judicial Authority and the Administration of Justice\", commences with the following provision: \"96.(1) The judicial authority of the Republic shall vest in the courts established by this Constitution and any other law.\" 8 By section 15 of the Constitution of the Republic of South Africa Third Amendment Act, No. 13 of 1994. 45 \fhas nothing to do with the substantive law to be applied by courts. It nowhere mentions law, substantive or otherwise. It talks of \"proceedings\", i.e. court cases, and seeks to organize their orderly and continued disposition. More specifically, it is concerned with proceedings which are \"pending\" when the Constitution comes into operation, i.e. when the old courts die and the new courts are born. With regard to such cases, part heard or still awaiting their initial hearing, the same question arises: Who deals with them now that the old courts have gone? All the subsection says is that, notwithstanding the judicial metamorphosis, all cases that were pending before the old courts are to be dealt with by those courts as if they had not been reborn. The subsection does not purport to relate to the law to be applied by any court, it merely designates the court which will deal with the case. The subsection is concerned with the administrative hierarchical disposition of cases that were on the rolls of courts of the old South Africa. That is what the phrase \"any court of law ... exercising jurisdiction in accordance with the law then in force\" denotes. In other words, a proceeding \"pending before any court\" is to be \"dealt with as if [the] Constitution had not been passed\". In the context, I suggest, there can be little doubt that the subsection simply and only means that the tribunal having jurisdiction under the old order has to deal with a pending case. Completely logically, the proviso then says that an appeal or review from such new court (wearing its old robes) has to be brought to the new superior tribunal designated by the Constitution. channelling, handling and", "", "There is no overlap between subsection (8) and any of the other subsections of section 241. Subsection (8) deals with pending cases only, says by whom they are to be heard and it alone deals with that topic. More importantly, though, there is no overlap between section 241(8) and any provision in chapters 2 or 3 of the Constitution. There is no tension between them. Sections 4, 7 and 251(1) confer rights on the individual and prescribe when they accrue. Section 241(8) merely prescribes which courts are to dispose of those cases that had not been concluded when the new Constitution came into operation. Even assuming that there may be some tension between sections 4, 7 and 251(1) on the one hand and section 241(8) on the other, the tension should be resolved in light of the qualitative distinction between them. They deal with clearly distinct matters of fundamental constitutionalism and recognition of rights. They operate at a wholly different level than does section 241(8). The \"international culture of constitutional jurisprudence which has developed to give to constitutional 46 \f[98] KRIEGLER J interpretation a purposive and generous focus\",9 is applicable to chapters 2 and 3. It has no place in the interpretation of section 241(8). The former are concerned with the broad brush- strokes of the constitutional canvas. Peer at them too closely and you lose focus, thus missing the picture. The latter has a narrow, technical and brief purpose and scope. To understand and correctly apply it require close reading, not a generous perspective. The ultimate conclusion to which I come is therefore, that no accused person whose case was pending on 27 April 1994 is precluded from sharing in the benefits bestowed by the new Constitution. Such an accused is entitled to claim any one or more of the rights conferred by chapter 3 and the presiding officer is obliged to entertain such claim. In particular the accused in such a case against whom a confession had already been admitted under section 217(1)(b)(ii) of Act 51 of 1971 is entitled to have its admissibility reconsidered without the application of that subsection by the court whether the decision to admit was made before or after 27 April 1995. In terms of section 98(6)(a) of the Constitution10 an order invalidating an act of Parliament dating from the previous era does not automatically invalidate anything done under such old act before the declaration of invalidity. However this Court is empowered to order otherwise if it is \"in the interests of justice and good government\" to do so. In S v Zuma and Others,11 we exercised that power and effectively banned the use of section 217(1)(b)(ii) of the Criminal Procedure Act, 1977 in all uncompleted cases which had commenced on or after 27 April 1994. In my view a corresponding order should be made extending the prohibition to all criminal trials, whenever they commenced. In effect, I therefore endorse the views expressed by Eloff JP in 9 If I may quote the vivid description of Mahomed J in paragraph 8 of his judgment. 10 Subsection 98(6)(a) reads as follows: \"(6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof- (a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity.\" 11 Supra note 4. 47 \fKRIEGLER J Jurgens v Editor, Sunday Times Newspaper, and Another:12 \"... section 241(1) legitimates all courts of law existing at the time when the Constitution came into force. Section 241(10) provides that all measures which regulate the functions of courts of law shall continue to remain in force until amended or repealed. Neither of these subsections deal with the situation where proceedings have already commenced before a Court which has been legitimised and which is to continue to function in terms of existing legislative measures in terms of section 241(0). The purpose of the first part of section 241(8) is then to provide for the continuation of proceedings which were pending on 27 April 1994. The procedure then to be followed is that prescribed by laws in force up to 27 April 1994, even though the new Constitution may establish principles inconsistent with the old procedure. \"It is in my view significant that section 241 hardly deals with substantive law; procedure and jurisdictional matters, and the status and function of Judges and judicial officers are in general dealt with. In that setting section 241(8) has to be seen and interpreted.\" I think the learned judge, in saying that the section \"hardly\" dealt with substantive law, was resorting to understatement. I have not dealt with the debate concerning interpretive presumptions regarding retroactivity and retrospectivity in the case of statutory amendments. To my mind the adoption of a Constitution which operates as a supreme law does not fall to be interpreted along such lines. It is not a case of one statute repealing, amending or replacing one or more others. What we are concerned with here is a supreme statute being superimposed on the whole of the existing legal landscape, bathing the whole of it in its beneficent light. In the true sense of the words, it is not retroactive nor retrospective. What it does mean, though, is that the moment when the judicial officer has to deal with a claim under chapter 3 he or she has to ask whether such right exists. Moreover, if the particular right or claim had already been disposed of in an interlocutory order made before the Constitution came into operation, such ruling would have to reconsidered thereafter. If, in the instant case, the prosecution had tendered the confessions and they had been admitted under the authority of section 217(1)(b)(ii) prior to 27 April 1994, the presiding judge would have had to reverse such ruling if a claim for such reversal were made after that date but prior to verdict.", "", "To sum up: 1. I agree with Kentridge AJ (paragraphs 49-58 of his 12 1995 (1) BCLR 97 at 102H-103B (W). 48 \fKRIEGLER J judgment) that the referral in the instant case was not legally competent. 2. I also agree with his view (paragraphs 59-61 of his judgment) that the possible effect of section 241(8) of the Constitution is of such public importance that we ought to consider and determine the issue. 3. I disagree with the conclusion regarding the interpretation of section 241(8) reached by Kentridge AJ and agree with that of Mahomed and Sachs JJ, although for different reasons. 4. The essence of my deviation from the reasoning of Mahomed J is that I ascribe a more mundane function to section 241(8) than he does. I agree with him that the creation of the new courts, despite - and possibly to an extent because of - the Phoenix-like emergence of the old judiciary in new feathers, gave rise to the risk of a gap being perceived between the old and the new. However, as I see it, that risk is fully met by subsections (1) to (3) and (10) of section 241. Subsection (8) serves merely to designate the fora to deal with pending cases. 5. I agree with Sachs J that different parts of the Constitution need to be read with different spectacles. I do not agree with him, however, that section 241(8) is to be contrasted with or evaluated against chapter 3. On my interpretation they have entirely different fields of application. They are not in conflict; on the contrary, they supplement one another, each in its own field. 6. I share with Mahomed and Sachs JJ a profound disbelief that the framers of the Constitution could conceivably have purported to give, with one hand, the fundamental rights and freedoms to all, only, surreptitiously with the other, to withhold its benefits from the many thousands of persons whose criminal cases must have been pending on 27 April 1994.13", "I therefore agree with the order formulated by Mahomed J.", "SACHS J: I share with Mahomed J a disbelief that the framers of the Constitution intended a reading of section 241(8) which would produce the anomalous and unjust results to which he refers. I agree with his conclusion and with the order he proposes. I arrive there by a different route, however, and because the issue of how to interpret our Constitution is one of 13 The various criminal courts in the country deal with more than 2,5 million cases each year. It can safely be postulated that the number of cases that were pending when the Constitution came into operation ran to tens of thousands. 49 \f[103]", "", "KRIEGLER J general importance, I will set out my reasons in some detail. Almost all discussion on the subject has been dominated by the idea that the issue is how to construe section 241(8). In my view, this is an incorrect starting point which leads to a false journey. The real question is not what meaning to give to that provision on its own, but how to interpret it in relation to the enjoyment of Fundamental Rights as set out in Chapter 3. This means that not one but two sets of provisions must be interpreted, not consecutively and independently, but simultaneously and in terms of their inter-relationship. I have had the advantage of reading lucid judgments by Kentridge AJ and Mahomed J, each persuasively presented within its interpretive framework. The caveats that each introduces, result in outcomes that are not all that far apart. Unfortunately, I am unable to concur unreservedly in either judgment. My disagreement with Kentridge AJ's judgment is that even if it bases itself on the most natural and spontaneous reading of the section, it gives far too little weight to the overall design and purpose of the Constitution, producing results which the framers could never have intended. My difference with the judgment of Mahomed J, on the other hand, stems from the feeling that it unnecessarily strips section 241(8) of its more obvious meaning, when the overall intent of the framers, as manifested by the Constitution as a whole, can most satisfactorily be acknowledged by accepting the 'first sight' reading proposed by Kentridge AJ, but cutting back its full application in order to accommodate the equally clear and peremptory provisions of Chapter 3.", "", "My approach is accordingly similar in spirit and outcome to that of Mahomed J, but different in methodology. Instead of seeing Chapter 3 as a contextual aid to the interpretation of section 241(8), I regard it as an equal part of the text to be interpreted. In my view, the issue is how to reconcile the two sets of provisions when they collide with each other, not how to interpret each on its own. The cases come before us in terms of Chapter 3, not section 241(8). In practical terms, the issue is never how to construe section 241(8) as an independent clause, but how to apply it as a provision which qualifies another section of the Constitution. This means that the two sets of provisions must be read together as part of the total constitutional scheme, not separately as 50 \f[108] SACHS J autonomous, free standing-clauses.14 If there is overlap and collision of material between the two provisions, the essential purposes of each must be discerned and weighed, so that an appropriate resolution based on balance between the two can be achieved. This involves a species of interactive proportionality. It moves the nature of the enquiry from the so-called plain meaning of words looked at on their own, or even in context, to the interactive purposes of different provisions, read together.15 Discord and dissonance have their role to play in law as in music. To be justified, however, they should not be accidental, but intended, not unfortunate but purposeful. A textual construction which harmonizes different provisions within the overall design of the Constitution is generally to be preferred to one which, however coherent within its own terms, produces disharmony. There are indeed many provisions in the Constitution where it is clear that, for reasons of inclusivity, compromise and smooth transition, special arrangements were made and particular textures were introduced, not all of them obviously consistent with the broad general principles of the Constitution. These would include the so-called sunset clauses and provisions introduced on behalf of special interest groups. For the purposes of the present discussion, it is not necessary to identify them. In each case, the wording and the purpose go together: the provisions were inserted to deal with special cases and special situations, and to go back on them would be to undermine finely honed texts of exceptional import to particular sections of the community. In these cases, any departure from the text produced by reference to other sections of the Constitution, and any consequent strained interpretation or cutting down or extension of words, would require very strong and compelling contextual justification indeed.", "Section 241(8) is of a totally different order. Its function is to be functional. It is not there to protect any particular interest, or to develop any constitutional principle, or even nuance. It is as technical and dry a provision as one can get; far from being one of the letters of the constitutional alphabet, it is at most a dot on the 'i' or a cross on the 't'. The reason why so many judges have resorted to so many strained 14 See Cachalia et al Fundamental Rights in the New Constitution Juta 1994 Chapter 1 especially at p5. 15 See Du Plessis and Corder, Understanding South Africa's Transitional Bill of Rights, Juta 1994 Chapter 3. 51 \f[110]", "SACHS J interpretations of its text16 is that they simply cannot credit that such a puny provision should be able to annihilate the powerful provisions that make up the heart of the constitution. Section 241(8) David takes on Chapter 3 Goliath, but this time it is Goliath who is the righteous one. Incredulity, if constitutionally and not subjectively based, should be a strong factor in the process of interpretive choice. It credits the framers with firmness of purpose and frailty of means, rather than frailty of purpose and firmness of means. The rights enshrined in Chapter 3, on the other hand, are deeply entrenched, not only in relation to Parliament, but in respect of the rest of the Constitution. In my view, the strength of the Chapter 3 rights and the intensity of the values they promote are central to the whole constitutional scheme, and are fundamental to our role as defenders of the constitution. They link up directly with the oath we recently took to 'uphold and protect the Constitution of the Republic and the fundamental rights entrenched therein and in so doing administer justice to all persons alike' [Schedule 3]. Only the most compelling language would justify a departure from such a clear responsibility. The meaning of these words could not be plainer. Even on the literalist extreme of the literalist/purposive continuum, one is bound to ask what happens when two sets of plain meaning come into conflict with each other, that of Chapter 3 on the one hand, and that of section 241(8), on the other? The introduction of fundamental rights and constitutionalism in South Africa represented more than merely entrenching and extending existing common law rights, such as might happen if Britain adopted a Bill of Rights. The Constitution introduces democracy and equality for the first time in South Africa. It acknowledges a past of intense suffering and injustice, and promises a future of reconciliation and reconstruction. It embodies compromise in the form a Government of National Unity, and orderly reconstruction of the constitutional order in terms of the two-phase process of constitution-making which it provides for. It is a momentous document, intensely value- laden. To treat it with the dispassionate attention one might give to a tax law would be to violate its spirit as set out in unmistakably plain language. It would be as repugnant to the spirit, design and purpose of the Constitution as a purely technical, positivist and value-free approach to the post-Nazi 16 The different 'plain meanings' are summarised in Kentridge AJ's judgment. 52 \f[112]", "SACHS J Constitution in Germany would have been.17 The Preamble in particular should not be dismissed as a mere aspirational and throat-clearing exercise of little interpretive value. It connects up, reinforces and underlies all of the text that follows. It helps to establish the basic design of the Constitution and indicate its fundamental purposes.18 (See too the concluding passages)19 This is not a case of making the Constitution mean what we like,20 but of making it mean what the framers wanted it to mean; we gather their intention not from our subjective wishes, but from looking at the document as a whole.21 One way of dealing with the two sets of mutually contradictory provisions would be to apply a variant of the presumption to the effect that general provisions do not trump, override or derogate from specific ones. [Generalia specialibus non derogant - general provisions do not derogate from special provisions]. This is normally applied when a new statute containing general words is applied to an old statute with specific provisions that are not expressly repealed.22 In the leading English case of The Vera Cruz Lord Selborne said: \"Now if anything is certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.\"23 17 Davis, Chaskalson and de Waal in Rights and Constitutionalism ed van Wyk, Dugard, de Villiers and Davis, Juta 1994 at p85. 18 c/f Manfred Nowak, U.N. Covenant on Civil and Political Rights - CCPR Commentary, Engel Verlag, Kehl 1993, intro XXII p2. 19 The last unnumbered passages of the Constitution, specifically given full constitutional weight [see Section 232(4)]. Variously referred to as: Postcript, Afterword, Afteramble, Postamble and Epilogue. 20 See the cautionary remarks of Kentridge AJ in S v Zuma and Others BCLR 4041 (SA) 21 This is the approach argued for in all the many commentaries on the new Constitution. It is not necessary to cite them all. 22 See Cross, Statutory Interpretation, Butterworths 1987 2nd ed p77-8. 23 (1884) 10 App cas 59 at 68. 53 \fSACHS J", "", "A later provision in the same document is not the same as a later Act in separate legislative form, yet the principle of the relative intensity of general and of special words could well be relevant, with preference being given to the specific ones. The technical difficulty would be to decide which was general and which specific: Chapter 3 has a specific ambit but is of general application; section 241(8) is said to have unlimited ambit, but has only specific application. Perhaps the answer would be to allow what was specific from each to survive, namely, the specific ambit of Chapter 3 to co-exist with the specific application of section 241(8). Although I would regard the result as satisfactory, the means are artificial and if employed in other cases could lead to serious constitutional deformation. In any event, a question mark has to be placed over the usefulness of common law presumptions in interpreting the Constitution. As Wilson J pointed out in a notable dissent,24 'such presumptions can be inconsistent with the purposive approach to Charter interpretation which focuses on the broad purposes for which the rights were designed and not on mechanical rules which have traditionally been employed in interpreting detailed provisions of ordinary statutes in order to discern legislative intent'. Sir Rupert Cross suggests that even in relation to ordinary statutes, the increasing use of a purposive approach makes the role of presumptions 'necessarily less important than in the days of more literal interpretation'.25", "The preferred approach, as I have indicated, is not to search for what is general and what is specific, but rather to seek out the essential purposes and interest to be served by the two competing sets of provisions, and then, using a species of proportionality, balance them against each other. The objective is to achieve appropriate weight for each and preserve as much as possible of both. To extend the analogy, there are no trumps, but there are cards of higher and lower value.", "Another way of dealing with the tension between Chapter 3 and section 241(8) would be to regard Chapter 3 as part of the context in which section 241(8) is to be construed, and, applying a purposive approach to interpretation, cut back the wide meaning of the section so as to avoid anomalies and 24 Thomson Newspapers v Canada 67 DLR (4th) 161 at p192. 25 At p189-90. 54 \fSACHS J incongruities which the framers could never have intended. A well-known South African example of where 'the true intention' of the legislature, as determined by the context, was used to cut down the wide language of a provision is R v Venter.26 The text under consideration in that case provided that 'any person entering [the Transvaal] shall be guilty of an offence ..... if he has been convicted elsewhere .... of .... theft'. The court held that the words 'any person' could not be given their ordinary full meaning, since this would result in Transvaal residents returning to the colony being guilty of an offence, when the context of the statute made it clear that the mischief aimed at was the influx of criminals from abroad. Innes CJ said that 'the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature'.27 Both Innes CJ and Solomon J explain that their decision in that particular case to depart from the plain meaning of the statute is not based on absurdity but on identification of the mischief aimed at, and the need to avoid repugnancy to the intention of the legislature. It is true that, as Dr L.C. Steyn points out28 the Venter principle was subsequently watered down by most South African judges by restricting its operation to what was called a small class of extreme cases. Yet, as Dr Steyn observes, the judgments were not all one way, and the Roman Dutch Authorities strongly supported the approach adopted in Venter (he quotes Donellus as saying that \" Die wil behoort nie die woorde te dien nie, maar die woorde die wil. By die sake, gevalle, tye en persone wat nie deur die bedoeling van die wet gedek word nie, hou die wet ook op, en daar en tot die mate maak die woorde geen reg uit nie, hoe seer ook die algemene woorde hulle almal omvat\").29", "", "The issue now is not whether the Venter principle should be more widely applied in relation to the interpretation of statutes, but whether the approach it adopts should be given appropriate scope in relation to the construction of the Constitution. In 26 1907 TS 910. 27 At p915. 28 Die Uitleg van Wette, Chapter 11, 5th Edition p22 to 55. The whole chapter is devoted to 'afwyking van letterlike uitleg'. 29 At p25. See too p55. 55 \fSACHS J my view, it should. By emphasising the way in which context can modify the plain meaning of words, it conforms to overwhelming international practice.30 It also corresponds to what academic commentators in South Africa have long been arguing for, as part of their general critique of legal positivism.31 Finally, it would contradict as a premature lamentation, the prediction of commentators on the new Constitution that South African Courts are likely to continue to manifest 'an almost slavish adherence to Anglocentric legal traditions and concepts'.32 Whatever Anglocentric legal tradition might be, contemporary Anglo-centrism would in fact support rather than undermine a context-based, purposive approach. Membership of the European Union has had its effect on English judges. Lord Denning explained the approach of European judges in the following terms: \"[They] adopt a method which they call in English by strange words - at any rate they were strange to me - the 'schematic and teleological'", "", "", "30 Summaries of the approach to interpretation in Canada, Germany and India are given in the chapter by Davis, Chaskalson and de Waal in Rights and Constitutionalism, ed van Wyk, Dugard, de Villiers and Davis, Juta 1994; for the approach generally in Europe, see Lord Denning's summary set out below; for interpretation of treaties, see Art. 31 of the Vienna Convention on the Law of Treaties and commentary by Nowak op cit. 31 See, generally, Devenish, Interpretation of Statutes, Juta 1993, where the courts are urged to adopt a value-coherent theory of interpretation involving interpretation that is not merely technical, but rational and just - Professor Devenish informs us that the oath we recently swore can be construed as 'a cogent legislative injunction for a teleological methodology'; and also Mureinik (1986) 103 SALJ 615. Special attention should be paid to the pioneering, thoughtful and well-researched studies by DV Cowen published in 1976 TSAR 131 and 1980 (43) THRHR 374], and the path-breaking critiques by Professor Dugard in Human Rights and the South African Legal Order, Princeton University 1973 p369 and 381. 32 Davis et al op cit p11; see too du Plessis and Corder, Understanding South Africa's Transitional Bill of Rights 1994 p65 - they criticise the fact that language is elevated to the foremost structural element of a legislative text and other elements are reckoned with only when language fails; Cachalia et al, Fundamental Rights in the New Constitution 1994 p5, where it is emphasized that a constitution cannot be read clause by clause, nor can any clause be interpreted without an understanding of the framework of the instrument. Their main point is the need to distinguish between grammatical exegesis and constitutional analysis. 56 \fSACHS J method of interpretation. It is not really so alarming as it sounds. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design or purpose which lies behind it. When they come upon a situation which is to their minds within the spirit - but not the letter - of the legislation, they solve the problem by looking at the design and purpose of the legislature - at the effect it was sought to achieve. They then interpret the legislation so as to produce the desired effect. This means they fill in gaps, quite unashamedly, without hesitation. They ask simply: what is the sensible way of dealing with this situation so as to give effect to the presumed purpose of the legislation. They lay down the law accordingly.\"33", "", "", "Cross quotes Lord Wilberforce as denying 'the tired old myth' that English judges are more literalist and narrow than continental courts, and goes on to say that at least nowadays, judges in England adopt a purposive approach to statutory interpretation, rather than a narrow literal one.34 \"Of course\", the book observes \"a literal approach need not be a particularly narrow one - an unrestrictive construction of general words may be excessively literal and insufficiently purposive, but the usual charge under this head is one of narrow literalism\". The general approach adopted by Cross is to urge the judges to function in an unapologetically purposive fashion and not be afraid to acknowledge that they can and do 'rectify' the text when the words used in a particular formulation defeat or go against the general purpose of the statute. He argues strongly in favour of a contextual approach and quotes with approval the observation by Viscount Simonds that \" .... words, and particularly general words, cannot be read in isolation; their colour and content are derived from their context\".35 A purposive and mischief-orientated reading as against a purely literal one, always involves a degree of strain on the language. In the present case, the strain comes not so much from a counter-literal attempt to deal with inherent ambiguity of words on their own, or from the need to cut back the meaning of open- ended words, but from the tension of counter-posing the broad words of limited application in section 241(8) with the narrower words of wide application in Chapter 3. More concretely, it is 33 James Buchanan & co Ltd v Babco Forwarding & Shipping (UK) Ltd (1977) 2 WLR 107 at 112; c/f the comment by F.A.R. Bennion, Statutory Interpretation 2nd ed, Butterworths, London 1984 p659 ff. 34 Rupert Cross, op cit p189-90. 35 A-G v Prince Ernest Augustus of Hanover [1957] AC 436 AT 461. 57 \f[126]", "", "", "SACHS J established by the need to weigh the interest and purpose of section 241(8) read on its own, as against the intent and purpose of Chapter 3. I accordingly do not apply the Venter principle as such, but rather what I consider to be the modern and appropriate judicial technique of proportionality. I realise that the approach I am suggesting is relatively new in South Africa, and involves a utilization of proportionality that is a little different from its normal employment in other countries. Yet I find it particularly helpful in dealing with cases such as the present. We are a new court, established in a new way, to deal with a new Constitution. We should not rush to lay down sweeping and inflexible rules governing our mode of analysis. We need to develop an appropriately South African way of dealing with our Constitution, one that starts with the Constitution itself, acknowledges the way it came into being, its language, spirit, style and inner logic, the interests it protects and the painful experiences it guards against, its place in the evolution of our country, our society and our legal system, and its existence as part of a global development of constitutionalism and human rights. It is a matter of public record that the approach of acknowledging problems and seeking consensual solutions based on a fair balance of interests, played a major role in the elaboration of the text of the Constitution; there seems to me no objection in principle to applying this approach to its intra-textual interpretation as well. Although the two endeavours are quite different in nature, both are based on the notion of using a balanced approach to deal with competing interests, so that there are no outright winners and losers.36 I might add that I regard the question of interpretation to be one to which there can never be an absolute and definitive answer and that, in particular, the search of where to locate ourselves on the literal/purposive continuum or how to balance out competing provisions, will always take the form of a principled judicial dialogue, in the first place between members of this court, then between our court and other courts, the legal profession, law schools, Parliament, and, indirectly, with the public at large.", "The objective of my approach in the present case is to preserve the essential functional core of section 241(8), while causing 36 c/f Dugard op cit p381. 58 \f[131]", "", "the minimum disturbance to the fundamental rights entrenched in Chapter 3. In other words, instead of mechanically applying section 241(8) and then lamenting, ignoring or minimizing the injustices which follow, the court gives effect to the gravamen of the section, but construes it in such a way as best to harmonize with Chapter 3 and so avoid needless incongruity and eliminate unnecessary postponement of enjoyment of fundamental rights. From its wording and in the context of transitional arrangements, section 241(8) makes eminent sense as a stop-gap measure designed to prevent undue uncertainty about the continuity of ongoing court business. It simultaneously serves to establish the legitimacy of the judicial order and to deal with cases that have already started in a manner which minimises disruption. It also functions to remove unfair prejudice in relation to people who had already instituted proceedings to vindicate their rights under the law as it stood. It obviates the necessity of having to start trials all over again from the beginning, insofar as the courts will continue to have jurisdiction in each case. It means not only that what has already transpired need not be repeated, but that the validity of what was done before 27 April 1994 will be judged by the pre- April 27 law. These are worthwhile and uncontroversial objectives totally consistent with the goal set out in the Preamble to provide for the restructuring and continued governance of South Africa. Furthermore, the provision would, in my view, confirm that proceedings already initiated before April 27 to secure then- existing rights, would not be nullified. None of the above is problematic - in simple lay language, what was, was. (In this respect I agree fully with both Kentridge AJ and Mahomed J on the question of the non-retroactivity of Chapter 3.) A straightforward reading of the section, accordingly, convinces me that the basic objective of the framers of the Constitution was to provide jurisdictional continuity and prevent operational chaos. In order to do so, they employed, with minor modifications, a well-worn formula used extensively in statutes that gave new rights and imposed new liabilities. The use of an off-the-shelf formula strengthens my view that the matter was not specifically adverted to with full awareness of and intention to achieve the drastic and incongruous results which will be referred to below. Rather, as far as court business was concerned, the objective was a functional one and a functional clause was introduced to achieve it. The reference to pending proceedings should be interpreted in a functional way, in the light of, and not in opposition to Chapter 3.", "There is nothing stated expressly or necessarily implied in the \f[135]", "", "SACHS J text, save the open-endedness of the language used, to indicate that the framers intended that this provision should lead to: a denial of fundamental rights after April 27; dislocation between the judicial power [to impose certain punishments] and the executive power [to carry them out]; making the fundamental rights of accused persons dependent on fortuitous factors of no constitutional merit in themselves, relating to when the trial became a pending one; and requiring courts to engage in trivial, time-consuming and at times elusive enquiries into such fortuitous factors before deciding on whether to acknowledge fundamental rights or not in the particular case. On the interpretation which I propose, none of these problems arise and none of these time-wasting enquiries should be necessary. That is not merely a consequence of the purposive and proportionate interpretation but an element of it. Even if the cases are relatively few, that is, they only potentially affect some tens of thousands of people, and in practice only relate to a few dozen people who have actually raised constitutional points, the impact can be quite severe. It could affect whether or not to impose the death sentence, corporal punishment and imprisonment for civil debt. It could involve a court convicting someone even though it had a reasonable doubt as to his or her guilt, and causing substantial injustice by denying counsel to an indigent person. Mahomed J has dealt trenchantly with these incongruities and injustices. I merely add that these are not hypothetical cases conjured up for the purposes of a classroom debate or a late night television programme. Each and every one of the above issues has come before this court. In each case we have been haunted - unnecessarily on my version - by section 241(8). In each case, the rights of an accused person in a profound way stood to be affected. In my view, the potential damage goes further. The narrow literal view [with its broad implications] of section 241(8) that divines its purpose from its words alone and effectively excludes the rest of the Constitution, underplays the symbolical importance that a decisive break with the past has for millions of people, and flattens the resonance for the public at large of the promise implicit in and the hope inspired by Chapter 3. Conclusion 60 \f[138]", "", "", "SACHS J There are circumstances of transition where a certain measure of incongruity and even injustice is inevitable. In the present case, however, the incongruity flows not from the nature of the process itself, as contemplated by the framers, but from the mode of interpretation, as adopted by sections of the judiciary. If one applies a strict literal test of section 241(8) on its own, and if one believes as Lord Halsbury did a century ago, that the lawmaker is an ideal person who never makes a mistake,37 then one might have no option but to accept that the framers actually intended the above consequences, in the sense of deliberately casting the linguistic net as wide as possible so as to cover all these situations. Even accepting the less idealized vision which I am sure the framers of today would have of themselves, there could, of course, be circumstances where the only correct interpretation would be that section 241(8) must be taken to override Chapter 3. These circumstances would include the situation where it is clear from the language and the context that the framers consciously adverted to and accepted such a necessity. If this drastic consequence was manifestly the inevitable price of avoiding judicial disruption, then I could accept that the framers contemplated it, made their calculation and, if the expression is not too undignified, bit the constitutional bullet. Yet it seems to me that there is no intrinsic reason why the functional objectives of avoiding unnecessary disruption to court proceedings cannot be harmonized with the fundamental rights of Chapter 3 and with the protective jurisdiction given to this court in Chapter 7. Put another way, there is no reason why the mischief of disruption to the administration of justice should not be countered without producing the counter-mischief of nullification of the principles that lie at the heart of the constitution.", "In reality, the language of section 241(8) is open-ended rather than compelling on this score. If the framers had intended a Constitution which in effect bit off its own leg, they would have developed a text that left no doubt of such a drastic intention.", "The issue in the present case cannot be reduced to one of deciding which interpretation gives rise to the greater or lesser number of anomalies. Rather, we must discern which 37 Income Tax Special Purposes Commissioner v Pemsel (1891) AC 531 at 549 61 \f[144] SACHS J produces anomalies most at variance with the character and design of the Constitution. In this respect, functional difficulties will count for far less than what I might call 'fundamental rights' anomalies. Practical problems can always be dealt with in a practical way. Rights are of a different order, and it is our duty to uphold them wherever possible. The approach I adopt therefore purposefully applies a restrictive interpretation to the further reaches of section 241(8) so as to: balance it against the specific rights guaranteed in Chapter 3; avoid incongruous results to which the framers had not adverted and which they could not reasonably be thought to have intended; obviate consequences that are not necessary for the achievement of the objective the provision was intended to serve; and express rather than go against the intent of the Constitution looked at as a whole. In relation to Chapter 3, my interpretation also involves a limitation, namely, to its reach in time, in the sense that it is not applied retrospectively to undermine the validity of proceedings up to 27 April 1994, or to negate rights which had already accrued at that date.", "More specifically, I find that a proper interpretation of section 241(8) in its constitutional context requires that the phrase 'shall be dealt with' must be construed as if it stated 'subject to the provisions of Chapter 3' and not as if it stated 'notwithstanding the provisions of Chapter 3'.", "In this way, the two sets of provisions are harmonized, and, if I might put it that way, David and Goliath refrain from mortal strife. 62 \fSACHS J CASE NO COUNSEL FOR APPLICANTS COUNSEL FOR RESPONDENTS : : : CCT/25/94 A E POTGIETER (PRO DEO) J W S DE VILLIERS J H DU PLESSIS I STRETCH INSTRUCTED BY : THE ATTORNEY GENERAL: NATAL 63"], "max_length_judgement_paras": 1440}, {"title": "S v Vermaas, S v Du Plessis (CCT1/94, CCT2/94) [1995] ZACC 5; 1995 (3) SA 292 ; 1995 (7) BCLR 851 (CC) (8 June 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/5.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-5.rtf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/5.rtf", "file_content": "CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nTHE STATE\nversus\nWESSEL ALBERTUS VERMAAS \nCase CCT 1/94\n\nTHE STATE\nversus\nJOHAN PETRUS LAFRAS DU PLESSIS \nCase CCT 2/94\n\nHeard on 28 February 1995\nDecided on 8 June 1995 \n\n\n\n \nJUDGMENT\n\nDIDCOTT J:\n\n[1] \n A question that came to the fore in recent years, sparking a lively controversy in our law, was whether persons standing trial on criminal charges who could not afford to pay for their legal representation were entitled to be provided with it at public expense once its lack amounted to a handicap so great that to try them on their own lay beyond the pale of justice. The controversy, one marked by such cases as S v Khanyile and Another 1988(3)SA 795(N), S v Davids; S v Dladla 1989(4)SA 172(N) and S v Rudman and Another; S v Mthwana 1992(1)SA 343(A), has been settled decisively by our new Constitution (Act 200 of 1993), section 25(3)(e) of which declares that :\n \nPg. 2/\"Every ......\n \nPage 2\n\n\n\n\"Every accused person shall have the right to a fair trial, which shall include the right .... to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights\".\n\n[2] \n We now have before us for simultaneous adjudication the cases of Vermaas and \nDu Plessis, where the right thus proclaimed has been invoked in circumstances rather different from those that were generally envisaged while the controversy lasted and we might have expected to encounter when such a matter first appeared on our agenda. For a trial of huge dimensions is a feature of each case, exacerbating the difficulties of both providing legal representation and proceeding with none.\n\n[3] \n The two cases emanate from the Transvaal Provincial Division of the Supreme \n Court. Both trials are already in progress there, that of Vermaas before Kirk-Cohen J and the one of Du Plessis before Hartzenberg J. Vermaas faces 140 charges, some of theft, many of fraud and the rest laid under fiscal or commercial legislation. Du Plessis is alleged to have committed 63 offences, fraud on 62 counts and corruption on one. To every charge they each pleaded not guilty.\n\n[4] \n The trial of Vermaas commenced in August 1991 and, after its interruption by \nnumerous adjournments, reached the stage during March 1994 at which the testimony on both sides and the arguments of the prosecuting team had been completed. It was then adjourned once more so that Vermaas might prepare the argument which he proposed to advance in his\nPg. 3/defence....\n\nPage 3\n\n\ndefence. By then no lawyer appeared for him. A series of advocates had done so at most earlier phases of the trial, but they had either withdrawn or been dismissed from it in turn because of problems that had arisen, mainly financial. The proceedings were resumed in May 1994, when Vermaas started addressing the court on a record of the oral evidence presented and the documentary exhibits produced which amounted in bulk to about 40 000 pages. Changing tack, however, he applied during June 1994 for an order directing that throughout the remainder of the trial he be furnished with legal representation at the cost of the state. Kirk-Cohen J dealt with the application in a judgment that was delivered on 14 June 1994 and has been reported under the heading of S v Vermaas 1994(4)BCLR 18(T).\n\n[5] \n The trial of Du Plessis got under way during June 1993. It was also adjourned \nfrom time to time, and has not gone very far. The only testimony already adduced consists of some taken overseas on commission and that elicited from a number of witnesses for the prosecution whose evidence-in-chief was led locally but who have not yet been cross-examined. The services of successive advocates were obtained by Du Plessis too and, through a shortage of funds, likewise lost. So in May 1994 he sought the same order as the one that Vermaas requested soon afterwards, claiming in addition the right to choose the particular lawyer whom he wanted the state to procure for him. The outcome was a judgment delivered by Hartzenberg J on 19 May 1994, which has been reported as well and, owing to the presence in the case of a co-accused, is cited as S v Lombard en 'n Ander 1994(3)SA 776(T); 1994(2) SACR 104(T).\nPg. 4/ Each....\n\nPage 4\n\n[6] \n Each trial started well before the Constitution came into operation on 27 April \n1994. Whether section 25(3)(e) governed its future conduct in that situation was a question which had to be considered prior to the merits of either application. The issue arose because section 241(8) decreed that :\n\n\"All proceedings which immediately before the commencement of this Constitution were pending before any court of law ...., exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed ....\"\n\nBoth judges thought that the question should be answered in the negative. To obtain certainty on the point, however, they referred the issue to us, together with the merits in the event of our taking the opposite view. For the time being the trials were adjourned again.\n\n[7] \n A further question, and a preliminary one, confronted us when the cases were\nargued here. It was whether the referrals had been, in themselves, constitutionally competent. Section 102(1) stipulates that :\n\n\"If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall\nPg. 5/hear....\nPage 5\n\n\nhear such evidence and make a finding thereon, before referring the matter to the Constitutional Court.\"\n\n Section 102(2) follows, going thus :\n\n\"If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitutional Court in terms of sub-section (1), the provincial or local division shall, if it refers the relevant issue to the Constitutional Court, suspend the proceedings before it, pending the decision of the Constitutional Court.\"\n\nNone of the referred issues fell within our exclusive jurisdiction. So section 102(1) did not authorise the referrals that occurred. They purported to have been ordered under section 102(2), however, which each judge construed in such a way that it provided for a scheme of referrals distinct from and additional to the one sanctioned by section 102(1), a scheme allowing him in the middle of the trial to seek from us a ruling on a point that he was empowered to decide for himself.\n\n[8] \n No reasons for that interpretation were furnished in either of the judgments \ndelivered at the time, the reported ones which I mentioned a moment ago. It seems on both occasions to have been regarded as a construction that spoke for itself. Marais J criticised it trenchantly in S v Coetzee and Others 1994(4) BCLR 58(W) (at 64E - 67A); 1994(2) SACR 791(W) (at 798b - 800h). Hartzenberg J responded to the criticism in S v Lombard 1994(3) BCLR 126(T) (at 134C - 135F). Kirk-Cohen J and he then explained their reasoning in detailed\nPg. 6/expositions....\n\nPage 6\n\n expositions of it which they kindly let us have at the request of Chaskalson P.\n\n[9] \n Such reasoning, to summarise it, went like this. Sub-sections (1) and (2) of section 102 both differentiated between a \"matter\" and an \"issue\". The choice of those words was not fortuitous. The wording drew a deliberate distinction between an entire case, called the \"matter\", and a specific question arising in it, which was labelled as the \"issue\". Sub-section (1) provided for the referral to us of no limited \"issue\", but of the \"matter\" and accordingly of the case as a whole. No portion or aspect of it remained in the provincial or local division after the referral. So nothing had to be suspended there, and that accounted for the silence of the sub-section on the point. The \"matter\" or its residue would return later to the provincial or local division, if and when we remitted it to its initial forum. Sub-section (2), by comparison, dealt with the referral of a particular \"issue\" alone. The rest of the \"matter\" was left lying before the provincial or local division. The suspension of the proceedings there thus became necessary. The \"issue\" so referred, the one identified as \"the relevant issue\", was not any \"issue referred to the Constitutional Court in terms of sub-section (1)\", but some \"issue other than\" that, and therefore an \"issue other than\" the kind which lay within our exclusive jurisdiction. So much was demonstrated by the part going \"if it refers the relevant issue to the Constitutional Court\". The use there of the word \"if\", rather than \"when\", was apt in relation only to a referral which might or might not eventuate, at the discretion of the provincial or local division. None ordered under sub-section (1) could have been contemplated, since every such referral became compulsory once the provincial or local division found it to be in the interests of justice. Nor did \"if\" fit the bill of a referral predicated already. It introduced the hypothesis of one that had yet\nPg. 7/to....\n\nPage 7\n\nto be considered. The reasoning that I have outlined, I should add in parenthesis, is not attributable in all respects to each of the two judges. It serves well enough, I hope however, as a composite paraphrase of their individual views.\n\n[10] \n My comments on all that are these. Too much was read, I believe, into the \nnuances of a \"matter\" on the one hand and an \"issue\" on the other. Nor is the usage of those words in section 102 quite as uniform or consistent as it was apparently thought to be. One notices that the \"matter\" referred for decision under sub-section (1) is called an \"issue\" in the proviso to it, and that sub-section (2) describes the subject of a referral in terms of sub-section (1) as an \"issue\" instead of a \"matter\". There at least, so it seems, the words are used synonymously and interchangeably. Nothing could emerge with greater clarity from sub-section (1) in any event, and however fastidiously it is analysed, than this. What we have to decide on a referral ordered under the sub-section is a specific \"issue\" falling within our exclusive jurisdiction which has arisen in the \"matter\" so referred, and not the \"matter\" in its entirety. To solicit a decision on an \"issue\" of that sort is the very purpose of any such referral, after all, and the only one. The sub-section recognises the restricted ambit of the enquiry when it directs the referring court to hear and make findings on any evidence needed \"for the purposes of deciding such issue\". The restriction stands to reason, furthermore, once one reminds oneself that the \"matter\" as a whole will frequently, indeed usually, raise other questions too that lie outside our province, those questions of fact and of general law on which the last word rests not with us but with the Appellate Division. I therefore consider that we must construe the word \"matter\", where it appears for the second time in sub-section (1), as if its place had been taken by\nPg. 8/\"issue\"....\n\nPage 8\n\n\"issue\", a notional substitution which is not out of tune with the text since a \"matter\" in its ordinary sense often denotes an \"issue\" and lends itself readily to that construction in a context suitable for such. Turning to sub-section (2), I express next my firm disagreement with the meaning ascribed to \"the relevant issue\". That \"issue\", as I read the wording in what appeals to me as the natural way, is the particular one \"referred to the Constitutional Court in terms of sub-section (1)\", not a separate and different \"issue\" arising in the \"matter\". I accept that, if I am right there, the sub-section would have been improved by the use of \"when\", rather than \"if\", at the start of the clause alluding to \"the relevant issue\". To set great store by the chosen word sounds, however, somewhat pedantic. The choice may safely be dismissed as a mere repetition, inappropriate perhaps, of the conditional phraseology employed in sub-section (1).\n\n[11] \n Some further observations of mine concern not so much the wording contained \nin section 102 as several omissions from it. One would have expected to find three material provisions in sub-section (2), had it really been intended to establish its own system of referrals apart from and in addition to those ordained by sub-section (1). All three provisions are absent. Sub-section (2) lacks, in the first place, a clear empowerment of the provincial or local division to order such extra referrals, an empowerment produced explicitly like the one seen in sub-section (1), not left to be engendered by a process of dubious implication. The second omission is this. Sub-section (2) sets no test for the exercise of the power, either along the lines prescribed by sub-section (1) when it mentions the potential decisiveness of the point and the interests of justice or by the adoption of some other criterion or criteria. Nor, in the third place, does sub-section (2) echo the proviso to sub-section (1) by catering for evidence and findings on questions\nPg. 9/of....\n\nPage 9\n\nof fact. No less telling is a fourth omission, this time from sub-section (1) if my treatment of its text holds good. Directions which the sub-section does not contain are then needed, directions corresponding to those given in sub-section (2) for the suspension in the meantime of the proceedings before the provincial or local division.\n\n[12] \n I accordingly conclude that sub-section (2) of section 102 does not in itself \nprovide for any referrals. It merely supplements sub-section (1) by regulating the procedure which the provincial or local division must follow in ordering a referral under that sub-section. The result is that no issue which the division has the power to decide may properly be referred to us while the litigation raising it remains in progress there. The judge hearing the case must determine the issue for himself or herself. It may be presented to us on appeal, should it fall within our field, when the litigation has ended in the court below. Or, in the special situation covered by section 102(8), the judge may refer it to us after disposing of the case. The referrals now before us were therefore, in my opinion, incompetent.\n\n[13] \n The conclusion thus reached, we were warned in argument, would sometimes \nhave unfortunate results. A long and complicated trial might be vitiated in the end by an infringement of the Constitution that was first rated as such on appeal. All the time, effort and money expended on it would then turn out to have been wasted. The wastage could be avoided by seeking an authoritative ruling on the point as soon as the need for that became apparent, and by obtaining one while the opportunity still existed to comply with it or to repair any damage done in its absence. Such a course was opened by the construction which Kirk-Cohen J and\nPg. 10/Hartzenberg....\nPage 10\n\nHartzenberg J had placed on section 102(2). The answer, I believe, is this. The solution to the problem posed does not depend on that construction. It lies in rule 17(1) of our rules which was promulgated under section 100(2), a section stating that :\n\n\"The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction.\"\n\nAlluding to the Constitutional Court simply as \"the Court\", rule 17(1) then provides that :\n\n\"The Court shall allow direct access in terms of section 100(2) of the Constitution in exceptional circumstances only, which will ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government.\"\n\nThat, though framed narrowly, sounds like a formulation general enough to cater in appropriate circumstances for a situation of the sort postulated by counsel. True it is that, in contrast with a referral by the trial court, direct access has to be requested by a party to the proceedings. It seems to be a mechanism no less effective, however, on that account. The advantages of piecemeal adjudication, once they look strong in any given trial, will surely strike the parties, or one side at least, with a force equal to that felt by the judge. In a heavy criminal matter, for instance, the prosecution will be no more eager than he or she to run the risk of an abortive trial, and the defence no less anxious about its financial toll. Nor, even so early in the\nPg. 11/operation....\n\nPage 11\noperation of rule 17(1), is recourse to it unprecedented in a state of affairs comparable with the one that has now developed. I have in mind S v Zuma and Others 1995(4) BCLR 401(SA), where an application for direct access was made and granted so that an issue wrongly referred to us might nevertheless, and in the interests of justice, be determined here at once. Paragraph [11] of the judgment which Kentridge AJ wrote in that case explains why, and describes the special circumstances in which, direct access happened then to be allowed. The decision was not intended, I emphasise, to encourage a resort to rule 17(1) in any setting but the truly exceptional kind mentioned there. Worth repeating in that regard are some remarks passed by Kentridge AJ in paragraph [11] of another judgment that he has prepared, the judgment written in S v Mhlungu and Others which will be delivered simultaneously with this one. They have to do with referrals, but are no less pertinent to applications for direct access. What Kentridge AJ said on that occasion, which I underline because of its important bearing on constitutional litigation, was this:\n\n\"Where the case is not likely to be of long duration it may be in the interests of justice to hear all the evidence or as much of it as possible before considering a referral. Interrupting and delaying a trial, and above all a criminal trial, is in itself undesirable, especially if it means that witnesses have to be brought back after a break of several months. Moreover, once the evidence in the case is heard it may turn out that the constitutional issue is not after all decisive. I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.\"\n\n[14] \n In neither of the present matters was direct access sought in case the referrals were ruled out of order. How we would have reacted to such a request on this occasion, and in its\nPg. 12/circumstances....\n\nPage 12\n\ncircumstances, is a question that calls for no answer. The question is by the way, in any event, since the earlier uncertainty about the effect of section 241(8) will not be perpetuated by the failure to present us properly with that issue in these particular cases. It has now been dispelled by the definite and definitive interpretation given to the section in S v Mhlungu and Others, the one favoured by the majority of this Court. According to that, it transpires, Kirk-Cohen J and Hartzenberg J erred in believing the future conduct of their trials to be untouched by section 25(3)(e).\n \n[15] \n That outcome shifts the spotlight onto the other issue put to us, the question whether Vermaas and Du Plessis were, or either of them was, now entitled on the strength of section 25(3)(e) to obtain legal representation at the cost of the state. There too, in my opinion, no answer should be ventured by us. I say that because, besides the incompetence of the referrals, we are ill equipped for the factual findings and assessments which the enquiry entails. Such a decision is pre-eminently one for the judge trying the case, a judge much better placed than we are by and large to appraise, usually in advance, its ramifications and their complexity or simplicity, the accused person's aptitude or ineptitude to fend for himself or herself in a matter of those dimensions, how grave the consequences of a conviction may look, and any other factor that needs to be evaluated in the determination of the likelihood or unlikelihood that, if the trial were to proceed without a lawyer for the defence, the result would be \"substantial injustice\". Kirk-Cohen J expressed some scepticism about the inability of Vermaas to present unaided an adequate argument at the end of his trial, observing that he was an attorney by profession who had displayed\nPg. 13/a....\n\nPage 13\na lively interest and taken an active part in the earlier management of his defence, while Hartzenberg J commented in passing on the personal position of Du Plessis. No firm or final conclusion appears to have been reached in either case, however, on the merits of the claim lodged under section 25(3)(e) if that turned out not to be hit by section 241(8). Kirk-Cohen J and Hartzenberg J will now have to consider the topic more fully and dispose of it one way or the other. A single point has already been decided by Hartzenberg J in that connection, which concerns the right claimed by Du Plessis to pick the lawyer appointed for him. Hartzenberg J held that no such right was derived from section 25(3)(e) when the state supplied the lawyer's services. That is certainly so. The effect of the disjunctive \"or\", appearing in the section immediately before the reference to the prospect of \"substantial injustice\", is to differentiate clearly between two situations, the first where the accused person makes his or her own arrangements for the representation that must be allowed, the second in which the assistance of the state becomes imperative, and to cater for the personal choice of a lawyer in the first one alone.\n\n[16] \n A word or two had better be added, as I draw to a close, on a subject of public importance which prompted some discussion when the present cases were argued. No counsel on either side could then tell us of any steps taken yet to establish the financial and administrative structures that were necessary to give effect to the part of section 25(3)(e) providing for legal representation at the expense of the state. We gained the impression that nothing of much significance had been done in that direction since the Constitution came into force a year ago. The impression, if true, is most disturbing. We are mindful of the multifarious demands on the public purse and the machinery of government that flow from the urgent need for economic\nPg. 14/and....\n\nPage 14\n\nand social reform. But the Constitution does not envisage, and it will surely not brook, an undue delay in the fulfilment of any promise made by it about a fundamental right. One can safely assume that, in spite of section 25(3)(e), the situation still prevails where during every month countless thousands of South Africans are criminally tried without legal representation because they are too poor to pay for it. They are presumably informed in the beginning, as the section requires them peremptorily to be, of their right to obtain that free of charge in the circumstances which it defines. Imparting such information becomes an empty gesture and makes a mockery of the Constitution, however, if it is not backed by mechanisms that are adequate for the enforcement of the right.\n\n[17] \n The cases of Vermaas and Du Plessis are both remitted to the Transvaal Provincial Division so that their trials may be resumed and completed there.\n\n\n\nChaskalson P, Ackermann J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, \nMokgoro J, ORegan J and Sachs J all concur in the judgment of Didcott J.\n\n\nCounsel for Vermaas \n \n: \n \nC R Jansen and D Unterhalter\nCounsel for Du Plessis \n: \n \nS C Jacobs\nCounsel for the State \n \n: \n \nJ A Swanepoel SC, D F de Beer SC, \nS C Jordaan and W H Moore\n\n"}, "id": "6536dd3b-ed98-40a6-84bc-6f50de34a861", "update_date": "2021-03-15 17:08:56.815479", "year": "1995", "judgement_paragraphs": ["CONSTITUTIONAL COURT OF SOUTH AFRICA THE STATE versus WESSEL ALBERTUS VERMAAS Case CCT 1/94 THE STATE versus JOHAN PETRUS LAFRAS DU PLESSIS Case CCT 2/94 Heard on 28 February 1995 Decided on 8 June 1995 JUDGMENT DIDCOTT J:", "A question that came to the fore in recent years, sparking a lively controversy in our law, was whether persons standing trial on criminal charges who could not afford to pay for their legal representation were entitled to be provided with it at public expense once its lack amounted to a handicap so great that to try them on their own lay beyond the pale of justice. The controversy, one marked by such cases as S v Khanyile and Another 1988(3)SA 795(N), S v Davids; S v Dladla 1989(4)SA 172(N) and S v Rudman and Another; S v Mthwana 1992(1)SA 343(A), has been settled decisively by our new Constitution (Act 200 of 1993), section 25(3)(e) of which declares that : Pg. 2/\"Every ...... Page 2 \"Every accused person shall have the right to a fair trial, which shall include the right .... to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights\".", "We now have before us for simultaneous adjudication the cases of Vermaas and Du Plessis, where the right thus proclaimed has been invoked in circumstances rather different from those that were generally envisaged while the controversy lasted and we might have expected to encounter when such a matter first appeared on our agenda. For a trial of huge dimensions is a feature of each case, exacerbating the difficulties of both providing legal representation and proceeding with none.", "The two cases emanate from the Transvaal Provincial Division of the Supreme Court. Both trials are already in progress there, that of Vermaas before Kirk-Cohen J and the one of Du Plessis before Hartzenberg J. Vermaas faces 140 charges, some of theft, many of fraud and the rest laid under fiscal or commercial legislation. Du Plessis is alleged to have committed 63 offences, fraud on 62 counts and corruption on one. To every charge they each pleaded not guilty.", "The trial of Vermaas commenced in August 1991 and, after its interruption by numerous adjournments, reached the stage during March 1994 at which the testimony on both sides and the arguments of the prosecuting team had been completed. It was then adjourned once more so that Vermaas might prepare the argument which he proposed to advance in his Pg. 3/defence.... Page 3 defence. By then no lawyer appeared for him. A series of advocates had done so at most earlier phases of the trial, but they had either withdrawn or been dismissed from it in turn because of problems that had arisen, mainly financial. The proceedings were resumed in May 1994, when Vermaas started addressing the court on a record of the oral evidence presented and the documentary exhibits produced which amounted in bulk to about 40 000 pages. Changing tack, however, he applied during June 1994 for an order directing that throughout the remainder of the trial he be furnished with legal representation at the cost of the state. Kirk-Cohen J dealt with the application in a judgment that was delivered on 14 June 1994 and has been reported under the heading of S v Vermaas 1994(4)BCLR 18(T).", "The trial of Du Plessis got under way during June 1993. It was also adjourned from time to time, and has not gone very far. The only testimony already adduced consists of some taken overseas on commission and that elicited from a number of witnesses for the prosecution whose evidence-in-chief was led locally but who have not yet been cross-examined. The services of successive advocates were obtained by Du Plessis too and, through a shortage of funds, likewise lost. So in May 1994 he sought the same order as the one that Vermaas requested soon afterwards, claiming in addition the right to choose the particular lawyer whom he wanted the state to procure for him. The outcome was a judgment delivered by Hartzenberg J on 19 May 1994, which has been reported as well and, owing to the presence in the case of a co-accused, is cited as S v Lombard en 'n Ander 1994(3)SA 776(T); 1994(2) SACR 104(T). Pg. 4/ Each.... Page 4", "Each trial started well before the Constitution came into operation on 27 April 1994. Whether section 25(3)(e) governed its future conduct in that situation was a question which had to be considered prior to the merits of either application. The issue arose because section 241(8) decreed that : \"All proceedings which immediately before the commencement of this Constitution were pending before any court of law ...., exercising jurisdiction in accordance with the law then in force, shall be dealt with as if this Constitution had not been passed ....\" Both judges thought that the question should be answered in the negative. To obtain certainty on the point, however, they referred the issue to us, together with the merits in the event of our taking the opposite view. For the time being the trials were adjourned again.", "A further question, and a preliminary one, confronted us when the cases were argued here. It was whether the referrals had been, in themselves, constitutionally competent. Section 102(1) stipulates that : \"If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall Pg. 5/hear.... Page 5 hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court.\" Section 102(2) follows, going thus : \"If, in any matter before a local or provincial division, there is any issue other than an issue referred to the Constitutional Court in terms of sub-section (1), the provincial or local division shall, if it refers the relevant issue to the Constitutional Court, suspend the proceedings before it, pending the decision of the Constitutional Court.\" None of the referred issues fell within our exclusive jurisdiction. So section 102(1) did not authorise the referrals that occurred. They purported to have been ordered under section 102(2), however, which each judge construed in such a way that it provided for a scheme of referrals distinct from and additional to the one sanctioned by section 102(1), a scheme allowing him in the middle of the trial to seek from us a ruling on a point that he was empowered to decide for himself.", "No reasons for that interpretation were furnished in either of the judgments delivered at the time, the reported ones which I mentioned a moment ago. It seems on both occasions to have been regarded as a construction that spoke for itself. Marais J criticised it trenchantly in S v Coetzee and Others 1994(4) BCLR 58(W) (at 64E - 67A); 1994(2) SACR 791(W) (at 798b - 800h). Hartzenberg J responded to the criticism in S v Lombard 1994(3) BCLR 126(T) (at 134C - 135F). Kirk-Cohen J and he then explained their reasoning in detailed Pg. 6/expositions.... Page 6 expositions of it which they kindly let us have at the request of Chaskalson P.", "Such reasoning, to summarise it, went like this. Sub-sections (1) and (2) of section 102 both differentiated between a \"matter\" and an \"issue\". The choice of those words was not fortuitous. The wording drew a deliberate distinction between an entire case, called the \"matter\", and a specific question arising in it, which was labelled as the \"issue\". Sub-section (1) provided for the referral to us of no limited \"issue\", but of the \"matter\" and accordingly of the case as a whole. No portion or aspect of it remained in the provincial or local division after the referral. So nothing had to be suspended there, and that accounted for the silence of the sub-section on the point. The \"matter\" or its residue would return later to the provincial or local division, if and when we remitted it to its initial forum. Sub-section (2), by comparison, dealt with the referral of a particular \"issue\" alone. The rest of the \"matter\" was left lying before the provincial or local division. The suspension of the proceedings there thus became necessary. The \"issue\" so referred, the one identified as \"the relevant issue\", was not any \"issue referred to the Constitutional Court in terms of sub-section (1)\", but some \"issue other than\" that, and therefore an \"issue other than\" the kind which lay within our exclusive jurisdiction. So much was demonstrated by the part going \"if it refers the relevant issue to the Constitutional Court\". The use there of the word \"if\", rather than \"when\", was apt in relation only to a referral which might or might not eventuate, at the discretion of the provincial or local division. None ordered under sub-section (1) could have been contemplated, since every such referral became compulsory once the provincial or local division found it to be in the interests of justice. Nor did \"if\" fit the bill of a referral predicated already. It introduced the hypothesis of one that had yet Pg. 7/to.... Page 7 to be considered. The reasoning that I have outlined, I should add in parenthesis, is not attributable in all respects to each of the two judges. It serves well enough, I hope however, as a composite paraphrase of their individual views.", "My comments on all that are these. Too much was read, I believe, into the nuances of a \"matter\" on the one hand and an \"issue\" on the other. Nor is the usage of those words in section 102 quite as uniform or consistent as it was apparently thought to be. One notices that the \"matter\" referred for decision under sub-section (1) is called an \"issue\" in the proviso to it, and that sub-section (2) describes the subject of a referral in terms of sub-section (1) as an \"issue\" instead of a \"matter\". There at least, so it seems, the words are used synonymously and interchangeably. Nothing could emerge with greater clarity from sub-section (1) in any event, and however fastidiously it is analysed, than this. What we have to decide on a referral ordered under the sub-section is a specific \"issue\" falling within our exclusive jurisdiction which has arisen in the \"matter\" so referred, and not the \"matter\" in its entirety. To solicit a decision on an \"issue\" of that sort is the very purpose of any such referral, after all, and the only one. The sub-section recognises the restricted ambit of the enquiry when it directs the referring court to hear and make findings on any evidence needed \"for the purposes of deciding such issue\". The restriction stands to reason, furthermore, once one reminds oneself that the \"matter\" as a whole will frequently, indeed usually, raise other questions too that lie outside our province, those questions of fact and of general law on which the last word rests not with us but with the Appellate Division. I therefore consider that we must construe the word \"matter\", where it appears for the second time in sub-section (1), as if its place had been taken by Pg. 8/\"issue\".... Page 8 \"issue\", a notional substitution which is not out of tune with the text since a \"matter\" in its ordinary sense often denotes an \"issue\" and lends itself readily to that construction in a context suitable for such. Turning to sub-section (2), I express next my firm disagreement with the meaning ascribed to \"the relevant issue\". That \"issue\", as I read the wording in what appeals to me as the natural way, is the particular one \"referred to the Constitutional Court in terms of sub-section (1)\", not a separate and different \"issue\" arising in the \"matter\". I accept that, if I am right there, the sub-section would have been improved by the use of \"when\", rather than \"if\", at the start of the clause alluding to \"the relevant issue\". To set great store by the chosen word sounds, however, somewhat pedantic. The choice may safely be dismissed as a mere repetition, inappropriate perhaps, of the conditional phraseology employed in sub-section (1).", "Some further observations of mine concern not so much the wording contained in section 102 as several omissions from it. One would have expected to find three material provisions in sub-section (2), had it really been intended to establish its own system of referrals apart from and in addition to those ordained by sub-section (1). All three provisions are absent. Sub-section (2) lacks, in the first place, a clear empowerment of the provincial or local division to order such extra referrals, an empowerment produced explicitly like the one seen in sub-section (1), not left to be engendered by a process of dubious implication. The second omission is this. Sub-section (2) sets no test for the exercise of the power, either along the lines prescribed by sub-section (1) when it mentions the potential decisiveness of the point and the interests of justice or by the adoption of some other criterion or criteria. Nor, in the third place, does sub-section (2) echo the proviso to sub-section (1) by catering for evidence and findings on questions Pg. 9/of.... Page 9 of fact. No less telling is a fourth omission, this time from sub-section (1) if my treatment of its text holds good. Directions which the sub-section does not contain are then needed, directions corresponding to those given in sub-section (2) for the suspension in the meantime of the proceedings before the provincial or local division.", "I accordingly conclude that sub-section (2) of section 102 does not in itself provide for any referrals. It merely supplements sub-section (1) by regulating the procedure which the provincial or local division must follow in ordering a referral under that sub-section. The result is that no issue which the division has the power to decide may properly be referred to us while the litigation raising it remains in progress there. The judge hearing the case must determine the issue for himself or herself. It may be presented to us on appeal, should it fall within our field, when the litigation has ended in the court below. Or, in the special situation covered by section 102(8), the judge may refer it to us after disposing of the case. The referrals now before us were therefore, in my opinion, incompetent.", "The conclusion thus reached, we were warned in argument, would sometimes have unfortunate results. A long and complicated trial might be vitiated in the end by an infringement of the Constitution that was first rated as such on appeal. All the time, effort and money expended on it would then turn out to have been wasted. The wastage could be avoided by seeking an authoritative ruling on the point as soon as the need for that became apparent, and by obtaining one while the opportunity still existed to comply with it or to repair any damage done in its absence. Such a course was opened by the construction which Kirk-Cohen J and Pg. 10/Hartzenberg.... Page 10 Hartzenberg J had placed on section 102(2). The answer, I believe, is this. The solution to the problem posed does not depend on that construction. It lies in rule 17(1) of our rules which was promulgated under section 100(2), a section stating that : \"The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction.\" Alluding to the Constitutional Court simply as \"the Court\", rule 17(1) then provides that : \"The Court shall allow direct access in terms of section 100(2) of the Constitution in exceptional circumstances only, which will ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government.\" That, though framed narrowly, sounds like a formulation general enough to cater in appropriate circumstances for a situation of the sort postulated by counsel. True it is that, in contrast with a referral by the trial court, direct access has to be requested by a party to the proceedings. It seems to be a mechanism no less effective, however, on that account. The advantages of piecemeal adjudication, once they look strong in any given trial, will surely strike the parties, or one side at least, with a force equal to that felt by the judge. In a heavy criminal matter, for instance, the prosecution will be no more eager than he or she to run the risk of an abortive trial, and the defence no less anxious about its financial toll. Nor, even so early in the Pg. 11/operation.... Page 11 operation of rule 17(1), is recourse to it unprecedented in a state of affairs comparable with the one that has now developed. I have in mind S v Zuma and Others 1995(4) BCLR 401(SA), where an application for direct access was made and granted so that an issue wrongly referred to us might nevertheless, and in the interests of justice, be determined here at once. Paragraph [11] of the judgment which Kentridge AJ wrote in that case explains why, and describes the special circumstances in which, direct access happened then to be allowed. The decision was not intended, I emphasise, to encourage a resort to rule 17(1) in any setting but the truly exceptional kind mentioned there. Worth repeating in that regard are some remarks passed by Kentridge AJ in paragraph [11] of another judgment that he has prepared, the judgment written in S v Mhlungu and Others which will be delivered simultaneously with this one. They have to do with referrals, but are no less pertinent to applications for direct access. What Kentridge AJ said on that occasion, which I underline because of its important bearing on constitutional litigation, was this: \"Where the case is not likely to be of long duration it may be in the interests of justice to hear all the evidence or as much of it as possible before considering a referral. Interrupting and delaying a trial, and above all a criminal trial, is in itself undesirable, especially if it means that witnesses have to be brought back after a break of several months. Moreover, once the evidence in the case is heard it may turn out that the constitutional issue is not after all decisive. I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.\"", "In neither of the present matters was direct access sought in case the referrals were ruled out of order. How we would have reacted to such a request on this occasion, and in its Pg. 12/circumstances.... Page 12 circumstances, is a question that calls for no answer. The question is by the way, in any event, since the earlier uncertainty about the effect of section 241(8) will not be perpetuated by the failure to present us properly with that issue in these particular cases. It has now been dispelled by the definite and definitive interpretation given to the section in S v Mhlungu and Others, the one favoured by the majority of this Court. According to that, it transpires, Kirk-Cohen J and Hartzenberg J erred in believing the future conduct of their trials to be untouched by section 25(3)(e). [15] That outcome shifts the spotlight onto the other issue put to us, the question whether Vermaas and Du Plessis were, or either of them was, now entitled on the strength of section 25(3)(e) to obtain legal representation at the cost of the state. There too, in my opinion, no answer should be ventured by us. I say that because, besides the incompetence of the referrals, we are ill equipped for the factual findings and assessments which the enquiry entails. Such a decision is pre-eminently one for the judge trying the case, a judge much better placed than we are by and large to appraise, usually in advance, its ramifications and their complexity or simplicity, the accused person's aptitude or ineptitude to fend for himself or herself in a matter of those dimensions, how grave the consequences of a conviction may look, and any other factor that needs to be evaluated in the determination of the likelihood or unlikelihood that, if the trial were to proceed without a lawyer for the defence, the result would be \"substantial injustice\". Kirk-Cohen J expressed some scepticism about the inability of Vermaas to present unaided an adequate argument at the end of his trial, observing that he was an attorney by profession who had displayed Pg. 13/a.... Page 13 a lively interest and taken an active part in the earlier management of his defence, while Hartzenberg J commented in passing on the personal position of Du Plessis. No firm or final conclusion appears to have been reached in either case, however, on the merits of the claim lodged under section 25(3)(e) if that turned out not to be hit by section 241(8). Kirk-Cohen J and Hartzenberg J will now have to consider the topic more fully and dispose of it one way or the other. A single point has already been decided by Hartzenberg J in that connection, which concerns the right claimed by Du Plessis to pick the lawyer appointed for him. Hartzenberg J held that no such right was derived from section 25(3)(e) when the state supplied the lawyer's services. That is certainly so. The effect of the disjunctive \"or\", appearing in the section immediately before the reference to the prospect of \"substantial injustice\", is to differentiate clearly between two situations, the first where the accused person makes his or her own arrangements for the representation that must be allowed, the second in which the assistance of the state becomes imperative, and to cater for the personal choice of a lawyer in the first one alone.", "A word or two had better be added, as I draw to a close, on a subject of public importance which prompted some discussion when the present cases were argued. No counsel on either side could then tell us of any steps taken yet to establish the financial and administrative structures that were necessary to give effect to the part of section 25(3)(e) providing for legal representation at the expense of the state. We gained the impression that nothing of much significance had been done in that direction since the Constitution came into force a year ago. The impression, if true, is most disturbing. We are mindful of the multifarious demands on the public purse and the machinery of government that flow from the urgent need for economic Pg. 14/and.... Page 14 and social reform. But the Constitution does not envisage, and it will surely not brook, an undue delay in the fulfilment of any promise made by it about a fundamental right. One can safely assume that, in spite of section 25(3)(e), the situation still prevails where during every month countless thousands of South Africans are criminally tried without legal representation because they are too poor to pay for it. They are presumably informed in the beginning, as the section requires them peremptorily to be, of their right to obtain that free of charge in the circumstances which it defines. Imparting such information becomes an empty gesture and makes a mockery of the Constitution, however, if it is not backed by mechanisms that are adequate for the enforcement of the right.", "The cases of Vermaas and Du Plessis are both remitted to the Transvaal Provincial Division so that their trials may be resumed and completed there. Chaskalson P, Ackermann J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mahomed J, Mokgoro J, ORegan J and Sachs J all concur in the judgment of Didcott J. Counsel for Vermaas : C R Jansen and D Unterhalter Counsel for Du Plessis : S C Jacobs Counsel for the State : J A Swanepoel SC, D F de Beer SC, S C Jordaan and W H Moore"], "max_length_judgement_paras": 727}, {"title": "S v Williams and Others (CCT20/94) [1995] ZACC 6; 1995 (3) SA 632 ; 1995 (7) BCLR 861 (CC) (9 June 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/6.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-6.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/6.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nCASE NO: CCT/20/94\n\nIn the matter of :\n\nTHE STATE\n\nversus\n\nHENRY WILLIAMS\nJONATHAN KOOPMAN\nTOMMY MAMPA\nGARETH PAPIER\nJACOBUS GOLIATH\nSAMUEL WITBOOI\n\nHEARD ON\n\nDELIVERED ON\n\n24 MARCH 1995\n\n9 JUNE 1995\n\n LANGA, J:\n\n JUDGMENT\n\n[1]\n\nThis matter has been referred to this Court by the Full Bench of the Cape of Good Hope\n\nProvincial Division of the Supreme Court (Conradie, Scott and Farlam JJ). It is a\n\nconsolidation of five different cases in which six juveniles were convicted by different\n\nmagistrates and sentenced to receive a \"moderate correction\" of a number of strokes with\n\na light cane. The issue is whether the sentence of juvenile whipping, pursuant to the\n\nprovisions of section 294 of the Criminal Procedure Act,1 is consistent with the provisions\n\nof the Constitution.2 \n\n[2]\n\nMr. Bozalek appeared with Mr. Hathorn as amicus curiae on behalf of the accused; they\n\nwere assisted by the Legal Resources Centre's Cape Town office. We are indebted to both\n\nCounsel and to the Legal Resources Centre. Before the date of the hearing, the President\n\nof this Court was advised by the Attorney General of the Cape of Good Hope Provincial\n\n 1 Act No. 51 of 1977 (as amended). For convenience this will be referred to simply as \"the Act.\u201d \n\n 2 Act No. 200 of 1993 (as amended). For convenience, this will henceforth be referred to simply as \"the\nConstitution.\"\n\n\f2\n\nDivision that he wished to withdraw the argument which had been filed on his behalf (and\n\non behalf of the State) as he shared the view that the provisions relating to corporal\n\npunishment in section 294 of the Act were unconstitutional. Mr. Slabbert, who is a\n\nmember of the Attorney General's staff, however agreed to present the opposing argument\n\nas amicus curiae in accordance with the written argument which had been filed on behalf\n\nof the State. We place on record our appreciation to him for having undertaken this task.\n\n[3]\n\nPurely for the sake of convenience, I shall refer to the accused as the applicants and to the\n\nposition adopted by Mr. Slabbert in his argument as that of the State. \n\n[4]\n\nAlthough each of the cases has a history of its own, much is in common. The applicants\n\nare all males and they are all juveniles. Three of them, namely, Williams, Koopman and\n\nMampa were each sentenced to suspended prison sentences in addition to the juvenile\n\nwhipping. The remaining three were sentenced to juvenile whipping only. All the trials\n\nhad commenced before 27 April 1994; each of the sentences was passed after 27 April\n\n1994. \n\n[5]\n\nThe Provincial Division became seized of the matters in two ways: all five cases were\n\nsubject to automatic review in terms of section 302(1)(a) of the Act because of the terms\n\nof imprisonment, albeit suspended, imposed on the applicants themselves or on their\n\nfellow accused who do not feature in the present proceedings. In addition to this, Mr. A.P.\n\nDippenaar who presided over the case involving Williams, requested that the sentence of\n\nstrokes be subjected to special review in terms of section 304(4) of the Act. He took this\n\nstep because he doubted whether juvenile whipping was a permissible punishment in the\n\nlight of the provisions of the Constitution and in view of the decision in Ex Parte Attorney-\n\nGeneral, Namibia: In re Corporal Punishment By Organs of State.3\n\n[6] Whether, as a matter of strict law, the Magistrate was correct in deferring the execution of\n\nthe whipping4, is not in issue. He deserves to be commended for treating as a matter of\n\n 3 1991(3) SA 76 (NmSC).\n\n 4 In S v Pretorius 1987(2) SA 250 (NC) it was held that where a magistrate has, in terms of section 294 of the\nAct, sentenced a juvenile offender to a whipping, and has conjoined a sentence which is subject to automatic review\n\n\f3\n\npriority an issue involving fundamental human rights and in particular, the application of\n\nthe provisions of Chapter 3 of the Constitution. He indeed went further than merely taking\n\nthe initiative to submit the matter for special review.\n\n[7]\n\nA sentence of juvenile whipping in terms of section 294 of the Act is not normally\n\nreviewable; the whipping is therefore administered immediately after sentence is passed.\n\nThere must have been countless instances in the past where courts sitting on appeal or\n\nreview have had to set aside sentences imposed by trial courts because of irregularities;\n\nwhere those offenders had been sentenced to a juvenile whipping, the punishment would\n\nalmost invariably have been carried out already.5 Once a whipping has been administered,\n\nas is the case with five of the applicants in this matter, any decision which this Court\n\ncomes to, will make no practical difference to them for purposes of the present\n\nproceedings. Mindful of this, Mr Dippenaar ordered that the sentence of five strokes\n\nimposed by him on the applicant Williams should not be carried out until the issue,\n\nwhether or not the punishment was consistent with the Constitution, had been finally\n\ndecided by the appropriate court. The concern he displayed is to be welcomed.\n\n[8]\n\nCourts do have a role to play in the promotion and development of a new culture \"founded\n\non the recognition of human rights,\"6 in particular, with regard to those rights which are\n\nenshrined in the Constitution. It is a role which demands that a court should be particularly\n\nsensitive to the impact which the exercise of judicial functions may have on the rights of\n\nindividuals who appear before them; vigilance is an integral component of this role, for\n\nit is incumbent on structures set up to administer justice to ensure that as far as possible,\n\nthese rights, particularly of the weakest and the most vulnerable, are defended and not\n\nignored. One of the implications of the new order is that old rules and practices can no\n\nlonger be taken for granted; they must be subjected to constant re-assessment to bring them\n\nto the whipping, the magistrate does not have the jurisdiction to suspend the infliction of the whipping pending the\nresult of the review. The case might of course be distinguishable on the basis that what is at issue here and what\nis sought to be reviewed, is the sentence of whipping.\n\n 5 See S v Ruiters en Andere, S v Beyers en Andere, S v Louw en 'n Ander 1975(3) SA 526 (C); S v M 1982(1)\nSA 240 (N); S v V en 'n Ander 1989(1) SA 532 (A); S v F 1989(1) SA 460 (ZHC); S v Zuzani and Others\n1991(1) SACR 534 (Tk).\n\n 6 See the provision in the Constitution under the heading \u201cNational Unity and Reconciliation.\u201d \n\n\finto line with the provisions of the Constitution.\n\n4\n\n[9]\n\nIt was no doubt because of these considerations that Conradie J advised magistrates for\n\ntheir guidance that, pending the decision of this Court, it would be undesirable for\n\nsentences of whipping, in terms of section 294 of the Act, to be imposed and that where\n\nsuch sentence had in fact been imposed, it might not be appropriate for it to be carried out\n\nuntil a ruling from the Constitutional Court had been obtained.\n\n[10] When the matter was argued before this Court, it was common cause between the\n\napplicants and the State that the provisions in our law which authorise corporal punishment\n\nfor adults are inconsistent with the Constitution. This consensus of course does not remove\n\nthose provisions from the statute book; they have not been set aside by a competent body\n\nor authority and the relevant legislation has not been repealed. The agreement is, however,\n\nan acknowledgement of the effect which the provisions of the Constitution have in forcing\n\na re-assessment of the laws that govern us against the values expressed in the Constitution.\n\nThe effect is to demarcate the parameters of civilised behaviour, at least at the level of the\n\nadministration of justice. \n\n[11] Apart from provisions which permit juvenile whipping, the law presently allows whipping\n\nas a punishment which may be imposed upon adult males between the ages of 21 and 30\n\nyears. This is notwithstanding the fact that over the last thirty years at least, South African\n\njurisprudence has been experiencing a growing unanimity in judicial condemnation of\n\ncorporal punishment for adults. Criticism of the practice has been consistent and emphatic,\n\nit being characterised as \"punishment of a particularly severe kind ... brutal in its nature\n\n... a severe assault upon not only the person of the recipient but upon his dignity as a human\n\nbeing\";7 \"a very severe and humiliating form of punishment\";8 \"`n uiterste strafvorm\";9 \"`n\n\nerg vernederende en fisies baie pynlike vorm van bestraffing\";10 \"cruel and inhuman\n\n 7 Fannin J in S v Kumalo and Others 1965(4) SA 565 (N) at 574F; see also S v Maisa 1968(1) SA 271 (T)\nat 271E.\n\n 8 De Wet CJ in S v Myute and Others and S v Baby 1985(2) SA 61 (Ck) at 62H; see also S v Zimo en Andere\n1971(3) SA 337 (T) at 338G; S v Ruiters et al supra note 5, at 530B; S v Seeland 1982(4) SA 472 (NC) at 476H.\n\n 9 Conradie J in S v Staggie 1990(1) SACR 669 (C) at 675C.\n\n 10 MT Steyn in S v V en 'n Ander supra note 5, at 543D.\n\n\fpunishment.\u201d11 This tone of condemnation is to be found, not only in many decisions in this\n\n5\n\ncountry,12 but also in other jurisdictions.13\n\n \n\n[12]\n\nIf adult whipping were to be abolished, it would simply be an endorsement by our criminal\n\njustice system of a world-wide trend to move away from whipping as a punishment. As\n\nfar back as 1947, the Lansdown Commission of Enquiry, while recommending the retention\n\nof corporal punishment in limited form in South Africa, made the point that most civilized\n\ncountries in the world had abandoned corporal punishment as a method of dealing with\n\ncrime. The report of the Viljoen Commission, tabled in Parliament in January 1977, also\n\nendorsed the view that whipping for adults was a brutal assault, not only on the person of\n\nthe recipient, but also on his dignity as a human being.\n\n[13]\n\nThe provisions being challenged, however, relate to juvenile whipping. The State was at\n\npains to point out that there are differences between adult and juvenile whipping. The\n\ncontention was that corporal punishment was not in itself objectionable, particularly when\n\nrestricted to male youths; what rendered adult whipping constitutionally unacceptable was\n\nthe manner in which it was executed. The nub of the enquiry is, however, not the legality\n\nor otherwise of adult whipping or how different it is from juvenile whipping. The issue\n\nis whether juvenile whipping, on its own merits or demerits, is consistent with the\n\nConstitution. \n\n \n\n[14]\n\nThe Act contains a number of related provisions which deal with the infliction of corporal\n\npunishment.14 In so far as juveniles are concerned, no minimum age is fixed in the Act\n\nalthough practice and judicial decisions would seem to have fixed the lower age limit at\n\n 11 Greenland J in S v F supra note 5, at 460I.\n\n 12 See S v Ximba and 2 Others 1972(1) PH H66 (N); S v Motsoesoana 1986(3) SA 350 (N) at 355D; S v\nDaniels 1991(2) SACR 403 (C) at 406B.\n\n 13 See e.g., S v Ncube; S v Tshuma; S v Ndlovu 1988(2) SA 702 (ZSC); Ex Parte Attorney-General, Namibia:\nin re Corporal Punishment supra note 3.\n\n 14 Some sections contain general provisions which are applicable to both adults and juveniles, e.g. section 276\nwhich lists whipping as one of a range of punishments which may be imposed and section 292 which provides\ngeneral guidelines for whipping. \n\n\f6\n\n9 years.15 A whipping may not be imposed \"if it is proved that the existence of some\n\npsychoneurotic or psychopathic condition contributed towards the commission of the\n\noffence.\"16 Section 294(1)(a) provides for whipping to be carried out \"by such person and\n\nin such place and with such instrument as the court may determine.\" We were informed\n\nthat, in practice, a cane is used, but it is significant that the Act leaves this to the discretion\n\nof the magistrate.17 The maximum number of strokes that may be imposed at any one time\n\nis seven.18 Juvenile whipping is inflicted over the buttocks, which must be covered with\n\nnormal attire 19 and a parent or guardian may be present.20 No whipping may be carried\n\nout unless a district surgeon or an assistant district surgeon has certified that the juvenile\n\n\"is in a fit state of health to undergo the whipping.\"21 Juveniles over the age of 17 years\n\nmay be sentenced to a whipping in addition to any other sentence, provided that where a\n\nsentence of imprisonment is imposed, the whole period must be suspended.22 \n\n[15]\n\nThe applicants sought to impugn section 294 of the Act on a number of grounds. It was\n\ncontended that this provision violated sections 8, 10, 11, and 30 of the Constitution. These\n\nprovisions are contained in Chapter 3, which is generally referred to as the Chapter on\n\nFundamental Rights.\n\n[16]\n\nSection 8(1) of the Constitution guarantees to each person \"the right to equality and to\n\n 15 See S v Du Preez 1975(4) SA 606 (C). \n\n 16 Section 295(2).\n\n 17 Section 292(2) of the Act prescribes a cane as the instrument to be used for adult whiping. See also section\n92(1)(c) of the Magistrates\u2019 Court Act No. 32 of 1944 (as amended) which prescribes that a cane only may be\nused for whipping. This provision, however, excludes juvenile whipping in terms of section 294. During oral\nargument, we were informed that, in practice, canes conforming to the dimensions listed in the regulations of the\nDepartment of Correctional Services are used for both adult and juvenile whipping. See Regulation 100(4)\npromulgated in terms of section 94 of the Correctional Services Act No. 8 of 1959 (as amended) which provides\nthat canes used for the whipping of prisoners should approximate 125cm in length and 12 mm in width for adults\nand 100cm by 9mm for juveniles. \n\n 18 Section 294(1)(a).\n\n 19 Section 294(2).\n\n 20 Section 294(3).\n\n 21 Section 294(5).\n\n 22 Section 294(1)(b).\n\n\f7\n\nequal protection of the law.\" Section 8(2) prohibits unfair discrimination on grounds\n\nwhich include race, gender, sex, colour, and age; according to section 8(4), \"[p]rima facie\n\nproof of discrimination on any of the grounds specified ... shall be presumed to be\n\nsufficient proof of unfair discrimination ... until the contrary is established.\" Applicants\n\nargued that the provisions of section 294 of the Act discriminated unfairly against male\n\njuveniles on grounds of age and sex and, in the context of South Africa's unjust and unequal\n\npast, their application was susceptible to racial bias.\n\n[17]\n\nSection 10, for its part, guarantees to every person \" the right to respect for and protection\n\nof his or her dignity.\" The proposition advanced was that the circumstances under which\n\njuvenile whipping is administered, including the fact that it involves the intentional\n\ninfliction of physical pain on the juvenile by a stranger at the instance of the State, are\n\nincompatible with respect for and the protection of the dignity of the person being\n\npunished. It was contended that this was a violation of the dignity of both the minor as\n\nwell as that of the person administering the whipping.\n\n[18]\n\nThe provisions of section 30 of the Constitution are designed to protect children. It was\n\nargued that inasmuch as the Constitution recognises the vulnerability of children as a group\n\nand sets out to protect them, juvenile whipping infringed their right to security and not to\n\nbe subjected to abuse.\n\n[19] Much of applicants' argument was, understandably enough, devoted to the alleged violation\n\nof section 11(2) of the Constitution. As the heading indicates, this section deals with\n\n\"[f]reedom and security of the person\" and the subsection provides that \"[n]o person\n\nshall be subject to torture of any kind, whether physical, mental or emotional, nor shall any\n\nperson be subject to cruel, inhuman or degrading treatment or punishment.\" This is the only\n\nprovision, among those relied upon by the applicants, that expressly refers to punishment.\n\n I propose to deal with the impact, if any, of sections 10 and 11(2) of the Constitution on\n\nthe conduct which is prescribed by section 294 of the Act.\n\n[20]\n\nIt is clear that when the words of section 11(2) of the Constitution are read disjunctively,\n\n\f8\n\nas they should be,23 the provision refers to seven distinct modes of conduct, namely:\n\ntorture; cruel treatment; inhuman treatment; degrading treatment; cruel punishment; inhuman\n\npunishment and degrading punishment.\n\n[21]\n\nIn common with many of the rights entrenched in the Constitution, the wording of this\n\nsection conforms to a large extent with most international human rights instruments.24\n\nGenerally, the right is guaranteed in absolute, non-derogable and unqualified terms;\n\njustification in those instances is not possible.25\n\n[22]\n\nThe interpretation of the concepts contained in section 11(2) of the Constitution involves\n\nthe making of a value judgment which \u201crequires objectively to be articulated and\n\nidentified, regard being had to the contemporary norms, aspirations, expectations and\n\nsensitivities of the ... people as expressed in its national institutions and its Constitution,\n\nand further having regard to the emerging consensus of values in the civilised international\n\ncommunity ... \u201d26 \n\n[23] While our ultimate definition of these concepts must necessarily reflect our own\n\nexperience and contemporary circumstances as the South African community, there is no\n\ndisputing that valuable insights may be gained from the manner in which the concepts are\n\ndealt with in public international law as well as in foreign case law.\n\n 23 See S v Ncube, S v Tshuma, S v Ndhlovu supra note 13, at 714I-715D and Ex Parte Attorney General,\nNamibia: In re Corporal Punishment supra note 3, at 86A-C. \n\n 24 Article 5 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United\nNations on 10 December 1948, forbids \"torture or . . . cruel, inhuman or degrading treatment or punishment.\u201d\nAccording to Sieghart, The International Law of Human Rights (1983) 159-160 and 162, the wording has been\nfollowed with minor variations in a number of other international instruments and national constitutions adopted\nsince 1949. See e.g., Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which is\nidentical; Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms\n( \"torture or . . . inhuman or degrading treatment or punishment\"); Article 5 of the Banjul Charter on Human and\nPeoples' Rights (African Charter) (\". . . torture, cruel, inhuman or degrading punishment and treatment\"). \n\n 25 Article 8 of the Namibian Constitution, for instance, provides: \u201c(1) The dignity of all persons shall be\ninviolable. (2)(a) . . . (b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or\npunishment.\" No limitation applies to this provision. See also Ex Parte Attorney General, Namibia supra note\n3, at 86D; Sieghart op cit at 161.\n\n 26 Mahomed AJA in Ex Parte Attorney-General, Namibia supra, note 3, at 86 I. \n\n\f9\n\n[24]\n\nThe Oxford English Dictionary defines 'cruel' as \"causing or inflicting pain without pity,\"\n\n'inhuman' as \"destitute of natural kindness or pity, brutal, unfeeling, savage, barbarous\" and\n\n'degrading' as \"lowering in character or quality, moral or intellectual debasement.\" In\n\nSouth African case law, definitions of \u2018cruel,\u2019 with regard to treatment or punishment are\n\nrare. The phrase \"cruel treatment\" has been used in the context of abuse of animals and\n\nhas been described variously as \"wilfully caus[ing] pain without justification ... intention\n\nof causing it unnecessary suffering;\"27 \"deliberate act causing substantial pain and not\n\nreasonably necessary in all the circumstances.\"28\n\n[25] Whether it is necessary to split the words of the phrase and interpret the concepts\n\nindividually is a matter which would largely depend on the nature of the conduct sought\n\nto be impugned. It may well be that in a given case, conduct that is degrading may not be\n\ninhuman or cruel. On the other hand, other conduct may be all three. It was suggested to\n\nus that a useful approach might be to grade the concepts on a sliding scale of suffering\n\ninflicted, torture occupying the extreme position, followed by cruel, inhuman and\n\ndegrading, in that order.\n\n[26]\n\nInternational forums offer very little guidance with regard to the meaning to be given to\n\neach word, individually. The tendency has been to deal with them as phrases or a\n\ncombination of words. Thus when the United Nations Human Rights Committee (UNHRC)\n\nwas called upon to interpret the corresponding section in the International Covenant on\n\nCivil and Political Rights (ICCPR), it did not consider \u201cit necessary to draw up a list of\n\nprohibited acts or to establish sharp distinctions between the different kinds of punishment\n\nor treatment; the distinctions depend on the nature, purpose and severity of the treatment\n\napplied.\u201d 29 According to the UNHRC, the assessment of what constitutes inhuman or\n\ndegrading treatment depends on all the circumstances of the case, such as the duration and\n\nmanner of the treatment, its physical or mental effects as well as the sex, age and state of\n\n 27 R v Mountain 1928 TPD 86 at 88.\n\n 28 Hellberg v R 1933 NPD 507 at 510.\n\n 29 General Comment 20.4 of the Human Rights Committee 1992 Report (referred to in and filed with\napplicants\u2019 brief).\n\n\fhealth of the victim. 30\n\n \n\n10\n\n[27] Article 3 of the European Convention for the Protection of Human Rights and Fundamental\n\nFreedoms (European Convention), has been interpreted by distinguishing the concepts\n\nprimarily by the degree of suffering inflicted.31 The European Commission of Human\n\nRights (European Commission) described inhuman treatment as that which \"causes severe\n\nsuffering, mental or physical, which in the particular situation is unjustifiable\" and torture\n\nas \"an aggravated form of inhuman treatment.\u201d 32 The European Court of Human Rights\n\n(European Court) found the difference between torture and inhuman treatment in the fact\n\nthat the former attaches \u201ca special stigma to deliberate inhuman treatment causing very\n\nserious and cruel suffering.\"33 The Court also categorised degrading conduct as that which\n\naroused in its victims feelings of fear, anguish and inferiority leading to humiliation and\n\ndebasement and possible breaking of their physical or moral resistance.34 The same Court\n\ndistinguished between inhuman and degrading punishment in Tyrer v United Kingdom,35\n\nand held that suffering had to reach a certain level before punishment could be\n\ncharacterised as inhuman. In a case where a juvenile had been sentenced to three strokes\n\nof the birch, the Court found that although that level had not been reached, the birching of\n\nthe minor nevertheless amounted to degrading punishment. \n\n[28]\n\nThe Eighth Amendment to the Constitution of the United States of America (Eighth\n\nAmendment) as well as Article 12 of the Canadian Charter of Rights and Freedoms\n\n(Canadian Charter) prohibit \"cruel and unusual punishment.\" In Furman v Georgia,36\n\nBrennan J postulated criteria in the assessment of what amounts to cruel and unusual\n\n 30 See Vuolanne v Finland 96 ILR 649, 657.\n\n 31 See P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights,\n(1990), 2 ed., 226-227. \n\n 32 See Denmark et al v Greece: Report of 5 November 1969,Yearbook of the European Convention on Human\nRights XII (1969), 186.\n\n 33 The Republic of Ireland v The United Kingdom (1979-80) 2 EHRR 25, 80, paragraph 167.\n\n 34 Id.\n\n 35 (1979-80) 2 EHRR 1, 9, paragraph 29.\n\n 36 408 US 238 (1972). This case held that capital punishment in the then existing statute, providing for capital\npunishment, in the State of Georgia was unconstitutional. \n\n\f11\n\npunishment. He pointed out that punishment does not become \"cruel and unusual\" merely\n\nbecause of the pain inflicted. The true significance lay in the fact that members of the\n\nhuman race are treated:\n\n\"... as nonhumans, as objects to be toyed with and discarded ...\n[and that this is] ... thus inconsistent with the fundamental premise\nof the Clause that even the vilest criminal remains a human being\npossessed of common human dignity.\"37\n\n[29] Although some of the views expressed in Furman v Georgia were qualified in the\n\nsubsequent case of Gregg v Georgia,38 Stewart J in the latter case affirmed that the basic\n\nconcept underlying the Eighth Amendment \"is the dignity of man.\"39\n\n[30]\n\nThe framework of Canadian rights legislation is not much different from ours and section\n\n1 of the Canadian Charter plays a role not very dissimilar to that of section 33(1) of the\n\nConstitution. The Canadian Supreme Court has interpreted the concept \"cruel and unusual\n\npunishment\" as a \"compendious expression of a norm\" to which the relevant test was\n\n\"whether the punishment prescribed is so excessive as to outrage the standards of\n\ndecency.\"40 Factors to be taken into account in the assessment of the punishment included\n\nits effect, which must not be grossly disproportionate, the gravity of the offence, the\n\npersonal characteristics of the offender and the particular circumstances of the case.\n\nAccording to Dickson CJ and Lamer J:\n\n\" ... some punishments or treatments will always be grossly\ndisproportionate and will always outrage our standards of\ndecency: for example, the infliction of corporal punishment, such\nas the lash, irrespective of the number of lashes imposed ... \"41\n\n[31]\n\nThe decisions of the Supreme Courts of Namibia and of Zimbabwe are of special\n\n 37 Id. at 273.\n\n 38 408 US 153 (1976). The ruling in this case differed from that in Furman v Georgia; it was held that the\nnew statute providing for capital punishment in the State of Georgia was not prohibited by the Eighth Amendment.\n\n 39 Id. at 173.\n\n 40 Smith v The Queen (1988) 31 CRR 193, 213.\n\n 41 Id. at 214.\n\n\f12\n\nsignificance. Not only are these countries geographic neighbours, but South Africa shares\n\nwith them the same English colonial experience which has had a deep influence on our\n\nlaw; we of course also share the Roman-Dutch legal tradition. Unlike our Constitution, the\n\nNamibian Constitution does not have a general limitation clause. Article 22 however\n\nspecifies how limitations, whether they are built-in or are imposed by other laws, are to\n\nbe employed. In Ex Parte Attorney-General, Namibia, Mahomed AJA had no difficulty\n\nin arriving at the conclusion that the infliction of corporal punishment, whether on adults\n\nor juveniles, was inconsistent with article 8 of the Namibian Constitution and constituted\n\n\"inhuman or degrading\" punishment.42\n\n[32]\n\nIn S v Ncube; S v Tshuma and S v Ndhlovu the Zimbabwe Supreme Court, dealing with\n\nthe issue of corporal punishment for adults, held that the practice was inhuman and\n\ndegrading in violation of section 15(1) of the Declaration of Rights of the Zimbabwe\n\nConstitution which prohibits \"torture or inhuman or degrading punishment.\"43 The same\n\nconclusion was reached with respect to juvenile whipping by the Zimbabwe High Court\n\nin S v F.44 Juvenile whipping was held to constitute inhuman and degrading punishment\n\nby the Zimbabwe Supreme Court in S v Juvenile.45 Gubbay JA characterised juvenile\n\nwhipping as:\n\n\" . . . inherently brutal and cruel; for its infliction is attended by\nacute physical pain. After all, that is precisely what it is designed\nto achieve ... In short, whipping, which invades the integrity of the\nhuman body, is an antiquated and inhuman punishment which\nblocks the way to understanding the pathology of crime.\"46 \n\n[33]\n\nThe Court in Tyrer v United Kingdom characterised the whipping of a juvenile thus:\n\n \n\n\"The very nature of judicial corporal punishment is that it involves\none human being inflicting physical violence on another human\n\n 42 Supra note 3.\n\n 43 Supra note 13, at 721H.\n\n 44 Supra note 5. At 462I-J Greenland J agreed with the characterisation of corporal punishment as \"barbaric,\ninherently brutal, cruel, inhuman and degrading.\"\n\n 45 1990(4) SA 151 (ZSC).\n\n 46 Id. at 168I-169B.\n\n\f13\n\nbeing. Furthermore, it is institutionalised violence, that is in the\npresent case violence permitted by the law, ordered by the judicial\nauthorities of the State and carried out by the police authorities of\nthe State. Thus, although the applicant did not suffer any severe or\nlong-lasting physical effects, his punishment - whereby he was\ntreated as an object in the power of the authorities - constituted an\nassault on precisely that which is the main purpose of Article 3 to\nprotect, namely a person's dignity and physical integrity ... The\ninstitutionalised character of this violence is further compounded\nby the whole aura of official procedure attending the punishment\nand by the fact that those inflicting it were total strangers to the\noffender.\"47\n\n[34]\n\nThe circumstances described above are present in any judicial corporal punishment;48 they\n\nare certainly present in juvenile whipping in terms of section 294 of the Act. They are\n\nconsistent with Mahomed AJA's summary, in Ex Parte Attorney-General, Namibia,49 and\n\nthat of Gubbay JA in S v Ncube, S v Tshuma, S v Ndhlovu50 on the basis of the objection\n\nto corporal punishment.\n\n[35] Whether one speaks of \"cruel and unusual punishment\" as in the Eighth Amendment of the\n\nUnited States Constitution and in article 12 of the Canadian Charter, or \"inhuman or\n\ndegrading punishment\" as in the European Covention and the Constitution of Zimbabwe,\n\nor \"cruel, inhuman or degrading punishment\" as in the Universal Declaration of Human\n\nRights, the ICCPR and the Constitution of Namibia, the common thread running through\n\nthe assessment of each phrase is the identification and acknowledgement of society's\n\nconcept of decency and human dignity.\n\n \n\n[36]\n\nIn the United States, the Eighth Amendment to the Constitution is interpreted in the light of\n\n\"contemporary standards of decency.\" These standards, it has been held, are not static but\n\nare continually evolving.51 The relationship between \"contemporary standards of decency\"\n\n 47 Supra note 35, at 11, paragraph 33.\n\n 48 See S v Juvenile supra note 45, at 156F-H.\n\n 49 Supra note 3, at 87D-H.\n\n 50 Supra note 13, at 722A-D.\n\n 51 In Trop v Dulles 356 US 86 (1958) at page 101, it was held that the Eighth Amendment must draw its\nmeaning from the evolving standards of decency that mark the progress of a maturing society. In Weems v United\n\n\f14\n\nand public opinion is uncertain and I am not convinced that they are synonymous. It is\n\nclear, as was pointed out by Chaskalson P in State v Makwanyane and Mchunu that public\n\nopinion, on its own, is not determinative of constitutional issues:\n\n\"If public opinion were to be decisive there would be no need for\nconstitutional adjudication. The protection of rights could then be\nleft to Parliament, which has a mandate from the public . . . but this\nwould be a return to parliamentary sovereignty, and a retreat from\nthe new legal order established by the 1993 Constitution.\"52 \n\n[37]\n\nIt is not clear to me however that it is necessary to adopt the American concept of\n\n\"contemporary standards of decency\" or that it is necessary to give definitive meaning to\n\nthat phrase. Our Constitution is different to the American constitution. Section 35(1) of\n\nthe Constitution provides expressly that the rights entrenched in it, including sections 10\n\nand 11(2), shall be interpreted in accordance with the values which underlie an open and\n\ndemocratic society based on freedom and equality. In determining whether punishment is\n\ncruel, inhuman or degrading within the meaning of our Constitution, the punishment in\n\nquestion must be assessed in the light of the values which underlie the Constitution.\n\n[38]\n\nThe simple message is that the State must, in imposing punishment, do so in accordance\n\nwith certain standards; these will reflect the values which underpin the Constitution; in the\n\npresent context, it means that punishment must respect human dignity and be consistent with\n\nthe provisions of the Constitution.\n\n[39]\n\nThere is unmistakably a growing consensus in the international community that judicial\n\nwhipping, involving as it does the deliberate infliction of physical pain on the person of\n\nthe accused, offends society's notions of decency and is a direct invasion of the right which\n\nevery person has to human dignity. This consensus has found expression through the\n\ncourts and legislatures of various countries and through international instruments. It is a\n\nStates 217 US 349 (1910) at page 378, the court observed that the Eighth Amendment is progressive and does not\nmerely prohibit cruel punishments known in 1688 and 1787, but may acquire wider meaning \u201cas public opinion\nbecomes enlightened by humane justice.\u201d In Jackson v Bishop 404 F 2d 571 (1968) at page 579, reference is\nmade to \"contemporary concepts of decency and human dignity and precepts of civilisation which we profess to\npossess\"; see also Nelson v Heyne 491 F 2d 352 (1974). \n\n 52 Case No. CCT/ 3/94 at paragraph 88. \n\n\fclear trend which has been established.\n\n15\n\n[40] Corporal punishment has been abolished in a wide range of countries, including: the United\n\nKingdom,53 Australia (except in the State of Western Australia),54 the United States of\n\nAmerica, 55 Canada, 56 Europe 57 and Mozambique,58 among others. In Lesotho,\n\nrestrictions have been imposed by the courts on the whipping of people over 30 years.59\n\nAlthough the Constitution of Botswana contains a provision preserving the application of\n\njudicial corporal punishment in its criminal justice system, the practice has been severely\n\ncriticised by the judiciary. The remarks of Aguda, JA in S v Petrus and Another are\n\napposite to the present enquiry:\n\n\"First, it must be recognised that certain types of punishment or\ntreatment are by their very nature cruel, inhuman or degrading.\nHere once more I must cite with approval what Professor\nNwabueze says in his book (ibid): 'Any punishment involving\ntorture, such as the rack, the thumbscrew, the iron boot, the\nstretching of limbs, burning alive or at the stake, crucifixion,\nbreaking on the wheel, embowelling alive, beheading, public\n\n 53 This was done by the introduction of the Criminal Justice Act 1948, pursuant to the Report of the\nDepartmental Committee on Corporal Punishment(1938) (the Cadogan Committee). At page 59 , the report points\nout: \"In its own interests society should, in our view, be slow to authorise a form of punishment which may degrade\nthe brutal man still further and may deprive the less hardened man of the last traces of self-respect ... \" Cited in\nNcube supra note 13 at 710C. \n\n 54 Although it is still included in the Criminal Code of Western Australia, it seems to have fallen into disuse.\nNcube supra note 13 at 711J-712A. \n\n 55 In 1790 Congress excluded whipping from the punishments that might be imposed by the Federal Courts for\nfederal offenses. It, however, continued to be applied in some States as a method of enforcing discipline in\nprisons and against juveniles in institutions and reformatories. Only the State of Delaware still retains the\n\u2018whipping post.\u2019 Ncube supra note 13 at 713B-C.\n\n 56 Canada abolished corporal punishment through the enactment of the Criminal Law Amendment Act 1972.\nNcube supra note 13 at 710H.\n\n 57 In the applicants\u2019 written argument it was pointed out that the Tyrer case effectively proscribed judicial\ncorporal punishment in countries subject to the European Convention; the Netherlands Government has declared\nthat corporal punishment is a violation of international instruments; Sweden, Denmark, Finland, Norway and\nAustria have formally proscribed corporal punishment in institutions as well as in the home; and Cyprus abolished\nall corporal punishment in 1994.\n\n 58 Public floggings were abolished in 1989 in accordance with the country's obligations under the African\nCharter on Human and People's Rights. Johannes Weir Foundation on Health and Human Rights, Health\nProfessionals and Corporal Punishment (1990) 7.\n\n 59 R v Tsehlana Rev. Case 157/77 (High Court), cited in Stephen Neff: Human Rights in Africa 33\nInternational and Comparative Law Quarterly (1984) at 339.\n\n\f16\n\ndissection and the like, or involving mutilation or a lingering death,\nor the infliction of acute pain and suffering, either physical or\nmental, is inherently inhuman and degrading.' Under the Botswana\nConstitution such punishment which is inherently inhuman and\ndegrading is prohibited . . . notwithstanding the fact that public\nsentiments favour it. Secondly, a punishment which is not\ninherently inhuman or degrading may become so by the very nature\nor mode of execution, and also notwithstanding the fact that popular\ndemand may favour it.\"60\n\n[41] Great play was made by the State of differences between adult and juvenile whipping.\n\nThe point of the argument was that while it may be difficult to justify the whipping of adults\n\nin constitutional terms, juvenile whipping was no more reprehensible than other forms of\n\npunishment, since an element of humiliation and degradation is to be found in most. I did\n\nnot understand the State to be seriously contending that any punishment which involves an\n\nelement of humiliation or degradation constituted a breach of section 11(2) of the\n\nConstitution. The argument was rather that judicial whipping was not an infringement of\n\nany of the rights of the juvenile.\n\n[42]\n\nIn Tyrer v United Kingdom the European Court put its finger on the basis for the\n\ndistinction between punishment per se and punishment which was prohibited in terms of\n\narticle 3 of the European Convention: the humiliation or debasement involved must attain\n\na particular level and must be other than the usual, and perhaps inevitable, element of\n\nhumiliation associated with punishment in general.61 In Furman v Georgia Brennan J\n\nmade it quite clear what he found to be particularly objectionable in this species of\n\npunishment:\n\n\"...since the discontinuance of flogging as a constitutionally\npermissible punishment, Jackson v Bishop 404 F2d 571 (CA8)\n1968, death remains as the only punishment that may involve the\nconscious infliction of physical pain.\"62\n\n[43]\n\nThe fact that there may be other punishments which violate fundamental rights cannot, in\n\n 60 [1985] LRC (Const) 699, 725G-726A.\n\n 61 Supra note 35, at 10, paragraph 30. \n\n 62 Supra note 36, at 287-288.\n\n\fitself, save the specific form of punishment that has been challenged from invalidity.\n\n17\n\n[44] Differences between adult and juvenile whipping have, in my view, little or no relevance\n\nto the enquiry. They are in any event differences of degree rather than kind. To the extent\n\nthat comment is needed on the argument which has been raised, however, I am of the view\n\nthat the differences are far outweighed by the similarities. There is a small difference in\n\nthe dimensions of the instrument used;63 the adult is stripped naked and trussed, the strokes\n\nbeing delivered on bare flesh while the juvenile's strokes are inflicted on normal attire,\n\nwithout him being tied; there is no limit to the number of times a juvenile may be sentenced\n\nto receive strokes while the adult may only be so sentenced twice, and never within a\n\nperiod of three years of the previous sentence of strokes. Both occur in a state institution;\n\nthe maximum number of strokes that may be imposed is seven in respect of both. Both\n\ninvolve a physical beating with a cane wielded by a State employee, a virtual stranger to\n\nthe person being punished.\n\n[45]\n\nThe severity of the pain inflicted is arbitrary, depending as it does almost entirely on the\n\nperson administering the whipping. Although the juvenile is not trussed, he is as helpless.\n\n He has to submit to the beating, his terror and sensitivity to pain notwithstanding. Nor is\n\nthere any solace to be derived from the fact that there is a prior examination by the district\n\nsurgeon. The fact that the adult is stripped naked merely accentuates the degradation and\n\nhumiliation. The whipping of both is, in itself, a severe affront to their dignity as human\n\nbeings. I agree with the dicta in Campbell and Cosans v United Kingdom in which Mr\n\nKlecker, in a dissenting opinion, stated:\n\n \n\n\"Corporal punishment amounts to a total lack of respect for the\nhuman being; it therefore cannot depend on the age of the human\nbeing ... The sum total of adverse effects, whether actual or\npotential, produced by corporal punishment on the mental and\nmoral development of a child is enough, as I see it, to describe it\nas degrading within the meaning of Article 3 of the Convention.\"64\n\n 63 Supra note 17.\n\n 64 (1980) 3 EHRR 531 at 556.\n\n\f18\n\n[46]\n\nIt was further claimed that age in itself was a redeeming feature; that while an adult\n\nwhose character and personality has already been formed was likely to be hardened by\n\nthe infliction of judicial whipping, the position was the opposite in the case of a juvenile.\n\nThe basis for this was the view that as a juvenile's character was still in the process of\n\nformation, he was still susceptible to correction and advice; corporal punishment might\n\ntherefore still have a reformative effect on the young even though it was accepted that it\n\nwas likely to have the opposite effect on the old. \n\n[47]\n\nI do not agree. One would have thought that it is precisely because a juvenile is of a more\n\nimpressionable and sensitive nature that he should be protected from experiences which\n\nmay cause him to be coarsened and hardened. If the State, as role model par excellence,\n\ntreats the weakest and the most vulnerable among us in a manner which diminishes rather\n\nthan enhances their self-esteem and human dignity, the danger increases that their regard\n\nfor a culture of decency and respect for the rights of others will be diminished. As\n\nBrandeis J observes in a dissenting opinion in Olmstead v United States:\n\n\"Our Government is the potent, the omni-present teacher. For good\nor for ill, it teaches the whole people by its example.\"65 \n\n[48]\n\nThe issue of corporal punishment at schools is by no means free of controversy. The\n\npractice has inevitably come in for strong criticism. 66 In Costello-Roberts v United\n\nKingdom,67 the European Court applied the criteria set in Tyrer v United Kingdom that,\n\nin order for punishment to be \"degrading\" and in breach of article 3 of the Convention, the\n\nhumiliation or debasement involved must attain a particular level of severity and must, in\n\nany event, be other than the usual element of humiliation inherent in any punishment. It\n\ndrew a distinction between a judicially imposed whipping, as in Tyrer v United Kingdom,\n\n 65 277 US 438 (1928) at 485.\n\n 66 See the remarks of Dumbutshena CJ in S v A Juvenile supra note 45, at 161E-162E. See also Campbell\nand Cosans v United Kingdom supra note 64, at 556. \n\n 67 Judgment delivered on 25 March 1993. Appellants referred to and included in their brief a Press Release\nissued on 25 March 1993 by the Registrar of the European Court of Human Rights which contained a synopsis of\nthe judgment delivered that day. See also the discussion in Barry Phillips, The Case for Corporal Punishment\nin the United Kingdom. Beaten into Submission in Europe, 43 International and Comparative Law Quarterly\n(1994) 153. \n\n\f19\n\nand punishment meted out on a juvenile boarder through disciplinary rules in force in a\n\nprivate school. This amounted to being slippered three times on his buttocks through his\n\nshorts with a rubber-soled gym shoe by the headmaster in private. The court held that in\n\nthe circumstances of the particular case, the minimum level of severity had not been\n\nattained. It is noteworthy that the decision was carried by the narrowest of margins, with\n\nfive judges voting for it and four against. What is of interest is how the Euorpean Court,\n\nin the exercise of a value judgment, went about evaluating the impugned conduct and\n\ndistinguishing between the concepts \u2018inhuman\u2019 and \u2018degrading.\u201968 \n\n[49]\n\nIt is not necessary to comment on the suggestion that judicial corporal punishment is in\n\nreality no worse than cuts imposed at school; the subject of corporal punishment in schools\n\nis not before us. Suffice it to point out that the European Court in Costello-Roberts v The\n\nUnited Kingdom69 seemed to attach some importance to the difference between strokes\n\ninflicted by a policeman as a result of a court order, on the one hand, and corporal\n\npunishment administered by a headmaster in terms of disciplinary rules in force within the\n\nschool in which the youth was a boarder. On the other hand, it was White J in a dissenting\n\nopinion in Ingraham v Wright who stated:\n\n\"Where corporal punishment becomes so severe as to be\nunacceptable in a civilised society, I can see no reason that it\nshould become any more acceptable just because it is inflicted on\nchildren in the public schools.\"70\n\n[50]\n\nThe Constitution requires us to \"have regard\" to the consensus referred to above;71 we are\n\nnot bound to follow it but neither can we ignore it. The determinative test will be the\n\nvalues we find inherent in or worthy of pursuing in this society which has only recently\n\nembarked on the road to democracy. Already South Africa has lagged behind. The\n\nConstitution now offers an opportunity for South Africans to join the mainstream of a\n\nworld community that is progressively moving away from punishments that place undue\n\n 68 Press Release supra note 67, paragraphs 30-32. See also Barry Phillips supra note 67, at 168. \n\n 69 Press release supra note 67, paragraph 31.\n\n 70 430 US 651 at 692.\n\n 71 See section 35(1) of the Constitution.\n\n\f20\n\nemphasis on retribution and vengeance rather than on correction, prevention and the\n\nrecognition of human rights. \n\n[51]\n\nIn interpreting section 11(2) of the Constitution, however, we should not only have regard\n\nto the position in other jurisdictions. This Court has held that in interpreting the rights\n\nenshrined in Chapter 3 of the Constitution, a purposive approach should be adopted.72 In\n\nseeking the purpose of the particular rights, it is important to place them in the context of\n\nSouth African society. It is regrettable, but undeniable, that since the middle 1980's our\n\nsociety has been subjected to an unprecedented wave of violence. Disputes, whether\n\npolitical, industrial or personal, often end in violent assaults. In addition, during the same\n\nperiod, there has been a marked increase in violent crimes, such as armed robbery and\n\nmurder. \n\n[52]\n\nThe process of political negotiations which resulted in the Constitution were a rejection\n\nof violence. In this context, it cannot be doubted that the institutionalised use of violence\n\nby the State on juvenile offenders as authorised by section 294 of the Act is a cruel,\n\ninhuman and degrading punishment. The Government has a particular responsibility to\n\nsustain and promote the values of the Constitution. If it is not exacting in its\n\nacknowledgement of those values, the Constitution will be weakened. A culture of\n\nauthority which legitimates the use of violence is inconsistent with the values for which\n\nthe Constitution stands. \n\n[53]\n\nThe conclusion that I have reached, that section 294 of the Act infringes the rights\n\ncontained in sections 10 and 11(2) of the Constitution is consistent with the view that has\n\nbeen expressed by many South African judges before. As already indicated, the courts in\n\nthis country have acknowledged the international consensus against corporal punishment\n\nand, in a sense, associated themselves with it in many judgments which have criticised,\n\nsometimes in the strongest terms, the infliction of corporal punishment.73 Judicial\n\ncondemnation has resulted in adult whipping being imposed only in exceptional\n\n 72 S v Zuma and Others 1995(4) BCLR 401 (SA) at 410F-412H ; S v Makwanyane and Mchunu supra note\n52, at paragraphs 9 and 10.\n\n 73 See the cases cited supra notes 7 to 12.\n\n\f21\n\ncircumstances and juvenile whipping, in general, only as a device to keep the juvenile out\n\nof prison.74\n\n[54]\n\nThe structure and content of Chapter 3 suggests a two-stage enquiry. The first stage is\n\nconcerned with establishing whether there is a violation of a right sought to be protected\n\nby the Constitution; this has been answered in the affirmative. The second leg of the\n\nenquiry deals with the question whether the violation constitutes a permissible limitation\n\nof the right in question. Section 33(1) of the Constitution provides:\n\n\"The rights entrenched in this Chapter may be limited by law of\ngeneral application, provided that such limitation ---\n\n(a) \n\nshall be permissible only to the extent that\nit is --\n(i) \n(ii) \n\nreasonable; and\njustifiable in an open and democratic society \nbased on freedom and equality; and \n\n(b) \n\n(aa)\n\nshall not negate the essential content of the\nright in question, and provided further that\nany limitation to ---\na right entrenched in section 10, 11 . . . \n\n \n\n \n\nshall, in addition to being reasonable as required in\nparagraph (a)(i), also be necessary.\u201d \n\n[55] Applicants contended firstly, that the rights at issue were not capable of limitation and that\n\nsection 33(1) of the Constitution was therefore not applicable. The implication of this\n\nproposition was that no further enquiry was called for once a violation of the right had\n\nbeen proved.\n\n[56]\n\nThis argument raises an issue which this Court may have to confront in the future and that\n\nis the tension between threshold requirements and requirements of limitation. The issue\n\nhas been raised in argument in other cases which have come before us. It is, however, not\n\nan issue which needs to be resolved in this case. In S v Makwanyane (supra) this court\n\ndealt with section 11(2) of the Constitution on the basis that section 33(1) is applicable to\n\n 74 See S v Maisa supra note 7, at 271E; S v Machwili 1986 1) SA 156 (N) at 157F-G; S v Motsoesoana supra\nnote 12, at page 358G; S v Zimo en Andere supra note 8, at page 337H-338A; S v Maseti 1992(2) SACR 459 (C)\nat page 464I-J; S v V en \u2018n Ander supra note 5, at page 543E; S v P 1985 (4) SA 105 (N) at page 107F; and S v M\nsupra note 5, at page 245B.\n\n\fbreaches of that section. I follow the same approach in the present case.\n\n22\n\n[57] Applicants claimed further that even if the right was subject to limitation, juvenile\n\nwhipping provisions failed to satisfy the requirements of section 33(1) of the Constitution.\n\n The attitude of the State was that juvenile whipping was neither cruel nor inhuman and it\n\nwas no more degrading than other acceptable punishments; it was contended that to the\n\nextent that the punishment could be said to be in some way humiliating or degrading, it\n\nwas within permissible constitutional limits because of the provisions of section 33(1)\n\nof the Constitution.\n\n[58]\n\nThe enquiry involves testing the measures adopted against the objective sought to be\n\nachieved. The gist of it, put in the context and the language of section 33(1), really\n\namounts initially to three questions, namely: (a) whether the means used are reasonable\n\n; (b) whether they are justifiable in the context of the civilized society we hope we are or\n\nwhich we, through this Constitution, are aspiring to be; and (c) whether they are necessary\n\nto attain the objective. The test relies on proportionality, a process of weighing up the\n\nindividual's right which the State wishes to limit against the objective which the State\n\nseeks to achieve by such limitation.\n\n[59]\n\nThis evaluation must necessarily take place against the backdrop of the values of South\n\nAfrican society as articulated in the Constitution and in other legislation, in the decisions\n\nof our courts and generally against our own experiences as a people.\n\n \n\n[60]\n\nIn State v Makwanyane and Mchunu Chaskalson P deals with the \"proportionality\" test\n\nwhich is also implicit in the limitation of rights in Canada and the European Court.75 As\n\na general conclusion he notes that the limitation of constitutional rights for a purpose that\n\nis necessary in a democratic society involves the weighing up of competing values, and\n\nultimately an assessment based on proportionality. He points out how the German\n\nConstitutional Court applies the proportionality test in dealing with limitations authorised\n\n 75 Supra note 52, at paragraphs 104-109. \n\n\fby the German Constitution: \n\n23\n\n\"It has regard to the purpose of the limiting legislation, whether the\nlegislation in fact achieves that purpose, whether it is necessary\ntherefor, and whether a proper balance has been achieved between\nthe value enhanced by the limitation, and the fundamental right that\nhas been limited.\"76 \n\n[61]\n\nThe grounds on which the State sought to justify juvenile whipping were, firstly, that it\n\nmade good practical sense to have juvenile whipping as a sentencing option. The practice\n\nhad advantages for both the offender and the State, particularly in view of a shortage of\n\nresources and the infrastructure required for the implementation of other sentencing options\n\nfor juveniles. Secondly, it was suggested that juvenile whipping was a deterrent.\n\n[62]\n\nThe purpose of section 294 of the Act is to provide a sentencing option for the punishment\n\nof juvenile offenders. What must be addressed is whether it is reasonable, justifiable and\n\nnecessary to resort to juvenile whipping, notwithstanding the fact that it \"constitutes a\n\nsevere assault upon not only the person of the recipient, but upon his dignity as a human\n\nbeing.\"77 The primary argument advanced in favour of juvenile whipping was that it\n\nconstitutes a better alternative to imprisonment, particularly in the so-called \"grey area\"\n\ncrimes. This was a reference to instances where a court has to deal with an offence which\n\nis not so serious as to merit a custodial sentence but is serious enough to render\n\ninappropriate the use of \"softer\" sentences. \n\n[63]\n\nIt was argued that sentencing alternatives for juveniles were limited and that this country\n\ndid not have a sufficiently well-established physical and human resource base which was\n\ncapable of supporting the imposition of alternative punishments. This is of course an\n\nargument based on pragmatism rather than principle. It is a problem which must be taken\n\nseriously nevertheless. It seems to me, however, to be another way of saying that our\n\nsociety has not yet established mechanisms to deal with juveniles who find themselves in\n\nconflict with the law; that the price to be paid for this state of unreadiness is to subject\n\njuveniles to punishment that is cruel, inhuman or degrading. The proposition is untenable.\n\n 76 Supra note 52, at paragraph 108.\n\n 77 Fannin J in S v Kumalo supra note 7, at 547F.\n\n\f24\n\nIt is diametrically opposed to the values that fuel our progress towards being a more\n\nhumane and caring society. It would be a negation of those values precisely where we\n\nshould be laying a strong foundation for them, in the young; the future custodians of this\n\nfledgeling democracy. \n\n[64] We nevertheless need to examine available resources to determine whether there are\n\nindeed appropriate sentencing options. It has to be borne in mind that the presence of\n\nvarious options in a number of legislative provisions may not always reflect practical\n\nrealities. It is important that resources should be made available and that they should be\n\nutilised properly, so that the values expressed in the Constitution may be upheld and\n\nmaintained. It bears mentioning that although changes in the criminal justice system have\n\nbeen occurring, albeit at a painfully slow pace, there has been a perceptible shift in\n\napproach and attitude towards punishment. I mention three aspects of this process: \n\n[65]\n\n(a)\n\nThere has been a shift of emphasis with regard to the overall aims of punishment.\n\n There is a general acceptance, as observed by Schreiner JA in R v Karg,78 that the\n\nretributive aspect has tended to give way to the aspects of prevention and\n\ncorrection. New and innovative systems and procedures have been introduced and\n\nsome of them have been incorporated into legislation. The traditional objectives\n\nof punishment, namely, prevention, retribution, deterrence and rehabilitation, are\n\nno doubt still applicable. Still applicable, albeit in modified form, are the\n\nremarks of Holmes JA that:\n\n\"Punishment should fit the criminal as well as the\ncrime, be fair to the accused and to society, and be\nblended with a measure of mercy ... the element of\nmercy, a hallmark of civilised and enlightened\nadministration, should not be overlooked, lest the\nCourt be in danger of reducing itself to the plane of\nthe criminal ... \"79\n\n 78 1961(1) SA 231(A) at 236A.\n\n 79 S v V 1972(3) SA 611(A) at 614D.\n\n\f25\n\n[66]\n\nWhile those principles have remained eternal truths with regard to the purposes of\n\npunishment, the justice and penal systems have been evolving towards a more\n\nenlightened and humane implementation of those principles. In keeping with\n\ninternational trends, there has been a gradual shift of emphasis away from the idea\n\nof sentencing being predominantly the arena where society wreaks its vengeance\n\non wrongdoers. Sentences have been passed with rehabilitation in mind.\n\n[67]\n\nThe introduction of correctional supervision with its prime focus on rehabilitation,\n\nthrough section 276 of the Act, was a milestone in the process of \"humanising\" the\n\ncriminal justice system. It brought along with it the possibility of several\n\nimaginative sentencing measures including, but not limited to, house arrest,\n\nmonitoring, community service and placement in employment. This assisted in the\n\nshift of emphasis from retribution to rehabilitation. This development was\n\nrecognised and hailed by Kriegler AJA in S v R80 as being the introduction of a\n\nnew phase in our criminal justice system allowing for the imposition of finely-\n\ntuned sentences without resorting to imprisonment with all its known disadvantages\n\nfor both the prisoner and the broader community.\n\n[68]\n\nThe development of this process must not be seen as a weakness, as the justice\n\nsystem having \"gone soft.\" What it entails is the application of appropriate and\n\neffective sentences. An enlightened society will punish offenders, but will do so\n\nwithout sacrificing decency and human dignity.\n\n[69]\n\n(b)\n\nThere is growing interest in moves to develop a new juvenile justice system. This\n\nimpacts directly on the availability of sentencing options for juveniles. It has been\n\na matter of comment that juveniles were being sentenced to whipping on the basis\n\nthat it was the only alternative to a prison sentence. Judges have, in the past,\n\nindicated their distaste for juvenile whipping; they have, however, tolerated and\n\nconfirmed the sentences purely as a device to avoid imprisoning juvenile\n\noffenders.\n\n 80 1993(1) SA 476 (A) at 488I.\n\n\f[70]\n\nIn S v Maseti Conradie J observed that the view that whipping should be imposed\n\nas a device to keep juveniles out of prison was fallacious:\n\n26\n\n\" ... [r]egsbeamptes laat jong mans slaan omdat\ndaar met ons beperkte middele, infrastrukture en\nvonnisopsies, net geen ander raad met hulle is nie\n . . . Maar dat die veroorsaking van pyn en leed 'n\nonbevredigende vonnisopsie is, weet ons algar\nlankal.\u201d81\n\nNoting that new sentencing options had been introduced into the criminal justice\n\nsystem, he voiced the hope that they would be creatively and effectively used.82 \n\n[71]\n\nJuvenile whipping, however, has not invariably met with judicial disapproval. In\n\nS v Vakalisa,83 Mitchell J referred to remarks in S v V en 'n Ander84 in which MT\n\nSteyn JA dealt at length with the undesirability of corporal punishment and\n\ndescribed it as \"extremely humiliating and physically painful.\u201d Mitchell J went on\n\nto observe:\n\n\"Whatever may be the South African view of this\nkind of punishment [juvenile whipping], the\nTranskeian lawgiver has taken a different view of\nthe desirability of corporal punishment in respect\nof juveniles even, as I have mentioned, specifically\nproviding for the whipping of female juveniles, a\nsentence which is frequently applied in various\nmagisterial districts of Transkei. I would have\nthought that it is far more important to keep\njuveniles out of gaol where the appropriate\ncircumstances exist, to save them the association\nwith adult convicted criminals, than to shy away\nfrom the imposition of a 'juvenile whipping'. This\nis particularly true in Transkei when, if a juvenile\n\n 81 Supra note 74, at 464 I-J.\n\n 82 Supra note 74, at 464J-465A.\n\n 83 1990(2) SACR 88 (Tk) at 94G-J.\n\n 84 Supra note 5.\n\n\f27\n\nis sent to prison, he cannot be sent to one for first\noffenders only, or to one where juveniles are\neffectively kept apart from adult criminals, for no\nsuch facilities yet exist in this country.\"85 \n\n[72]\n\nApart from drawing attention to the distressing fact that some legislation still\n\npermitted the whipping of females, Mitchell J's remarks in fact summarised what\n\nturned out to be the central argument proffered by the State in favour of the\n\nretention of juvenile whipping. If the option of corporal punishment is taken away,\n\nso we were warned, many juveniles who would not otherwise have been sent to\n\ngaol would now have to be imprisoned.\n\n[73]\n\nPickering J's approach in S v Sikunyana 86 appears to be more helpful in that it\n\ngives implicit recognition to alternative correctional supervision sentencing\n\noptions and the need for courts not to be \"unduly hamstrung\" by administrative and\n\nother difficulties in implementing community service orders.87 It would therefore\n\nseem that notwithstanding the daunting problems highlighted by Mitchell J in 1990,\n\nthe prospects for more enlightened sentencing options have improved. \n\n[74]\n\nTo the extent that facilities and physical resources may not always be adequate, it\n\nseems to me that the new dynamic should be regarded as a timely challenge to the\n\nState to ensure the provision and execution of an effective juvenile justice system.\n\nThe wider range of penalties now provided for in the Act88 permits a more\n\nflexible but effective approach in dealing with juvenile offenders.\n\n 85 Supra note 83, at 94I-J.\n\n 86 1994(1) SACR 206 (Tk).\n\n 87 Id. at 210G.\n\n 88 In addition to the provisions of section 290(supra), a juvenile may also be dealt with in terms of other\nsections of the Act, such as, section 287 [fine]; section 297(1)(a- c) [postponing sentence conditionally or\nunconditionally, suspended sentence subject to conditions; caution and discharge]; sections 276(1)(h) and 276A\n[correctional supervision]; and converting the trial to an enquiry in terms of the Child Care Act No. 74 of 1983.\n The latter course has 4 options, namely: (i) placing the child in the custody of a suitable foster parent; (ii) sending\nthe child to a designated children's home; (iii) sending the child to a designated school of industries; (iv) returning\nthe child to the parent or guardian, under ... supervision of a social worker.\n\n\f[75]\n\nThere is indeed much room for new creative methods to deal with the problem of\n\n28\n\njuvenile justice. During argument, we were informed that interesting sentencing\n\noptions were being increasingly applied in the Western Cape and that Conradie J\u2019s\n\nsuggestion to magistrates was a further encouragement to the process. There are,\n\nfor instance, community service orders which are linked to suspended or\n\npostponed sentences. These are structured in such a way that they meet the\n\npunitive element of sentencing while allowing for the education and rehabilitation\n\nof the offender. There is also the victim-offender mediation process in terms of\n\nwhich the victim is enabled to participate in the justice process, receive restitution\n\nwhile the offender is assisted to rehabilitate. There are sentences which are\n\nsuspended on condition that the offender attends a juvenile offender school for a\n\nspecific purpose. These orders are structured in such a way that they yield benefits\n\nto the victim of the crime, the offender and to the community. Doubtless these\n\nprocesses, still in their infancy, can be developed through involvement by State\n\nand non-governmental agencies and institutions which are involved in juvenile\n\njustice projects.\n\n[76]\n\n(c) \n\nThe enactment of the Constitution has created a framework within which significant\n\nchanges can be brought about in the criminal justice system. The rights entrenched\n\nin Chapter 3 are available to \"every person\"; that includes children and adults,\n\nwomen and men, prisoners and detainees. The Constitution clearly places a very\n\nhigh premium on human dignity and the protection against punishments that are\n\ncruel, inhuman or degrading; very stringent requirements would have to be met by\n\nthe State before these rights can be limited.\n\n[77]\n\nIn addressing itself specifically to punishment, the Constitution ensures that the\n\nsentencing of offenders must conform to standards of decency recognised\n\nthroughout the civilised word. Thus it sets a norm; measures that assail the\n\ndignity and self esteem of an individual will need to be justified; there is no place\n\nfor brutal and dehumanising treatment and punishment. The Constitution has\n\nallocated to the State and its organs a role as the protectors and guarantors of those\n\n\f29\n\nrights to ensure that they are available to all. In the process, it sets the State up as\n\na model for society as it endeavours to move away from a violent past. It is\n\ntherefore reasonable to expect that the State must be foremost in upholding those\n\nvalues which are the guiding light of civilised societies. Respect for human\n\ndignity is one such value; acknowledging it includes an acceptance by society that\n\n\" . . .even the vilest criminal remains a human being possessed of common human\n\ndignity.\"89 \n\n[78]\n\nThe State sought to strengthen its argument by pointing out the comparative convenience\n\nof juvenile whipping as a punishment: it satisfied criteria for punishment, while at the same\n\ntime affording the courts a reasonable sentencing option; it was not too harsh for young\n\noffenders, but it enabled them to \"get it over and done with\" quickly. In this context, we\n\nwere informed that parents often asked for this punishment to be imposed. \n\n[79] While there are obvious advantages to \"quick\" justice, society's greater concern must be\n\nthe form such punishment takes. The solutions we adopt in dealing with young offenders\n\nhave to be part of a greater context and must be consistent with the promotion of the values\n\nwhich are reflected in the Constitution. It cannot be reasonable and in keeping with these\n\nvalues to imply, through the punishments we impose, that the infliction of violence is an\n\nacceptable option in the solution of problems. In any event, this consideration falls far\n\nshort of the justification required to entitle the State to override the prohibition against the\n\ninfliction of cruel, inhuman or degrading punishment. Its implications for the dignity of\n\nthe individual are also far too serious. \n\n \n\n[80]\n\nThe State stressed the deterrent nature of juvenile whipping. Deterrence is, obviously, a\n\nlegitimate objective which the State may pursue. We live in a crime-ridden society; the\n\ncourts and other relevant organs of the State have a duty to make crime unattractive to those\n\nwho are inclined to embark on that course. The concerns which the provision seeks to\n\naddress are indeed pressing and they are substantial. But, as already stated, the means\n\nemployed must be reasonable and demonstrably justifiable. No clear evidence has been\n\n 89 Brennan J in Furman v Georgia supra note 36, at 273.\n\n\f30\n\nadvanced that juvenile whipping is a more effective deterrent than other available forms\n\nof punishment. \n\n[81]\n\nIn 1960 the Advisory Council on the Treatment of Offenders reviewed the decision\n\nabolishing corporal punishment in the United Kingdom, which had been taken pursuant to\n\nthe Cadogan Report of 1938.90 The Council pointed out that \"[t]here is no evidence that\n\ncorporal punishment is an especially effective deterrent either to those who have received\n\nit or to others.\"91 It therefore arrived at the unanimous conclusion that judicial corporal\n\npunishment should not be re-introduced. In S v Motsoesoana Page J, in an exhaustive\n\nanalysis of the law in relation to corporal punishment, arrived at the conclusion that\n\ncorporal punishment serves no useful deterrent function, on the contrary, \u201cits effect is likely\n\nto be coarsening and degrading rather than rehabilitative.\"92 In his judgment he also\n\nreferred to an article by Professor Kahn on Crime and Punishment 1910-1960:\n\n\"Even making the utmost allowances for extraneous factors such as\nchanges in population and in the efficiency of the police force and\nprosecuting authorities, it seems reasonable to conclude that the\ndeterrent effect of compulsory whipping is nowhere to be seen. If\nthis is so, its retention can only be atributed to some spirit of\nretribution or revenge.\" 93 \n\n[82]\n\nIt may be relevant to observe that three of the applicants in this matter had previous\n\nconvictions for which they had received strokes; one of them, Witbooi, had in fact received\n\nfive strokes a mere five months before the present sentence. Some of the co-accused had\n\na variety of previous convictions for which they had received sentences which included\n\nstrokes. One of them, namely Thomas, had already received a total of sixteen strokes.\n\nThe previous punishment has obviously failed to act as a sufficient deterrent in these cases.\n\n[83]\n\nI am, however, prepared to accept that there is some deterrent value in juvenile whippings.\n\n As Milne JP observed in S v Kumalo and Others it could be expected that:\n\n 90 See S v Motsoesoana supra note 12, at 353F-G.\n\n 91 Id. at 353I.\n\n 92 Id. at 354D-F.\n\n 93 Id. at 352I-J: article published in 1960 Acta Juridica 191 at 211-2.\n\n\f31\n\n\" . . . the thought of a severe whipping, whether as a result of\nexperience or only of an act of imagination, could well have\ndeterred very many, although it is all too evident that very many\nhave not thereby been deterred.\"94 \n\n \n\n \n\n[84] What has not been shown is that such deterrent value as might exist is sufficiently\n\nsignificant to enable the State to override a right entrenched in the Constitution. All\n\nindications are to the contrary. While juvenile whipping has a brutalising effect, it has not\n\nbeen shown that it has the capacity to deter more than other punishments would do.\n\nMoreover, I agree with the remarks of Fannin J in S v Kumalo and Others: \n\n\"Within comparatively recent times corporal punishment of quite\nhorrifying severity were inflicted for a great number of offences,\nand I, for one do not believe that the general deterrent effect of such\npunishments justified the suffering and indignity which were\ninflicted upon those who were so punished. I am of the opinion\nthat a whipping is a punishment of a particularly severe kind. It is\nbrutal in its nature and constitutes a severe assault upon not only\nthe person of the recipient but upon his dignity as a human being.\nThe severity of the punishment depends, to a very large extent,\nupon the personality of the officer charged with the duty of\ninflicting it, and over that the court ordering the punishment can\nhave little, if any, control.\"95\n\n[85] Howie AJA, quite correctly in my view, warned against the idea that the accused should\n\nbe sacrificed on the altar of deterrence.96 To this I would add that this is even more so\n\nwhen the court is dealing with a youthful offender. \n\n[86]\n\nIf, as I have found, the deterrence value is so marginal that it does not justify the imposition\n\nof this special punishment, involving as it does the deliberate infliction of physical pain,\n\none has to conclude that the sole reason for retaining it is to satisfy society's need for\n\nretribution. While retribution is, in itself, a legitimate element of punishment, it is not the\n\nonly one; it should not be the overriding one. It cannot, on its own, justify the existence of\n\n 94 Supra note 7, at 571H.\n\n 95 Id. at 574 E-H.\n\n 96 See S v Sobandla 1992(2) SACR 613(A) at 617G.\n\n\fthe punishment. \n\n32\n\n[87]\n\nIt needs to be stressed that it is in the interests of justice that crime should be punished. As\n\npointed out by Schreiner JA in R v Karg:\n\n \n\n\"It is not wrong that the natural indignation of interested persons\nand of the community at large should receive some recognition in\nthe sentences that courts impose, and it is not irrelevant to bear in\nmind that if sentences for serious crimes are too lenient, the\nadministration of justice may fall into disrepute and injured\npersons may incline to take the law into their own hands.\"97\n\n[88] However, punishment that is excessive serves neither the interests of justice nor those of\n\nsociety. According to Brennan J,98 punishment is excessive if it is unnecessary, and it is\n\nunnecessary \u201cif there is a significantly less severe punishment adequate to achieve the\n\npurposes for which the punishment is inflicted.\u201d In Gregg v Georgia,99 Stewart J,\n\ndescribed the unnecessary and wanton infliction of pain as an aspect of excessiveness.\n\n[89]\n\nFinally, the perceived advantages or benefits of juvenile whipping must be weighed\n\nagainst the rights which the provision seeks to limit. Corporal punishment involves the\n\nintentional infliction of physical pain on a human being by another human being at the\n\ninstigation of the State. This is the key feature distinguishing it from other punishments.\n\nThe degree of pain inflicted is quite arbitrary, depending as it does on the person who is\n\ndelegated to do the whipping. The court merely directs the number of strokes to be\n\nimposed. The objective must be to penetrate the levels of tolerance to pain; the result\n\nmust be a cringing fear, a terror of expectation before the whipping and acute distress\n\nwhich often draws involuntary screams during the infliction. There is no dignity in the act\n\nitself; the recipient might struggle against himself to maintain a semblance of dignified\n\nsuffering or even unconcern; there is no dignity even in the person delivering the\n\n 97 Supra note 78, at 236A-B.\n\n 98 Furman supra note 36, at 279.\n\n 99 Supra note 38, at 173. \n\n\fpunishment. It is a practice which debases everyone involved in it.\n\n33\n\n[90]\n\nI have already referred to the dictionary meaning of the words \"cruel, inhuman or\n\ndegrading.\u201d Conduct which fits any one of the adjectives is therefore hit by the\n\nprohibition. I however do not see any compelling reason to confine the conduct impugned\n\nto one adjective only. The deliberate infliction of pain with a cane on a tender part of the\n\nbody as well as the institutionalised nature of the procedure involves an element of cruelty\n\nin the system that sanctions it. The activity is planned beforehand, it is deliberate.\n\nWhether the person administering the strokes has a cruel streak or not is beside the point.\n\nIt could hardly be claimed, in a physical sense at least, that the act pains him more than his\n\nvictim. The act is impersonal, executed by a stranger, in alien surroundings. The juvenile\n\nis, indeed, treated as an object and not as a human being. As pointed out in Jackson v\n\nBishop:\n\n \n\n \n\n\". . . irrespective of any precautionary conditions which may be\nimposed, [it] offends contemporary concepts of decency and human\ndignity and precepts of civilisation which we profess to\npossess...\"100\n\n[91] No compelling interest has been proved which can justify the practice. It has not been\n\nshown that there are no other punishments which are adequate to achieve the purposes for\n\nwhich it is imposed. Nor has it been shown to be a significantly effective deterrent. On the\n\nother hand, as observed by Page J in S v Motsoesoana,101 its effect is likely to be\n\ncoarsening and degrading rather than rehabilitative. It is moreover also unnecessary. \n\nMany countries in the civilised world abolished it long ago; there are enough sentencing\n\noptions in our justice system to conclude that whipping does not have to be resorted to.\n\nThus, whether one looks at the adjectives disjunctively or regards the phrase as a\n\n\"compendious expression of a norm\", it is my view that at this time, so close to the dawn\n\nof the 21st century, juvenile whipping is cruel, it is inhuman and it is degrading. It cannot,\n\nmoreover, be justified in terms of section 33(1) of the Constitution. \n\n 100 Supra note 51 at 579.\n\n 101 Supra note 12 at 354F.\n\n\f34\n\n[92]\n\nI accordingly find that the provisions of section 294 of the Act violate the provisions of\n\nsections 10 and 11(2) of the Constitution and that they cannot be saved by the operation of\n\nsection 33(1) of the Constitution. Although the provision concerned is a law of general\n\napplication, the limitation it imposes on the rights in question is, in the light of all the\n\ncircumstances, not reasonable, not justifiable and it is furthermore not necessary. The\n\nprovisions are therefore unconstitutional. \n\n \n\n[93]\n\nIt becomes unnecessary to embark on an investigation to determine whether or not the\n\nprovision in fact negates the essential content of any of the rights involved. \n\n[94]\n\nIn the light of this finding, I do not find it necessary to debate the issue whether section 294\n\nof the Act also infringes the other provisions of the Constitution, namely sections 8 and 30.\n\n[95]\n\nThere may well be cases where juveniles have been sentenced in terms of section 294 of\n\nthe Act but where the sentences have, for some reason or other, not yet been carried out.\n\nIt follows from the finding of this Court that such sentences will have to be set aside by the\n\ncourts having jurisdiction to do so and new sentences substituted.\n\n[96]\n\nThe following order is accordingly made:\n\n1.\n\nThe following provisions of the Criminal Procedure Act No. 51 of 1977 (as\n\namended) are inconsistent with the Repbulic of South Africa Constitution Act No.\n\n200 of 1993 (as amended) and are, with effect from the date of this order, declared\n\nto be invalid and of no force and effect:\n\n(a)\n\n(b)\n\nsection 294 in its entirety; and\n\nthe words \u201cor a whipping\u201d in section 290(2).\n\n2.\n\nIn terms of section 98(7) of the Constitution, it is ordered that with effect\n\nfrom the date of this order, no sentences imposed in terms of section 294\n\nof the Criminal Procedure Act No. 51 of 1977, shall be carried out.\n\n\f35\n\n3.\n\nThe matter of State v Williams (Review No. 53/94) is referred back to the\n\nCape of Good Hope Provincial Division for an appropriate order.\n\n \nP N Langa\nJudge of the Constitutional Court\n\nChaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Madala J, Mahomed J, Mokgoro\nJ, O\u2019Regan J and Sachs J all concur in the judgment of Langa J.\n\n\fCASE NUMBER:\n\nCOUNSEL ON BEHALF OF\nTHE ACCUSED:\n\nINSTRUCTED BY:\n\nCOUNSEL FOR THE STATE:\n\nDATE OF HEARING:\n\nDATE OF JUDGMENT:\n\nCCT/20/94\n\nL J Bozalek\n\nP Hathorn\n\nS P Kahanovitz\nLegal Resources Centre, Cape Town\n\nJ Slabbert\n\n24 March 1995\n\n9 June 1995\n\n\f"}, "id": "d6040765-54b1-472f-989a-6620e08045e2", "update_date": "2021-03-15 17:08:56.815502", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO: CCT/20/94 In the matter of : THE STATE versus HENRY WILLIAMS JONATHAN KOOPMAN TOMMY MAMPA GARETH PAPIER JACOBUS GOLIATH SAMUEL WITBOOI HEARD ON DELIVERED ON 24 MARCH 1995 9 JUNE 1995 LANGA, J: JUDGMENT", "This matter has been referred to this Court by the Full Bench of the Cape of Good Hope Provincial Division of the Supreme Court (Conradie, Scott and Farlam JJ). It is a consolidation of five different cases in which six juveniles were convicted by different magistrates and sentenced to receive a \"moderate correction\" of a number of strokes with a light cane. The issue is whether the sentence of juvenile whipping, pursuant to the provisions of section 294 of the Criminal Procedure Act,1 is consistent with the provisions of the Constitution.2", "Mr. Bozalek appeared with Mr. Hathorn as amicus curiae on behalf of the accused; they were assisted by the Legal Resources Centre's Cape Town office. We are indebted to both Counsel and to the Legal Resources Centre. Before the date of the hearing, the President of this Court was advised by the Attorney General of the Cape of Good Hope Provincial 1 Act No. 51 of 1977 (as amended). For convenience this will be referred to simply as \"the Act.\u201d 2 Act No. 200 of 1993 (as amended). For convenience, this will henceforth be referred to simply as \"the Constitution.\" Division that he wished to withdraw the argument which had been filed on his behalf (and on behalf of the State) as he shared the view that the provisions relating to corporal punishment in section 294 of the Act were unconstitutional. Mr. Slabbert, who is a member of the Attorney General's staff, however agreed to present the opposing argument as amicus curiae in accordance with the written argument which had been filed on behalf of the State. We place on record our appreciation to him for having undertaken this task.", "Purely for the sake of convenience, I shall refer to the accused as the applicants and to the position adopted by Mr. Slabbert in his argument as that of the State.", "Although each of the cases has a history of its own, much is in common. The applicants are all males and they are all juveniles. Three of them, namely, Williams, Koopman and Mampa were each sentenced to suspended prison sentences in addition to the juvenile whipping. The remaining three were sentenced to juvenile whipping only. All the trials had commenced before 27 April 1994; each of the sentences was passed after 27 April 1994.", "The Provincial Division became seized of the matters in two ways: all five cases were subject to automatic review in terms of section 302(1)(a) of the Act because of the terms of imprisonment, albeit suspended, imposed on the applicants themselves or on their fellow accused who do not feature in the present proceedings. In addition to this, Mr. A.P. Dippenaar who presided over the case involving Williams, requested that the sentence of strokes be subjected to special review in terms of section 304(4) of the Act. He took this step because he doubted whether juvenile whipping was a permissible punishment in the light of the provisions of the Constitution and in view of the decision in Ex Parte Attorney- General, Namibia: In re Corporal Punishment By Organs of State.3", "Whether, as a matter of strict law, the Magistrate was correct in deferring the execution of the whipping4, is not in issue. He deserves to be commended for treating as a matter of 3 1991(3) SA 76 (NmSC). 4 In S v Pretorius 1987(2) SA 250 (NC) it was held that where a magistrate has, in terms of section 294 of the Act, sentenced a juvenile offender to a whipping, and has conjoined a sentence which is subject to automatic review \f3 priority an issue involving fundamental human rights and in particular, the application of the provisions of Chapter 3 of the Constitution. He indeed went further than merely taking the initiative to submit the matter for special review.", "A sentence of juvenile whipping in terms of section 294 of the Act is not normally reviewable; the whipping is therefore administered immediately after sentence is passed. There must have been countless instances in the past where courts sitting on appeal or review have had to set aside sentences imposed by trial courts because of irregularities; where those offenders had been sentenced to a juvenile whipping, the punishment would almost invariably have been carried out already.5 Once a whipping has been administered, as is the case with five of the applicants in this matter, any decision which this Court comes to, will make no practical difference to them for purposes of the present proceedings. Mindful of this, Mr Dippenaar ordered that the sentence of five strokes imposed by him on the applicant Williams should not be carried out until the issue, whether or not the punishment was consistent with the Constitution, had been finally decided by the appropriate court. The concern he displayed is to be welcomed.", "Courts do have a role to play in the promotion and development of a new culture \"founded on the recognition of human rights,\"6 in particular, with regard to those rights which are enshrined in the Constitution. It is a role which demands that a court should be particularly sensitive to the impact which the exercise of judicial functions may have on the rights of individuals who appear before them; vigilance is an integral component of this role, for it is incumbent on structures set up to administer justice to ensure that as far as possible, these rights, particularly of the weakest and the most vulnerable, are defended and not ignored. One of the implications of the new order is that old rules and practices can no longer be taken for granted; they must be subjected to constant re-assessment to bring them to the whipping, the magistrate does not have the jurisdiction to suspend the infliction of the whipping pending the result of the review. The case might of course be distinguishable on the basis that what is at issue here and what is sought to be reviewed, is the sentence of whipping. 5 See S v Ruiters en Andere, S v Beyers en Andere, S v Louw en 'n Ander 1975(3) SA 526 (C); S v M 1982(1) SA 240 (N); S v V en 'n Ander 1989(1) SA 532 (A); S v F 1989(1) SA 460 (ZHC); S v Zuzani and Others 1991(1) SACR 534 (Tk). 6 See the provision in the Constitution under the heading \u201cNational Unity and Reconciliation.\u201d \finto line with the provisions of the Constitution. 4", "It was no doubt because of these considerations that Conradie J advised magistrates for their guidance that, pending the decision of this Court, it would be undesirable for sentences of whipping, in terms of section 294 of the Act, to be imposed and that where such sentence had in fact been imposed, it might not be appropriate for it to be carried out until a ruling from the Constitutional Court had been obtained.", "When the matter was argued before this Court, it was common cause between the applicants and the State that the provisions in our law which authorise corporal punishment for adults are inconsistent with the Constitution. This consensus of course does not remove those provisions from the statute book; they have not been set aside by a competent body or authority and the relevant legislation has not been repealed. The agreement is, however, an acknowledgement of the effect which the provisions of the Constitution have in forcing a re-assessment of the laws that govern us against the values expressed in the Constitution. The effect is to demarcate the parameters of civilised behaviour, at least at the level of the administration of justice.", "Apart from provisions which permit juvenile whipping, the law presently allows whipping as a punishment which may be imposed upon adult males between the ages of 21 and 30 years. This is notwithstanding the fact that over the last thirty years at least, South African jurisprudence has been experiencing a growing unanimity in judicial condemnation of corporal punishment for adults. Criticism of the practice has been consistent and emphatic, it being characterised as \"punishment of a particularly severe kind ... brutal in its nature ... a severe assault upon not only the person of the recipient but upon his dignity as a human being\";7 \"a very severe and humiliating form of punishment\";8 \"`n uiterste strafvorm\";9 \"`n erg vernederende en fisies baie pynlike vorm van bestraffing\";10 \"cruel and inhuman 7 Fannin J in S v Kumalo and Others 1965(4) SA 565 (N) at 574F; see also S v Maisa 1968(1) SA 271 (T) at 271E. 8 De Wet CJ in S v Myute and Others and S v Baby 1985(2) SA 61 (Ck) at 62H; see also S v Zimo en Andere 1971(3) SA 337 (T) at 338G; S v Ruiters et al supra note 5, at 530B; S v Seeland 1982(4) SA 472 (NC) at 476H. 9 Conradie J in S v Staggie 1990(1) SACR 669 (C) at 675C. 10 MT Steyn in S v V en 'n Ander supra note 5, at 543D. \fpunishment.\u201d11 This tone of condemnation is to be found, not only in many decisions in this 5 country,12 but also in other jurisdictions.13", "If adult whipping were to be abolished, it would simply be an endorsement by our criminal justice system of a world-wide trend to move away from whipping as a punishment. As far back as 1947, the Lansdown Commission of Enquiry, while recommending the retention of corporal punishment in limited form in South Africa, made the point that most civilized countries in the world had abandoned corporal punishment as a method of dealing with crime. The report of the Viljoen Commission, tabled in Parliament in January 1977, also endorsed the view that whipping for adults was a brutal assault, not only on the person of the recipient, but also on his dignity as a human being.", "The provisions being challenged, however, relate to juvenile whipping. The State was at pains to point out that there are differences between adult and juvenile whipping. The contention was that corporal punishment was not in itself objectionable, particularly when restricted to male youths; what rendered adult whipping constitutionally unacceptable was the manner in which it was executed. The nub of the enquiry is, however, not the legality or otherwise of adult whipping or how different it is from juvenile whipping. The issue is whether juvenile whipping, on its own merits or demerits, is consistent with the Constitution.", "The Act contains a number of related provisions which deal with the infliction of corporal punishment.14 In so far as juveniles are concerned, no minimum age is fixed in the Act although practice and judicial decisions would seem to have fixed the lower age limit at 11 Greenland J in S v F supra note 5, at 460I. 12 See S v Ximba and 2 Others 1972(1) PH H66 (N); S v Motsoesoana 1986(3) SA 350 (N) at 355D; S v Daniels 1991(2) SACR 403 (C) at 406B. 13 See e.g., S v Ncube; S v Tshuma; S v Ndlovu 1988(2) SA 702 (ZSC); Ex Parte Attorney-General, Namibia: in re Corporal Punishment supra note 3. 14 Some sections contain general provisions which are applicable to both adults and juveniles, e.g. section 276 which lists whipping as one of a range of punishments which may be imposed and section 292 which provides general guidelines for whipping. \f6 9 years.15 A whipping may not be imposed \"if it is proved that the existence of some psychoneurotic or psychopathic condition contributed towards the commission of the offence.\"16 Section 294(1)(a) provides for whipping to be carried out \"by such person and in such place and with such instrument as the court may determine.\" We were informed that, in practice, a cane is used, but it is significant that the Act leaves this to the discretion of the magistrate.17 The maximum number of strokes that may be imposed at any one time is seven.18 Juvenile whipping is inflicted over the buttocks, which must be covered with normal attire 19 and a parent or guardian may be present.20 No whipping may be carried out unless a district surgeon or an assistant district surgeon has certified that the juvenile \"is in a fit state of health to undergo the whipping.\"21 Juveniles over the age of 17 years may be sentenced to a whipping in addition to any other sentence, provided that where a sentence of imprisonment is imposed, the whole period must be suspended.22", "The applicants sought to impugn section 294 of the Act on a number of grounds. It was contended that this provision violated sections 8, 10, 11, and 30 of the Constitution. These provisions are contained in Chapter 3, which is generally referred to as the Chapter on Fundamental Rights.", "Section 8(1) of the Constitution guarantees to each person \"the right to equality and to 15 See S v Du Preez 1975(4) SA 606 (C). 16 Section 295(2). 17 Section 292(2) of the Act prescribes a cane as the instrument to be used for adult whiping. See also section 92(1)(c) of the Magistrates\u2019 Court Act No. 32 of 1944 (as amended) which prescribes that a cane only may be used for whipping. This provision, however, excludes juvenile whipping in terms of section 294. During oral argument, we were informed that, in practice, canes conforming to the dimensions listed in the regulations of the Department of Correctional Services are used for both adult and juvenile whipping. See Regulation 100(4) promulgated in terms of section 94 of the Correctional Services Act No. 8 of 1959 (as amended) which provides that canes used for the whipping of prisoners should approximate 125cm in length and 12 mm in width for adults and 100cm by 9mm for juveniles. 18 Section 294(1)(a). 19 Section 294(2). 20 Section 294(3). 21 Section 294(5). 22 Section 294(1)(b). \f7 equal protection of the law.\" Section 8(2) prohibits unfair discrimination on grounds which include race, gender, sex, colour, and age; according to section 8(4), \"[p]rima facie proof of discrimination on any of the grounds specified ... shall be presumed to be sufficient proof of unfair discrimination ... until the contrary is established.\" Applicants argued that the provisions of section 294 of the Act discriminated unfairly against male juveniles on grounds of age and sex and, in the context of South Africa's unjust and unequal past, their application was susceptible to racial bias.", "Section 10, for its part, guarantees to every person \" the right to respect for and protection of his or her dignity.\" The proposition advanced was that the circumstances under which juvenile whipping is administered, including the fact that it involves the intentional infliction of physical pain on the juvenile by a stranger at the instance of the State, are incompatible with respect for and the protection of the dignity of the person being punished. It was contended that this was a violation of the dignity of both the minor as well as that of the person administering the whipping.", "The provisions of section 30 of the Constitution are designed to protect children. It was argued that inasmuch as the Constitution recognises the vulnerability of children as a group and sets out to protect them, juvenile whipping infringed their right to security and not to be subjected to abuse.", "Much of applicants' argument was, understandably enough, devoted to the alleged violation of section 11(2) of the Constitution. As the heading indicates, this section deals with \"[f]reedom and security of the person\" and the subsection provides that \"[n]o person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.\" This is the only provision, among those relied upon by the applicants, that expressly refers to punishment. I propose to deal with the impact, if any, of sections 10 and 11(2) of the Constitution on the conduct which is prescribed by section 294 of the Act.", "It is clear that when the words of section 11(2) of the Constitution are read disjunctively, \f8 as they should be,23 the provision refers to seven distinct modes of conduct, namely: torture; cruel treatment; inhuman treatment; degrading treatment; cruel punishment; inhuman punishment and degrading punishment.", "In common with many of the rights entrenched in the Constitution, the wording of this section conforms to a large extent with most international human rights instruments.24 Generally, the right is guaranteed in absolute, non-derogable and unqualified terms; justification in those instances is not possible.25", "The interpretation of the concepts contained in section 11(2) of the Constitution involves the making of a value judgment which \u201crequires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the ... people as expressed in its national institutions and its Constitution, and further having regard to the emerging consensus of values in the civilised international community ... \u201d26", "While our ultimate definition of these concepts must necessarily reflect our own experience and contemporary circumstances as the South African community, there is no disputing that valuable insights may be gained from the manner in which the concepts are dealt with in public international law as well as in foreign case law. 23 See S v Ncube, S v Tshuma, S v Ndhlovu supra note 13, at 714I-715D and Ex Parte Attorney General, Namibia: In re Corporal Punishment supra note 3, at 86A-C. 24 Article 5 of the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations on 10 December 1948, forbids \"torture or . . . cruel, inhuman or degrading treatment or punishment.\u201d According to Sieghart, The International Law of Human Rights (1983) 159-160 and 162, the wording has been followed with minor variations in a number of other international instruments and national constitutions adopted since 1949. See e.g., Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which is identical; Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( \"torture or . . . inhuman or degrading treatment or punishment\"); Article 5 of the Banjul Charter on Human and Peoples' Rights (African Charter) (\". . . torture, cruel, inhuman or degrading punishment and treatment\"). 25 Article 8 of the Namibian Constitution, for instance, provides: \u201c(1) The dignity of all persons shall be inviolable. (2)(a) . . . (b) No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.\" No limitation applies to this provision. See also Ex Parte Attorney General, Namibia supra note 3, at 86D; Sieghart op cit at 161. 26 Mahomed AJA in Ex Parte Attorney-General, Namibia supra, note 3, at 86 I. \f9", "The Oxford English Dictionary defines 'cruel' as \"causing or inflicting pain without pity,\" 'inhuman' as \"destitute of natural kindness or pity, brutal, unfeeling, savage, barbarous\" and 'degrading' as \"lowering in character or quality, moral or intellectual debasement.\" In South African case law, definitions of \u2018cruel,\u2019 with regard to treatment or punishment are rare. The phrase \"cruel treatment\" has been used in the context of abuse of animals and has been described variously as \"wilfully caus[ing] pain without justification ... intention of causing it unnecessary suffering;\"27 \"deliberate act causing substantial pain and not reasonably necessary in all the circumstances.\"28", "Whether it is necessary to split the words of the phrase and interpret the concepts individually is a matter which would largely depend on the nature of the conduct sought to be impugned. It may well be that in a given case, conduct that is degrading may not be inhuman or cruel. On the other hand, other conduct may be all three. It was suggested to us that a useful approach might be to grade the concepts on a sliding scale of suffering inflicted, torture occupying the extreme position, followed by cruel, inhuman and degrading, in that order.", "International forums offer very little guidance with regard to the meaning to be given to each word, individually. The tendency has been to deal with them as phrases or a combination of words. Thus when the United Nations Human Rights Committee (UNHRC) was called upon to interpret the corresponding section in the International Covenant on Civil and Political Rights (ICCPR), it did not consider \u201cit necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.\u201d 29 According to the UNHRC, the assessment of what constitutes inhuman or degrading treatment depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of 27 R v Mountain 1928 TPD 86 at 88. 28 Hellberg v R 1933 NPD 507 at 510. 29 General Comment 20.4 of the Human Rights Committee 1992 Report (referred to in and filed with applicants\u2019 brief). \fhealth of the victim. 30 10", "Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention), has been interpreted by distinguishing the concepts primarily by the degree of suffering inflicted.31 The European Commission of Human Rights (European Commission) described inhuman treatment as that which \"causes severe suffering, mental or physical, which in the particular situation is unjustifiable\" and torture as \"an aggravated form of inhuman treatment.\u201d 32 The European Court of Human Rights (European Court) found the difference between torture and inhuman treatment in the fact that the former attaches \u201ca special stigma to deliberate inhuman treatment causing very serious and cruel suffering.\"33 The Court also categorised degrading conduct as that which aroused in its victims feelings of fear, anguish and inferiority leading to humiliation and debasement and possible breaking of their physical or moral resistance.34 The same Court distinguished between inhuman and degrading punishment in Tyrer v United Kingdom,35 and held that suffering had to reach a certain level before punishment could be characterised as inhuman. In a case where a juvenile had been sentenced to three strokes of the birch, the Court found that although that level had not been reached, the birching of the minor nevertheless amounted to degrading punishment.", "The Eighth Amendment to the Constitution of the United States of America (Eighth Amendment) as well as Article 12 of the Canadian Charter of Rights and Freedoms (Canadian Charter) prohibit \"cruel and unusual punishment.\" In Furman v Georgia,36 Brennan J postulated criteria in the assessment of what amounts to cruel and unusual 30 See Vuolanne v Finland 96 ILR 649, 657. 31 See P van Dijk and GJH van Hoof, Theory and Practice of the European Convention on Human Rights, (1990), 2 ed., 226-227. 32 See Denmark et al v Greece: Report of 5 November 1969,Yearbook of the European Convention on Human Rights XII (1969), 186. 33 The Republic of Ireland v The United Kingdom (1979-80) 2 EHRR 25, 80, paragraph 167. 34 Id. 35 (1979-80) 2 EHRR 1, 9, paragraph 29. 36 408 US 238 (1972). This case held that capital punishment in the then existing statute, providing for capital punishment, in the State of Georgia was unconstitutional. \f11 punishment. He pointed out that punishment does not become \"cruel and unusual\" merely because of the pain inflicted. The true significance lay in the fact that members of the human race are treated: \"... as nonhumans, as objects to be toyed with and discarded ... [and that this is] ... thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.\"37", "Although some of the views expressed in Furman v Georgia were qualified in the subsequent case of Gregg v Georgia,38 Stewart J in the latter case affirmed that the basic concept underlying the Eighth Amendment \"is the dignity of man.\"39", "The framework of Canadian rights legislation is not much different from ours and section 1 of the Canadian Charter plays a role not very dissimilar to that of section 33(1) of the Constitution. The Canadian Supreme Court has interpreted the concept \"cruel and unusual punishment\" as a \"compendious expression of a norm\" to which the relevant test was \"whether the punishment prescribed is so excessive as to outrage the standards of decency.\"40 Factors to be taken into account in the assessment of the punishment included its effect, which must not be grossly disproportionate, the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case. According to Dickson CJ and Lamer J: \" ... some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed ... \"41", "The decisions of the Supreme Courts of Namibia and of Zimbabwe are of special 37 Id. at 273. 38 408 US 153 (1976). The ruling in this case differed from that in Furman v Georgia; it was held that the new statute providing for capital punishment in the State of Georgia was not prohibited by the Eighth Amendment. 39 Id. at 173. 40 Smith v The Queen (1988) 31 CRR 193, 213. 41 Id. at 214. \f12 significance. Not only are these countries geographic neighbours, but South Africa shares with them the same English colonial experience which has had a deep influence on our law; we of course also share the Roman-Dutch legal tradition. Unlike our Constitution, the Namibian Constitution does not have a general limitation clause. Article 22 however specifies how limitations, whether they are built-in or are imposed by other laws, are to be employed. In Ex Parte Attorney-General, Namibia, Mahomed AJA had no difficulty in arriving at the conclusion that the infliction of corporal punishment, whether on adults or juveniles, was inconsistent with article 8 of the Namibian Constitution and constituted \"inhuman or degrading\" punishment.42", "In S v Ncube; S v Tshuma and S v Ndhlovu the Zimbabwe Supreme Court, dealing with the issue of corporal punishment for adults, held that the practice was inhuman and degrading in violation of section 15(1) of the Declaration of Rights of the Zimbabwe Constitution which prohibits \"torture or inhuman or degrading punishment.\"43 The same conclusion was reached with respect to juvenile whipping by the Zimbabwe High Court in S v F.44 Juvenile whipping was held to constitute inhuman and degrading punishment by the Zimbabwe Supreme Court in S v Juvenile.45 Gubbay JA characterised juvenile whipping as: \" . . . inherently brutal and cruel; for its infliction is attended by acute physical pain. After all, that is precisely what it is designed to achieve ... In short, whipping, which invades the integrity of the human body, is an antiquated and inhuman punishment which blocks the way to understanding the pathology of crime.\"46", "The Court in Tyrer v United Kingdom characterised the whipping of a juvenile thus: \"The very nature of judicial corporal punishment is that it involves one human being inflicting physical violence on another human 42 Supra note 3. 43 Supra note 13, at 721H. 44 Supra note 5. At 462I-J Greenland J agreed with the characterisation of corporal punishment as \"barbaric, inherently brutal, cruel, inhuman and degrading.\" 45 1990(4) SA 151 (ZSC). 46 Id. at 168I-169B. \f13 being. Furthermore, it is institutionalised violence, that is in the present case violence permitted by the law, ordered by the judicial authorities of the State and carried out by the police authorities of the State. Thus, although the applicant did not suffer any severe or long-lasting physical effects, his punishment - whereby he was treated as an object in the power of the authorities - constituted an assault on precisely that which is the main purpose of Article 3 to protect, namely a person's dignity and physical integrity ... The institutionalised character of this violence is further compounded by the whole aura of official procedure attending the punishment and by the fact that those inflicting it were total strangers to the offender.\"47", "The circumstances described above are present in any judicial corporal punishment;48 they are certainly present in juvenile whipping in terms of section 294 of the Act. They are consistent with Mahomed AJA's summary, in Ex Parte Attorney-General, Namibia,49 and that of Gubbay JA in S v Ncube, S v Tshuma, S v Ndhlovu50 on the basis of the objection to corporal punishment.", "Whether one speaks of \"cruel and unusual punishment\" as in the Eighth Amendment of the United States Constitution and in article 12 of the Canadian Charter, or \"inhuman or degrading punishment\" as in the European Covention and the Constitution of Zimbabwe, or \"cruel, inhuman or degrading punishment\" as in the Universal Declaration of Human Rights, the ICCPR and the Constitution of Namibia, the common thread running through the assessment of each phrase is the identification and acknowledgement of society's concept of decency and human dignity.", "In the United States, the Eighth Amendment to the Constitution is interpreted in the light of \"contemporary standards of decency.\" These standards, it has been held, are not static but are continually evolving.51 The relationship between \"contemporary standards of decency\" 47 Supra note 35, at 11, paragraph 33. 48 See S v Juvenile supra note 45, at 156F-H. 49 Supra note 3, at 87D-H. 50 Supra note 13, at 722A-D. 51 In Trop v Dulles 356 US 86 (1958) at page 101, it was held that the Eighth Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. In Weems v United \f14 and public opinion is uncertain and I am not convinced that they are synonymous. It is clear, as was pointed out by Chaskalson P in State v Makwanyane and Mchunu that public opinion, on its own, is not determinative of constitutional issues: \"If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public . . . but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution.\"52", "It is not clear to me however that it is necessary to adopt the American concept of \"contemporary standards of decency\" or that it is necessary to give definitive meaning to that phrase. Our Constitution is different to the American constitution. Section 35(1) of the Constitution provides expressly that the rights entrenched in it, including sections 10 and 11(2), shall be interpreted in accordance with the values which underlie an open and democratic society based on freedom and equality. In determining whether punishment is cruel, inhuman or degrading within the meaning of our Constitution, the punishment in question must be assessed in the light of the values which underlie the Constitution.", "The simple message is that the State must, in imposing punishment, do so in accordance with certain standards; these will reflect the values which underpin the Constitution; in the present context, it means that punishment must respect human dignity and be consistent with the provisions of the Constitution.", "There is unmistakably a growing consensus in the international community that judicial whipping, involving as it does the deliberate infliction of physical pain on the person of the accused, offends society's notions of decency and is a direct invasion of the right which every person has to human dignity. This consensus has found expression through the courts and legislatures of various countries and through international instruments. It is a States 217 US 349 (1910) at page 378, the court observed that the Eighth Amendment is progressive and does not merely prohibit cruel punishments known in 1688 and 1787, but may acquire wider meaning \u201cas public opinion becomes enlightened by humane justice.\u201d In Jackson v Bishop 404 F 2d 571 (1968) at page 579, reference is made to \"contemporary concepts of decency and human dignity and precepts of civilisation which we profess to possess\"; see also Nelson v Heyne 491 F 2d 352 (1974). 52 Case No. CCT/ 3/94 at paragraph 88. \fclear trend which has been established. 15", "Corporal punishment has been abolished in a wide range of countries, including: the United Kingdom,53 Australia (except in the State of Western Australia),54 the United States of America, 55 Canada, 56 Europe 57 and Mozambique,58 among others. In Lesotho, restrictions have been imposed by the courts on the whipping of people over 30 years.59 Although the Constitution of Botswana contains a provision preserving the application of judicial corporal punishment in its criminal justice system, the practice has been severely criticised by the judiciary. The remarks of Aguda, JA in S v Petrus and Another are apposite to the present enquiry: \"First, it must be recognised that certain types of punishment or treatment are by their very nature cruel, inhuman or degrading. Here once more I must cite with approval what Professor Nwabueze says in his book (ibid): 'Any punishment involving torture, such as the rack, the thumbscrew, the iron boot, the stretching of limbs, burning alive or at the stake, crucifixion, breaking on the wheel, embowelling alive, beheading, public 53 This was done by the introduction of the Criminal Justice Act 1948, pursuant to the Report of the Departmental Committee on Corporal Punishment(1938) (the Cadogan Committee). At page 59 , the report points out: \"In its own interests society should, in our view, be slow to authorise a form of punishment which may degrade the brutal man still further and may deprive the less hardened man of the last traces of self-respect ... \" Cited in Ncube supra note 13 at 710C. 54 Although it is still included in the Criminal Code of Western Australia, it seems to have fallen into disuse. Ncube supra note 13 at 711J-712A. 55 In 1790 Congress excluded whipping from the punishments that might be imposed by the Federal Courts for federal offenses. It, however, continued to be applied in some States as a method of enforcing discipline in prisons and against juveniles in institutions and reformatories. Only the State of Delaware still retains the \u2018whipping post.\u2019 Ncube supra note 13 at 713B-C. 56 Canada abolished corporal punishment through the enactment of the Criminal Law Amendment Act 1972. Ncube supra note 13 at 710H. 57 In the applicants\u2019 written argument it was pointed out that the Tyrer case effectively proscribed judicial corporal punishment in countries subject to the European Convention; the Netherlands Government has declared that corporal punishment is a violation of international instruments; Sweden, Denmark, Finland, Norway and Austria have formally proscribed corporal punishment in institutions as well as in the home; and Cyprus abolished all corporal punishment in 1994. 58 Public floggings were abolished in 1989 in accordance with the country's obligations under the African Charter on Human and People's Rights. Johannes Weir Foundation on Health and Human Rights, Health Professionals and Corporal Punishment (1990) 7. 59 R v Tsehlana Rev. Case 157/77 (High Court), cited in Stephen Neff: Human Rights in Africa 33 International and Comparative Law Quarterly (1984) at 339. \f16 dissection and the like, or involving mutilation or a lingering death, or the infliction of acute pain and suffering, either physical or mental, is inherently inhuman and degrading.' Under the Botswana Constitution such punishment which is inherently inhuman and degrading is prohibited . . . notwithstanding the fact that public sentiments favour it. Secondly, a punishment which is not inherently inhuman or degrading may become so by the very nature or mode of execution, and also notwithstanding the fact that popular demand may favour it.\"60", "Great play was made by the State of differences between adult and juvenile whipping. The point of the argument was that while it may be difficult to justify the whipping of adults in constitutional terms, juvenile whipping was no more reprehensible than other forms of punishment, since an element of humiliation and degradation is to be found in most. I did not understand the State to be seriously contending that any punishment which involves an element of humiliation or degradation constituted a breach of section 11(2) of the Constitution. The argument was rather that judicial whipping was not an infringement of any of the rights of the juvenile.", "In Tyrer v United Kingdom the European Court put its finger on the basis for the distinction between punishment per se and punishment which was prohibited in terms of article 3 of the European Convention: the humiliation or debasement involved must attain a particular level and must be other than the usual, and perhaps inevitable, element of humiliation associated with punishment in general.61 In Furman v Georgia Brennan J made it quite clear what he found to be particularly objectionable in this species of punishment: \"...since the discontinuance of flogging as a constitutionally permissible punishment, Jackson v Bishop 404 F2d 571 (CA8) 1968, death remains as the only punishment that may involve the conscious infliction of physical pain.\"62", "The fact that there may be other punishments which violate fundamental rights cannot, in 60 [1985] LRC (Const) 699, 725G-726A. 61 Supra note 35, at 10, paragraph 30. 62 Supra note 36, at 287-288. \fitself, save the specific form of punishment that has been challenged from invalidity. 17", "Differences between adult and juvenile whipping have, in my view, little or no relevance to the enquiry. They are in any event differences of degree rather than kind. To the extent that comment is needed on the argument which has been raised, however, I am of the view that the differences are far outweighed by the similarities. There is a small difference in the dimensions of the instrument used;63 the adult is stripped naked and trussed, the strokes being delivered on bare flesh while the juvenile's strokes are inflicted on normal attire, without him being tied; there is no limit to the number of times a juvenile may be sentenced to receive strokes while the adult may only be so sentenced twice, and never within a period of three years of the previous sentence of strokes. Both occur in a state institution; the maximum number of strokes that may be imposed is seven in respect of both. Both involve a physical beating with a cane wielded by a State employee, a virtual stranger to the person being punished.", "The severity of the pain inflicted is arbitrary, depending as it does almost entirely on the person administering the whipping. Although the juvenile is not trussed, he is as helpless. He has to submit to the beating, his terror and sensitivity to pain notwithstanding. Nor is there any solace to be derived from the fact that there is a prior examination by the district surgeon. The fact that the adult is stripped naked merely accentuates the degradation and humiliation. The whipping of both is, in itself, a severe affront to their dignity as human beings. I agree with the dicta in Campbell and Cosans v United Kingdom in which Mr Klecker, in a dissenting opinion, stated: \"Corporal punishment amounts to a total lack of respect for the human being; it therefore cannot depend on the age of the human being ... The sum total of adverse effects, whether actual or potential, produced by corporal punishment on the mental and moral development of a child is enough, as I see it, to describe it as degrading within the meaning of Article 3 of the Convention.\"64 63 Supra note 17. 64 (1980) 3 EHRR 531 at 556. \f18", "It was further claimed that age in itself was a redeeming feature; that while an adult whose character and personality has already been formed was likely to be hardened by the infliction of judicial whipping, the position was the opposite in the case of a juvenile. The basis for this was the view that as a juvenile's character was still in the process of formation, he was still susceptible to correction and advice; corporal punishment might therefore still have a reformative effect on the young even though it was accepted that it was likely to have the opposite effect on the old.", "I do not agree. One would have thought that it is precisely because a juvenile is of a more impressionable and sensitive nature that he should be protected from experiences which may cause him to be coarsened and hardened. If the State, as role model par excellence, treats the weakest and the most vulnerable among us in a manner which diminishes rather than enhances their self-esteem and human dignity, the danger increases that their regard for a culture of decency and respect for the rights of others will be diminished. As Brandeis J observes in a dissenting opinion in Olmstead v United States: \"Our Government is the potent, the omni-present teacher. For good or for ill, it teaches the whole people by its example.\"65", "The issue of corporal punishment at schools is by no means free of controversy. The practice has inevitably come in for strong criticism. 66 In Costello-Roberts v United Kingdom,67 the European Court applied the criteria set in Tyrer v United Kingdom that, in order for punishment to be \"degrading\" and in breach of article 3 of the Convention, the humiliation or debasement involved must attain a particular level of severity and must, in any event, be other than the usual element of humiliation inherent in any punishment. It drew a distinction between a judicially imposed whipping, as in Tyrer v United Kingdom, 65 277 US 438 (1928) at 485. 66 See the remarks of Dumbutshena CJ in S v A Juvenile supra note 45, at 161E-162E. See also Campbell and Cosans v United Kingdom supra note 64, at 556. 67 Judgment delivered on 25 March 1993. Appellants referred to and included in their brief a Press Release issued on 25 March 1993 by the Registrar of the European Court of Human Rights which contained a synopsis of the judgment delivered that day. See also the discussion in Barry Phillips, The Case for Corporal Punishment in the United Kingdom. Beaten into Submission in Europe, 43 International and Comparative Law Quarterly (1994) 153. \f19 and punishment meted out on a juvenile boarder through disciplinary rules in force in a private school. This amounted to being slippered three times on his buttocks through his shorts with a rubber-soled gym shoe by the headmaster in private. The court held that in the circumstances of the particular case, the minimum level of severity had not been attained. It is noteworthy that the decision was carried by the narrowest of margins, with five judges voting for it and four against. What is of interest is how the Euorpean Court, in the exercise of a value judgment, went about evaluating the impugned conduct and distinguishing between the concepts \u2018inhuman\u2019 and \u2018degrading.\u201968", "It is not necessary to comment on the suggestion that judicial corporal punishment is in reality no worse than cuts imposed at school; the subject of corporal punishment in schools is not before us. Suffice it to point out that the European Court in Costello-Roberts v The United Kingdom69 seemed to attach some importance to the difference between strokes inflicted by a policeman as a result of a court order, on the one hand, and corporal punishment administered by a headmaster in terms of disciplinary rules in force within the school in which the youth was a boarder. On the other hand, it was White J in a dissenting opinion in Ingraham v Wright who stated: \"Where corporal punishment becomes so severe as to be unacceptable in a civilised society, I can see no reason that it should become any more acceptable just because it is inflicted on children in the public schools.\"70", "The Constitution requires us to \"have regard\" to the consensus referred to above;71 we are not bound to follow it but neither can we ignore it. The determinative test will be the values we find inherent in or worthy of pursuing in this society which has only recently embarked on the road to democracy. Already South Africa has lagged behind. The Constitution now offers an opportunity for South Africans to join the mainstream of a world community that is progressively moving away from punishments that place undue 68 Press Release supra note 67, paragraphs 30-32. See also Barry Phillips supra note 67, at 168. 69 Press release supra note 67, paragraph 31. 70 430 US 651 at 692. 71 See section 35(1) of the Constitution. 0 emphasis on retribution and vengeance rather than on correction, prevention and the recognition of human rights.", "In interpreting section 11(2) of the Constitution, however, we should not only have regard to the position in other jurisdictions. This Court has held that in interpreting the rights enshrined in Chapter 3 of the Constitution, a purposive approach should be adopted.72 In seeking the purpose of the particular rights, it is important to place them in the context of South African society. It is regrettable, but undeniable, that since the middle 1980's our society has been subjected to an unprecedented wave of violence. Disputes, whether political, industrial or personal, often end in violent assaults. In addition, during the same period, there has been a marked increase in violent crimes, such as armed robbery and murder.", "The process of political negotiations which resulted in the Constitution were a rejection of violence. In this context, it cannot be doubted that the institutionalised use of violence by the State on juvenile offenders as authorised by section 294 of the Act is a cruel, inhuman and degrading punishment. The Government has a particular responsibility to sustain and promote the values of the Constitution. If it is not exacting in its acknowledgement of those values, the Constitution will be weakened. A culture of authority which legitimates the use of violence is inconsistent with the values for which the Constitution stands.", "The conclusion that I have reached, that section 294 of the Act infringes the rights contained in sections 10 and 11(2) of the Constitution is consistent with the view that has been expressed by many South African judges before. As already indicated, the courts in this country have acknowledged the international consensus against corporal punishment and, in a sense, associated themselves with it in many judgments which have criticised, sometimes in the strongest terms, the infliction of corporal punishment.73 Judicial condemnation has resulted in adult whipping being imposed only in exceptional 72 S v Zuma and Others 1995(4) BCLR 401 (SA) at 410F-412H ; S v Makwanyane and Mchunu supra note 52, at paragraphs 9 and 10. 73 See the cases cited supra notes 7 to 12. 1 circumstances and juvenile whipping, in general, only as a device to keep the juvenile out of prison.74", "The structure and content of Chapter 3 suggests a two-stage enquiry. The first stage is concerned with establishing whether there is a violation of a right sought to be protected by the Constitution; this has been answered in the affirmative. The second leg of the enquiry deals with the question whether the violation constitutes a permissible limitation of the right in question. Section 33(1) of the Constitution provides: \"The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation --- (a) shall be permissible only to the extent that it is -- (i) (ii) reasonable; and justifiable in an open and democratic society based on freedom and equality; and (b) (aa) shall not negate the essential content of the right in question, and provided further that any limitation to --- a right entrenched in section 10, 11 . . . shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary.\u201d", "Applicants contended firstly, that the rights at issue were not capable of limitation and that section 33(1) of the Constitution was therefore not applicable. The implication of this proposition was that no further enquiry was called for once a violation of the right had been proved.", "This argument raises an issue which this Court may have to confront in the future and that is the tension between threshold requirements and requirements of limitation. The issue has been raised in argument in other cases which have come before us. It is, however, not an issue which needs to be resolved in this case. In S v Makwanyane (supra) this court dealt with section 11(2) of the Constitution on the basis that section 33(1) is applicable to 74 See S v Maisa supra note 7, at 271E; S v Machwili 1986 1) SA 156 (N) at 157F-G; S v Motsoesoana supra note 12, at page 358G; S v Zimo en Andere supra note 8, at page 337H-338A; S v Maseti 1992(2) SACR 459 (C) at page 464I-J; S v V en \u2018n Ander supra note 5, at page 543E; S v P 1985 (4) SA 105 (N) at page 107F; and S v M supra note 5, at page 245B. \fbreaches of that section. I follow the same approach in the present case. 22", "Applicants claimed further that even if the right was subject to limitation, juvenile whipping provisions failed to satisfy the requirements of section 33(1) of the Constitution. The attitude of the State was that juvenile whipping was neither cruel nor inhuman and it was no more degrading than other acceptable punishments; it was contended that to the extent that the punishment could be said to be in some way humiliating or degrading, it was within permissible constitutional limits because of the provisions of section 33(1) of the Constitution.", "The enquiry involves testing the measures adopted against the objective sought to be achieved. The gist of it, put in the context and the language of section 33(1), really amounts initially to three questions, namely: (a) whether the means used are reasonable ; (b) whether they are justifiable in the context of the civilized society we hope we are or which we, through this Constitution, are aspiring to be; and (c) whether they are necessary to attain the objective. The test relies on proportionality, a process of weighing up the individual's right which the State wishes to limit against the objective which the State seeks to achieve by such limitation.", "This evaluation must necessarily take place against the backdrop of the values of South African society as articulated in the Constitution and in other legislation, in the decisions of our courts and generally against our own experiences as a people.", "In State v Makwanyane and Mchunu Chaskalson P deals with the \"proportionality\" test which is also implicit in the limitation of rights in Canada and the European Court.75 As a general conclusion he notes that the limitation of constitutional rights for a purpose that is necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. He points out how the German Constitutional Court applies the proportionality test in dealing with limitations authorised 75 Supra note 52, at paragraphs 104-109. \fby the German Constitution: 23 \"It has regard to the purpose of the limiting legislation, whether the legislation in fact achieves that purpose, whether it is necessary therefor, and whether a proper balance has been achieved between the value enhanced by the limitation, and the fundamental right that has been limited.\"76", "The grounds on which the State sought to justify juvenile whipping were, firstly, that it made good practical sense to have juvenile whipping as a sentencing option. The practice had advantages for both the offender and the State, particularly in view of a shortage of resources and the infrastructure required for the implementation of other sentencing options for juveniles. Secondly, it was suggested that juvenile whipping was a deterrent.", "The purpose of section 294 of the Act is to provide a sentencing option for the punishment of juvenile offenders. What must be addressed is whether it is reasonable, justifiable and necessary to resort to juvenile whipping, notwithstanding the fact that it \"constitutes a severe assault upon not only the person of the recipient, but upon his dignity as a human being.\"77 The primary argument advanced in favour of juvenile whipping was that it constitutes a better alternative to imprisonment, particularly in the so-called \"grey area\" crimes. This was a reference to instances where a court has to deal with an offence which is not so serious as to merit a custodial sentence but is serious enough to render inappropriate the use of \"softer\" sentences.", "It was argued that sentencing alternatives for juveniles were limited and that this country did not have a sufficiently well-established physical and human resource base which was capable of supporting the imposition of alternative punishments. This is of course an argument based on pragmatism rather than principle. It is a problem which must be taken seriously nevertheless. It seems to me, however, to be another way of saying that our society has not yet established mechanisms to deal with juveniles who find themselves in conflict with the law; that the price to be paid for this state of unreadiness is to subject juveniles to punishment that is cruel, inhuman or degrading. The proposition is untenable. 76 Supra note 52, at paragraph 108. 77 Fannin J in S v Kumalo supra note 7, at 547F. 4 It is diametrically opposed to the values that fuel our progress towards being a more humane and caring society. It would be a negation of those values precisely where we should be laying a strong foundation for them, in the young; the future custodians of this fledgeling democracy.", "We nevertheless need to examine available resources to determine whether there are indeed appropriate sentencing options. It has to be borne in mind that the presence of various options in a number of legislative provisions may not always reflect practical realities. It is important that resources should be made available and that they should be utilised properly, so that the values expressed in the Constitution may be upheld and maintained. It bears mentioning that although changes in the criminal justice system have been occurring, albeit at a painfully slow pace, there has been a perceptible shift in approach and attitude towards punishment. I mention three aspects of this process:", "(a) There has been a shift of emphasis with regard to the overall aims of punishment. There is a general acceptance, as observed by Schreiner JA in R v Karg,78 that the retributive aspect has tended to give way to the aspects of prevention and correction. New and innovative systems and procedures have been introduced and some of them have been incorporated into legislation. The traditional objectives of punishment, namely, prevention, retribution, deterrence and rehabilitation, are no doubt still applicable. Still applicable, albeit in modified form, are the remarks of Holmes JA that: \"Punishment should fit the criminal as well as the crime, be fair to the accused and to society, and be blended with a measure of mercy ... the element of mercy, a hallmark of civilised and enlightened administration, should not be overlooked, lest the Court be in danger of reducing itself to the plane of the criminal ... \"79 78 1961(1) SA 231(A) at 236A. 79 S v V 1972(3) SA 611(A) at 614D. 5", "While those principles have remained eternal truths with regard to the purposes of punishment, the justice and penal systems have been evolving towards a more enlightened and humane implementation of those principles. In keeping with international trends, there has been a gradual shift of emphasis away from the idea of sentencing being predominantly the arena where society wreaks its vengeance on wrongdoers. Sentences have been passed with rehabilitation in mind.", "The introduction of correctional supervision with its prime focus on rehabilitation, through section 276 of the Act, was a milestone in the process of \"humanising\" the criminal justice system. It brought along with it the possibility of several imaginative sentencing measures including, but not limited to, house arrest, monitoring, community service and placement in employment. This assisted in the shift of emphasis from retribution to rehabilitation. This development was recognised and hailed by Kriegler AJA in S v R80 as being the introduction of a new phase in our criminal justice system allowing for the imposition of finely- tuned sentences without resorting to imprisonment with all its known disadvantages for both the prisoner and the broader community.", "The development of this process must not be seen as a weakness, as the justice system having \"gone soft.\" What it entails is the application of appropriate and effective sentences. An enlightened society will punish offenders, but will do so without sacrificing decency and human dignity.", "(b) There is growing interest in moves to develop a new juvenile justice system. This impacts directly on the availability of sentencing options for juveniles. It has been a matter of comment that juveniles were being sentenced to whipping on the basis that it was the only alternative to a prison sentence. Judges have, in the past, indicated their distaste for juvenile whipping; they have, however, tolerated and confirmed the sentences purely as a device to avoid imprisoning juvenile offenders. 80 1993(1) SA 476 (A) at 488I. \f[70] In S v Maseti Conradie J observed that the view that whipping should be imposed as a device to keep juveniles out of prison was fallacious: 26 \" ... [r]egsbeamptes laat jong mans slaan omdat daar met ons beperkte middele, infrastrukture en vonnisopsies, net geen ander raad met hulle is nie . . . Maar dat die veroorsaking van pyn en leed 'n onbevredigende vonnisopsie is, weet ons algar lankal.\u201d81 Noting that new sentencing options had been introduced into the criminal justice system, he voiced the hope that they would be creatively and effectively used.82", "Juvenile whipping, however, has not invariably met with judicial disapproval. In S v Vakalisa,83 Mitchell J referred to remarks in S v V en 'n Ander84 in which MT Steyn JA dealt at length with the undesirability of corporal punishment and described it as \"extremely humiliating and physically painful.\u201d Mitchell J went on to observe: \"Whatever may be the South African view of this kind of punishment [juvenile whipping], the Transkeian lawgiver has taken a different view of the desirability of corporal punishment in respect of juveniles even, as I have mentioned, specifically providing for the whipping of female juveniles, a sentence which is frequently applied in various magisterial districts of Transkei. I would have thought that it is far more important to keep juveniles out of gaol where the appropriate circumstances exist, to save them the association with adult convicted criminals, than to shy away from the imposition of a 'juvenile whipping'. This is particularly true in Transkei when, if a juvenile 81 Supra note 74, at 464 I-J. 82 Supra note 74, at 464J-465A. 83 1990(2) SACR 88 (Tk) at 94G-J. 84 Supra note 5. 7 is sent to prison, he cannot be sent to one for first offenders only, or to one where juveniles are effectively kept apart from adult criminals, for no such facilities yet exist in this country.\"85", "Apart from drawing attention to the distressing fact that some legislation still permitted the whipping of females, Mitchell J's remarks in fact summarised what turned out to be the central argument proffered by the State in favour of the retention of juvenile whipping. If the option of corporal punishment is taken away, so we were warned, many juveniles who would not otherwise have been sent to gaol would now have to be imprisoned.", "Pickering J's approach in S v Sikunyana 86 appears to be more helpful in that it gives implicit recognition to alternative correctional supervision sentencing options and the need for courts not to be \"unduly hamstrung\" by administrative and other difficulties in implementing community service orders.87 It would therefore seem that notwithstanding the daunting problems highlighted by Mitchell J in 1990, the prospects for more enlightened sentencing options have improved.", "To the extent that facilities and physical resources may not always be adequate, it seems to me that the new dynamic should be regarded as a timely challenge to the State to ensure the provision and execution of an effective juvenile justice system. The wider range of penalties now provided for in the Act88 permits a more flexible but effective approach in dealing with juvenile offenders. 85 Supra note 83, at 94I-J. 86 1994(1) SACR 206 (Tk). 87 Id. at 210G. 88 In addition to the provisions of section 290(supra), a juvenile may also be dealt with in terms of other sections of the Act, such as, section 287 [fine]; section 297(1)(a- c) [postponing sentence conditionally or unconditionally, suspended sentence subject to conditions; caution and discharge]; sections 276(1)(h) and 276A [correctional supervision]; and converting the trial to an enquiry in terms of the Child Care Act No. 74 of 1983. The latter course has 4 options, namely: (i) placing the child in the custody of a suitable foster parent; (ii) sending the child to a designated children's home; (iii) sending the child to a designated school of industries; (iv) returning the child to the parent or guardian, under ... supervision of a social worker. \f[75] There is indeed much room for new creative methods to deal with the problem of 28 juvenile justice. During argument, we were informed that interesting sentencing options were being increasingly applied in the Western Cape and that Conradie J\u2019s suggestion to magistrates was a further encouragement to the process. There are, for instance, community service orders which are linked to suspended or postponed sentences. These are structured in such a way that they meet the punitive element of sentencing while allowing for the education and rehabilitation of the offender. There is also the victim-offender mediation process in terms of which the victim is enabled to participate in the justice process, receive restitution while the offender is assisted to rehabilitate. There are sentences which are suspended on condition that the offender attends a juvenile offender school for a specific purpose. These orders are structured in such a way that they yield benefits to the victim of the crime, the offender and to the community. Doubtless these processes, still in their infancy, can be developed through involvement by State and non-governmental agencies and institutions which are involved in juvenile justice projects.", "(c) The enactment of the Constitution has created a framework within which significant changes can be brought about in the criminal justice system. The rights entrenched in Chapter 3 are available to \"every person\"; that includes children and adults, women and men, prisoners and detainees. The Constitution clearly places a very high premium on human dignity and the protection against punishments that are cruel, inhuman or degrading; very stringent requirements would have to be met by the State before these rights can be limited.", "In addressing itself specifically to punishment, the Constitution ensures that the sentencing of offenders must conform to standards of decency recognised throughout the civilised word. Thus it sets a norm; measures that assail the dignity and self esteem of an individual will need to be justified; there is no place for brutal and dehumanising treatment and punishment. The Constitution has allocated to the State and its organs a role as the protectors and guarantors of those 9 rights to ensure that they are available to all. In the process, it sets the State up as a model for society as it endeavours to move away from a violent past. It is therefore reasonable to expect that the State must be foremost in upholding those values which are the guiding light of civilised societies. Respect for human dignity is one such value; acknowledging it includes an acceptance by society that \" . . .even the vilest criminal remains a human being possessed of common human dignity.\"89", "The State sought to strengthen its argument by pointing out the comparative convenience of juvenile whipping as a punishment: it satisfied criteria for punishment, while at the same time affording the courts a reasonable sentencing option; it was not too harsh for young offenders, but it enabled them to \"get it over and done with\" quickly. In this context, we were informed that parents often asked for this punishment to be imposed.", "While there are obvious advantages to \"quick\" justice, society's greater concern must be the form such punishment takes. The solutions we adopt in dealing with young offenders have to be part of a greater context and must be consistent with the promotion of the values which are reflected in the Constitution. It cannot be reasonable and in keeping with these values to imply, through the punishments we impose, that the infliction of violence is an acceptable option in the solution of problems. In any event, this consideration falls far short of the justification required to entitle the State to override the prohibition against the infliction of cruel, inhuman or degrading punishment. Its implications for the dignity of the individual are also far too serious.", "The State stressed the deterrent nature of juvenile whipping. Deterrence is, obviously, a legitimate objective which the State may pursue. We live in a crime-ridden society; the courts and other relevant organs of the State have a duty to make crime unattractive to those who are inclined to embark on that course. The concerns which the provision seeks to address are indeed pressing and they are substantial. But, as already stated, the means employed must be reasonable and demonstrably justifiable. No clear evidence has been 89 Brennan J in Furman v Georgia supra note 36, at 273. \f30 advanced that juvenile whipping is a more effective deterrent than other available forms of punishment.", "In 1960 the Advisory Council on the Treatment of Offenders reviewed the decision abolishing corporal punishment in the United Kingdom, which had been taken pursuant to the Cadogan Report of 1938.90 The Council pointed out that \"[t]here is no evidence that corporal punishment is an especially effective deterrent either to those who have received it or to others.\"91 It therefore arrived at the unanimous conclusion that judicial corporal punishment should not be re-introduced. In S v Motsoesoana Page J, in an exhaustive analysis of the law in relation to corporal punishment, arrived at the conclusion that corporal punishment serves no useful deterrent function, on the contrary, \u201cits effect is likely to be coarsening and degrading rather than rehabilitative.\"92 In his judgment he also referred to an article by Professor Kahn on Crime and Punishment 1910-1960: \"Even making the utmost allowances for extraneous factors such as changes in population and in the efficiency of the police force and prosecuting authorities, it seems reasonable to conclude that the deterrent effect of compulsory whipping is nowhere to be seen. If this is so, its retention can only be atributed to some spirit of retribution or revenge.\" 93", "It may be relevant to observe that three of the applicants in this matter had previous convictions for which they had received strokes; one of them, Witbooi, had in fact received five strokes a mere five months before the present sentence. Some of the co-accused had a variety of previous convictions for which they had received sentences which included strokes. One of them, namely Thomas, had already received a total of sixteen strokes. The previous punishment has obviously failed to act as a sufficient deterrent in these cases.", "I am, however, prepared to accept that there is some deterrent value in juvenile whippings. As Milne JP observed in S v Kumalo and Others it could be expected that: 90 See S v Motsoesoana supra note 12, at 353F-G. 91 Id. at 353I. 92 Id. at 354D-F. 93 Id. at 352I-J: article published in 1960 Acta Juridica 191 at 211-2. \f31 \" . . . the thought of a severe whipping, whether as a result of experience or only of an act of imagination, could well have deterred very many, although it is all too evident that very many have not thereby been deterred.\"94", "What has not been shown is that such deterrent value as might exist is sufficiently significant to enable the State to override a right entrenched in the Constitution. All indications are to the contrary. While juvenile whipping has a brutalising effect, it has not been shown that it has the capacity to deter more than other punishments would do. Moreover, I agree with the remarks of Fannin J in S v Kumalo and Others: \"Within comparatively recent times corporal punishment of quite horrifying severity were inflicted for a great number of offences, and I, for one do not believe that the general deterrent effect of such punishments justified the suffering and indignity which were inflicted upon those who were so punished. I am of the opinion that a whipping is a punishment of a particularly severe kind. It is brutal in its nature and constitutes a severe assault upon not only the person of the recipient but upon his dignity as a human being. The severity of the punishment depends, to a very large extent, upon the personality of the officer charged with the duty of inflicting it, and over that the court ordering the punishment can have little, if any, control.\"95", "Howie AJA, quite correctly in my view, warned against the idea that the accused should be sacrificed on the altar of deterrence.96 To this I would add that this is even more so when the court is dealing with a youthful offender.", "If, as I have found, the deterrence value is so marginal that it does not justify the imposition of this special punishment, involving as it does the deliberate infliction of physical pain, one has to conclude that the sole reason for retaining it is to satisfy society's need for retribution. While retribution is, in itself, a legitimate element of punishment, it is not the only one; it should not be the overriding one. It cannot, on its own, justify the existence of 94 Supra note 7, at 571H. 95 Id. at 574 E-H. 96 See S v Sobandla 1992(2) SACR 613(A) at 617G. \fthe punishment. 32", "It needs to be stressed that it is in the interests of justice that crime should be punished. As pointed out by Schreiner JA in R v Karg: \"It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentences that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured persons may incline to take the law into their own hands.\"97", "However, punishment that is excessive serves neither the interests of justice nor those of society. According to Brennan J,98 punishment is excessive if it is unnecessary, and it is unnecessary \u201cif there is a significantly less severe punishment adequate to achieve the purposes for which the punishment is inflicted.\u201d In Gregg v Georgia,99 Stewart J, described the unnecessary and wanton infliction of pain as an aspect of excessiveness.", "Finally, the perceived advantages or benefits of juvenile whipping must be weighed against the rights which the provision seeks to limit. Corporal punishment involves the intentional infliction of physical pain on a human being by another human being at the instigation of the State. This is the key feature distinguishing it from other punishments. The degree of pain inflicted is quite arbitrary, depending as it does on the person who is delegated to do the whipping. The court merely directs the number of strokes to be imposed. The objective must be to penetrate the levels of tolerance to pain; the result must be a cringing fear, a terror of expectation before the whipping and acute distress which often draws involuntary screams during the infliction. There is no dignity in the act itself; the recipient might struggle against himself to maintain a semblance of dignified suffering or even unconcern; there is no dignity even in the person delivering the 97 Supra note 78, at 236A-B. 98 Furman supra note 36, at 279. 99 Supra note 38, at 173. \fpunishment. It is a practice which debases everyone involved in it. 33", "I have already referred to the dictionary meaning of the words \"cruel, inhuman or degrading.\u201d Conduct which fits any one of the adjectives is therefore hit by the prohibition. I however do not see any compelling reason to confine the conduct impugned to one adjective only. The deliberate infliction of pain with a cane on a tender part of the body as well as the institutionalised nature of the procedure involves an element of cruelty in the system that sanctions it. The activity is planned beforehand, it is deliberate. Whether the person administering the strokes has a cruel streak or not is beside the point. It could hardly be claimed, in a physical sense at least, that the act pains him more than his victim. The act is impersonal, executed by a stranger, in alien surroundings. The juvenile is, indeed, treated as an object and not as a human being. As pointed out in Jackson v Bishop: \". . . irrespective of any precautionary conditions which may be imposed, [it] offends contemporary concepts of decency and human dignity and precepts of civilisation which we profess to possess...\"100", "No compelling interest has been proved which can justify the practice. It has not been shown that there are no other punishments which are adequate to achieve the purposes for which it is imposed. Nor has it been shown to be a significantly effective deterrent. On the other hand, as observed by Page J in S v Motsoesoana,101 its effect is likely to be coarsening and degrading rather than rehabilitative. It is moreover also unnecessary. Many countries in the civilised world abolished it long ago; there are enough sentencing options in our justice system to conclude that whipping does not have to be resorted to. Thus, whether one looks at the adjectives disjunctively or regards the phrase as a \"compendious expression of a norm\", it is my view that at this time, so close to the dawn of the 21st century, juvenile whipping is cruel, it is inhuman and it is degrading. It cannot, moreover, be justified in terms of section 33(1) of the Constitution. 100 Supra note 51 at 579. 101 Supra note 12 at 354F. \f34", "I accordingly find that the provisions of section 294 of the Act violate the provisions of sections 10 and 11(2) of the Constitution and that they cannot be saved by the operation of section 33(1) of the Constitution. Although the provision concerned is a law of general application, the limitation it imposes on the rights in question is, in the light of all the circumstances, not reasonable, not justifiable and it is furthermore not necessary. The provisions are therefore unconstitutional.", "It becomes unnecessary to embark on an investigation to determine whether or not the provision in fact negates the essential content of any of the rights involved.", "In the light of this finding, I do not find it necessary to debate the issue whether section 294 of the Act also infringes the other provisions of the Constitution, namely sections 8 and 30.", "There may well be cases where juveniles have been sentenced in terms of section 294 of the Act but where the sentences have, for some reason or other, not yet been carried out. It follows from the finding of this Court that such sentences will have to be set aside by the courts having jurisdiction to do so and new sentences substituted.", "The following order is accordingly made: 1. The following provisions of the Criminal Procedure Act No. 51 of 1977 (as amended) are inconsistent with the Repbulic of South Africa Constitution Act No. 200 of 1993 (as amended) and are, with effect from the date of this order, declared to be invalid and of no force and effect: (a) (b) section 294 in its entirety; and the words \u201cor a whipping\u201d in section 290(2). 2. In terms of section 98(7) of the Constitution, it is ordered that with effect from the date of this order, no sentences imposed in terms of section 294 of the Criminal Procedure Act No. 51 of 1977, shall be carried out. \f35 3. The matter of State v Williams (Review No. 53/94) is referred back to the Cape of Good Hope Provincial Division for an appropriate order. P N Langa Judge of the Constitutional Court Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Madala J, Mahomed J, Mokgoro J, O\u2019Regan J and Sachs J all concur in the judgment of Langa J. \fCASE NUMBER: COUNSEL ON BEHALF OF THE ACCUSED: INSTRUCTED BY: COUNSEL FOR THE STATE: DATE OF HEARING: DATE OF JUDGMENT: CCT/20/94 L J Bozalek P Hathorn S P Kahanovitz Legal Resources Centre, Cape Town J Slabbert 24 March 1995 9 June 1995"], "max_length_judgement_paras": 575}, {"title": "Coetzee v Government of the Republic of South Africa, Matiso and Others v Commanding Officer Port Elizabeth Prison and Others (CCT19/94 , CCT22/94) [1995] ZACC 7; 1995 (10) BCLR 1382; 1995 (4) SA 631 (22 September 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/7.html", "summary_document": {"filename": "summary-for-case-7.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/7media.pdf", "file_content": "Coetzee v Government of The Republic of South Africa \n\n \n\n Case CCT 19/94 \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nSections 65A to 65M of the Magistrates Courts Act 32 of 1944 provide for the imprisonment \nof judgment debtors. A judgment debtor who has failed to satisfy the judgment debt within 10 \ndays of the date of the judgment can be required to attend a hearing at which an enquiry will \nbe conducted by a magistrate into the financial position of the debtor, his or her ability to pay \nand his or her failure to do so. Notice to the debtor to appear at a hearing calls upon the \ndebtor to show cause why he or she should not be committed for contempt of court and why \nthe judgment debtor should not be ordered to pay the judgment debt in instalments or \notherwise. The notice is drawn up by the creditor, signed by the clerk of the court and served \non the debtor in accordance with the rules for service of process. The magistrate has a \ndiscretion whether to order committal to prison unless the debtor proves at the hearing that he \nor she 1) is under the age of 18, 2) was unaware of the original judgment for debt against him \nor her, or 3) has no means of satisfying the judgment debt. In order to show absence of means \nof satisfying the judgment debt the debtor also must show that such lack of means is not due \nto wilful disposal of goods in order to avoid payment of the judgment debt, wilful refusal to \npay such debt, squandering of money or living beyond his or her means, or incurring of \nadditional debts (except for household goods) after the original judgment date. \n\nIn two separate cases divisions of the Supreme Court referred the question of the \nconstitutionality of ss 65A to 65M of the Magistrates Courts Act to the Constitutional Court. \n\nThe Court held that the provisions violated the right to freedom and security of the person \ncontained in s 11(1) of the Constitution. It was considered certain that to put someone in \nprison is a limitation of that person's right to freedom. To do so without any criminal charge \nbeing levelled or any trial being held is manifestly a radical encroachment on that right. \n\nAs to the question of the justifiability of the limitation in terms of s 33(1) of the Constitution, \nit was held that at the very least a law or action limiting the right to freedom must have a \nreasonable goal and the means for achieving that goal must also be reasonable. The goal of ss \n65A to 65M of the Magistrates Courts Act is to provide a mechanism for the enforcement of \njudgment debts. This goal is a legitimate and reasonable government objective. The means \nfor achieving this objective were however not considered reasonable by the Court. The \nprovisions are held to be overbroad. The sanction of imprisonment is ostensibly aimed at the \ndebtor who will not pay. But it is unreasonable in that it also strikes at those who cannot pay \nand simply fail to prove this at a hearing often due to negative circumstances created by the \nprovisions themselves. Due to a number of defects, the statute sweeps up those who cannot \npay with those who can but simply will not. The provisions allow persons to be imprisoned \nwithout having actual notice of either the original judgment or of the hearing. It is not only \ntheoretically possible but also quite possible in practice that the debtor's first notice of the \n\n1 \n\n\fcase against him or her is when the warrant of committal is executed, since personal service \nof any process prior to that is not required. Even if a person has notice of the hearing, he or \nshe can be imprisoned without knowing of the possible defences available and accordingly \nwithout any attempt to advance any of those defences. The so-called notice to show cause \nissued pursuant to s 65A does not spell out what the defences are, or how they could be \nestablished. The burden cast on the debtor with regard to inability to pay, although possibly \ndefensible in principle as pertaining to matters peculiarly within his or her knowledge, is so \nwidely couched that persons genuinely unable to pay are nevertheless struck. The provisions \nof s 65F(3)(c), which spell out what the debtor must prove, are not only unreasonably wide, \nbut also unreasonably punitive. Whatever may be said about a debtor who wilfully frustrates \npayment, the nakedly punitive retribution inherent in the provisions of paragraphs (iii) and \n(iv) cannot be justified. The provisions allow debtors to be imprisoned without knowing that \nthey have a burden to prove their defence or how to discharge such burden. It could possibly \nbe contended that the magistrate ought to explain a debtor's rights and duties to an \nundefended debtor and would probably do so. But there is no express obligation on the \nmagistrate to do so. \n\nThe Court considered it indefensible to treat a civil judgment debtor more harshly than a \ncriminal. The latter is entitled in terms of s 25(3) of the Constitution to a fair trial with \nprocedural safeguards, including the right to legal assistance at public expense if justice so \nrequires. The debtors, who face months of imprisonment, must fend for themselves as best \nthey can. The procedure makes no provision for recourse by the debtor to the magistrate or \nhigher authority once an order for committal has been made. Section 65L, which deals with \nthe release of a debtor from prison, contains no mechanism whereby a debtor, even one \nagainst whom a committal order had been made in absentia, is entitled to approach a court for \nrelief. \n\nThe Court considered that was not possible to excise only those provisions of the Magistrates \nCourts Act which fail to distinguish between debtors who cannot pay and debtors who will \nnot pay. In order to do so the Court would have to engage in the details of law making, a \nconstitutional activity given to the legislature. It was, however, considered possible to sever \nthe provisions which make up the option of imprisonment. The object of sections 65A to 65M \nof the Magistrates Courts Act was to provide a system to assist in the collection of judgment \ndebts. Removing one of the options available under the system did not make the system that \nremains run contrary to the purpose of the legislative scheme. Accordingly, the infringing \nprovisions could be severed and the balance of the system could usefully remain in force. \n\nThe Court therefore struck out certain provisions of the Magistrates Court Act providing for \nimprisonment of judgment debtors. All other provisions of sections 65A to 65M of the \nMagistrates Courts Act remained in force. With effect from the date of the Court's order, the \ncommittal or continuing imprisonment of any judgment debtor in terms of section 65F or 65G \nof the Magistrates Courts Act was declared invalid. \n\nThe judgment of the Court was delivered by Kriegler J (Chaskalson P, Mahomed DP, \nAckermann J, Madala J, O'Regan J and Kentridge AJ concurring). Mokgoro J concurred in \nthe order proposed by Kriegler J. Didcott J delivered a separate judgment, expressing \nagreement with the judgment and order of Kriegler J but dissenting as to the extent to which \nthe invalid parts of the Act were severable from the valid parts. Langa J delivered a separate \njudgement , concurring in the order proposed by Kriegler J and concurring with the judgment \nof Kriegler J and with the judgment of Didcott J. Sachs J delivered a separate judgment \n\n2 \n\n\fconcurring with the judgments of Kriegler J and Didcott J and with the order proposed by \nKriegler J. Mokgoro J concurred in the judgment of Sachs J. \n\n \n\n3 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-7.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/7.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nCASE NO CCT 19/94\n\nIn the matter of\n\nFARIEDA COETZEE\n\nand \n\nTHE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA \nand Others\n\nand\n\nIn the matter of\n\nN J MATISO\nand Others\n\nand\n\nCASE NO CCT 22/94\n\nTHE COMMANDING OFFICER, PORT ELIZABETH PRISON\nand Others\n\nHeard on:\n\n6 March 1995\n\nDelivered on: 22 September 1995\n\n___________________________________________________________________________\n\n___________________________________________________________________________\n\nJUDGMENT\n\n\f[ 1 ] KRIEGLER J:\n\nThese cases raise questions concerning the constitutional\n\nvalidity of the provisions of sections 65A to 65M of the Magistrates\u2019 Courts Act1\n\nrelating to the imprisonment of judgment debtors. \n\nKRIEGLER J\n\n[ 2 ]\n\nThe constitutionality of the provisions was first challenged in the Eastern Cape. \n\nShortly after the interim Constitution2 came into operation, the applicant in the Matiso\n\ncase, who had been imprisoned in terms of these provisions, applied to the South\n\nEastern Cape Local Division of the Supreme Court for an order for his urgent release\n\nfrom the Port Elizabeth Prison. The applicant was soon followed by a number of other\n\njudgment debtors in the same predicament. The foundation of the applications was that\n\nthe statutory authority of the orders committing the particular debtors to prison had been\n\nvitiated by sections 11(1) and 25(3) of the Constitution. Those subsections, it was\n\nargued, made imprisonment without a fair trial unconstitutional. Although they cited the\n\ncommanding officer of the prison and their respective judgment creditors as\n\nrespondents, there was no opposition.\n\n[ 3 ]\n\nThe judges who heard the applications (Melunsky and Froneman JJ) ordered the\n\nimmediate release of the prisoners and referred the challenge to the constitutionality of\n\nthe allegedly offending provisions of the Magistrates\u2019 Courts Act to this Court.3 \n\n1No. 32 of 1944. The particular sections at issue were inserted by section 2 of Act No. 63 of 1976.\n\n2Constitution of the Republic of South Africa, No. 200 of 1993. In terms of section 251 of the\n\nConstitution, the Constitution came into operation on 27 April 1995.\n\n3The provisions targeted by the order of Froneman J are:\n\n \n\n(a)\n\nthe phrase \"why he should not be committed for contempt of court\"\nin section 65(1);\n\n2\n\n\fMelunsky J delivered an ex tempore judgment and Froneman J subsequently furnished\n\ndetailed reasons for the order he made.4\n\nKRIEGLER J\n\n[ 4 ]\n\nSome time after the grant of the orders in the Eastern Cape the applicant in the\n\nCoetzee case applied to the Cape of Good Hope Provincial Division for similar relief,\n\nciting the Government of the Republic of South Africa, the Minister of Justice and the\n\njudgment creditor as respondents. The Court (per Van Reenen AJ) stayed committal\n\nproceedings pending against Ms Coetzee and referred the constitutional validity of\n\nsections 65A to 65M to this Court for determination.5 Although the formulation of the\n\nconstitutional issues in the orders in the Eastern Cape case differs somewhat from that\n\nof Van Reenen AJ, the essential issue is one and the same: Is the procedure in the\n\nsections mentioned wholly or partially invalid for inconsistency with one or more of\n\nthe rights guaranteed in Chapter 3 and circumscribed by section 33(1) of the\n\nConstitution?\n\n[ 5 ]\n\nI have had the opportunity of considering the judgments prepared by my\n\n \n \n \n\n(b)\n(c)\n(d)\n\nthe whole of sections 65F, 65G, 65H and 65L;\nsubsections (1)(c), (2)(b)(ii), 9(a) and 9(b) of s 65J; and\nsection 65K(2).\n\n4The judgments have been reported as Matiso and Others v The Commanding Officer, Port Elizabeth\n\nPrison and Others 1994(3) BCLR 80(SE); 1994(4) SA 592 (SECLD).\n\n5The learned judge formulated the constitutional question as follows:\n\nAre sections 65A to 65M of the Magistrates' Courts Act, No 32 of 1994, as\namended, or any parts of the said Sections, invalid on the ground of their\ninconsistency with Sections 10, 11 and 25 of the Constitution of the Republic\nof South Africa Act, No 200 of 1993, or any other provision of the said\nConstitution?\n\n3\n\n\fKRIEGLER J\n\ncolleagues Didcott and Sachs JJ in these cases. Each of them makes quite plain why the\n\nprovisions of the Magistrates\u2019 Courts Act relating to the imprisonment of judgment\n\ndebtors for contempt of court6 must be held to be invalid by reason of their\n\ninconsistency with the Constitution. Although I fully agree with that finding, my\n\nreasoning is sufficiently different to warrant separate articulation. The grounds for my\n\nconclusion are considerably narrower than those set out in the judgment of Sachs J;7 and\n\nthere is some difference of emphasis as between Didcott J and myself.\n\n[ 6 ]\n\nSections 65A to 65M of the Magistrates\u2019 Courts Act provide a system for the\n\nenforcement of judgment debts. Under the system a judgment debtor who has failed to\n\nsatisfy the judgment debt within 10 days of the date of the judgment can be required to\n\nattend a hearing8 at which an enquiry will be conducted by a magistrate into the\n\nfinancial position of the debtor, his ability to pay and his failure to do so.9 The\n\nmagistrate may authorise property of or debts due to the judgment debtor to be attached\n\nin settlement of all or part of the debt, or the garnishing of emoluments which will\n\naccrue to the debtor from his or her employment. The debtor can also be ordered to\n\n6In my view, it is not important whether the system is termed imprisonment for contempt of court for not\npaying a debt or civil imprisonment or some other word or phrase. The task of this Court is to determine whether\nthe system, whatever it may be called, is or is not consistent with the Constitution. \n\n7Because I base my decision on the examination of the specific provisions of the sections at issue and\nnot the overall concept of imprisonment for failure to pay a judgment debt, I do not find it necessary in this\njudgment to comment on the procedures of other countries used for the enforcement of judgment debts or the\njudicial decisions regarding such procedures. Nor do I find it necessary to consider the impact of the international\nhuman rights instruments so instructively canvassed by Sachs J. \n\n8See Sections 65A and 65B of the Magistrates\u2019 Courts Act. The notice to the judgment debtor must be\n\nserved at least 7 days prior to the hearing. Section 65B of the Magistrates\u2019 Courts Act. \n\n9See Section 65D of the Magistrates\u2019 Courts Act. In determining the ability of the debtor to pay, the\nmagistrate is required to take into account the debtor\u2019s and his dependants\u2019 necessary expenses, other court orders\nto pay, and other commitments of the debtor. Section 65D(4)(a) of the Magistrates\u2019 Courts Act. \n\n4\n\n\fKRIEGLER J\n\npay the debt in full or in instalments.10 The system does not end there, however. It also\n\nprovides for the magistrate to issue an order to commit the judgment debtor to prison\n\nfor contempt of court for failure to pay the debt.11 This last option of the magistrate is\n\nthe issue which has given rise to the constitutional challenge.\n\n[ 7 ]\n\nThe notice to the debtor to appear at a hearing calls upon the debtor to \u201cshow\n\ncause why he should not be committed for contempt of court and why the judgment\n\ndebtor should not be ordered to pay the judgment debt in instalments or otherwise.\u201d12 \n\nThe notice is drawn up by the creditor, signed by the clerk of the court and served on\n\nthe debtor in accordance with the rules for service of process.13 The magistrate has a\n\ndiscretion whether to order committal to prison unless the debtor proves at the hearing\n\nthat he or she 1) is under the age of 18, 2) was unaware of the original judgment for\n\ndebt against him, or 3) has no means of satisfying the judgment debt. In order to show\n\nabsence of means of satisfying the judgment debt the debtor also must show that such\n\nlack of means is not due to wilful disposal of goods in order to avoid payment of the\n\njudgment debt, wilful refusal to pay such debt, squandering of money or living beyond\n\nhis means, or incurring of additional debts (except for household goods) after the\n\noriginal judgment date.14 \n\n10See Section 65E of the Magistrates\u2019 Courts Act.\n\n11See Section 65F of the Magistrates\u2019 Courts Act. The magistrate may also suspend a sentence for\n\ncommittal. Section 65F(2) of the Magistrates\u2019 Courts Act.\n\n12Section 65A(1) of the Magistrates\u2019 Courts Act.\n\n13Section 65B of the Magistrates\u2019 Courts Act. In accordance with the rules of service the notice need\n\nnot be served personally. Rule 9 of the Magistrates\u2019 Courts Rules.\n\n14Section 65F(3) of the Magistrates\u2019 Courts Act.\n\n5\n\n\fKRIEGLER J\n\n[ 8 ]\n\nOn the face of it, the law seems to contemplate that imprisonment should be\n\nordered only where the debtor has the means to pay the debt, but is unwilling to do so. \n\nHowever, on examination of the provisions in detail and taking notice of the actual\n\ncarrying out of the provisions, it is clear that the law does not adequately distinguish\n\nbetween the fundamentally different categories of judgment debtors: those who cannot\n\npay and those who can pay but do not want to. The system at issue is used most often\n\nfor the collection of small debts usually of those who are poor and either illiterate or\n\nuninformed about the law or both. In the nature of things they do not enjoy legal\n\nrepresentation. Imprisonment can and has been ordered without the debtor ever having\n\nnotice of the original judgment or the notice to appear at the hearing. It can also be\n\nordered without the uninformed or illiterate debtor having sufficient knowledge about\n\nthe possibility of raising defences or the means of doing so. In the result, the provisions\n\nof the law can be used to imprison the debtor who is unwilling to pay his debt even\n\nthough he has the means to do so, but can also be used (and they are indeed used) to\n\nimprison the debtor who simply is unable to pay the debt.15\n\n15South African Law Commission, Debt Collecting (Project 74): Imprisonment for Debt, Interim Report\n\ndated August 1994 at paragraph 4.2.2.\n\n6\n\n\f[ 9 ]\n\nThis Court has laid down that, ordinarily, one adopts a two-stage approach for\n\nKRIEGLER J\n\ndetermining the constitutionality of alleged violations of rights in Chapter 3 of the\n\nConstitution. The first stage is an enquiry whether the disputed legislation or other\n\ngovernmental action limits rights in Chapter 3 of the Constitution. If so, the second\n\nstage calls for a decision whether the limitation can be justified in terms of section\n\n33(1) of the Constitution.16\n\n[ 10 ]\n\nThe first question this Court must answer therefore is whether any of the rights\n\nin Chapter 3 of the Constitution are limited by the relevant provisions of the\n\nMagistrates\u2019 Courts Act. The parties argued with regard to the right to dignity (section\n\n10), the right to freedom (section 11(1)) and the right to a fair trial (section 25(3)). \n\nObviously the most fundamental right limited by imprisonment is the right to freedom. \n\nSection 11(1) of the Constitution provides:\n\n11. (1) Every person shall have the right to freedom and security of the\nperson, which shall include the right not to be detained without trial.\n\nTo determine whether that right is limited by the legislative provisions under scrutiny in\n\nthese cases, it really is not necessary to determine the outer boundaries of the right. \n\nNor is it necessary to examine the philosophical foundation or the precise content of the\n\nright. Certainly to put someone in prison is a limitation of that person\u2019s right to\n\nfreedom. 17 To do so without any criminal charge being levelled or any trial being held\n\n16See, e.g., S v Williams and Others 1995(7) BCLR 861 (CC), 879D-G.\n\n17It is not necessary to address whether the rights in sections 10 and 25(3) are limited. It would only\nbecome necessary to do so should analysis of the limitation with regard to the right to freedom in accordance with\n\n7\n\n\fis manifestly a radical encroachment upon such right. \n\nKRIEGLER J\n\n[ 11 ]\n\nThe remaining question then is whether that limitation of the right to freedom\n\ncan be justified in accordance with section 33(1) of the Constitution. That subsection,\n\ninsofar as it is relevant here, provides:\n\n33. Limitation. (1) The rights entrenched in this Chapter may be limited by\nlaw of general application, provided that such limitation\n\n(a) shall be permissible only to the extent that it is\n\n(i) reasonable; and \n(ii) justifiable in an open and democratic society\nbased on freedom and equality; and\n\n(b) shall not negate the essential content of the right in\nquestion, \n\nand provided further that any limitation to \n\n(aa) a right entrenched in section ... 11 ...\n\n...\nshall, in addition to being reasonable as required in paragraph (a)(i), also be\nnecessary. \n\nIn making the determination, especially with regard to a right as fundamental as the one\n\nin question, namely personal freedom, one really need not go beyond the test of\n\nreasonableness. This is made all the clearer by the criteria for interpretation of the\n\nChapter 3 rights and limitations found in section 35 of the Constitution. Section 35(1)\n\nprovides, inter alia:\n\n35. Interpretation. (1) In interpreting the provisions of this Chapter a court\nof law shall promote the values which underlie an open and democratic\nsociety based on freedom and equality ....\n\nsection 33(1), infra, validate the provisions vis-a-vis the right to freedom. Section 10 provides - \u201c10. Human\ndignity. Every person shall have the right to respect for and protection of his or her dignity.\u201d Section 25(3)\nprovides - \u201c(3) Every accused person shall have the right to a fair trial ....\u201d \n\n8\n\n\fKRIEGLER J\n\nClearly that provision applies to the interpretation of both the fundamental right\n\nprotected and the evaluation of any limitation according to the criteria of section 33(1). \n\nIn the case of the right and limitation at issue here such interpretation is perfectly\n\nsimple. At the very least a law or action limiting the right to freedom must have a\n\nreasonable goal and the means for achieving that goal must also be reasonable.18\n\n[ 12 ]\n\nI accept that the goal of sections 65A to 65M of the Magistrates\u2019 Court Act is to\n\nprovide a mechanism for the enforcement of judgment debts.19 I also accept that such\n\ngoal is a legitimate and reasonable governmental objective. The question though is\n\nwhether the means to achieve the goal are reasonable. In my view, the answer is\n\nclearly in the negative. \n\n[ 13 ]\n\nThe fundamental reason why the means are not reasonable is because the\n\nprovisions are overbroad. The sanction of imprisonment is ostensibly aimed at the\n\ndebtor who will not pay. But it is unreasonable in that it also strikes at those who \n\n18See S v Makwanyane and Another 1995(6) BCLR 665 (CC), 748A-B.\n\n19The Association of Law Societies argued as amicus curiae that the imprisonment option is defensible\nbecause putting some judgment debtors in prison coerces other debtors to pay their debts. If indeed, this is the\npurpose of the law, then it would fail to be consistent with the Constitution because the goal of the statute would\nbe unreasonable. For the purposes of this judgment, we do not accept this as the purpose of the law.\n\n9\n\n\fcannot pay and simply fail to prove this at a hearing often due to negative\n\ncircumstances created by the provisions themselves. \n\nKRIEGLER J\n\n[ 14 ]\n\nThere are seven distinct reasons why the provisions are indefensible. \n\n#\n\nFirst, they allow persons to be imprisoned without having actual notice of either\n\nthe original judgment or of the hearing. It is not only theoretically possible but\n\nalso quite possible in practice that the debtor\u2019s first notice of the case against\n\nhim is when the warrant of committal is executed. In terms of the procedure\n\npermitted by the Magistrates\u2019 Courts Act and the Rules promulgated thereunder\n\nthere need not necessarily be personal service of any process prior to that.20\n\n#\n\nSecond, even if a person has notice of the hearing, he can be imprisoned without\n\nknowing of the possible defences available to him and accordingly without any\n\nattempt to advance any of them. The so-called notice to show cause issued\n\npursuant to section 65A does not spell out what the defences are, or how they\n\ncould be established.21\n\n#\n\nThird, the burden cast on the debtor with regard to inability to pay, although\n\npossibly defensible in principle as pertaining to matters peculiarly within his\n\n20Substituted service of some kind is possible in respect of all process prior to judgment. See Rule 9 of\nthe Magistrates\u2019 Courts Rules. Even where it was a default judgment, Section 65A(2) does no more than require\nthat a notice be given by registered post. Section 65F(3)(b) renders unawareness of the original judgment a\ndefence, but that is cold comfort to the debtor who also has no knowledge of the hearing.\n\n21See Rule 45 and Form 40 of the Magistrates\u2019 Courts Rules.\n\n10\n\n\fknowledge, is so widely couched that persons genuinely unable to pay are\n\nnevertheless struck.\n\nKRIEGLER J\n\n#\n\nFourth, the provisions of section 65F(3)(c), which spell out what the debtor\n\nmust prove, are not only unreasonably wide, but also unreasonably punitive. \n\nThe relevant part of the section reads as follows:\n\n(3) No ... sentence shall be imposed ... if the judgment debtor or ...\nproves to the satisfaction of the court\n...\n(c) that he has ... no means of satisfying the judgment debts and\ncosts either wholly or in part and that such lack of means is not\ndue to the fact that the judgment debtor\n\n(i) has wilfully disposed of his goods in order to defeat\nor delay payment of the judgment debt and costs; or\n(ii) although he is able to earn sufficient to satisfy the\njudgment debt and costs in instalments or otherwise to\npay such debt and costs, wilfully refuses to do so in order\nto evade or delay payment of the judgment debt and costs;\nor\n(iii) is squandering his money or is apparently living\nbeyond his means; or\n(iv) incurred debts other than for household requirements\nafter the judgment date.\n\nWhatever may be said about a debtor who wilfully frustrates payment\n\n(paragraphs (i) and (ii)) the nakedly punitive retribution inherent in the\n\nprovisions of paragraphs (iii) and (iv) cannot be justified.\n\n#\n\nFifth, the provisions allow a person to be imprisoned without knowing that he\n\nhas a burden to prove her or his defence or how to discharge such burden. It\n\ncould possibly be contended that the magistrate ought to explain a debtor\u2019s\n\nrights and duties to an undefended layman and would probably do so. But the\n\n11\n\n\ffact remains that there is no express obligation on the magistrate to do so.\n\nKRIEGLER J\n\n#\n\nIn the sixth instance it is hardly defensible to treat a civil judgment debtor more\n\nharshly than a criminal. The latter is entitled in terms of section 25(3) of the\n\nConstitution to a fair trial with procedural safeguards, including the right to\n\nlegal assistance at public expense if justice so requires. The debtors, who face\n\nmonths of imprisonment, must fend for themselves as best they can. \n\n#\n\nLastly, the procedure makes no provision for recourse by the debtor to the\n\nmagistrate or higher authority once an order for committal has been made.22 \n\nSection 65L, which deals with the release of a debtor from prison, contains no\n\nmechanism whereby a debtor, even one against whom a committal order had\n\nbeen made in absentia, is entitled to approach a court for relief. \n\nAs a result of these defects, the statute sweeps up those who cannot pay with those who\n\ncan but simply will not. For this reason, the limitation cannot be justified as\n\nreasonable.\n\n22Admittedly section 65F(2) contemplates subsequent suspension of a committal order but there is no\n\nprocedure established for the debtor to enforce such right as the subsection may be said to afford him.\n\n12\n\n\f[ 15 ]\n\nThis conclusion obliges one to consider the question of severability. Indeed,\n\nKRIEGLER J\n\nthere are two questions to be answered with regard to the possible severance of the\n\nprovisions of the law not consistent with the Constitution. First, can one excise the\n\nprovisions which render the option of imprisonment unconsitutional because they do not\n\ndistinguish between those who can pay but will not from those who cannot pay? If not,\n\ncan the provisions which provide for imprisonment itself be severed from the rest of\n\nthe system for enforcement of judgment debts?\n\n[ 16 ]\n\nAlthough severability in the context of constitutional law may often require\n\nspecial treatment, in the present case the trite test can properly be applied: if the good\n\nis not dependent on the bad and can be separated from it, one gives effect to the good\n\nthat remains after the separation if it still gives effect to the main objective of the\n\nstatute.23 The test has two parts: first, is it possible to sever the invalid provisions and\n\nsecond, if so, is what remains giving effect to the purpose of the legislative scheme? \n\n[ 17 ]\n\nIn the present instance, it is not possible to excise only those provisions of\n\nsections 65A to 65M of the Magistrates\u2019 Courts Act which fail to distinguish between\n\nthe two categories of debtors. In order to do so this Court would have to engage in the\n\ndetails of law making, a constitutional activity given to the legislatures. It is, however,\n\npossible to sever the provisions which make up the option of imprisonment. The\n\nquestion then is whether in severing such provisions, the object of the statute will\n\nnevertheless remain to be carried out. The answer to this question clearly is yes. The\n\n23Johannesburg City Council v Chesterfield House 1952(3) SA 809 (AD), 822D-E. See also, S v\n\nLasker 1991(1) SA 558 (CPD), 566.\n\n13\n\n\fKRIEGLER J\n\nobject of sections 65A to 65M of the Magistrates\u2019 Courts Act is to provide a system to\n\nassist in the collection of judgment debts. Removing one of the options available under\n\nthe system does not render the system that remains contrary to the purpose of the\n\nlegislative scheme. Accordingly, the infringing provisions can be severed and the\n\nbalance of the system can usefully remain in force.\n\n[ 18 ]\n\nIn the course of argument on behalf of the Association of Law Societies,24 it was\n\nsuggested that it would lead to a break down of the whole debt collection procedure\n\nunder the Magistrates\u2019 Courts Act if the imprisonment option were to be struck down\n\nimmediately. Therefore, so it was argued, this Court should exercise the powers vested\n\nin it by the proviso to section 98(5) of the Constitution so as to enable the legislature to\n\ndevise an adequate substitute. I do not believe that the proposal should be entertained. \n\nFirst, it is by no means so that the system is dependent upon the imprisonment sanction\n\nfor its viability. There are a number of other aids to judgment debt collection in the\n\nsystem, e.g., property attachment and garnishment of wages. But even if I err in that\n\nregard the system is so clearly inconsistent with the right to freedom protected by\n\nsection 11(1) and so manifestly indefensible under section 33(1) of the Constitution that\n\nthere is no warrant for its retention, even temporarily.\n\n[ 19 ]\n\nIn the circumstances the following order issues:\n\n1.\n\nThe following provisions of the Magistrates\u2019 Courts Act are inconsistent with\n\n24Afforded an audience as amicus curiae by virtue of its special interest and expertise in the matter and\n\nrepresented by two members.\n\n14\n\n\fthe Constitution and are declared to be invalid with effect from the date of this\n\nKRIEGLER J\n\norder:\n\na.\n\nThe following words in section 65A(1)\n\n\u201cwhy he should not be committed for contempt of court and\u201d;\n\nb.\n\nc.\n\nd.\n\ne.\n\nSections 65F, 65G and 65H;\n\nParagraphs (a) and (c) of section 65J(1);\n\nParagraph b(ii) of section 65J(2);\n\nThe following words in paragraph (a) of section 65J(9)\n\n\u201c(a) or\u201d, \n\nand\n\n\u201cand may, subject to the provisions of section 65G, be committed for contempt\n\nof court for failing to comply with the said order\u201d;\n\nf.\n\ng.\n\nParagraph (b) of section 65J(9);\n\nThe following words in section 65K(2)\n\n\u201cor warrant for the committal of a judgment debtor or a director or an officer of\n\nany juristic person or of any sentence imposing a fine on any director or officer\n\nrepresenting a judgment debtor who is a juristic person\u201d; and\n\nh.\n\nSection 65L.\n\n2.\n\nAll other provisions of sections 65A to 65M of the Magistrates\u2019 Courts Act\n\nremain in force.\n\n3.\n\nWith effect from the date of this order, the committal or continuing\n\n15\n\n\fimprisonment of any judgment debtor in terms of section 65F or 65G of the\n\nMagistrates\u2019 Courts Act is invalid.\n\nKRIEGLER J\n\nJC Kriegler\n\nChaskalson P, Mahomed DP, Ackermann J, Madala J, and O\u2019Regan J concur in the judgment of\nKriegler J.\n\n16\n\n\f[ 20 ] DIDCOTT J: I am by no means convinced at present that it would be unconstitutional,\n\nDIDCOTT J\n\nonce certain conditions were met, for a debtor who had not paid the amount of a\n\njudgment duly awarded against him to be committed to prison for a limited spell like\n\nthe period allowed by our current legislation or, if the judgment was satisfied before it\n\nended, until the earlier date when that occurred. The conditions which I envisage\n\nwould be ones requiring that: \n\n(a)\n\nthe creditor had already exhausted all other lawful means that were usable by \n\nhim for the execution of the judgment;\n\n(b)\n\nthe committal was preceded by a full enquiry into the reasons why the debtor\n\nhad failed to pay the amount that he owed, an enquiry attended by him\n\npersonally and conducted in compliance with the dictates of procedural fairness\n\nby the magistrate from whom the order for his imprisonment was sought;\n\n(c)\n\nat the enquiry the debtor had to explain the default, to disclose his financial state\n\nand affairs, and to submit to interrogation on those matters, lying largely as they\n\ndid within his own peculiar knowledge;\n\n(d)\n\nin the end, however, the creditor bore the onus to prove directly or inferentially,\n\nbut positively at all events, the debtor\u2019s ability in his particular circumstances\n\nto pay the amount owed and either a downright refusal by him to do so or the\n\nsheer wilfulness of his default;\n\n17\n\n\f(e)\n\nno order for the imprisonment of the debtor might ensue from the enquiry in the\n\nabsence of such proof.\n\nDIDCOTT J\n\nIn permitting the debtor to be consigned to gaol subject to those conditions, a statutory\n\nscheme of that sort would certainly deny him, throughout his sojourn there, the right to\n\npersonal freedom proclaimed by section 11(1) of the Constitution. That section 33(1)\n\nauthorised the temporary denial of the right would be an arguable proposition all the\n\nsame, and no less so owing to the misdescription of the grounds for it when they were\n\nartificially called a contempt of court. The denial might be viewed as a reasonable and\n\njustifiable measure, indeed as a necessary one, in a final effort to extract from a\n\npecunious but stubbornly defiant debtor the long awaited payment to which the creditor\n\nwas entitled. And it might not negate the essential content of the right, were that\n\nconcept to be understood in the sense sometimes dubbed as objective which\n\nChaskalson P and Kentridge AJ discussed in S v Makwanyane and Another 1995(3) \n\nSA 391 (CC) (paragraphs 133 at 447C-G and 195 at 470F-471B). I shall say nothing\n\nabout the wisdom, expediency or efficacy of such a scheme. Nor, even on the narrower\n\nquestion of its constitutional validity, do I express a firm opinion. That topic is beside\n\nthe point, since the scheme happens not to be the one we now have before us or, for that\n\nmatter, any other in actual operation here. It has been postulated simply so that it may\n\nillustrate why I hesitate to generalise about the imprisonment of debtors, condemning\n\nthat out of hand and irrespective of the way in which it is regulated.\n\n[ 21 ]\n\nNor, in my opinion, do we need on this occasion to indulge in such\n\n18\n\n\fDIDCOTT J\n\ngeneralisations. We can dispose satisfactorily of the issue which has been referred to\n\nus without resorting to them. For the legislation that is under attack goes far beyond my\n\nimaginary scheme, doing so with no fewer than four draconian effects to which I shall\n\nconfine my attention.\n\n[ 22 ]\n\nThe legislation does not, in the first place, insist on the exhaustion by the\n\ncreditor of his lesser remedies before he throws the book of prospective imprisonment\n\nat the debtor. So much he may do a mere ten days after the judgment that remains\n\nunsatisfied was obtained by him, and without having taken or had the time to take any\n\nprior step in an endeavour to enforce it, by issuing a notice then which calls on the\n\ndebtor to show cause to a magistrate on a date announced in it, a date as early as seven\n\ndays later than the one when it was served, why the default should not be visited with\n\ncommittal to gaol. The magistrate is not bound, when the appointed day arrives, to send\n\nthe debtor there. Some other order may be made instead, an order for the attachment of\n\ndebts owed to him, or for a garnishee on his wages, or for execution to be levied\n\nagainst his property, or for the payability in instalments of the judgment debt. No doubt\n\nthat is often done, at first anyhow, in practice and perhaps even as a matter of judicial\n\npolicy. But it is not enjoined by the statute, which imposes no duty on the magistrate\n\neither to follow any of those other courses or to satisfy himself or herself that nothing\n\nwill be achieved by doing so. Imprisonment is sanctioned as an initial alternative to\n\nthem, not solely as a sequel to their unsuccessful pursuit.\n\n[ 23 ]\n\nThe second harsh effect of the legislation is this. It allows the debtor to be\n\n19\n\n\fDIDCOTT J\n\nimprisoned without a hearing. The notice issued by the creditor, though served in\n\naccordance with the rules of court, may have been left with somebody else at one of the\n\nplaces permitted for its service and never have come to his personal attention. He may\n\nindeed be unaware of the judgment itself, the same having happened to the earlier\n\nnotification of that which he was supposed to receive. He may even have known\n\nnothing about the action instituted against him which culminated in the judgment, one\n\nobtained by default because the summons that started the litigation did not reach him\n\neither. A series of accidents like those would be no surprising coincidence, after all, if \n\nthe same person had accepted service of all the documents in quick succession, but\n\nneglected to pass them onto him or knew not where he was. Yet the statute expressly\n\nempowers the magistrate to sentence him to imprisonment in his absence, a fate never\n\nsuffered by convicted criminals.\n\n[ 24 ]\n\nAnother explanation for the absence of the debtor, even when he has received\n\nthe notice and the preceding documents, may be his ignorance of the various defences\n\nthat are available to him in answering it, in particular the important defence of a\n\npoverty afflicting him which is not attributable to his own improvidence. He may\n\nlabour under the misapprehension that no excuse for his failure to satisfy the judgment\n\nwill be acceptable, that his imprisonment is an inescapable consequence of the default\n\nto which he must resign himself, and that his attendance at the proceedings cannot\n\ntherefore accomplish anything. For the notice did not inform him of any such excuse. It\n\nwas not required to do so. That is the third obnoxious effect of the statute.\n\n20\n\n\f[ 25 ]\n\nThe fourth ugly feature of the legislation that will confront the debtor if he does\n\nDIDCOTT J\n\nappear before the magistrate, on the other hand, is the onus then resting on him to prove\n\nthat he cannot pay the judgment debt and bears no blame for his impecuniosity on\n\nvarious grounds which are listed. He may not manage to establish that, although it is\n\nthe truth, especially when his very poverty has prevented him from hiring a lawyer and\n\nhe has to fend for himself in an unfamiliar environment, bewildered by procedures and\n\na forensic methodology to which he is a stranger. The result may well be, the result\n\nmust often be, that someone who really cannot pay, through no fault of his own, goes to\n\ngaol for his failure to do so.\n\n[ 26 ]\n\nThe interests of creditors are plainly relevant to any constitutional appraisal of\n\nthe provisions with those effects. Credit plays an important part in the modern\n\nmanagement of commerce. The rights of creditors to recover the debts that are owed to\n\nthem should command our respect, and the enforcement of such rights is the legitimate\n\nbusiness of our law. The granting of credit would otherwise be discouraged, with\n\nunfortunate consequences to society as a whole, including those poorer members who\n\ndepend on its support for a host of their ordinary requirements. That does not mean,\n\nhowever, that the interests of creditors may be allowed to ride roughshod over the\n\nrights of debtors. The legislation in question permits that most egregiously, I believe,\n\nin the four respects mentioned. I am satisfied that it is unreasonable and unjustifiable\n\non those cumulatively oppressive scores. Its clear invasion of the right to personal\n\nfreedom which section 11(1) guarantees to debtors like everyone else is therefore, in\n\nmy judgment, not countenanced by section 33(1).\n\n21\n\n\fDIDCOTT J\n\n[ 27 ]\n\nThe bad parts of the statute are not judicially severable, I consider, from the rest\n\nof its provisions that deal with imprisonment. Their roots are entangled too tenaciously\n\nin the surrounding soil for a clean extraction to be feasible. The conclusion to which I\n\naccordingly come is that we are left with no option but to declare those provisions as a\n\nwhole to be constitutionally invalid on account of their objectionable overbreadth.\n\n[ 28 ]\n\nThe incisive judgment prepared by Kriegler J in these two cases came to hand\n\nwhen the preceding parts of this one had already been written. Its thrust, as I read it, is\n\nsubstantially the same as mine. I agree entirely, I now add, with both the focus and \n\n22\n\n\fthe tenor of it. For the reasons which Kriegler J and I have given, and for those reasons\n\nalone, I concur in the order proposed by him.\n\nDIDCOTT J\n\nJM Didcott\n\n23\n\n\fKENTRIDGE AJ\n\n[ 29 ] KENTRIDGE AJ:\n\n I concur in the judgment of Kriegler J and in the order which he\n\nproposes. I also agree with the identification by Didcott J of aspects of the legislation\n\nwhich render it unreasonable and unjustifiable. I would, however, in addition endorse\n\nthe general critique of the legislation set out in paragraphs [65] to [71] of the judgment\n\nof Sachs J.\n\nS Kentridge\n\n24\n\n\f[ 30 ] LANGA J: The matter referred to the Court is the constitutionality of certain of the\n\nLANGA J\n\nprovisions of sections 65A to M of the Magistrates\u2019 Courts Act25 (the Act) in so far as\n\nthey authorise the imprisonment of defaulting judgment debtors. Inevitably, this raised\n\nthe question of whether the imprisonment of defaulting judgment debtors can ever be\n\njustifiable in an open and democratic society based on freedom and equality. It is\n\nimportant to make a clear distinction between what has been decided and what has not\n\nbeen decided in this case.\n\n[ 31 ]\n\nThrough the judgments of Kriegler J and Didcott J the Court affirms that those\n\nprovisions that authorise the imprisonment of judgment debtors in sections 65A - M of\n\nthe Act are unconstitutional and should therefore be struck down. Sachs J arrives at\n\nthe same conclusion. I am in respectful agreement with and therefore concur in the\n\norder proposed by Kriegler J. That the relevant provisions are overbroad was\n\ncommon cause to all the parties who argued the matter before us. In addition, it was\n\ncommon cause that the provisions were procedurally flawed. Those procedural\n\nshortcomings have been crisply identified by Kriegler J at paragraph 14 of his\n\njudgment.\n\n[ 32 ]\n\nAs pointed out by Kriegler J26, the provisions hit two categories of defaulting\n\ndebtors, namely, those who wilfully refuse to settle their debts even though they have\n\nthe means and those who cannot pay because they do not have the means but who fail to\n\n25Act No. 32 of 1944 (as amended).\n\n26In paragraph 14 of his judgment, Kriegler J states: \u201cAs a result of these defects, the statute sweeps up\n\nthose who cannot pay with those who can but simply will not.\u201d\n\n25\n\n\fLANGA J\n\nprove their inability to pay. Both categories are subject to civil imprisonment. It is\n\nclear that it could never be constitutional to imprison a person who falls within the\n\nsecond category. What is not settled however, is whether, provided certain conditions\n\nare fulfilled, it would be unconstitutional to commit a debtor of the first category to\n\nprison. Because the impugned provisions are clearly overbroad and procedurally\n\nflawed, it is not necessary to address that question here.\n\n[ 33 ]\n\nAlthough I concur with the judgment of Kriegler J, I wish to add a few\n\ncomments concerning section 11(1) and its interpretation. It is trite that imprisonment,\n\nwhether as a civil or criminal sanction, is a drastic curtailment of a person\u2019s liberty,\n\nwhich is the essence of the \u201cfreedom and security\u201d provision in section 11(1) of the\n\nConstitution. In the criminal law, it is generally accepted that imprisonment should be\n\nresorted to only after the most anxious consideration. Twenty years ago Hiemstra J\n\nremarked:27\n\nThe views of the Courts in regard to imprisonment have however undergone\nmodification in the last ten years. Imprisonment is seen more and more as a harsh\nand drastic punishment to be reserved for callous and impenitent characters. We\nwish to adopt a more enlightened approach in which the probable effect of\nincarceration upon the life of the accused person and those near to her is carefully\nweighed.\n\nThirion J, in a later judgment observed:28\n\n27In S v Benetti 1975(3) SA 603 (T) at 605G.\n\n28This was a dissenting judgment in S v Motsoesoana 1986(3) SA 350 (N) at 372F - G. Thirion J was\n\ncomparing imprisonment with corporal punishment for juveniles as sentencing options.\n\n26\n\n\fLANGA J\n\nImprisonment is the form of punishment which may detrimentally affect not only\nthe offender but also his family and his employment and because of its duration it\ncan seldom be kept from becoming general public knowledge. It ... can have a\nlasting demoralising effect on the character and personality of the offender. The\nloss of liberty, tedium, regimentation ... which prison life entails, have a greater\npotentiality than a whipping for destroying the offender\u2019s self-esteem and the\nintegrity of his character and for changing, for the worse, his way of life.\n\nReynolds J29 refers to the \u201c \u2018deleterious effects of penal institutions\u2019 ... and the\n\nunfortunate results that regularly follow the imposition of custodial punishment.\u201d \n\nGoldstone J30 refers to the need to \u201c... avoid exposure to the negative consequences of\n\nimprisonment\u201d.\n\n[ 34 ]\n\nThe language of section 11(1), which guarantees \u201cfreedom and security of the\n\nperson\u201d and the right \u201cnot to be detained without trial,\u201d is an implicit recognition and\n\nrejection of some of the practices of the past. Despite the existence of common-law\n\nprovisions protecting personal freedom and security, many people were imprisoned\n\nand detained without the application of principles of procedural fairness and in\n\ncircumstances where they had committed no offence which would warrant the\n\ndeprivation of liberty. Thousands of South Africans each year were, for instance, \n\nimprisoned for breaches of influx control legislation after summary trials which carried\n\nfew, if any, of the characteristics of a fair trial. In addition, imprisonment was also \n\nused to curtail other fundamental freedoms unjustly, including those of association,\n\nexpression and belief, and, as an instrument of coercion, in order to extract information\n\n29Reynold J\u2019s remarks, made in S v Chirara; S v Hwengwa; S v Pisaunga; S v Muzondiwa 1990(2)\nSACR 356 (ZH) at 358i - j, were in the context of a statement he quoted from by Ashworth in Sentencing and\nPenal Policy (at 318) that \u201ccustodial sentences should be used as sparingly as possible\u201d.\n\n30In S v Kumalo 1984(4) SA 642 (W) at 644H.\n\n27\n\n\fto be used for prosecutions and various other official purposes. It has therefore been a\n\npowerful weapon in the hands of officialdom. In terms of the challenged provisions,\n\nthis weapon is placed at the disposal of creditors for use against defaulting debtors.\n\nLANGA J\n\n[ 35 ]\n\nThe difference between the past and the present is that individual freedom and\n\nsecurity no longer fall to be protected solely through the vehicle of common law\n\nmaxims and presumptions which may be altered or repealed by statute, but are now\n\nprotected by entrenched constitutional provisions which neither the legislature nor the\n\nexecutive may abridge. It would accordingly be improper for us to hold constitutional\n\na system which, as Sachs J has noted, confers on creditors the power to consign the\n\nperson of an impecunious debtor to prison at will and without the interposition at the\n\ncrucial time of a judicial officer.31 \n\n[ 36 ]\n\nFor the reasons articulated in Kriegler J\u2019s and Didcott J\u2019s judgments, I agree\n\nthat the impugned provisions constitute an unreasonable limitation on the \u201cfreedom and\n\nsecurity\u201d provision and that they are therefore clearly unconstitutional. In view of the\n\nconclusion I have come to in concurrence with that of Kriegler J, it is not \n\n31Sachs J opines at paragraph 66 of his judgment that \u201c[A] judgment debtor should in principle not be held\nliable through his or her person, life or liberty, for the payment of a debt, but only through the aggregate of his or\nher means.\u201d \n\n28\n\n\fnecessary to finally resolve the question of whether it would be unconstitutional to\n\nimprison wilfully defaulting debtors.\n\nLANGA J\n\nPN Langa\n\n29\n\n\f[ 37 ] SACHS J:\n\n Is imprisonment for debt in itself unconstitutional, or does it all depend\n\non how it is done and against whom it is directed? This, to my mind, was the major\n\nissue raised in the present matter. \n\nSACHS J\n\nIt was common cause amongst counsel for the Applicants and Respondents as well as\n\nthe representatives of the Association of Law Societies - although their reasons differed\n\n- that the imprisonment of judgment debtors in terms of the provisions of Sections 65A\n\nto 65M of the Magistrates' Courts Act, was unconstitutional. There was no agreement,\n\nhowever, as to the order which they thought should be made as a result. \n\n[ 38 ]\n\nMr Navsa, who was briefed by the Legal Resources Centre to appear on behalf\n\nof the Applicants, argued that the provisions in question flew in the face of the\n\ninternational prohibition against civil imprisonment, and were so profoundly ridden\n\nwith unconstitutionality, and so inextricably linked up with the remaining provisions of\n\nSections 65A to 65M, that the whole cluster had to be invalidated. \n\n[ 39 ]\n\nMr Potgieter, who appeared on behalf of the Government and the Minister of\n\nJustice, accepted that the unconstitutionality was broadly-based, but said that the\n\nprovisions dealing with imprisonment for alleged contempt of court could be excised\n\nwithout destroying the remaining portions. \n\n[ 40 ]\n\nMr Du Plessis, on the other hand, contended in the name of the Association of\n\nLaw Societies, that the unconstitutionality rested on narrow procedural grounds, more\n\n30\n\n\fSACHS J\n\nparticularly, on the lack of a hearing and a consequent violation of the well-known\n\nprinciple of audi alterem partem. He argued that this defect could easily be corrected\n\nby the legislature if properly directed. He agreed with Mr Navsa that the impugned\n\nprovisions were so intrinsic to the scheme of Sections 65A to 65M that the whole set\n\nshould be invalidated. In order to avoid a situation in which all court-supervised debt\n\ncollecting became toothless and ineffective, however, he urged us to require\n\nParliament, in the interests of justice and good government, to correct the defect in the\n\nlaw within a period of one year32; Sections 65A to 65M should then remain in force\n\nuntil such correction had been made or the year had elapsed. In effect, he was arguing\n\nthat the scheme for imprisoning recalcitrant judgment debtors was rescuable, and\n\nshould be rescued. Implicit in the arguments of counsel for the Applicants and the\n\nGovernment, on the other hand, was the notion that the institution of sending non-paying\n\ndebtors to jail was intrinsically beyond repair and had to be ended forthwith. It was\n\nthis disagreement that has prompted my exploration of the question of whether or not\n\nimprisonment for debt is in itself unconstitutional, or, whether, properly controlled and\n\nfocused, it could pass constitutional muster.\n\n[ 41 ]\n\nA perusal of the admirably, and I might say, enviably, succinct judgments of\n\nDidcott J and Kriegler J respectively, shows that they have not found it necessary to go\n\n32Using our powers in terms of Section 98 (5) of the Constitution, which provides that:\n\nIn the event of the Constitutional Court finding that any law or any provision thereof is\ninconsistent with this Constitution, it shall declare such law or provision invalid to the extent\nof its inconsistency: Provided that the Constitutional Court may, in the interests of justice and\ngood government, require Parliament or any other competent authority, within a period specified\nby the Court, to correct the defect in the law or provision, which shall then remain in force\npending correction or the expiry of the period so specified.\n\n31\n\n\fSACHS J\n\nbeyond considering the reasonableness of the procedures involved. I agree with their\n\nanalysis and with the order that Kriegler J proposes. I feel however that a proper\n\nanswer to the request from the Association of Law Societies that we use our powers to\n\nkeep the committal proceedings alive pending rectification, requires a fuller analysis of\n\nthe institution of civil imprisonment than they have considered appropriate. If there is\n\nnothing in principle constitutionally objectionable in sending people to jail for not\n\npaying their debts - as their judgments indicate or imply - then there would be\n\nconsiderable merit in the argument of the Association of Law Societies in favour of\n\nretaining committal proceedings pending rectification. If, on the other hand, we are\n\ndealing with an institution that is intrinsically suspect then the justification for using our\n\npowers in terms of Section 98(5) becomes weak indeed. The matter is of considerable\n\nimportance not only for creditors and debtors, but for the administration of justice,\n\ninasmuch as it affects the daily work of attorneys, magistrates and prison officers. I\n\nwill accordingly complement the judgments of my colleagues with some views of my\n\nown. I will start at the beginning, namely, with the nature of the right allegedly\n\ninfringed, and then proceed step by step until reaching the final question of whether or\n\nnot to keep the institution alive.\n\n32\n\n\fI THE QUESTION OF CONSTITUTIONALITY\n\nSACHS J\n\n[ 42 ]\n\nThe first task is to decide whether Sections 65A to 65M are in whole or part\n\nunconstitutional. In the present case, they were said to violate the right to freedom and\n\nsecurity of the person in Section 11, the prohibition against detention without trial in the\n\nsame section, the requirements of a fair trial specified in Section 25 and the right to\n\ndignity contained in Section 10. \n\n[ 43 ]\n\nSection 11(1) bears directly on the subject. It reads:\n\nEvery person shall have the right to freedom and security of the person, which shall\ninclude the right not to be detained without trial.\n\nIt is tempting to regard the absence of a hearing as indicating that there is a direct\n\nviolation of the right in Section 11(1) not be detained without trial. Given the specific\n\nmeaning that the phrase \u2018detention without trial\u2019 has acquired in South Africa, however,\n\nI prefer not to apply the words literally to the situation under discussion, but rather, for\n\nthe purposes of this case, to view them as protective buttresses for the broader structure\n\nof personal freedom. I feel that this approach opens the way for a richer and more\n\nsophisticated exploration of the values embodied in the concept of personal freedom,\n\nwhich in turn will facilitate the discovery and delineation of what could be appropriate\n\nlimitations consistent with these values. It also maintains the relative impermeability of\n\nthe concept of detention without trial, as generally understood; the narrower and more\n\ndeeply anchored the right, and the closer it is kept to its special purpose, the more\n\n33\n\n\fSACHS J\n\neasily can it be defended against invasion.33 Similarly, rather than attempt to force the\n\nsituation of imprisoned judgment debtors into the matrix of a criminal trial, which has\n\ndifferent objectives34, I will regard Section 25 as a relevant background source which\n\nfurnishes values helpful in the interpretation of the elusive notion of freedom. Thus,\n\nalthough Section 25 is not directly applicable to the present case in that defaulting civil\n\ndebtors are neither persons arrested nor accused persons as provided for in that\n\nsection, it does indicate fundamental standards of fairness regarded as appropriate\n\nbefore penalties, including imprisonment, are judicially imposed. I propose, also, to\n\ntreat the right to dignity contained in Section 10 as a right which is intertwined with and\n\nhelps in the interpretation of the rights of personal freedom and security protected by\n\nSection 1135, rather than as an independent right violated by the statute in question. In\n\nthis way I will attempt to locate the issue in what I regard as its proper constitutional\n\nframework.\n\n33P Hogg, Constitutional Law of Canada (3rd ed. 1992) at Chapter 4.\n\n34See Hicks v Feiock 485 US 624 (1988) where the US Supreme Court re-affirmed the distinction\nbetween imprisonment for a fixed period as a punishment for doing something forbidden, and imprisonment as\na flexible remedial instrument for failure to fulfil an obligation, with full due process being required for the\nformer, but not for the latter.\n\n35See comments on interacting values by Wilson J in R v Morgentaler 44 DLR (4th) 385 (1988) at 493;\nSee also S v Makwanyane 1995 (6) BCLR 665 (CC) per Chaskalson P at 702D and 722H-723A, and O\u2019Regan\nJ at 777E.\n\n34\n\n\fThe right to \u2018Freedom and security of the person\u2019\n\nSACHS J\n\n[ 44 ]\n\nMy principal focus is on the rights subsumed in the expression \u2018freedom and\n\nsecurity of the person\u2019. The issue of determining the precise limits and content of these\n\nwords will no doubt exercise this Court for a long time to come. Other jurisdictions\n\nhave battled with the problem of whether the phrase should be construed as referring to\n\none right with two facets, or two distinct, if conjoined, rights.36 Another\n\njurisprudentially controversial matter has been whether the words should be considered\n\nas applying only or mainly to the absence of physical constraint37 or whether it should\n\nbe regarded as having the widest amplitude38 and extend to all the rights and privileges\n\nlong recognized as central to the orderly pursuit of happiness by free men and women.39 \n\nEven more fundamental (and even more difficult) are questions relating to the nature of\n\ncitizenship and civic responsibility in a modern industrial-administrative state, the\n\ndegree of regulation that is appropriate in contemporary economic and social life and\n\nthe extent to which freedom and personal security are achieved by protecting human\n\n36Hogg at 1022; Garant in Canadian Charter of Rights and Freedoms (2nd ed. 1989, eds Beaudoin and\nRatushny) at 334; Re Singh and Minister of Employment and Immigration 17 DLR (4th) 422 (1985) per Wilson\nJ at 458; R v Morgentaler, supra. The issues are discussed by Du Plessis and De Ville in Rights and\nConstitutionalism - The New South African Legal Order, (1994, eds Van Wyk et al) at 234 and Cachalia et al in\nFundamental Rights in the New Constitution (1994) at 35. \n\n37For the tendency in Canada, see Garant supra at 342 et seq; Hogg at 1029, and also in Germany, as well\nas in the judgments of the European Court of Human Rights, see P Sieghart, The International Law of Human\nRights (1992) at 141-42. Useful information is to be found in Du Plessis and De Ville, Rights and\nConstitutionalism supra at 236 and Cachalia et al supra at 35.\n\n38For the approach in India, see Kharak Singh v State of U.P. and Others [1964] 1 SCR 332; See also\nManeka Gandhi v Union of India AIR 1978 SC 597 quoted in Davis, Chaskalson and De Waal in Rights and\nConstitutionalism supra at 46.\n\n39For the position in the US see Board of Regents of State Colleges v Roth, 408 US 564 (1972).\n\n35\n\n\fSACHS J\n\nautonomy on the one hand and recognizing human interdependence on the other.40 The\n\npresent case does not, however, compel us to penetrate into any of these complex areas. \n\nOn any analysis, using any approach, there can be no doubt that committing someone to\n\nprison involves a severe curtailment of that person's freedom and personal security. \n\nIndeed, the very purpose of committal is to limit the freedom of the person concerned.\n\nGiven the manifest and substantial invasion of personal freedom thus involved, the real\n\nissue that we have to decide is whether such infringement can be justified in terms of\n\nthe general limitations on rights permitted by Section 33 of the Constitution. This is the\n\nnub of the problem before us.\n\n[ 45 ]\n\nYet the second, and for our purposes, crucial step of the investigation, is by no\n\nmeans unrelated to the first. Although notionally the court proceeds in two distinct\n\nanalytical stages,41 there is clearly a relationship between the two curial enquiries. The\n\nmore profound the interest being protected, and the graver the violation, the more\n\nstringent the scrutiny; at the end of the day, the court must decide whether, bearing in\n\nmind the nature and intensity of the interest to be protected and the degree to which and\n\nthe manner in which it is infringed, the limitation is permissible. The President of this\n\nCourt has outlined the basic balancing process in the following words: \n\nThe limitation of constitutional rights for a purpose that is reasonable and necessary\nin a democratic society involves the weighing up of competing values, and\nultimately an assessment based on proportionality. This is implicit in the provisions\nof Section 33(1). The fact that different rights have different implications for\n\n40There is extensive literature on the subject which we are not compelled to explore in the present case.\n\n41S v Zuma and Others 1995 (4) BCLR 401 (SA) and S v Makwanyane and Another 1995 (6) BCLR\n\n665 (CC).\n\n36\n\n\fSACHS J\n\ndemocracy, and in the case of our Constitution for \u201can open and democratic society\nbased on freedom and equality\u201d, means that there is no absolute standard which can\nbe laid down for determining reasonableness and necessity. Principles can be\nestablished, but the application of those principles to particular circumstances can\nonly be done on a case by case basis. This is inherent in the requirement of\nproportionality, which calls for the balancing of different interests. In the balancing\nprocess, the relevant considerations will include the nature of the right that is\nlimited, and its importance to an open and democratic society based on freedom and\nequality; the purpose for which the right is limited and the importance of that\npurpose to such a society; the extent of the limitation, its efficacy, and particularly\nwhere the limitation has to be necessary, whether the desired ends could reasonably\nbe achieved through other means less damaging to the right in question. In the\nprocess regard must be had to provisions of Section 33(1), and the underlying\nvalues of the Constitution, bearing in mind that, as a Canadian Judge has said, \u201cthe\nrole of the Court is not to second-guess the wisdom of policy choices made by\nlegislators.\u201d42\n\nIf I might put a personal gloss on these words, the actual manner in which they were\n\napplied in Makwanyane (the Capital Punishment case) shows that the two phases are\n\nstrongly interlinked in several respects: firstly, by overt proportionality with regards to\n\nmeans, secondly by underlying philosophy relating to values and thirdly by a general\n\ncontextual sensitivity in respect of the circumstances in which the legal issues present\n\nthemselves. \n\n[ 46 ]\n\nI make these points because of what I regard as a tendency by counsel,\n\nmanifested in this case, to argue the two-stage process in a rather mechanical and\n\nsequentially divided way without paying sufficient attention to the commonalities that\n\nrun through the two stages. In my view, faithfulness to the Constitution is best achieved\n\nby locating the two-stage balancing process within a holistic, value-based and case-\n\noriented framework.43 The values that must suffuse the whole process are derived\n\n42Per Chaskalson P in Makwanyane supra at 708D-G.\n\n43See the warning Dickson CJC gives against a mechanical, formula-driven application of the principles\nin R v Oakes 26 DLR (4th) 200 (1986), and of his emphasis on the concept of a free and democratic society\n\n37\n\n\fSACHS J\n\nfrom the concept of an open and democratic society based on freedom and equality,\n\nseveral times referred to in the Constitution. The notion of an open and democratic\n\nsociety is thus not merely aspirational or decorative,44 it is normative, furnishing the\n\nmatrix of ideals within which we work, the source from which we derive the principles\n\nand rules we apply, and the final measure we use for testing the legitimacy of impugned\n\nnorms and conduct. If I may be forgiven the excursion, it seems to me that it also\n\nfollows from the principles laid down in Makwanyane that we should not engage in\n\npurely formal or academic analyses, nor simply restrict ourselves to ad hoc technicism,\n\nbut rather focus on what has been called the synergetic relation between the values\n\nunderlying the guarantees of fundamental rights and the circumstances of the particular\n\ncase.45 There is no legal yardstick for achieving this.46 In the end, we will frequently\n\nwhich, in his words, is the commonality which links the guarantee of rights and freedoms to their limitation. R\nv Keegstra 3 CRR (2d) 193 (1990).\n\n44In the words of Dickson CJC, in Keegstra supra, they are no mere \u2018incantation\u2019, rather, they are central\nto the methodology to be adopted. In the circumstances of the evolution of South African society as alluded to\nin the Epilogue to the Constitution, they could have special technical relevance in at least three respects: our\njurisprudence has many admirable features, but has not always evolved in the direction of supporting openness and\ndemocracy, hence the need for selective utilization of decisions by our courts; the deference which courts\nnormally give to \u2018political acts\u2019 and to legislative outcomes of the democratic process, might be more tenuous\nin the case of decisions and legislation of the pre-democratic period; and we might be required to use a wider range\nof source material than traditionally has been the case. None of these issues have been argued before us, and none\nneed to be decided for the purposes of the present case, so I express no opinion on them.\n\n45By Dickson CJC in Keegstra supra at 30 where he points out that factual circumstances shape the\ncourts\u2019 view of both the right or freedom at stake and the limit proposed by the state, neither of which should be\nviewed in abstract, and cites with approval the following statement by Wilson J in Edmonton Journal v Alberta\nAG 45 CRR 1 (1989) at 26-27. \n\n... a particular right or freedom may have a different value depending on the context. It may be,\nfor example, that freedom of expression has greater value in a political context than it does in\nthe context of disclosure of the details of a matrimonial dispute. The contextual approach\nattempts to bring into sharp relief the aspects of any values in competition with it. It seems to\nbe more sensitive to the reality of the dilemma posed by the particular facts and therefore more\nconducive to finding a fair and just compromise between the two competing values ....\n\nand the observation of La Forest J in United States of America v Cotroni 42 CRR 101 (1989) at 117 that:\n\n38\n\n\fSACHS J\n\nbe unable to escape making difficult value judgments, where, in the words of\n\nMcLachlin J, logic and precedent are of limited assistance. As she points out,47 what\n\nmust be determinative in the end is the court\u2019s judgment, based on an understanding of\n\nthe values our society is being built on and the interests at stake in the particular case;\n\nthis is a judgment that cannot be made in the abstract, and, rather than speak of values\n\nas Platonic ideals,48 the judge must situate the analysis in the facts of the particular\n\ncase, weighing the different values represented in that context. In the present matter\n\nthen, we are called upon to exercise what I would call a structured and disciplined\n\nvalue judgment, taking account of all the competing considerations that arise in the\n\ncircumstances of the present case, as to whether in the open and democratic society\n\nbased on freedom and equality contemplated by the Constitution, it is\n\nlegitimate/acceptable/appropriate to continue to send defaulting judgment debtors to\n\njail in terms of the procedures set out in Section 65 of the Magistrates\u2019 Courts Act.\n\nIn the performance of the balancing task ... a mechanistic approach must be avoided. While the\nrights guaranteed by the Charter must be given priority in the equation, the underlying values\nmust be sensitively weighted in a particular context against other values of a free and democratic\nsociety sought to be promoted by the legislature. \n\n46Per Gubbay CJ of the Zimbabwean Supreme Court:\n\nThere is no legal yardstick, save that the quality of the reasonableness of the provision under\nattack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the\nguaranteed right according to the standards of a society that has a proper respect for the rights\nand freedoms of the individual. \n\nWoods and Others v Minister of Justice, Legal and Parliamentary Affairs 1995 (1) BCLR 56 (ZS) at 59; 1995\n(1) SA 703 (ZS) at 706E.\n\n47Keegstra supra at 109. How difficult this judgment is, is brought out by the fact that, applying an\napproach cast in almost identical terms, the majority judgment given by Dickson CJC, supported by three judges,\nupheld the statute while McLachlin J, supported by two judges, would have struck it down.\n\n48 Trakman, Reasoning with the Charter (1991) at 201:\n\nRights are not self-explanatory. They are principled constructions informed by social history,\ncommunicative experience and normative practice.\n\n39\n\n\fThe Limitations Clause\n\nSACHS J\n\n[ 47 ]\n\nSection 33, commonly known as the Limitations Clause, is central to our\n\nenquiry and bears repeating:\n\n33 (1) The rights entrenched in the Chapter may be limited by law of general\napplication, provided that such limitation -\n\n(a)\n\nshall be permissible only to the extent that it is -\n\n(i)\n\n(ii)\n\nreasonable; and\n\njustifiable in an open and democratic society based on freedom\nand equality; and\n\n(b)\n\nshall not negate the essential content of the right in question, \n\nand provided further that any limitation to -\n\n(aa)\n\na right entrenched in section ... 11 ...\n\nshall, in addition to being reasonable as required in paragraph (a)(i), also be\nnecessary.\n\n[ 48 ]\n\nThere are in fact a multiplicity of situations where the limitations clause might\n\nbe invoked to justify physical restrictions on personal freedom. They were not argued\n\nbefore us and it would be inappropriate to express any opinion whatsoever on the\n\nvalidity of other proceedings presently treated by the law as permissible. They would\n\ninclude such matters as: detention of illegal immigrants, segregation of persons with\n\nhighly infectious diseases, custodial orders in terms of mental health legislation, and\n\narrests to establish or confirm jurisdiction of a person seeking to flee the country so as\n\n40\n\n\fSACHS J\n\nto avoid civil liability.49 In each case, the law limiting the exercise of the rights\n\ncontained in Section 11 would have to pass the tests of reasonableness, justifiability\n\nand necessity laid down in Section 33.50 I will not touch the complex question of not\n\nnegating the essential content of the right. Many jurisdictions, our own included, allow\n\nimprisonment of persons who fail to meet court-ordered maintenance payments.51 Here,\n\ntoo, we are not called upon to give any ruling. Nor are we called upon to make a ruling\n\non other statutes which impose criminal liability for failure to pay monies owing.52 \n\nWhat we are required to decide is the narrow question of whether the Sections 65A to\n\n65M procedures for the committal of non-paying judgment debtors to prison for up to\n\nninety days are constitutionally permissible; more particularly do they meet the Section\n\n33 criteria? Put in summary form, Section 33 requires us to ask: is the limitation\n\nreasonable, is it justifiable and is it necessary?\n\n[ 49 ]\n\nThe tests of reasonableness, justifiability and necessity are not identical, and in\n\n49In terms of Section 16(1) of the Aliens Control Act 96 of 1991 and Section 33(1)(c) and (m) of the\nHealth Act 63 of 1977 as amended (keeping under medical surveillance and restriction of movement of persons\nwith communicable diseases); Sections 16(1) and 19(1)(a) of the Mental Health Act 18 of 1973 as amended;\nSection 30 of the Magistrates\u2019 Courts Act 32 of 1944 as amended provides for the arrest of persons tanquam\nsuspectus de fuga. See also African Realty Trust v Sherman 1907 TH 34 quoted in Jones and Buckle, The Civil\nPractice of the Magistrate\u2019s Courts in South Africa (8th ed. 1988) at 416.\n\n50In each matter, too, if litigation were to ensue, then, in my view, more than an ad hoc technical analysis\nof procedural fitness would be required if the correct order was to be made; sooner or later we will have to grapple\nwith the fundamental values underlying the rights set out in Chapter 3.\n\n51In terms of Sections 11(2)(a) and 14C of the Maintenance Act 23 of 1963 as amended. Although there\nare some similarities with procedures under Sections 65A to 65M, there are great differences, and I wish to\nunderline that nothing in this judgment should be seen as impinging on these sections of the Maintenance Act,\nwhich was dealt with in argument only on the basis that it was clearly distinguishable. \n\n52For example, in terms of Section 25(2) of the Basic Conditions of Employment Act 3 of 1983 as\namended; Section 37 of the Wage Act 5 of 1957 as amended; Section 61(1) of the Unemployment Insurance Act\n30 of 1966 as amended; and Section 50 of the Manpower Training Act 56 of 1981 as amended.\n\n41\n\n\fSACHS J\n\napplying each one individually we will not always get the same results. Frequently,\n\nhowever, it is convenient to look at and assess them together.53 Normally, if a\n\nlimitation fails to pass the test of reasonableness, there is no need to consider whether\n\nit could be justified or regarded as necessary; it falls at the first hurdle. My colleagues\n\nhave demonstrated convincingly that on the assumption that sending defiant judgment\n\ndebtors to jail was a legitimate objective, present procedures are manifestly overbroad\n\nin furthering that purpose, and as such are unreasonable and unconstitutional. As I have\n\nsaid, I agree with them. In the present case, however, we are required to do more than\n\ndecide on the constitutionality of certain statutory provisions. We are asked to use our\n\ndiscretion in terms of Section 98(5) to keep constitutionally invalid provisions alive. \n\nIn concrete terms, I consider this to be the real issue before us. In making our\n\nassessment, I accordingly feel it is appropriate to examine whether, even if the\n\nprocedural defects could be cured, as Mr Du Plessis argued, the limitation would pass\n\nthe tests of justifiability and necessity. If committal proceedings are in essence both\n\njustifiable and necessary, but vitiated merely because the means used are unreasonable\n\nin relation to the objective to be achieved, the case for giving Parliament a chance to\n\nremedy the defect is a strong one. If, however, they would fail the tests of justifiability\n\nand necessity, however well tailored, then there would be no point in attempting to\n\ncorrect the procedures. I will accordingly deal with the distinct criteria both separately\n\nand globally.\n\n\u2018Reasonableness\u2019\n\n53See Kentridge AJ in Zuma supra at 420A-B.\n\n42\n\n\f[ 50 ]\n\nThe requirement that limitation be reasonable presupposes more than the\n\nSACHS J\n\nexistence of a rational connection between the purpose to be served and the invasion of\n\nthe right. Thus, a limitation logically connected to its objective could be unreasonable\n\nif it undermined a long established and now entrenched right;54 imposed a penalty that\n\nwas arbitrary, unfair or irrational;55 or, as in this case, used means that were\n\nunreasonable.56 My colleagues have dealt in detail with this aspect, and I need say no\n\nmore than that the procedures are manifestly unreasonable.\n\n\u2018Justifiable in an Open and Democratic Society\u2019\n\n[ 51 ]\n\nIn deciding whether or not sending people to jail for not paying their debts is\n\njustifiable in an open and democratic society based on freedom and equality, we need\n\nto locate ourselves in the mainstream of international democratic practice.\n\n[ 52 ]\n\nAt first sight, it would appear that imprisonment for debt is totally prohibited in\n\ninternational law and practice. Paul Sieghart writes in a much-quoted passage that:\n\nIn the international instruments there are ... some exceptions of choice such as the\nfreedoms from torture, slavery and imprisonment for debt, which are declared\nabsolutely, without restriction or limitation of any kind, and not subject to\nderogation even in the most extreme circumstances.57\n\n54Zuma supra at 420A.\n\n55Makwanyane supra at 709E.\n\n56S v Williams and Others 1995 (7) BCLR 861 (CC) at 880C.\n\n57Sieghart supra at 87, note 1.\n\n43\n\n\fSACHS J\n\nWithout further analysis, however this statement might be misleading. The point the\n\nauthor is making is that, like torture and slavery, imprisonment for debt is one of the\n\nprohibited practices in relation to which no derogation is permissible. The question\n\nthat still has to be determined is exactly what is meant by imprisonment for debt; in\n\nother words, the concept or definition of imprisonment for debt can be qualified, even\n\nif its practice is absolutely forbidden. A close look at international instruments shows\n\nthat far from resolving the dilemma posed in the opening sentence of this judgment, they\n\nreplicate it. Thus, the American Declaration of the Rights and Duties of Man provides\n\nin broad terms that: \n\nXXV. No person may be deprived of liberty for non-fulfilment of obligations of a\npurely civil character. \n\nThe American Convention on Human Rights similarly states in Article. 7(7) that:\n\nno one shall be detained for debt. This principle shall not limit the order of a\ncompetent judicial authority issued for non-fulfilment of duties of support.\n\n[ 53 ]\n\nOn the other hand, the prohibition in the UN International Covenant on Civil and\n\nPolitical Rights (ICCPR), which is repeated verbatim in Protocol 4 of the European\n\nConvention, is somewhat narrower. It reads: \n\n11. No one shall be imprisoned merely on the ground of inability to fulfil a\ncontractual obligation. \n\n44\n\n\fAccording to the Explanatory Report on the Fourth Protocol to European Convention,58\n\nfreedom from civil imprisonment must be understood in the following context:\n\nSACHS J\n\n[T]he obligation concerned must arise out of contract; the prohibition does not\napply to obligations arising from legislation in public or private law. Nor does the\nprohibition apply if the debtor acts with malicious or fraudulent intent; or if a\nperson deliberately refuses to fulfil an obligation, irrespective of his reasons\ntherefor, nor if his inability to meet a commitment is due to negligence. In these\ncircumstances, the failure to fulfil a contractual obligation may legitimately\nconstitute a criminal offence.\n\nThe aim of the Protocol was said to be to prohibit, as contrary to the concept of human\n\nliberty and dignity, any deprivation of liberty for the sole reason that the individual had\n\nnot the material means to fulfil his or her material obligations.59 Similar points are\n\nmade in connection with the ambit of Article 11 of the ICCPR, where it is stressed that\n\nthe prohibition relates expressly to contractual obligations; that it does not cover\n\ndeprivations of liberty based on non-fulfilment of statutory obligations, nor does it\n\ninclude criminal offences related to civil law debts, nor does it protect persons who\n\n58Sieghart supra at 159.\n\n59See decision of the European Commission of Human Rights in the case of X v the Federal Republic\nof Germany, Case No 6699/74, given on 18 December 1971, where it was held that a provision in the German\nCode of Civil Procedure permitting imprisonment for up to 6 months (at the creditor\u2019s expense) of debtors who\nrefused to make an affidavit of means, did not violate Protocol 4. The question of onus of proof in relation to\nability to pay was the central issue in the more recent case in the US Supreme Court of Hicks v Feiock supra which\nconcerned imprisonment of a father for failure to pay maintenance. All members of the court agreed that if the\nproceedings were civil rather than criminal, then the 14th Amendment due process requirement of proof beyond\nreasonable doubt of ability to pay would not apply, and a legislative presumption of ability to pay would not be\nunconstitutional. The court divided on whether the proceedings in question were shown to be civil. The court,\nhowever, re-affirmed a long-standing distinction between imprisonment as a punishment for a limited period\n(criminal contempt), and purgeable imprisonment for remedial purposes to compel performance of an obligation\n(civil contempt), where the person concerned \u2018carried the keys of the prison in their own pockets\u2019. The leading\ncases cited, however, dealt with refusing to produce documents, and refusing to testify under a grant of immunity,\nand not with failure to pay a contractual debt. The case itself turned on failure to pay maintenance, where the\nobligation arose from law, not contract, and where the need to protect the interests of children was particularly\ncompelling. \n\n45\n\n\fsimply refuse to honour a debt which they are able to pay.60\n\nSACHS J\n\n[ 54 ]\n\nThe only conclusion that I can draw from these materials is that international\n\ninstruments strongly repudiate the core element of the institution of civil imprisonment,\n\nnamely, the locking-up of people merely because they fail to pay contractual debts, but\n\nthat there is a penumbra relating to money payments in which imprisonment can be used\n\nin appropriately defined circumstances.\n\n'Necessary'\n\n[ 55 ]\n\nBy adding the requirement that limitations on Section 11 be not only reasonable\n\nand justifiable, but also necessary, the framers of the Constitution were emphasizing the\n\nstatus of Section 11 as one of the core provisions requiring special solicitude. It would\n\nthus not be sufficient for defenders of a renovated set of committal proceedings to show\n\nthat they were reasonable and justifiable in an open and democratic society. The use of\n\nprison would also have to be sustained on the grounds that it was necessary. \n\n[ 56 ]\n\nThe element of necessity thus tightens up the scrutiny in respect of what would\n\nbe reasonable and justifiable. It is a question of degree rather than of kind. \n\nInvestigation of alternatives becomes more important and the tolerance given to the\n\nlegislature in its choice of means to achieve \u2018reasonable\u2019 objectives is reduced.61 The\n\n60M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary (1993) at 193-6. \n\n61See O\u2019Regan J in Makwanyane supra at 780E-F.\n\n46\n\n\fSACHS J\n\nburden of persuasion is a higher one, and the balance is tipped more sharply in favour\n\nof upholding the infringed rights. Although this might not involve an onus of proof in\n\nthe sense that the term is used in criminal and civil trials,62 it does presuppose that at\n\nthe end of the day, and after having considered all argument and done its own\n\nintellectual research, the court must be satisfied that the limitation in fact meets the\n\nrequirements of Section 33. Clearly, not every form of regulation or each impediment\n\nto the exercise of free choice would qualify as a violation of freedom. 63 Yet once there\n\nis a manifest infringement of the right, as in the case of civil imprisonment, such\n\ninvasion would have to satisfy the special test of being necessary.\n\n[ 57 ]\n\nHow are we to interpret the word \u2018necessary\u2019? Section 35 invites us to have\n\nregard to international experience where applicable when seeking to interpret\n\nprovisions relating to fundamental rights. As I understand it, this section requires us to\n\ngive due attention to such experience with a view to finding principles rather than to\n\nextracting rigid formulae, and to look for rationales rather than rules. Because of its\n\nimportance and its relative novelty in South African jurisprudence, I will set out\n\nreferences to international instruments in some detail. The phrase 'necessary in a\n\n62The Canadian Charter speaks of a limitation having to be \u2018demonstrably\u2019 justifiable. There is no\nequivalent word in Section 33, in respect of which the phrase \u2018burden of persuasion\u2019 might be more apposite than\n\u2018onus of proof\u2019. Even here, I would be reluctant to see the fundamental rights of citizens becoming too dependent\non how adroit or maladroit counsel happen to be.\n\n63See Wilson J's caution about regarding any tenuous restriction as a violation of liberty, in Thomson\nNewspapers v Canada [1990] 1 SCR 425 at 186. Also, her remarks in Operation Dismantle Inc. v The Queen\n18 DLR (4th) 481 (1985) at 516-7. See also Garant supra at 352:\n\nCountless standards, provisions and measures which affect the security of individual citizens are\nestablished by public authorities. Would it be necessary to see in each case an interference with\nor a threat to the security of the individual or corporation?\n\n47\n\n\fSACHS J\n\ndemocratic society' appears frequently in the European Convention for the Protection of\n\nHuman Rights and Fundamental Freedoms.64 To determine whether a particular\n\nrestriction is necessary, a number of guidelines have been developed which the\n\nEuropean Court summarized in Silver v United Kingdom65 as follows:\n\n(a) \n\n(b)\n\n(c)\n\n(d)\n\nthe adjective 'necessary' is not synonymous with 'indispensable', neither has\nit the flexibility of such expressions as 'admissible', 'ordinary', \u2018useful\u2019,\n'reasonable' or 'desirable'.\n\nthe Contracting States enjoy a certain but not unlimited margin of\nappreciation in the matter of the imposition of restrictions, but it is for the\nCourt to give the final ruling on whether they are compatible with the\nConvention.\n\nthe phrase 'necessary in a democratic society' means that, to be compatible\nwith the Convention, the interference must, inter alia, correspond to a\n'pressing social need' and be 'proportionate to the legitimate aim pursued'.\n\nthose paragraphs of Article (sic) of the Convention which provide for an\nexception to a right to be guaranteed are to be narrowly interpreted.66\n\n[ 58 ]\n\nThe term 'necessary' is also used in the ICCPR in relation to permissible\n\n64European Convention, Articles 8 to 11 and Article 2 of Protocol No. 4.\n\n65(1983) 5 EHRR 347 at para. 97.\n\n66An important distinction to be borne in mind is that the European Convention does not have a general\nlimitations clause such as Section 33, but rather identifies permissible limitations on a clause by clause basis. The\nnature of acceptable limitations is spelt out in each clause, which makes the object of the limitation relatively easy\nto identify, and the application of the proportionality test a comparatively straightforward exercise. The concept\nof margin of appreciation also has a special meaning. It goes beyond the legitimate tolerance normally granted\nto the legislature to decide on matters such as budgetary priorities and the due weight to be given to competing\nsocial, moral, political and economic claims. It relates to an acknowledgment of the need to accommodate the\ncultural, philosophical and political diversity of the states accepting the court's jurisdiction. Robertson and\nMerrills in Human Rights in Europe (3rd ed. 1993) at 198-204 indicate that the width of the margin of\nappreciation varies a good deal. This is inevitable because situations, claims and justifications vary considerably.\nThe margin will usually be broad if some restriction would normally be expected, or if the case presents a\ncontroversial political, economic or social issue. They point out that the cases are not always easy to reconcile,\nbut \u201cthe result is not so much an inconsistency in the Strasbourg jurisprudence, as a demonstration of a point which\nis fundamental to an understanding of the Convention, that decisions about human rights are not a technical\nexercise in interpreting texts, but judgments about political morality\u201d. \n\n48\n\n\fSACHS J\n\nlimitations on fundamental rights specified on an article by article basis. This has been\n\ninterpreted to mean that a restriction is necessary only if it responds to a pressing\n\npublic and social need, pursues a legitimate aim and is proportionate to that aim. 67 It\n\nhas also been stated that the requirement of necessity implies that the restriction must be\n\nproportional in severity and intensity to the purpose being sought, and may not become\n\nthe rule. Unlike the European Convention, the ICCPR does not relate the element of\n\nnecessity to a democratic society; accordingly, the relevant criterion for evaluating\n\nwhether interference is necessary is not a common, democratic minimum standard, but\n\nrather solely whether it was proportional in the given case.68\n\n[ 59 ]\n\nThe Siracusa Principles drawn up by a group of experts to guide the\n\ninterpretation of the limitations clauses in the ICCPR state that:\n\n10: Whenever a limitation is required in terms of the Covenant to be\n\u201cnecessary\u201d, this term implies that the limitation:\n\n(a)\n\nis based on one of the grounds justifying limitations\nrecognised by the relevant article of the Covenant,\n\n(b)\n\nresponds to a pressing public or social need, \n\n(c) \n\npursues a legitimate aim, and\n\n(d)\n\nis proportionate to that aim.\n\nAny assessment as to the necessity of a limitation shall be made on\n\n67Cf Nowak supra at 211. See also Chaskalson P in Makwanyane supra at 710G-711B citing the case\n\nof R v France (1993) 16 EHRR 1 and Langa J in Williams supra at 880F. \n\n68Nowak supra at 325; see also at 379 and 394 where he states that the principle of proportionality\n\nrequires a precise balancing of the intensity of a measure with the specific reason for interference. \n\n49\n\n\fobjective considerations.69\n\nSACHS J\n\nCommenting on the general use of the word 'necessary' in international instruments,\n\nPaul Sieghart says that the principle of proportionality is inherent in the adjective\n\n'necessary'. This means, amongst other things, that every 'formality', 'condition',\n\n'restriction', or 'penalty' imposed must be proportionate to the legitimate aim pursued.70 \n\n[ 60 ]\n\nWhat all the above citations indicate is that the term \u2018necessary\u2019 is not made the\n\nsubject of rigid definition, but rather is regarded as implying a series of inter-related\n\nelements in which central place is given to the proportionality of the means used to\n\nachieve a pressing and legitimate public purpose. Turning to the South African\n\nConstitution, I will not attempt a full definition of the word 'necessary', but, bearing\n\ninternational experience in mind, make the following observations. The requirement\n\nthat the limitation should be not only reasonable but necessary would call for a high\n\ndegree of justification. It would also reduce the margin of appreciation or discretion\n\nwhich might otherwise be allowed to Parliament. Personal freedom would have to be\n\nregarded as a core value not lightly to be interfered with. In particular, any physical\n\nrestraints imposed by State coercion would have to be looked at very closely. In lay\n\nlanguage, a strong case indeed would have to be made out in favour of a law which\n\nallowed people to be locked up other than through the pre-trial and trial procedures\n\nprovided for in Section 25. Put more technically, it would not be enough that suitably\n\n69See (1985) 7 Human Rights Quarterly 1, quoted by Erasmus in Rights and Constitutionalism supra at\n\n644.\n\n70Sieghart supra at 94; on margin of appreciation at 99-102.\n\n50\n\n\fSACHS J\n\namended Sections 65A to 65M served the public interest in a rational way by enforcing\n\nlegitimate claims of creditors, and using justifiable methods before to do so. The public\n\ninterest served by these sections would have to be so pressing or compelling as clearly\n\nto outweigh the indignity and loss of freedom suffered by the judgment debtors, not to\n\nspeak of the costs to the public purse. In negative terms, the law would not be\n\npermitted to impose restrictions or burdens going beyond what would be strictly\n\nrequired to meet the legitimate interests of judgment creditors and society as a whole. \n\nThis is not to say that an impossibly high threshold would have to be established which\n\neffectively ruled out genuine weighing by Parliament of reasonable alternatives within\n\nthe broad bracket of what would not be unduly oppressive in the circumstances.71 The\n\nrequirement of finding \u2018the least onerous solution\u2019 would not therefore have to be seen\n\nas imposing on the court a duty to weigh each and every alternative with a view to\n\ndetermining precisely which imposed the least burdens. What would matter is that the\n\nmeans adopted by Parliament fell within the category of options which were clearly not\n\nunduly burdensome, overbroad or excessive, considering all the reasonable\n\nalternatives. The question could would than have to be asked: could the societal\n\nreasons in favour of imprisonment of judgment \n\n71See the remarks of Wilson J in Re Singh supra at 467.\n\n51\n\n\fdebtors be said to be sufficiently acute and forceful to pierce the protective\n\nconstitutional armour provided by the word necessary?\n\nSACHS J\n\nCivil imprisonment or contempt of court?\n\n[ 61 ]\n\nOne justification of the necessity for retaining committal proceedings is that\n\nwhat we are really dealing with is not civil imprisonment at all but contempt of court. \n\nThis indeed is the descriptive justification given in the texts of Sections 65A to 65M\n\nthemselves for imprisonment of debtors in default. The institution of contempt of court\n\nhas an ancient and honourable, if at times abused, history. If we are truly dealing with\n\ncontempt of court then the need to keep the committal proceedings alive would be\n\nstrong, because the rule of law requires that the dignity and authority of the courts, as\n\nwell as their capacity to carry out their functions, should always be maintained. Yet\n\nare we in truth dealing with contempt of court? In answering this question it is useful to\n\nlook at the context in which Sections 65A to 65M were adopted and the manner in\n\nwhich they have been interpreted until now.72 Legal history shows that Sections 65A to\n\n65M are based on a confluence of two common law principles that were previously\n\nseparate and to some extent even in conflict with each other. The first related to\n\nimprisonment for civil debt, which went back to Roman times; the second was the\n\nconcept of contempt of court, in terms of which persons could be fined or committed to\n\nprison for challenging the dignity or authority of a court, usually because of defying a\n\n72The information on which the following observations are based was culled from the Report of the South\nAfrican Law Commission on Committal to Prison in Respect of Debt, May 1986. The Report refers to such\ncommittal as an 'anomaly' and recommends that it be abolished.\n\n52\n\n\fSACHS J\n\ncourt order. In respect of contempt of court, the common law drew a sharp distinction\n\nbetween orders ad solvendam pecuniam, which related to the payment of money, and\n\norders ad factum praestandum, which called upon a person to perform a certain act or\n\nrefrain from specified action. Failure to comply with the order to pay money was not\n\nregarded as contempt of court, whereas disobedience of the latter order was. Thus,\n\ncivil imprisonment for failure to pay a debt was a remedy in its own right, not\n\ndependent on proof of contempt of court. Conversely, contempt of court proceedings\n\nwere not used against defaulting judgment debtors. \n\nThe purport of legislation adopted in the mid-1970's was to reverse the situation: civil\n\nimprisonment as an institution was to be abolished, while failure to pay a judgment debt\n\nwas to give rise to liability to be imprisoned for contempt of court. Sections 65A to\n\n65M, introduced into the Magistrates' Courts Act in 1976, authorized the committal to\n\nprison for contempt of court of debtors who had defaulted on judgment debts. The\n\nAbolition of Civil Imprisonment Act 2 of 1977, on the other hand, purported to get rid\n\nof civil imprisonment, though it did keep alive committal proceedings in the\n\nMagistrates\u2019 Courts.73 Judges of the Supreme Court were, however, unconvinced either\n\nthat civil imprisonment had been abolished or that the real reason why debtors in the\n\nMagistrates\u2019 Courts were being committed to prison was for contempt of court. Looking\n\nat the legislative history, Van Dijkhorst J felt compelled to declare that \"die daad wat\n\nstrafbaar gestel word is ... die wanbetaling van die vonnisskuld\" (the act that is made\n\npunishable is the failure to pay judgment debt), and that in reality civil imprisonment\n\n73Section 3.\n\n53\n\n\fSACHS J\n\nwas re-introduced \"onder die dekmantel van minagting van die hof\" (under the cloak\n\nof contempt of court).74 In another case,75 the court commented that if regard was had to\n\nthe wording of Section 65A(1) and 65F(1) \"the so-called contempt of court is a failure\n\nto satisfy a civil judgment\".76 In both cases, the court observed that the sections\n\nconcerned made drastic inroads into the freedom of the individual and had accordingly\n\nto be interpreted restrictively rather than extensively.\n\n[ 62 ]\n\nThe mere fact that what the statute refers to as contempt of court could be\n\nconsidered civil imprisonment under another name, (a matter which will be discussed\n\nfurther below), would not, of course, per se make it unconstitutional. Nor does the\n\njudicial characterization of the law as being one that makes severe inroads into the\n\nfreedom of the individual mean that such inroads could not be justified in terms of\n\nSection 33. The function of this Court is limited to declaring unconstitutionality in\n\nrelation to matters properly brought before it, and then only where the legislation\n\nconcerned clearly resists being construed in a manner which would save it.77 This\n\n74Quentin's v Komane 1983 (2) SA 775 (T) at 778. See also Grosskopf JA in T\u00f6dt v Ipser 1993 (3) SA\n\n577 (A) at 588 describing the whole process as being in effect one of civil imprisonment.\n\n75Van der Bergh v John Price Estates and Others 1987 (4) SA 58 (SE).\n\n76See also Knott v Tuck 1968 (2) SA 495 (D) at 496H; Hofmeyr v Fourie; BJBS Contractors (Pty) Ltd\n\nv Lategan 1975 (2) 590 (C) at 590-600; Erasmus v Thyssen 1994 (3) 797 (C).\n\n77Section 232(3) provides that if a restricted interpretation of the law concerned is possible, which would\nsave it from making unconstitutional inroads into fundamental rights, then such interpretation must be favoured,\neven if it went against the prima facie meaning of the words in question. This section gives expression to the\nprinciple well known in other jurisdictions as \u2018reading down\u2019. Hogg points out that reading down allows the bulk\nof the legislative policy to be accomplished, while trimming off those applications that are constitutionally bad.\nSee Hogg supra at 393-4. Like severance, it mitigates the impact of judicial review, but reading down achieves its\nremedial purpose solely by the interpretation of the challenged statute, whereas severance involves holding part\nof the statute to be invalid. It is still primarily the task of Parliament, not this Court, to adapt the laws of the\ncountry to the new democratic and rights-based dispensation.\n\n54\n\n\fSACHS J\n\nlatter principle does not, of course, imply the opposite, namely that fundamental rights\n\nwould have to be narrowly interpreted in order to keep legislation alive. Section 232\n\n(3) would permit a pared-down construction of legislation so as to rescue it from being\n\ndeclared invalid; it would not require a restricted interpretation of fundamental rights\n\nso as to interfere as little as possible with pre-existing law.78 Furthermore, it would\n\nnot be the function of the court to fill in lacunae79 in statutes that might not have been\n\nvisible or regarded as legally significant in the era when parliamentary legislation\n\ncould not be challenged, but which would become glaringly obvious in the age of\n\nconstitutional rights; the requirement of reading down would not be an authorization for\n\nreading in.\n\nCritiques of Sections 65A to 65M\n\n[ 63 ]\n\nMr Du Plessis contended on behalf of the Association of Law Societies that\n\nsave for one fatal defect, the procedures outlined in Sections 65A to 65M were not only\n\nnot unfair, but necessary to ensure that people paid their debts and that debt-collecting\n\nwas conducted in an orderly way and not through what he termed the law of the jungle. \n\nThe essence of Mr Du Plessis\u2019 argument can be summed up as follows: The threat of\n\ncommittal for a short period is not an inappropriate sanction for debtors who are able\n\nto pay, but refuse to do so. Without some penalty of this kind, the whole of debt-\n\n78See Kentridge AJ in Zuma supra at 411E-G.\n\n79See Hunter et al v Southam Inc 11 DLR (4th) 641 (1984) per Dickson J (as he then was) at 659:\n\nIt should not fall to the courts to fill in the details that will render legislative lacunae\nconstitutional.\n\n55\n\n\fSACHS J\n\ncollecting can come to be regarded more as a matter of benign entreaty than of serious\n\nlaw enforcement. Worse still, strong-arm methods of debt-collecting, far more\n\ndeleterious in the result than a period in prison, would inevitably follow. Far from\n\nbeing over-severe, a well-focused process could be quite appropriate for the objective\n\nto be achieved, namely to separate out the reprobate from the unfortunate. The correct\n\nbalance between the rights of creditors and debtors would be maintained. The rule of\n\nlaw would be upheld. Any limitation on personal freedom that might result would be\n\nthe consequence not of a harsh law, but of a conscious decision by the recalcitrant\n\ndebtor to defy the court order; it would not be too drastic in the circumstances; and it\n\nwould be under judicial control and function according to clearly prescribed criteria. It\n\nwas reasoning along these lines which underlay Mr Du Plessis\u2019 request, on behalf of\n\nthe Association of Law Societies, that we exercise our discretion to keep the current\n\ndebt-collecting procedure alive while Parliament remedied what he regarded as a\n\ntechnical and procedural defect in a well-tried, legitimate and socially-necessary legal\n\ninstitution.\n\n[ 64 ]\n\nAs far as counsel for the Applicants and the Government were concerned,\n\nhowever, the institution was intrinsically bad because it represented a continuation of\n\ncivil imprisonment, under another name. In their view, it was profoundly violatory of\n\nfundamental rights in its application, and beyond repair by Parliament. For the\n\npurposes of this judgment, it is not necessary to recapitulate all their arguments or to\n\nanalyse the supporting materials they made available to us. Nor is this Court obliged to\n\nmake a definitive finding on whether or not the committal proceedings in Sections 65A\n\n56\n\n\fSACHS J\n\nto 65M are constitutionally retrievable or not. Yet it is appropriate to examine Mr Du\n\nPlessis\u2019 arguments with some attention, since if I am convinced that his overall\n\nevaluation of the committal proceedings is correct, then I could be more easily\n\npersuaded than otherwise to accede to his request to give an order in terms of Section\n\n98(5) which would enable the committal proceedings to be rescued by Parliament.\n\n[ 65 ]\n\nIf we look at the text not in abstract, but in its actual legal-historical setting and\n\nsocio-economic context, and if we are sensitive both to its purpose and to its impact,80 \n\nwe find strong suggestions to the effect that it does indeed represent a form of civil\n\nimprisonment in disguise, retained as a relatively quick and inexpensive means of\n\nfrightening small debtors into paying up without following the procedures regarded as\n\nappropriate in the case of larger debtors. In other words, the defects might be\n\nsymptomatic of a deeper unconstitutionality, so that even if each imperfect procedural\n\ndetail were to be corrected, we might still be left with an unconstitutional legal\n\ninstitution. The picture of the operation of the provisions, as painted for us by all three\n\ncounsel, was that of an institutionalized and systematic instrument of debt collecting,\n\nrather than that of a badly-tailored, yet nevertheless individualized, back-up process to\n\ndeal with occasional recalcitrant and contumacious debtors; the difference between\n\ncounsel was that Mr Du Plessis, in the name of the Association of Law Societies,\n\nthought the system as such was necessary and justifiable, while counsel for the\n\nApplicants and the Government thought it was not.\n\n80See cases referred to in note 89 below.\n\n57\n\n\f[ 66 ]\n\nAs I have said, Sections 65A to 65M do indeed describe the penalty imposed\n\nSACHS J\n\non a defaulting debtor as being based on contempt of court, which is a well recognised\n\nlegal institution of manifest virtue if properly utilized. Yet even in technical terms,\n\nthere must be doubts as to whether this description is accurate. The proceedings lack\n\nthe essential elements of criminal contempt of court, in that the imposition and\n\ncontinuation of the penalty is dependent on the will of the judgment creditor and not the\n\ncourt (other than through imposing the sentence).81 It is also doubtful whether it\n\nproperly qualifies as civil contempt of court. A judgment debtor should in principle not\n\nbe held liable through his or her person, life or liberty, for the payment of a debt, but\n\nonly through the aggregate of his or her means. The long-standing distinction made in\n\ncommon law between orders ad pecuniam solvendam and those ad factum\n\npraestandum is therefore founded on logic and principle.82 Thus, whatever\n\nterminology may be used, we could well be dealing in reality with civil imprisonment\n\nand not with contempt of court. The essence of civil imprisonment, even in its milder\n\nforms, has always been that the debtor pays with his or her body. The Afrikaans word\n\ngyselaar (hostage) comes from the contract recognized in Roman Dutch law in terms of\n\nwhich a freeman pledged his person as suretyship for performance. Behind its verbal\n\ndescription, the committal process embodied in Section 65A can be said still to amount\n\nin practice to a form of ransom which family and friends are forced to pay to secure the\n\nrelease of the debtor, the only two differences being that the period is limited to ninety\n\n81See, however, Jones and Buckle supra at 273, where the contrary position is argued.\n\n82Specific performance, which requires the person concerned to do or to refrain from doing an identified\nact (such as handing over a motor car or ceasing to molest someone) by its nature can only be carried out in a\nparticular way, whereas in the case of debt, there are other means of ensuring compliance with the court order,\nand if these means fail because it is impossible for the debtor to perform, then there is no real contempt of court.\n\n58\n\n\fSACHS J\n\ndays, and that the State pays for maintenance rather than the creditor.83 Viewed\n\nhistorically, civil imprisonment can hardly be regarded as a tried and tested remedy\n\ndeeply rooted in progressive legal tradition and necessary in a democratic society. \n\nOver the centuries and decades, its ambit has been progressively restricted so that now\n\nall that is left of it is its attenuated existence in relation to debtors hauled before the\n\nMagistrates\u2019 Court; like the Cheshire cat, it has disappeared bit by bit leaving only, not\n\na smile, but a frown. The broad question before us would be whether, in the open and\n\ndemocratic society contemplated by the Constitution, it could ever be appropriate to\n\nuse imprisonment as a means of ensuring that creditors got paid in full, bearing in mind\n\nthat the amount to be collected would often fall below the costs of collection, not to\n\nspeak of the costs to the taxpayer of keeping the debtor in prison.84 It is evident from\n\nthe statistical data presented to us85 that committal to prison is in reality mainly for\n\nrelatively small amounts and largely for debt in respect of goods purchased, services\n\nrendered and money borrowed. Mr Du Plessis argued that the expense to be\n\nconsidered would not be that of sending people to prison for trifling amounts, but rather\n\nthe cost of keeping the spectre of prison sufficiently alive and deterrent\n\n83Cf Hofmeyr v Fourie supra at 599-600.\n\n84This could have been a factor in producing the unusual situation where it was government that asked for\na simple striking down of the offensive portions of the statute, while the Association of Law Societies urged us\nto keep them alive pending rectification.\n\n85In the period 1977 to 1984 the number of civil summonses for debt issued each year rose from 587,000\np.a. to 666,000 p.a. while the number of committals increased sharply from 3,600 p.a. to 9,000 p. a. A random\nsample showed that 37% of imprisoned debtors owed less than R100, and 83% less than R500. On average, the\ndebtors were sentenced to 31 days each, and served 9 before being released. The causes of debt were principally\ngoods purchased (62%), professional services - mainly to doctors and lawyers (12%), money borrowed (9%) and\nother services (8%). Unfortunately, the detailed statistics made available to us were not up to date, but even\nallowing for inflation, the amounts involved would still be relatively trivial. We were informed that the number\nof committals increased to approximately 18,000 p.a., or, as Mr Navsa put it, two every hour. It appears, however,\nthat in 1994, when the new Constitution came into force, the number dropped sharply to 3,700 p.a.. See the\naffidavit of Johan Jacob Arno Botha submitted on behalf of the Association of Law Societies. \n\n59\n\n\fSACHS J\n\n(afskrikwekkend) to compel the great majority of debtors to pay up. When properly\n\nexamined, however, this argument seems to condemn rather than support the institution\n\nof committal proceedings, under Sections 65A to 65M. The persons most vulnerable to\n\ncommittal orders would be precisely those who were unemployed, and thus could not\n\nbe subject to emoluments orders,86 and those who did not have any property which\n\ncould be attached.87 To penalize the workless and the poor so as to frighten those a\n\nlittle better off would be exactly the kind of instrumentalising of human beings which\n\nthe concept of fundamental rights was designed to rebut.88 To suggest that thousands of\n\npeople would rather go to jail than satisfy relatively small debts within their capacity to\n\npay, strains the imagination. There is thus support for Mr Navsa\u2019s claim that the object\n\nof the system would be to send to jail those who could not pay in order to get money out\n\nof those who could pay. The borderline between ability to pay and refusal to pay\n\nwould be a shadowy one; resigned and bewildered debtors, confused by complicated\n\nand technical notices, would inevitably get caught up with the truly recalcitrant debt-\n\ndodgers who defiantly refused to pay even when they could.\n\n[ 67 ]\n\nFurthermore, even if the corrected law were to be overtly neutral in its\n\nlanguage, its operational effect would to a degree be discriminatory89 in that the rich\n\n86Section 65J.\n\n87Section 65E.\n\n88Chaskalson P in Makwanyane supra at 723A; Langa J in Williams at 886F-G.\n\n89Though judgment creditors in the superior courts can and do transfer judgment debts to the Magistrates\u2019\nCourts for enforcement in terms of section 65M, the statistics quoted indicate that the overwhelming majority\nof cases are for relatively small sums. As Dickson CJC said in the Canadian case of Morgentaler supra at 408.\n\nAs is so often the case in matters of interpretation ... the straightforward reading of this statutory\n\n60\n\n\fSACHS J\n\nwho did not pay their debts would in practice be dealt with in the Supreme Court by\n\nbankruptcy procedures which respected due process, while the non-paying poor would\n\ncontinue to be faced with summary committal in the Magistrates\u2019 Court. It seems\n\nstrange indeed that the lower courts, using attenuated procedures in relation to smaller\n\ndebtors less able to defend themselves, would have greater coercive powers than\n\nwould the superior courts using normal due process in relation to larger debtors, better\n\nable to assert their rights.90\n\n[ 68 ]\n\nFinally, we must take into account the fact that other efficacious remedies would\n\nbe available to judgment creditors. It would not be easy to substantiate the existence of\n\nan imperative need to use committal orders. The civil law, in fact, would provide a\n\nseries of remedies for non-payment of contractual debts. These would vary depending\n\non the nature of the contract: repossession or holding on to goods in some cases,\n\nscheme is not fully revealing. In order to understand the true nature and scope of (the section),\nit is necessary to investigate the practical operation of the provisions.\n\nSee also his observation in Thomson Newspapers supra at 241:\n\nThe courts ... cannot remain oblivious to the concrete, social, political and economic realities\nwithin which our system of constitutional rights and guarantees must operate. \n\nFor the need generally to look not only at the purpose of a statute but its effect, see Pentney in Canadian Charter\nof Rights and Freedoms supra at 32-34. See also, White J's dissent in City of Mobile, Alabama v Bolden 446 US\n55 (1980) at 102 on the importance of looking at the totality of circumstances to ensure that the 'design and\nimpact' of a challenged legal scheme is appraised in the light of past and present reality, political and otherwise\nas discussed in L Tribe, American Constitutional Law (2nd ed. 1988) at 1502 et seq. The latest trend in the US\nSupreme Court has been the other way. See the criticism by Tribe at 1502.\n\n90The fundamental problem would seem to be that if, as was pointed out by Ackermann J in Makwanyane\nsupra at 728G-729A, due process is almost impossible to achieve de maximis because of the severity of the\noutcome (capital punishment), it is equally difficult to accomplish de minimis (jail for collecting small debts),\nwhere the relative triviality of the interest involved is overwhelmed by the cumbersome machinery required for\nits protection, bearing in mind that jail is involved. See comment by Jansen and Brand, Civil Imprisonment, Debt\nCollection and Section 65 of the Magistrates\u2019 Courts Act, Centre for Human Rights Occasional Papers, No 7,\n1995 at para 9.\n\n61\n\n\fSACHS J\n\nevictions from premises, cutting-off of services, attachment and sale of property and\n\ndeduction from wages in others. Where the assets were insufficient to cover liabilities,\n\nbankruptcy proceedings could be instituted with a view both to recovering hidden\n\nassets and to ensuring appropriate distribution of what was available. The specific\n\nremedies, other than imprisonment, which Sections 65A to 65M themselves would\n\nprovide, would include: sale in execution of goods; attachment of debts due;\n\nemoluments orders and an order to pay in instalments. Another section would provide\n\nfor what would amount to sequestration.91 Furthermore, creditors could arrange\n\ndifferent forms of security for debts, ranging from mortgages to pledges to sureties. \n\nRather than extend credit freely and then rely on the threat of imprisonment to ensure\n\nthat the debt is paid, persons could prudently calculate the risks they undertook, and\n\nthen depend on normal methods of securing payment where the means for such payment\n\nexisted. This need not require their denying credit to the poor, but, rather, their treating\n\nthe poor with the same circumspection they would apply to the better-off.\n\n[ 69 ]\n\nFor the purposes of this judgment it is neither necessary nor desirable to make\n\ndefinitive findings on any of the above matters. Suffice to say that the constitutional\n\nvice at the heart of the committal proceedings cannot be identified with total assurance\n\nas being limited merely to the failure to provide a hearing, nor in my view, simply to\n\nthe defects listed by Didcott J and Kriegler J. There are weighty arguments in favour of\n\nconsidering the institution as being more profoundly vitiated. \n\n91Section 74(1) of the Magistrates\u2019 Courts Act 32 of 1944 as amended provides for the appointment of\nan administrator of a debtor\u2019s estate where the debtor inter alia has insufficient assets capable of attachment to\nsatisfy a judgment or the debtor\u2019s financial obligations.\n\n62\n\n\f[ 70 ]\n\nHaving rejected the minimalist position of contended for by Mr Du Plessis,\n\nSACHS J\n\nhowever, I feel it equally necessary to refuse to accept the maximalist claims of Mr\n\nNavsa. As I have stated above, the answer to the problem of constitutionality cannot\n\nbe found in an abstract, either/or decision over whether the practice in the Magistrate\u2019s\n\nCourt can be defined as civil imprisonment and as such automatically fall to be rejected\n\nas unacceptable (argument for both the Applicants and the Government tended to be\n\nalong these lines). Rather, it would depend on an evaluation of whether, in their actual\n\nsetting and operation, the provisions would involve concretely identifiable and\n\nconstitutionally-indefensible invasions of the right to personal freedom. Looked at in\n\nrelation to the request by the Association of Law Societies, which does not relate to\n\nconstitutionality but to the appropriate order to be made, the issue presently before us is\n\nwhether the institution under consideration is in itself so non-problematic and worthy of\n\nbeing kept alive that we should exercise our discretion under Section 98(5) in favour of\n\nthis course.\n\n[ 71 ]\n\nMy conclusions, on this point, are as follows: when the Law Commission says\n\ncommittal of judgment debtors is an anomaly that cannot be justified and should be\n\nabolished; when it is common cause that there is a general international move away\n\nfrom imprisonment for civil debt, of which the present committal proceedings are an\n\nadapted relic; when such imprisonment has been abolished in South Africa, save for its\n\ncontested form as contempt of court in the Magistrate's Court; when the clauses\n\nconcerned have already been interpreted by the courts as restrictively as possible,\n\nwithout their constitutionally offensive core being eviscerated; when other tried and\n\n63\n\n\fSACHS J\n\ntested methods exist for recovery of debt from those in a position to pay; when the\n\nviolation of the fundamental right to personal freedom is manifest, and the procedures\n\nused must inevitably possess a summary character if they are to be economically\n\nworthwhile to the creditor, then the very institution of civil imprisonment, however it\n\nmay be described and however well directed its procedures might be, in itself must be\n\nregarded as highly questionable and not a compelling claimant for survival.\n\n[ 72 ]\n\nThis is not to say that there could never be circumstances which could justify\n\nthe use of the back-up of prison to ensure that court orders for payment of judgment\n\ndebts were obeyed in the same way as other orders. We are not called upon to decide\n\nthis question at the moment, nor do we have sufficient material before us to make a\n\ndefinitive finding. The legislature, if it so chose, would be better placed than ourselves\n\nto do the requisite research, canvass opinions and receive information; it could give\n\nfull consideration to relevant, inter-related factors, such as the proper management of\n\ndebt collection, the way in which credit is extended, remedies for ensuring fulfilment of\n\nobligations and the proper use of court time and prison facilities. It could weigh up all\n\nthe competing considerations and take account of cost implications and the availability\n\nof court and prison officials. If it chose to undertake such an investigation it would, in\n\nmy opinion, have to operate within the following framework:\n\n(i) \n\n(ii)\n\nThe process should not permit the imprisonment of persons merely because they\nwere unable to pay their contractual debts;\n\nThe procedures adopted would have to be manifestly fair in all the\ncircumstances;\n\n64\n\n\f(iii)\n\nImprisonment, involving as it does a major infringement of the right to personal\nfreedom, would have to be the only reasonably available way of achieving the\nstated objectives.\n\nSACHS J\n\nII THE APPROPRIATE ORDER\n\n[ 73 ]\n\nIn the light of the above evaluation of the use of committal proceedings for non-\n\npayment of judgment debts, I proceed to answer the question raised at the beginning of\n\nthis judgment, namely, whether or not this Court should use its powers in terms of\n\nSection 98(5) to keep such proceedings alive. If my overall assessment is correct, then\n\nthe necessity for retaining what amounts to a sanitized form of civil imprisonment has\n\nnot been established. There accordingly seems to be little reason for pressurizing\n\nParliament into considering these questions as a matter of priority, which use of Section\n\n98(5) powers would require it to do. The Association of Law Societies did suggest a\n\ncourse of action which would result in the coming into existence of such a reason. They\n\nargued that the committal procedures were so bound up with and central to the\n\napplication of the remaining debt collecting provisions, that removing imprisonment\n\nand the threat of prison would lead to the collapse of the entire system. They\n\naccordingly urged us to strike down Sections 65A to 65M as a whole and, then, in\n\norder to avoid a chaotic situation from arising in the entire area of debt-collection, to\n\nuse our powers in terms of Section 98(5) to put Parliament on terms to correct the\n\ndefects. Committal proceedings would then continue, pending appropriate remedial\n\naction by Parliament. \n\n65\n\n\fSACHS J\n\n[ 74 ]\n\nThis raised the question of severability, namely, whether the impugned\n\nprovisions could be excised from the rest of Sections 65A to 65M, or whether these\n\nsections must fall in their totality. If we were to follow the proposal of the Association\n\nof Law Societies, (surprisingly, in this respect, supported by the Applicants), then no\n\ndebt-collecting procedures in the Magistrates\u2019 Court would remain, and the need to\n\nexercise our \u2018life-saving\u2019 discretion would indeed be great.\n\n[ 75 ]\n\nSeverability is an important concept in the context of the relations between this\n\ncourt and Parliament; like \u2018reading down\u2019, it is an instrument of judicial restraint which\n\nreduces the danger of producing an overbroad judicial reaction to overbroad\n\nlegislation. I agree with Kriegler J\u2019s analysis of the matter, subject to one\n\nmethodological qualification I feel worth mentioning. It is the following: in deciding\n\nwhether the legislature would have enacted what survives on its own, we must take\n\naccount of the coming into force of the new Constitution in terms of which we receive\n\nour jurisdiction, and pay due regard to the values which it requires us to promote. We\n\nmust, accordingly, posit a notional, contemporary Parliament dealing with the text in\n\nissue, paying attention both to the constitutional context and the moment in the country's\n\nhistory when the choice about severance is to be made. It is in this context that we must\n\ndecide whether the good can be separated from the bad. In the instant case, the\n\nexcisions which my colleague proposes would leave a statutory provision that in my\n\nview is linguistically sustainable, conceptually intact, functionally operational and\n\neconomically viable; I agree with them.\n\n66\n\n\f[ 76 ]\n\nHaving separated the good from the bad, would it then be in the interests of\n\nSACHS J\n\njustice and good government to keep the bad in existence to give it a chance to become\n\npart of the good? The words \u2018in the interests of justice and good government\u2019 are\n\nwidely phrased and, in my view, it would not be appropriate, particularly at this early\n\nstage, to attempt a precise definition of their ambit. They clearly indicate the existence\n\nof something substantially more than the mere inconvenience which will almost\n\ninvariably accompany any declaration of invalidity, but do not go so far as to require\n\nthe threat of total breakdown of government. Within these wide parameters, the Court\n\nwill have to make an assessment on a case-by-case basis as to whether more injustice\n\nwould flow from the legal vacuum created by rendering the statute invalid with\n\nimmediate effect, than would be the case if the measure were kept functional pending\n\nrectification. No hard and fast rules can be applied. In the present case, we are\n\ndealing with one of the core values of the Constitution. As I have endeavoured to show\n\nat some length, we cannot say with confidence that all that is needed to rectify the\n\ndefect in the sections concerned is a simple set of technical amendments. It is\n\nintolerable, once the unconstitutionality of imprisonment of judgment debtors has been\n\nestablished, that persons should continue to be detained under the impugned provisions. \n\nIt has not been established that ending committal proceedings will impair justice or\n\ninterfere with good government in any drastic or irreparable way. The other remedies\n\nprovided for in Sections 65A to 65M remain available to creditors. There is no\n\nreason why we should insist on a rapid decision by Parliament, one way or the other,\n\neither to accept the continuance of Sections 65A to 65M in their truncated form, or else\n\nto modify them in the light of the principles enunciated by this Court. Many issues\n\n67\n\n\fSACHS J\n\nwhich were raised before us could be considered at the appropriate time in that forum,\n\nbasing itself on the kinds of broadly-based enquiry we are not in a position to\n\nundertake: for example, whether or not the whole area should be decriminalized,92 or\n\nwhether a procedure should be developed in terms of which failure to attend a debt\n\nenquiry hearing, or the deliberate concealment of assets, should be made criminal\n\noffences to be prosecuted in the ordinary way.93 Policy choices of this kind, provided\n\nthey are resolved within constitutional limits, belong to Parliament, not to this Court,\n\nand it would be invidious for us to pre-empt the issue by making an order keeping the\n\npresent system alive pending legislative modifications. I accordingly do not think it\n\nright to accede to Mr Du Plessis\u2019 request, and for the reasons advanced above, agree\n\nfully with the order proposed by Kriegler J.\n\nAL Sachs\n\n92In the comment referred to in note 90, Jansen and Brand propose that the entire system be de-\ncriminalised; that the law concentrate on effective means of attachment; and that simple and effective measures\nbe designed to extinguish debts that cannot realistically be paid. \n\n93See South African Law Commission Further Report of August 1994.\n\n68\n\n\fMOKGORO J\n\n[ 77 ] MOKGORO J:\n\nI have had the opportunity to read the judgments of Kriegler J,\n\nDidcott J, Langa J and Sachs J. I respectfully agree with the order proposed by\n\nKriegler J. To the extent that he articulates the values which underlie the fundamental\n\nrights and interests at stake in the circumstances of the issue before us, I concur in the\n\napproach and conclusions of the judgment of Sachs J.\n\nY Mokgoro\n\n69\n\n\fFor the Applicants in both matters:\n\nMS Navsa SC and L Mpati instructed by the Legal Resources Centre.\n\nFor the First and Second Respondents in the Coetzee matter:\n\nD Potgieter instructed by the State Attorney.\n\nFor the Association of Law Societies (as amicus curiae):\n\nJC du Plessis of Du Plessis & Eksteen.\n\n70\n\n\f"}, "id": "bfe4b847-29fc-4071-9cd7-23682ccbd276", "update_date": "2021-03-15 17:08:56.815527", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO CCT 19/94 In the matter of FARIEDA COETZEE and THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA and Others and In the matter of N J MATISO and Others and CASE NO CCT 22/94 THE COMMANDING OFFICER, PORT ELIZABETH PRISON and Others Heard on: 6 March 1995 Delivered on: 22 September 1995 ___________________________________________________________________________ ___________________________________________________________________________ JUDGMENT \f[ 1 ] KRIEGLER J: These cases raise questions concerning the constitutional validity of the provisions of sections 65A to 65M of the Magistrates\u2019 Courts Act1 relating to the imprisonment of judgment debtors. KRIEGLER J [ 2 ] The constitutionality of the provisions was first challenged in the Eastern Cape. Shortly after the interim Constitution2 came into operation, the applicant in the Matiso case, who had been imprisoned in terms of these provisions, applied to the South Eastern Cape Local Division of the Supreme Court for an order for his urgent release from the Port Elizabeth Prison. The applicant was soon followed by a number of other judgment debtors in the same predicament. The foundation of the applications was that the statutory authority of the orders committing the particular debtors to prison had been vitiated by sections 11(1) and 25(3) of the Constitution. Those subsections, it was argued, made imprisonment without a fair trial unconstitutional. Although they cited the commanding officer of the prison and their respective judgment creditors as respondents, there was no opposition. [ 3 ] The judges who heard the applications (Melunsky and Froneman JJ) ordered the immediate release of the prisoners and referred the challenge to the constitutionality of the allegedly offending provisions of the Magistrates\u2019 Courts Act to this Court.3 1No. 32 of 1944. The particular sections at issue were inserted by section 2 of Act No. 63 of 1976. 2Constitution of the Republic of South Africa, No. 200 of 1993. In terms of section 251 of the Constitution, the Constitution came into operation on 27 April 1995. 3The provisions targeted by the order of Froneman J are: (a) the phrase \"why he should not be committed for contempt of court\" in section 65(1); 2 \fMelunsky J delivered an ex tempore judgment and Froneman J subsequently furnished detailed reasons for the order he made.4 KRIEGLER J [ 4 ] Some time after the grant of the orders in the Eastern Cape the applicant in the Coetzee case applied to the Cape of Good Hope Provincial Division for similar relief, citing the Government of the Republic of South Africa, the Minister of Justice and the judgment creditor as respondents. The Court (per Van Reenen AJ) stayed committal proceedings pending against Ms Coetzee and referred the constitutional validity of sections 65A to 65M to this Court for determination.5 Although the formulation of the constitutional issues in the orders in the Eastern Cape case differs somewhat from that of Van Reenen AJ, the essential issue is one and the same: Is the procedure in the sections mentioned wholly or partially invalid for inconsistency with one or more of the rights guaranteed in Chapter 3 and circumscribed by section 33(1) of the Constitution? [ 5 ] I have had the opportunity of considering the judgments prepared by my (b) (c) (d) the whole of sections 65F, 65G, 65H and 65L; subsections (1)(c), (2)(b)(ii), 9(a) and 9(b) of s 65J; and section 65K(2). 4The judgments have been reported as Matiso and Others v The Commanding Officer, Port Elizabeth Prison and Others 1994(3) BCLR 80(SE); 1994(4) SA 592 (SECLD). 5The learned judge formulated the constitutional question as follows: Are sections 65A to 65M of the Magistrates' Courts Act, No 32 of 1994, as amended, or any parts of the said Sections, invalid on the ground of their inconsistency with Sections 10, 11 and 25 of the Constitution of the Republic of South Africa Act, No 200 of 1993, or any other provision of the said Constitution? 3 \fKRIEGLER J colleagues Didcott and Sachs JJ in these cases. Each of them makes quite plain why the provisions of the Magistrates\u2019 Courts Act relating to the imprisonment of judgment debtors for contempt of court6 must be held to be invalid by reason of their inconsistency with the Constitution. Although I fully agree with that finding, my reasoning is sufficiently different to warrant separate articulation. The grounds for my conclusion are considerably narrower than those set out in the judgment of Sachs J;7 and there is some difference of emphasis as between Didcott J and myself. [ 6 ] Sections 65A to 65M of the Magistrates\u2019 Courts Act provide a system for the enforcement of judgment debts. Under the system a judgment debtor who has failed to satisfy the judgment debt within 10 days of the date of the judgment can be required to attend a hearing8 at which an enquiry will be conducted by a magistrate into the financial position of the debtor, his ability to pay and his failure to do so.9 The magistrate may authorise property of or debts due to the judgment debtor to be attached in settlement of all or part of the debt, or the garnishing of emoluments which will accrue to the debtor from his or her employment. The debtor can also be ordered to 6In my view, it is not important whether the system is termed imprisonment for contempt of court for not paying a debt or civil imprisonment or some other word or phrase. The task of this Court is to determine whether the system, whatever it may be called, is or is not consistent with the Constitution. 7Because I base my decision on the examination of the specific provisions of the sections at issue and not the overall concept of imprisonment for failure to pay a judgment debt, I do not find it necessary in this judgment to comment on the procedures of other countries used for the enforcement of judgment debts or the judicial decisions regarding such procedures. Nor do I find it necessary to consider the impact of the international human rights instruments so instructively canvassed by Sachs J. 8See Sections 65A and 65B of the Magistrates\u2019 Courts Act. The notice to the judgment debtor must be served at least 7 days prior to the hearing. Section 65B of the Magistrates\u2019 Courts Act. 9See Section 65D of the Magistrates\u2019 Courts Act. In determining the ability of the debtor to pay, the magistrate is required to take into account the debtor\u2019s and his dependants\u2019 necessary expenses, other court orders to pay, and other commitments of the debtor. Section 65D(4)(a) of the Magistrates\u2019 Courts Act. 4 \fKRIEGLER J pay the debt in full or in instalments.10 The system does not end there, however. It also provides for the magistrate to issue an order to commit the judgment debtor to prison for contempt of court for failure to pay the debt.11 This last option of the magistrate is the issue which has given rise to the constitutional challenge. [ 7 ] The notice to the debtor to appear at a hearing calls upon the debtor to \u201cshow cause why he should not be committed for contempt of court and why the judgment debtor should not be ordered to pay the judgment debt in instalments or otherwise.\u201d12 The notice is drawn up by the creditor, signed by the clerk of the court and served on the debtor in accordance with the rules for service of process.13 The magistrate has a discretion whether to order committal to prison unless the debtor proves at the hearing that he or she 1) is under the age of 18, 2) was unaware of the original judgment for debt against him, or 3) has no means of satisfying the judgment debt. In order to show absence of means of satisfying the judgment debt the debtor also must show that such lack of means is not due to wilful disposal of goods in order to avoid payment of the judgment debt, wilful refusal to pay such debt, squandering of money or living beyond his means, or incurring of additional debts (except for household goods) after the original judgment date.14 10See Section 65E of the Magistrates\u2019 Courts Act. 11See Section 65F of the Magistrates\u2019 Courts Act. The magistrate may also suspend a sentence for committal. Section 65F(2) of the Magistrates\u2019 Courts Act. 12Section 65A(1) of the Magistrates\u2019 Courts Act. 13Section 65B of the Magistrates\u2019 Courts Act. In accordance with the rules of service the notice need not be served personally. Rule 9 of the Magistrates\u2019 Courts Rules. 14Section 65F(3) of the Magistrates\u2019 Courts Act. 5 \fKRIEGLER J [ 8 ] On the face of it, the law seems to contemplate that imprisonment should be ordered only where the debtor has the means to pay the debt, but is unwilling to do so. However, on examination of the provisions in detail and taking notice of the actual carrying out of the provisions, it is clear that the law does not adequately distinguish between the fundamentally different categories of judgment debtors: those who cannot pay and those who can pay but do not want to. The system at issue is used most often for the collection of small debts usually of those who are poor and either illiterate or uninformed about the law or both. In the nature of things they do not enjoy legal representation. Imprisonment can and has been ordered without the debtor ever having notice of the original judgment or the notice to appear at the hearing. It can also be ordered without the uninformed or illiterate debtor having sufficient knowledge about the possibility of raising defences or the means of doing so. In the result, the provisions of the law can be used to imprison the debtor who is unwilling to pay his debt even though he has the means to do so, but can also be used (and they are indeed used) to imprison the debtor who simply is unable to pay the debt.15 15South African Law Commission, Debt Collecting (Project 74): Imprisonment for Debt, Interim Report dated August 1994 at paragraph 4.2.2. 6 \f[ 9 ] This Court has laid down that, ordinarily, one adopts a two-stage approach for KRIEGLER J determining the constitutionality of alleged violations of rights in Chapter 3 of the Constitution. The first stage is an enquiry whether the disputed legislation or other governmental action limits rights in Chapter 3 of the Constitution. If so, the second stage calls for a decision whether the limitation can be justified in terms of section 33(1) of the Constitution.16 [ 10 ] The first question this Court must answer therefore is whether any of the rights in Chapter 3 of the Constitution are limited by the relevant provisions of the Magistrates\u2019 Courts Act. The parties argued with regard to the right to dignity (section 10), the right to freedom (section 11(1)) and the right to a fair trial (section 25(3)). Obviously the most fundamental right limited by imprisonment is the right to freedom. Section 11(1) of the Constitution provides: 11. (1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial. To determine whether that right is limited by the legislative provisions under scrutiny in these cases, it really is not necessary to determine the outer boundaries of the right. Nor is it necessary to examine the philosophical foundation or the precise content of the right. Certainly to put someone in prison is a limitation of that person\u2019s right to freedom. 17 To do so without any criminal charge being levelled or any trial being held 16See, e.g., S v Williams and Others 1995(7) BCLR 861 (CC), 879D-G. 17It is not necessary to address whether the rights in sections 10 and 25(3) are limited. It would only become necessary to do so should analysis of the limitation with regard to the right to freedom in accordance with 7 \fis manifestly a radical encroachment upon such right. KRIEGLER J [ 11 ] The remaining question then is whether that limitation of the right to freedom can be justified in accordance with section 33(1) of the Constitution. That subsection, insofar as it is relevant here, provides: 33. Limitation. (1) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation (a) shall be permissible only to the extent that it is (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to (aa) a right entrenched in section ... 11 ... ... shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary. In making the determination, especially with regard to a right as fundamental as the one in question, namely personal freedom, one really need not go beyond the test of reasonableness. This is made all the clearer by the criteria for interpretation of the Chapter 3 rights and limitations found in section 35 of the Constitution. Section 35(1) provides, inter alia: 35. Interpretation. (1) In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality .... section 33(1), infra, validate the provisions vis-a-vis the right to freedom. Section 10 provides - \u201c10. Human dignity. Every person shall have the right to respect for and protection of his or her dignity.\u201d Section 25(3) provides - \u201c(3) Every accused person shall have the right to a fair trial ....\u201d 8 \fKRIEGLER J Clearly that provision applies to the interpretation of both the fundamental right protected and the evaluation of any limitation according to the criteria of section 33(1). In the case of the right and limitation at issue here such interpretation is perfectly simple. At the very least a law or action limiting the right to freedom must have a reasonable goal and the means for achieving that goal must also be reasonable.18 [ 12 ] I accept that the goal of sections 65A to 65M of the Magistrates\u2019 Court Act is to provide a mechanism for the enforcement of judgment debts.19 I also accept that such goal is a legitimate and reasonable governmental objective. The question though is whether the means to achieve the goal are reasonable. In my view, the answer is clearly in the negative. [ 13 ] The fundamental reason why the means are not reasonable is because the provisions are overbroad. The sanction of imprisonment is ostensibly aimed at the debtor who will not pay. But it is unreasonable in that it also strikes at those who 18See S v Makwanyane and Another 1995(6) BCLR 665 (CC), 748A-B. 19The Association of Law Societies argued as amicus curiae that the imprisonment option is defensible because putting some judgment debtors in prison coerces other debtors to pay their debts. If indeed, this is the purpose of the law, then it would fail to be consistent with the Constitution because the goal of the statute would be unreasonable. For the purposes of this judgment, we do not accept this as the purpose of the law. 9 \fcannot pay and simply fail to prove this at a hearing often due to negative circumstances created by the provisions themselves. KRIEGLER J [ 14 ] There are seven distinct reasons why the provisions are indefensible. # First, they allow persons to be imprisoned without having actual notice of either the original judgment or of the hearing. It is not only theoretically possible but also quite possible in practice that the debtor\u2019s first notice of the case against him is when the warrant of committal is executed. In terms of the procedure permitted by the Magistrates\u2019 Courts Act and the Rules promulgated thereunder there need not necessarily be personal service of any process prior to that.20 # Second, even if a person has notice of the hearing, he can be imprisoned without knowing of the possible defences available to him and accordingly without any attempt to advance any of them. The so-called notice to show cause issued pursuant to section 65A does not spell out what the defences are, or how they could be established.21 # Third, the burden cast on the debtor with regard to inability to pay, although possibly defensible in principle as pertaining to matters peculiarly within his 20Substituted service of some kind is possible in respect of all process prior to judgment. See Rule 9 of the Magistrates\u2019 Courts Rules. Even where it was a default judgment, Section 65A(2) does no more than require that a notice be given by registered post. Section 65F(3)(b) renders unawareness of the original judgment a defence, but that is cold comfort to the debtor who also has no knowledge of the hearing. 21See Rule 45 and Form 40 of the Magistrates\u2019 Courts Rules. 10 \fknowledge, is so widely couched that persons genuinely unable to pay are nevertheless struck. KRIEGLER J # Fourth, the provisions of section 65F(3)(c), which spell out what the debtor must prove, are not only unreasonably wide, but also unreasonably punitive. The relevant part of the section reads as follows: (3) No ... sentence shall be imposed ... if the judgment debtor or ... proves to the satisfaction of the court ... (c) that he has ... no means of satisfying the judgment debts and costs either wholly or in part and that such lack of means is not due to the fact that the judgment debtor (i) has wilfully disposed of his goods in order to defeat or delay payment of the judgment debt and costs; or (ii) although he is able to earn sufficient to satisfy the judgment debt and costs in instalments or otherwise to pay such debt and costs, wilfully refuses to do so in order to evade or delay payment of the judgment debt and costs; or (iii) is squandering his money or is apparently living beyond his means; or (iv) incurred debts other than for household requirements after the judgment date. Whatever may be said about a debtor who wilfully frustrates payment (paragraphs (i) and (ii)) the nakedly punitive retribution inherent in the provisions of paragraphs (iii) and (iv) cannot be justified. # Fifth, the provisions allow a person to be imprisoned without knowing that he has a burden to prove her or his defence or how to discharge such burden. It could possibly be contended that the magistrate ought to explain a debtor\u2019s rights and duties to an undefended layman and would probably do so. But the 11 \ffact remains that there is no express obligation on the magistrate to do so. KRIEGLER J # In the sixth instance it is hardly defensible to treat a civil judgment debtor more harshly than a criminal. The latter is entitled in terms of section 25(3) of the Constitution to a fair trial with procedural safeguards, including the right to legal assistance at public expense if justice so requires. The debtors, who face months of imprisonment, must fend for themselves as best they can. # Lastly, the procedure makes no provision for recourse by the debtor to the magistrate or higher authority once an order for committal has been made.22 Section 65L, which deals with the release of a debtor from prison, contains no mechanism whereby a debtor, even one against whom a committal order had been made in absentia, is entitled to approach a court for relief. As a result of these defects, the statute sweeps up those who cannot pay with those who can but simply will not. For this reason, the limitation cannot be justified as reasonable. 22Admittedly section 65F(2) contemplates subsequent suspension of a committal order but there is no procedure established for the debtor to enforce such right as the subsection may be said to afford him. 12 \f[ 15 ] This conclusion obliges one to consider the question of severability. Indeed, KRIEGLER J there are two questions to be answered with regard to the possible severance of the provisions of the law not consistent with the Constitution. First, can one excise the provisions which render the option of imprisonment unconsitutional because they do not distinguish between those who can pay but will not from those who cannot pay? If not, can the provisions which provide for imprisonment itself be severed from the rest of the system for enforcement of judgment debts? [ 16 ] Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute.23 The test has two parts: first, is it possible to sever the invalid provisions and second, if so, is what remains giving effect to the purpose of the legislative scheme? [ 17 ] In the present instance, it is not possible to excise only those provisions of sections 65A to 65M of the Magistrates\u2019 Courts Act which fail to distinguish between the two categories of debtors. In order to do so this Court would have to engage in the details of law making, a constitutional activity given to the legislatures. It is, however, possible to sever the provisions which make up the option of imprisonment. The question then is whether in severing such provisions, the object of the statute will nevertheless remain to be carried out. The answer to this question clearly is yes. The 23Johannesburg City Council v Chesterfield House 1952(3) SA 809 (AD), 822D-E. See also, S v Lasker 1991(1) SA 558 (CPD), 566. 13 \fKRIEGLER J object of sections 65A to 65M of the Magistrates\u2019 Courts Act is to provide a system to assist in the collection of judgment debts. Removing one of the options available under the system does not render the system that remains contrary to the purpose of the legislative scheme. Accordingly, the infringing provisions can be severed and the balance of the system can usefully remain in force. [ 18 ] In the course of argument on behalf of the Association of Law Societies,24 it was suggested that it would lead to a break down of the whole debt collection procedure under the Magistrates\u2019 Courts Act if the imprisonment option were to be struck down immediately. Therefore, so it was argued, this Court should exercise the powers vested in it by the proviso to section 98(5) of the Constitution so as to enable the legislature to devise an adequate substitute. I do not believe that the proposal should be entertained. First, it is by no means so that the system is dependent upon the imprisonment sanction for its viability. There are a number of other aids to judgment debt collection in the system, e.g., property attachment and garnishment of wages. But even if I err in that regard the system is so clearly inconsistent with the right to freedom protected by section 11(1) and so manifestly indefensible under section 33(1) of the Constitution that there is no warrant for its retention, even temporarily. [ 19 ] In the circumstances the following order issues: 1. The following provisions of the Magistrates\u2019 Courts Act are inconsistent with 24Afforded an audience as amicus curiae by virtue of its special interest and expertise in the matter and represented by two members. 14 \fthe Constitution and are declared to be invalid with effect from the date of this KRIEGLER J order: a. The following words in section 65A(1) \u201cwhy he should not be committed for contempt of court and\u201d; b. c. d. e. Sections 65F, 65G and 65H; Paragraphs (a) and (c) of section 65J(1); Paragraph b(ii) of section 65J(2); The following words in paragraph (a) of section 65J(9) \u201c(a) or\u201d, and \u201cand may, subject to the provisions of section 65G, be committed for contempt of court for failing to comply with the said order\u201d; f. g. Paragraph (b) of section 65J(9); The following words in section 65K(2) \u201cor warrant for the committal of a judgment debtor or a director or an officer of any juristic person or of any sentence imposing a fine on any director or officer representing a judgment debtor who is a juristic person\u201d; and h. Section 65L. 2. All other provisions of sections 65A to 65M of the Magistrates\u2019 Courts Act remain in force. 3. With effect from the date of this order, the committal or continuing 15 \fimprisonment of any judgment debtor in terms of section 65F or 65G of the Magistrates\u2019 Courts Act is invalid. KRIEGLER J JC Kriegler Chaskalson P, Mahomed DP, Ackermann J, Madala J, and O\u2019Regan J concur in the judgment of Kriegler J. 16 \f[ 20 ] DIDCOTT J: I am by no means convinced at present that it would be unconstitutional, DIDCOTT J once certain conditions were met, for a debtor who had not paid the amount of a judgment duly awarded against him to be committed to prison for a limited spell like the period allowed by our current legislation or, if the judgment was satisfied before it ended, until the earlier date when that occurred. The conditions which I envisage would be ones requiring that: (a) the creditor had already exhausted all other lawful means that were usable by him for the execution of the judgment; (b) the committal was preceded by a full enquiry into the reasons why the debtor had failed to pay the amount that he owed, an enquiry attended by him personally and conducted in compliance with the dictates of procedural fairness by the magistrate from whom the order for his imprisonment was sought; (c) at the enquiry the debtor had to explain the default, to disclose his financial state and affairs, and to submit to interrogation on those matters, lying largely as they did within his own peculiar knowledge; (d) in the end, however, the creditor bore the onus to prove directly or inferentially, but positively at all events, the debtor\u2019s ability in his particular circumstances to pay the amount owed and either a downright refusal by him to do so or the sheer wilfulness of his default; 17 \f(e) no order for the imprisonment of the debtor might ensue from the enquiry in the absence of such proof. DIDCOTT J In permitting the debtor to be consigned to gaol subject to those conditions, a statutory scheme of that sort would certainly deny him, throughout his sojourn there, the right to personal freedom proclaimed by section 11(1) of the Constitution. That section 33(1) authorised the temporary denial of the right would be an arguable proposition all the same, and no less so owing to the misdescription of the grounds for it when they were artificially called a contempt of court. The denial might be viewed as a reasonable and justifiable measure, indeed as a necessary one, in a final effort to extract from a pecunious but stubbornly defiant debtor the long awaited payment to which the creditor was entitled. And it might not negate the essential content of the right, were that concept to be understood in the sense sometimes dubbed as objective which Chaskalson P and Kentridge AJ discussed in S v Makwanyane and Another 1995(3) SA 391 (CC) (paragraphs 133 at 447C-G and 195 at 470F-471B). I shall say nothing about the wisdom, expediency or efficacy of such a scheme. Nor, even on the narrower question of its constitutional validity, do I express a firm opinion. That topic is beside the point, since the scheme happens not to be the one we now have before us or, for that matter, any other in actual operation here. It has been postulated simply so that it may illustrate why I hesitate to generalise about the imprisonment of debtors, condemning that out of hand and irrespective of the way in which it is regulated. [ 21 ] Nor, in my opinion, do we need on this occasion to indulge in such 18 \fDIDCOTT J generalisations. We can dispose satisfactorily of the issue which has been referred to us without resorting to them. For the legislation that is under attack goes far beyond my imaginary scheme, doing so with no fewer than four draconian effects to which I shall confine my attention. [ 22 ] The legislation does not, in the first place, insist on the exhaustion by the creditor of his lesser remedies before he throws the book of prospective imprisonment at the debtor. So much he may do a mere ten days after the judgment that remains unsatisfied was obtained by him, and without having taken or had the time to take any prior step in an endeavour to enforce it, by issuing a notice then which calls on the debtor to show cause to a magistrate on a date announced in it, a date as early as seven days later than the one when it was served, why the default should not be visited with committal to gaol. The magistrate is not bound, when the appointed day arrives, to send the debtor there. Some other order may be made instead, an order for the attachment of debts owed to him, or for a garnishee on his wages, or for execution to be levied against his property, or for the payability in instalments of the judgment debt. No doubt that is often done, at first anyhow, in practice and perhaps even as a matter of judicial policy. But it is not enjoined by the statute, which imposes no duty on the magistrate either to follow any of those other courses or to satisfy himself or herself that nothing will be achieved by doing so. Imprisonment is sanctioned as an initial alternative to them, not solely as a sequel to their unsuccessful pursuit. [ 23 ] The second harsh effect of the legislation is this. It allows the debtor to be 19 \fDIDCOTT J imprisoned without a hearing. The notice issued by the creditor, though served in accordance with the rules of court, may have been left with somebody else at one of the places permitted for its service and never have come to his personal attention. He may indeed be unaware of the judgment itself, the same having happened to the earlier notification of that which he was supposed to receive. He may even have known nothing about the action instituted against him which culminated in the judgment, one obtained by default because the summons that started the litigation did not reach him either. A series of accidents like those would be no surprising coincidence, after all, if the same person had accepted service of all the documents in quick succession, but neglected to pass them onto him or knew not where he was. Yet the statute expressly empowers the magistrate to sentence him to imprisonment in his absence, a fate never suffered by convicted criminals. [ 24 ] Another explanation for the absence of the debtor, even when he has received the notice and the preceding documents, may be his ignorance of the various defences that are available to him in answering it, in particular the important defence of a poverty afflicting him which is not attributable to his own improvidence. He may labour under the misapprehension that no excuse for his failure to satisfy the judgment will be acceptable, that his imprisonment is an inescapable consequence of the default to which he must resign himself, and that his attendance at the proceedings cannot therefore accomplish anything. For the notice did not inform him of any such excuse. It was not required to do so. That is the third obnoxious effect of the statute. 20 \f[ 25 ] The fourth ugly feature of the legislation that will confront the debtor if he does DIDCOTT J appear before the magistrate, on the other hand, is the onus then resting on him to prove that he cannot pay the judgment debt and bears no blame for his impecuniosity on various grounds which are listed. He may not manage to establish that, although it is the truth, especially when his very poverty has prevented him from hiring a lawyer and he has to fend for himself in an unfamiliar environment, bewildered by procedures and a forensic methodology to which he is a stranger. The result may well be, the result must often be, that someone who really cannot pay, through no fault of his own, goes to gaol for his failure to do so. [ 26 ] The interests of creditors are plainly relevant to any constitutional appraisal of the provisions with those effects. Credit plays an important part in the modern management of commerce. The rights of creditors to recover the debts that are owed to them should command our respect, and the enforcement of such rights is the legitimate business of our law. The granting of credit would otherwise be discouraged, with unfortunate consequences to society as a whole, including those poorer members who depend on its support for a host of their ordinary requirements. That does not mean, however, that the interests of creditors may be allowed to ride roughshod over the rights of debtors. The legislation in question permits that most egregiously, I believe, in the four respects mentioned. I am satisfied that it is unreasonable and unjustifiable on those cumulatively oppressive scores. Its clear invasion of the right to personal freedom which section 11(1) guarantees to debtors like everyone else is therefore, in my judgment, not countenanced by section 33(1). 21 \fDIDCOTT J [ 27 ] The bad parts of the statute are not judicially severable, I consider, from the rest of its provisions that deal with imprisonment. Their roots are entangled too tenaciously in the surrounding soil for a clean extraction to be feasible. The conclusion to which I accordingly come is that we are left with no option but to declare those provisions as a whole to be constitutionally invalid on account of their objectionable overbreadth. [ 28 ] The incisive judgment prepared by Kriegler J in these two cases came to hand when the preceding parts of this one had already been written. Its thrust, as I read it, is substantially the same as mine. I agree entirely, I now add, with both the focus and 22 \fthe tenor of it. For the reasons which Kriegler J and I have given, and for those reasons alone, I concur in the order proposed by him. DIDCOTT J JM Didcott 23 \fKENTRIDGE AJ [ 29 ] KENTRIDGE AJ: I concur in the judgment of Kriegler J and in the order which he proposes. I also agree with the identification by Didcott J of aspects of the legislation which render it unreasonable and unjustifiable. I would, however, in addition endorse the general critique of the legislation set out in paragraphs [65] to [71] of the judgment of Sachs J. S Kentridge 24 \f[ 30 ] LANGA J: The matter referred to the Court is the constitutionality of certain of the LANGA J provisions of sections 65A to M of the Magistrates\u2019 Courts Act25 (the Act) in so far as they authorise the imprisonment of defaulting judgment debtors. Inevitably, this raised the question of whether the imprisonment of defaulting judgment debtors can ever be justifiable in an open and democratic society based on freedom and equality. It is important to make a clear distinction between what has been decided and what has not been decided in this case. [ 31 ] Through the judgments of Kriegler J and Didcott J the Court affirms that those provisions that authorise the imprisonment of judgment debtors in sections 65A - M of the Act are unconstitutional and should therefore be struck down. Sachs J arrives at the same conclusion. I am in respectful agreement with and therefore concur in the order proposed by Kriegler J. That the relevant provisions are overbroad was common cause to all the parties who argued the matter before us. In addition, it was common cause that the provisions were procedurally flawed. Those procedural shortcomings have been crisply identified by Kriegler J at paragraph 14 of his judgment. [ 32 ] As pointed out by Kriegler J26, the provisions hit two categories of defaulting debtors, namely, those who wilfully refuse to settle their debts even though they have the means and those who cannot pay because they do not have the means but who fail to 25Act No. 32 of 1944 (as amended). 26In paragraph 14 of his judgment, Kriegler J states: \u201cAs a result of these defects, the statute sweeps up those who cannot pay with those who can but simply will not.\u201d 25 \fLANGA J prove their inability to pay. Both categories are subject to civil imprisonment. It is clear that it could never be constitutional to imprison a person who falls within the second category. What is not settled however, is whether, provided certain conditions are fulfilled, it would be unconstitutional to commit a debtor of the first category to prison. Because the impugned provisions are clearly overbroad and procedurally flawed, it is not necessary to address that question here. [ 33 ] Although I concur with the judgment of Kriegler J, I wish to add a few comments concerning section 11(1) and its interpretation. It is trite that imprisonment, whether as a civil or criminal sanction, is a drastic curtailment of a person\u2019s liberty, which is the essence of the \u201cfreedom and security\u201d provision in section 11(1) of the Constitution. In the criminal law, it is generally accepted that imprisonment should be resorted to only after the most anxious consideration. Twenty years ago Hiemstra J remarked:27 The views of the Courts in regard to imprisonment have however undergone modification in the last ten years. Imprisonment is seen more and more as a harsh and drastic punishment to be reserved for callous and impenitent characters. We wish to adopt a more enlightened approach in which the probable effect of incarceration upon the life of the accused person and those near to her is carefully weighed. Thirion J, in a later judgment observed:28 27In S v Benetti 1975(3) SA 603 (T) at 605G. 28This was a dissenting judgment in S v Motsoesoana 1986(3) SA 350 (N) at 372F - G. Thirion J was comparing imprisonment with corporal punishment for juveniles as sentencing options. 26 \fLANGA J Imprisonment is the form of punishment which may detrimentally affect not only the offender but also his family and his employment and because of its duration it can seldom be kept from becoming general public knowledge. It ... can have a lasting demoralising effect on the character and personality of the offender. The loss of liberty, tedium, regimentation ... which prison life entails, have a greater potentiality than a whipping for destroying the offender\u2019s self-esteem and the integrity of his character and for changing, for the worse, his way of life. Reynolds J29 refers to the \u201c \u2018deleterious effects of penal institutions\u2019 ... and the unfortunate results that regularly follow the imposition of custodial punishment.\u201d Goldstone J30 refers to the need to \u201c... avoid exposure to the negative consequences of imprisonment\u201d. [ 34 ] The language of section 11(1), which guarantees \u201cfreedom and security of the person\u201d and the right \u201cnot to be detained without trial,\u201d is an implicit recognition and rejection of some of the practices of the past. Despite the existence of common-law provisions protecting personal freedom and security, many people were imprisoned and detained without the application of principles of procedural fairness and in circumstances where they had committed no offence which would warrant the deprivation of liberty. Thousands of South Africans each year were, for instance, imprisoned for breaches of influx control legislation after summary trials which carried few, if any, of the characteristics of a fair trial. In addition, imprisonment was also used to curtail other fundamental freedoms unjustly, including those of association, expression and belief, and, as an instrument of coercion, in order to extract information 29Reynold J\u2019s remarks, made in S v Chirara; S v Hwengwa; S v Pisaunga; S v Muzondiwa 1990(2) SACR 356 (ZH) at 358i - j, were in the context of a statement he quoted from by Ashworth in Sentencing and Penal Policy (at 318) that \u201ccustodial sentences should be used as sparingly as possible\u201d. 30In S v Kumalo 1984(4) SA 642 (W) at 644H. 27 \fto be used for prosecutions and various other official purposes. It has therefore been a powerful weapon in the hands of officialdom. In terms of the challenged provisions, this weapon is placed at the disposal of creditors for use against defaulting debtors. LANGA J [ 35 ] The difference between the past and the present is that individual freedom and security no longer fall to be protected solely through the vehicle of common law maxims and presumptions which may be altered or repealed by statute, but are now protected by entrenched constitutional provisions which neither the legislature nor the executive may abridge. It would accordingly be improper for us to hold constitutional a system which, as Sachs J has noted, confers on creditors the power to consign the person of an impecunious debtor to prison at will and without the interposition at the crucial time of a judicial officer.31 [ 36 ] For the reasons articulated in Kriegler J\u2019s and Didcott J\u2019s judgments, I agree that the impugned provisions constitute an unreasonable limitation on the \u201cfreedom and security\u201d provision and that they are therefore clearly unconstitutional. In view of the conclusion I have come to in concurrence with that of Kriegler J, it is not 31Sachs J opines at paragraph 66 of his judgment that \u201c[A] judgment debtor should in principle not be held liable through his or her person, life or liberty, for the payment of a debt, but only through the aggregate of his or her means.\u201d 28 \fnecessary to finally resolve the question of whether it would be unconstitutional to imprison wilfully defaulting debtors. LANGA J PN Langa 29 \f[ 37 ] SACHS J: Is imprisonment for debt in itself unconstitutional, or does it all depend on how it is done and against whom it is directed? This, to my mind, was the major issue raised in the present matter. SACHS J It was common cause amongst counsel for the Applicants and Respondents as well as the representatives of the Association of Law Societies - although their reasons differed - that the imprisonment of judgment debtors in terms of the provisions of Sections 65A to 65M of the Magistrates' Courts Act, was unconstitutional. There was no agreement, however, as to the order which they thought should be made as a result. [ 38 ] Mr Navsa, who was briefed by the Legal Resources Centre to appear on behalf of the Applicants, argued that the provisions in question flew in the face of the international prohibition against civil imprisonment, and were so profoundly ridden with unconstitutionality, and so inextricably linked up with the remaining provisions of Sections 65A to 65M, that the whole cluster had to be invalidated. [ 39 ] Mr Potgieter, who appeared on behalf of the Government and the Minister of Justice, accepted that the unconstitutionality was broadly-based, but said that the provisions dealing with imprisonment for alleged contempt of court could be excised without destroying the remaining portions. [ 40 ] Mr Du Plessis, on the other hand, contended in the name of the Association of Law Societies, that the unconstitutionality rested on narrow procedural grounds, more 30 \fSACHS J particularly, on the lack of a hearing and a consequent violation of the well-known principle of audi alterem partem. He argued that this defect could easily be corrected by the legislature if properly directed. He agreed with Mr Navsa that the impugned provisions were so intrinsic to the scheme of Sections 65A to 65M that the whole set should be invalidated. In order to avoid a situation in which all court-supervised debt collecting became toothless and ineffective, however, he urged us to require Parliament, in the interests of justice and good government, to correct the defect in the law within a period of one year32; Sections 65A to 65M should then remain in force until such correction had been made or the year had elapsed. In effect, he was arguing that the scheme for imprisoning recalcitrant judgment debtors was rescuable, and should be rescued. Implicit in the arguments of counsel for the Applicants and the Government, on the other hand, was the notion that the institution of sending non-paying debtors to jail was intrinsically beyond repair and had to be ended forthwith. It was this disagreement that has prompted my exploration of the question of whether or not imprisonment for debt is in itself unconstitutional, or, whether, properly controlled and focused, it could pass constitutional muster. [ 41 ] A perusal of the admirably, and I might say, enviably, succinct judgments of Didcott J and Kriegler J respectively, shows that they have not found it necessary to go 32Using our powers in terms of Section 98 (5) of the Constitution, which provides that: In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified. 31 \fSACHS J beyond considering the reasonableness of the procedures involved. I agree with their analysis and with the order that Kriegler J proposes. I feel however that a proper answer to the request from the Association of Law Societies that we use our powers to keep the committal proceedings alive pending rectification, requires a fuller analysis of the institution of civil imprisonment than they have considered appropriate. If there is nothing in principle constitutionally objectionable in sending people to jail for not paying their debts - as their judgments indicate or imply - then there would be considerable merit in the argument of the Association of Law Societies in favour of retaining committal proceedings pending rectification. If, on the other hand, we are dealing with an institution that is intrinsically suspect then the justification for using our powers in terms of Section 98(5) becomes weak indeed. The matter is of considerable importance not only for creditors and debtors, but for the administration of justice, inasmuch as it affects the daily work of attorneys, magistrates and prison officers. I will accordingly complement the judgments of my colleagues with some views of my own. I will start at the beginning, namely, with the nature of the right allegedly infringed, and then proceed step by step until reaching the final question of whether or not to keep the institution alive. 32 \fI THE QUESTION OF CONSTITUTIONALITY SACHS J [ 42 ] The first task is to decide whether Sections 65A to 65M are in whole or part unconstitutional. In the present case, they were said to violate the right to freedom and security of the person in Section 11, the prohibition against detention without trial in the same section, the requirements of a fair trial specified in Section 25 and the right to dignity contained in Section 10. [ 43 ] Section 11(1) bears directly on the subject. It reads: Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial. It is tempting to regard the absence of a hearing as indicating that there is a direct violation of the right in Section 11(1) not be detained without trial. Given the specific meaning that the phrase \u2018detention without trial\u2019 has acquired in South Africa, however, I prefer not to apply the words literally to the situation under discussion, but rather, for the purposes of this case, to view them as protective buttresses for the broader structure of personal freedom. I feel that this approach opens the way for a richer and more sophisticated exploration of the values embodied in the concept of personal freedom, which in turn will facilitate the discovery and delineation of what could be appropriate limitations consistent with these values. It also maintains the relative impermeability of the concept of detention without trial, as generally understood; the narrower and more deeply anchored the right, and the closer it is kept to its special purpose, the more 33 \fSACHS J easily can it be defended against invasion.33 Similarly, rather than attempt to force the situation of imprisoned judgment debtors into the matrix of a criminal trial, which has different objectives34, I will regard Section 25 as a relevant background source which furnishes values helpful in the interpretation of the elusive notion of freedom. Thus, although Section 25 is not directly applicable to the present case in that defaulting civil debtors are neither persons arrested nor accused persons as provided for in that section, it does indicate fundamental standards of fairness regarded as appropriate before penalties, including imprisonment, are judicially imposed. I propose, also, to treat the right to dignity contained in Section 10 as a right which is intertwined with and helps in the interpretation of the rights of personal freedom and security protected by Section 1135, rather than as an independent right violated by the statute in question. In this way I will attempt to locate the issue in what I regard as its proper constitutional framework. 33P Hogg, Constitutional Law of Canada (3rd ed. 1992) at Chapter 4. 34See Hicks v Feiock 485 US 624 (1988) where the US Supreme Court re-affirmed the distinction between imprisonment for a fixed period as a punishment for doing something forbidden, and imprisonment as a flexible remedial instrument for failure to fulfil an obligation, with full due process being required for the former, but not for the latter. 35See comments on interacting values by Wilson J in R v Morgentaler 44 DLR (4th) 385 (1988) at 493; See also S v Makwanyane 1995 (6) BCLR 665 (CC) per Chaskalson P at 702D and 722H-723A, and O\u2019Regan J at 777E. 34 \fThe right to \u2018Freedom and security of the person\u2019 SACHS J [ 44 ] My principal focus is on the rights subsumed in the expression \u2018freedom and security of the person\u2019. The issue of determining the precise limits and content of these words will no doubt exercise this Court for a long time to come. Other jurisdictions have battled with the problem of whether the phrase should be construed as referring to one right with two facets, or two distinct, if conjoined, rights.36 Another jurisprudentially controversial matter has been whether the words should be considered as applying only or mainly to the absence of physical constraint37 or whether it should be regarded as having the widest amplitude38 and extend to all the rights and privileges long recognized as central to the orderly pursuit of happiness by free men and women.39 Even more fundamental (and even more difficult) are questions relating to the nature of citizenship and civic responsibility in a modern industrial-administrative state, the degree of regulation that is appropriate in contemporary economic and social life and the extent to which freedom and personal security are achieved by protecting human 36Hogg at 1022; Garant in Canadian Charter of Rights and Freedoms (2nd ed. 1989, eds Beaudoin and Ratushny) at 334; Re Singh and Minister of Employment and Immigration 17 DLR (4th) 422 (1985) per Wilson J at 458; R v Morgentaler, supra. The issues are discussed by Du Plessis and De Ville in Rights and Constitutionalism - The New South African Legal Order, (1994, eds Van Wyk et al) at 234 and Cachalia et al in Fundamental Rights in the New Constitution (1994) at 35. 37For the tendency in Canada, see Garant supra at 342 et seq; Hogg at 1029, and also in Germany, as well as in the judgments of the European Court of Human Rights, see P Sieghart, The International Law of Human Rights (1992) at 141-42. Useful information is to be found in Du Plessis and De Ville, Rights and Constitutionalism supra at 236 and Cachalia et al supra at 35. 38For the approach in India, see Kharak Singh v State of U.P. and Others [1964] 1 SCR 332; See also Maneka Gandhi v Union of India AIR 1978 SC 597 quoted in Davis, Chaskalson and De Waal in Rights and Constitutionalism supra at 46. 39For the position in the US see Board of Regents of State Colleges v Roth, 408 US 564 (1972). 35 \fSACHS J autonomy on the one hand and recognizing human interdependence on the other.40 The present case does not, however, compel us to penetrate into any of these complex areas. On any analysis, using any approach, there can be no doubt that committing someone to prison involves a severe curtailment of that person's freedom and personal security. Indeed, the very purpose of committal is to limit the freedom of the person concerned. Given the manifest and substantial invasion of personal freedom thus involved, the real issue that we have to decide is whether such infringement can be justified in terms of the general limitations on rights permitted by Section 33 of the Constitution. This is the nub of the problem before us. [ 45 ] Yet the second, and for our purposes, crucial step of the investigation, is by no means unrelated to the first. Although notionally the court proceeds in two distinct analytical stages,41 there is clearly a relationship between the two curial enquiries. The more profound the interest being protected, and the graver the violation, the more stringent the scrutiny; at the end of the day, the court must decide whether, bearing in mind the nature and intensity of the interest to be protected and the degree to which and the manner in which it is infringed, the limitation is permissible. The President of this Court has outlined the basic balancing process in the following words: The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of Section 33(1). The fact that different rights have different implications for 40There is extensive literature on the subject which we are not compelled to explore in the present case. 41S v Zuma and Others 1995 (4) BCLR 401 (SA) and S v Makwanyane and Another 1995 (6) BCLR 665 (CC). 36 \fSACHS J democracy, and in the case of our Constitution for \u201can open and democratic society based on freedom and equality\u201d, means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question. In the process regard must be had to provisions of Section 33(1), and the underlying values of the Constitution, bearing in mind that, as a Canadian Judge has said, \u201cthe role of the Court is not to second-guess the wisdom of policy choices made by legislators.\u201d42 If I might put a personal gloss on these words, the actual manner in which they were applied in Makwanyane (the Capital Punishment case) shows that the two phases are strongly interlinked in several respects: firstly, by overt proportionality with regards to means, secondly by underlying philosophy relating to values and thirdly by a general contextual sensitivity in respect of the circumstances in which the legal issues present themselves. [ 46 ] I make these points because of what I regard as a tendency by counsel, manifested in this case, to argue the two-stage process in a rather mechanical and sequentially divided way without paying sufficient attention to the commonalities that run through the two stages. In my view, faithfulness to the Constitution is best achieved by locating the two-stage balancing process within a holistic, value-based and case- oriented framework.43 The values that must suffuse the whole process are derived 42Per Chaskalson P in Makwanyane supra at 708D-G. 43See the warning Dickson CJC gives against a mechanical, formula-driven application of the principles in R v Oakes 26 DLR (4th) 200 (1986), and of his emphasis on the concept of a free and democratic society 37 \fSACHS J from the concept of an open and democratic society based on freedom and equality, several times referred to in the Constitution. The notion of an open and democratic society is thus not merely aspirational or decorative,44 it is normative, furnishing the matrix of ideals within which we work, the source from which we derive the principles and rules we apply, and the final measure we use for testing the legitimacy of impugned norms and conduct. If I may be forgiven the excursion, it seems to me that it also follows from the principles laid down in Makwanyane that we should not engage in purely formal or academic analyses, nor simply restrict ourselves to ad hoc technicism, but rather focus on what has been called the synergetic relation between the values underlying the guarantees of fundamental rights and the circumstances of the particular case.45 There is no legal yardstick for achieving this.46 In the end, we will frequently which, in his words, is the commonality which links the guarantee of rights and freedoms to their limitation. R v Keegstra 3 CRR (2d) 193 (1990). 44In the words of Dickson CJC, in Keegstra supra, they are no mere \u2018incantation\u2019, rather, they are central to the methodology to be adopted. In the circumstances of the evolution of South African society as alluded to in the Epilogue to the Constitution, they could have special technical relevance in at least three respects: our jurisprudence has many admirable features, but has not always evolved in the direction of supporting openness and democracy, hence the need for selective utilization of decisions by our courts; the deference which courts normally give to \u2018political acts\u2019 and to legislative outcomes of the democratic process, might be more tenuous in the case of decisions and legislation of the pre-democratic period; and we might be required to use a wider range of source material than traditionally has been the case. None of these issues have been argued before us, and none need to be decided for the purposes of the present case, so I express no opinion on them. 45By Dickson CJC in Keegstra supra at 30 where he points out that factual circumstances shape the courts\u2019 view of both the right or freedom at stake and the limit proposed by the state, neither of which should be viewed in abstract, and cites with approval the following statement by Wilson J in Edmonton Journal v Alberta AG 45 CRR 1 (1989) at 26-27. ... a particular right or freedom may have a different value depending on the context. It may be, for example, that freedom of expression has greater value in a political context than it does in the context of disclosure of the details of a matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values .... and the observation of La Forest J in United States of America v Cotroni 42 CRR 101 (1989) at 117 that: 38 \fSACHS J be unable to escape making difficult value judgments, where, in the words of McLachlin J, logic and precedent are of limited assistance. As she points out,47 what must be determinative in the end is the court\u2019s judgment, based on an understanding of the values our society is being built on and the interests at stake in the particular case; this is a judgment that cannot be made in the abstract, and, rather than speak of values as Platonic ideals,48 the judge must situate the analysis in the facts of the particular case, weighing the different values represented in that context. In the present matter then, we are called upon to exercise what I would call a structured and disciplined value judgment, taking account of all the competing considerations that arise in the circumstances of the present case, as to whether in the open and democratic society based on freedom and equality contemplated by the Constitution, it is legitimate/acceptable/appropriate to continue to send defaulting judgment debtors to jail in terms of the procedures set out in Section 65 of the Magistrates\u2019 Courts Act. In the performance of the balancing task ... a mechanistic approach must be avoided. While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighted in a particular context against other values of a free and democratic society sought to be promoted by the legislature. 46Per Gubbay CJ of the Zimbabwean Supreme Court: There is no legal yardstick, save that the quality of the reasonableness of the provision under attack is to be adjudged on whether it arbitrarily or excessively invades the enjoyment of the guaranteed right according to the standards of a society that has a proper respect for the rights and freedoms of the individual. Woods and Others v Minister of Justice, Legal and Parliamentary Affairs 1995 (1) BCLR 56 (ZS) at 59; 1995 (1) SA 703 (ZS) at 706E. 47Keegstra supra at 109. How difficult this judgment is, is brought out by the fact that, applying an approach cast in almost identical terms, the majority judgment given by Dickson CJC, supported by three judges, upheld the statute while McLachlin J, supported by two judges, would have struck it down. 48 Trakman, Reasoning with the Charter (1991) at 201: Rights are not self-explanatory. They are principled constructions informed by social history, communicative experience and normative practice. 39 \fThe Limitations Clause SACHS J [ 47 ] Section 33, commonly known as the Limitations Clause, is central to our enquiry and bears repeating: 33 (1) The rights entrenched in the Chapter may be limited by law of general application, provided that such limitation - (a) shall be permissible only to the extent that it is - (i) (ii) reasonable; and justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to - (aa) a right entrenched in section ... 11 ... shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary. [ 48 ] There are in fact a multiplicity of situations where the limitations clause might be invoked to justify physical restrictions on personal freedom. They were not argued before us and it would be inappropriate to express any opinion whatsoever on the validity of other proceedings presently treated by the law as permissible. They would include such matters as: detention of illegal immigrants, segregation of persons with highly infectious diseases, custodial orders in terms of mental health legislation, and arrests to establish or confirm jurisdiction of a person seeking to flee the country so as 40 \fSACHS J to avoid civil liability.49 In each case, the law limiting the exercise of the rights contained in Section 11 would have to pass the tests of reasonableness, justifiability and necessity laid down in Section 33.50 I will not touch the complex question of not negating the essential content of the right. Many jurisdictions, our own included, allow imprisonment of persons who fail to meet court-ordered maintenance payments.51 Here, too, we are not called upon to give any ruling. Nor are we called upon to make a ruling on other statutes which impose criminal liability for failure to pay monies owing.52 What we are required to decide is the narrow question of whether the Sections 65A to 65M procedures for the committal of non-paying judgment debtors to prison for up to ninety days are constitutionally permissible; more particularly do they meet the Section 33 criteria? Put in summary form, Section 33 requires us to ask: is the limitation reasonable, is it justifiable and is it necessary? [ 49 ] The tests of reasonableness, justifiability and necessity are not identical, and in 49In terms of Section 16(1) of the Aliens Control Act 96 of 1991 and Section 33(1)(c) and (m) of the Health Act 63 of 1977 as amended (keeping under medical surveillance and restriction of movement of persons with communicable diseases); Sections 16(1) and 19(1)(a) of the Mental Health Act 18 of 1973 as amended; Section 30 of the Magistrates\u2019 Courts Act 32 of 1944 as amended provides for the arrest of persons tanquam suspectus de fuga. See also African Realty Trust v Sherman 1907 TH 34 quoted in Jones and Buckle, The Civil Practice of the Magistrate\u2019s Courts in South Africa (8th ed. 1988) at 416. 50In each matter, too, if litigation were to ensue, then, in my view, more than an ad hoc technical analysis of procedural fitness would be required if the correct order was to be made; sooner or later we will have to grapple with the fundamental values underlying the rights set out in Chapter 3. 51In terms of Sections 11(2)(a) and 14C of the Maintenance Act 23 of 1963 as amended. Although there are some similarities with procedures under Sections 65A to 65M, there are great differences, and I wish to underline that nothing in this judgment should be seen as impinging on these sections of the Maintenance Act, which was dealt with in argument only on the basis that it was clearly distinguishable. 52For example, in terms of Section 25(2) of the Basic Conditions of Employment Act 3 of 1983 as amended; Section 37 of the Wage Act 5 of 1957 as amended; Section 61(1) of the Unemployment Insurance Act 30 of 1966 as amended; and Section 50 of the Manpower Training Act 56 of 1981 as amended. 41 \fSACHS J applying each one individually we will not always get the same results. Frequently, however, it is convenient to look at and assess them together.53 Normally, if a limitation fails to pass the test of reasonableness, there is no need to consider whether it could be justified or regarded as necessary; it falls at the first hurdle. My colleagues have demonstrated convincingly that on the assumption that sending defiant judgment debtors to jail was a legitimate objective, present procedures are manifestly overbroad in furthering that purpose, and as such are unreasonable and unconstitutional. As I have said, I agree with them. In the present case, however, we are required to do more than decide on the constitutionality of certain statutory provisions. We are asked to use our discretion in terms of Section 98(5) to keep constitutionally invalid provisions alive. In concrete terms, I consider this to be the real issue before us. In making our assessment, I accordingly feel it is appropriate to examine whether, even if the procedural defects could be cured, as Mr Du Plessis argued, the limitation would pass the tests of justifiability and necessity. If committal proceedings are in essence both justifiable and necessary, but vitiated merely because the means used are unreasonable in relation to the objective to be achieved, the case for giving Parliament a chance to remedy the defect is a strong one. If, however, they would fail the tests of justifiability and necessity, however well tailored, then there would be no point in attempting to correct the procedures. I will accordingly deal with the distinct criteria both separately and globally. \u2018Reasonableness\u2019 53See Kentridge AJ in Zuma supra at 420A-B. 42 \f[ 50 ] The requirement that limitation be reasonable presupposes more than the SACHS J existence of a rational connection between the purpose to be served and the invasion of the right. Thus, a limitation logically connected to its objective could be unreasonable if it undermined a long established and now entrenched right;54 imposed a penalty that was arbitrary, unfair or irrational;55 or, as in this case, used means that were unreasonable.56 My colleagues have dealt in detail with this aspect, and I need say no more than that the procedures are manifestly unreasonable. \u2018Justifiable in an Open and Democratic Society\u2019 [ 51 ] In deciding whether or not sending people to jail for not paying their debts is justifiable in an open and democratic society based on freedom and equality, we need to locate ourselves in the mainstream of international democratic practice. [ 52 ] At first sight, it would appear that imprisonment for debt is totally prohibited in international law and practice. Paul Sieghart writes in a much-quoted passage that: In the international instruments there are ... some exceptions of choice such as the freedoms from torture, slavery and imprisonment for debt, which are declared absolutely, without restriction or limitation of any kind, and not subject to derogation even in the most extreme circumstances.57 54Zuma supra at 420A. 55Makwanyane supra at 709E. 56S v Williams and Others 1995 (7) BCLR 861 (CC) at 880C. 57Sieghart supra at 87, note 1. 43 \fSACHS J Without further analysis, however this statement might be misleading. The point the author is making is that, like torture and slavery, imprisonment for debt is one of the prohibited practices in relation to which no derogation is permissible. The question that still has to be determined is exactly what is meant by imprisonment for debt; in other words, the concept or definition of imprisonment for debt can be qualified, even if its practice is absolutely forbidden. A close look at international instruments shows that far from resolving the dilemma posed in the opening sentence of this judgment, they replicate it. Thus, the American Declaration of the Rights and Duties of Man provides in broad terms that: XXV. No person may be deprived of liberty for non-fulfilment of obligations of a purely civil character. The American Convention on Human Rights similarly states in Article. 7(7) that: no one shall be detained for debt. This principle shall not limit the order of a competent judicial authority issued for non-fulfilment of duties of support. [ 53 ] On the other hand, the prohibition in the UN International Covenant on Civil and Political Rights (ICCPR), which is repeated verbatim in Protocol 4 of the European Convention, is somewhat narrower. It reads: 11. No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. 44 \fAccording to the Explanatory Report on the Fourth Protocol to European Convention,58 freedom from civil imprisonment must be understood in the following context: SACHS J [T]he obligation concerned must arise out of contract; the prohibition does not apply to obligations arising from legislation in public or private law. Nor does the prohibition apply if the debtor acts with malicious or fraudulent intent; or if a person deliberately refuses to fulfil an obligation, irrespective of his reasons therefor, nor if his inability to meet a commitment is due to negligence. In these circumstances, the failure to fulfil a contractual obligation may legitimately constitute a criminal offence. The aim of the Protocol was said to be to prohibit, as contrary to the concept of human liberty and dignity, any deprivation of liberty for the sole reason that the individual had not the material means to fulfil his or her material obligations.59 Similar points are made in connection with the ambit of Article 11 of the ICCPR, where it is stressed that the prohibition relates expressly to contractual obligations; that it does not cover deprivations of liberty based on non-fulfilment of statutory obligations, nor does it include criminal offences related to civil law debts, nor does it protect persons who 58Sieghart supra at 159. 59See decision of the European Commission of Human Rights in the case of X v the Federal Republic of Germany, Case No 6699/74, given on 18 December 1971, where it was held that a provision in the German Code of Civil Procedure permitting imprisonment for up to 6 months (at the creditor\u2019s expense) of debtors who refused to make an affidavit of means, did not violate Protocol 4. The question of onus of proof in relation to ability to pay was the central issue in the more recent case in the US Supreme Court of Hicks v Feiock supra which concerned imprisonment of a father for failure to pay maintenance. All members of the court agreed that if the proceedings were civil rather than criminal, then the 14th Amendment due process requirement of proof beyond reasonable doubt of ability to pay would not apply, and a legislative presumption of ability to pay would not be unconstitutional. The court divided on whether the proceedings in question were shown to be civil. The court, however, re-affirmed a long-standing distinction between imprisonment as a punishment for a limited period (criminal contempt), and purgeable imprisonment for remedial purposes to compel performance of an obligation (civil contempt), where the person concerned \u2018carried the keys of the prison in their own pockets\u2019. The leading cases cited, however, dealt with refusing to produce documents, and refusing to testify under a grant of immunity, and not with failure to pay a contractual debt. The case itself turned on failure to pay maintenance, where the obligation arose from law, not contract, and where the need to protect the interests of children was particularly compelling. 45 \fsimply refuse to honour a debt which they are able to pay.60 SACHS J [ 54 ] The only conclusion that I can draw from these materials is that international instruments strongly repudiate the core element of the institution of civil imprisonment, namely, the locking-up of people merely because they fail to pay contractual debts, but that there is a penumbra relating to money payments in which imprisonment can be used in appropriately defined circumstances. 'Necessary' [ 55 ] By adding the requirement that limitations on Section 11 be not only reasonable and justifiable, but also necessary, the framers of the Constitution were emphasizing the status of Section 11 as one of the core provisions requiring special solicitude. It would thus not be sufficient for defenders of a renovated set of committal proceedings to show that they were reasonable and justifiable in an open and democratic society. The use of prison would also have to be sustained on the grounds that it was necessary. [ 56 ] The element of necessity thus tightens up the scrutiny in respect of what would be reasonable and justifiable. It is a question of degree rather than of kind. Investigation of alternatives becomes more important and the tolerance given to the legislature in its choice of means to achieve \u2018reasonable\u2019 objectives is reduced.61 The 60M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary (1993) at 193-6. 61See O\u2019Regan J in Makwanyane supra at 780E-F. 46 \fSACHS J burden of persuasion is a higher one, and the balance is tipped more sharply in favour of upholding the infringed rights. Although this might not involve an onus of proof in the sense that the term is used in criminal and civil trials,62 it does presuppose that at the end of the day, and after having considered all argument and done its own intellectual research, the court must be satisfied that the limitation in fact meets the requirements of Section 33. Clearly, not every form of regulation or each impediment to the exercise of free choice would qualify as a violation of freedom. 63 Yet once there is a manifest infringement of the right, as in the case of civil imprisonment, such invasion would have to satisfy the special test of being necessary. [ 57 ] How are we to interpret the word \u2018necessary\u2019? Section 35 invites us to have regard to international experience where applicable when seeking to interpret provisions relating to fundamental rights. As I understand it, this section requires us to give due attention to such experience with a view to finding principles rather than to extracting rigid formulae, and to look for rationales rather than rules. Because of its importance and its relative novelty in South African jurisprudence, I will set out references to international instruments in some detail. The phrase 'necessary in a 62The Canadian Charter speaks of a limitation having to be \u2018demonstrably\u2019 justifiable. There is no equivalent word in Section 33, in respect of which the phrase \u2018burden of persuasion\u2019 might be more apposite than \u2018onus of proof\u2019. Even here, I would be reluctant to see the fundamental rights of citizens becoming too dependent on how adroit or maladroit counsel happen to be. 63See Wilson J's caution about regarding any tenuous restriction as a violation of liberty, in Thomson Newspapers v Canada [1990] 1 SCR 425 at 186. Also, her remarks in Operation Dismantle Inc. v The Queen 18 DLR (4th) 481 (1985) at 516-7. See also Garant supra at 352: Countless standards, provisions and measures which affect the security of individual citizens are established by public authorities. Would it be necessary to see in each case an interference with or a threat to the security of the individual or corporation? 47 \fSACHS J democratic society' appears frequently in the European Convention for the Protection of Human Rights and Fundamental Freedoms.64 To determine whether a particular restriction is necessary, a number of guidelines have been developed which the European Court summarized in Silver v United Kingdom65 as follows: (a) (b) (c) (d) the adjective 'necessary' is not synonymous with 'indispensable', neither has it the flexibility of such expressions as 'admissible', 'ordinary', \u2018useful\u2019, 'reasonable' or 'desirable'. the Contracting States enjoy a certain but not unlimited margin of appreciation in the matter of the imposition of restrictions, but it is for the Court to give the final ruling on whether they are compatible with the Convention. the phrase 'necessary in a democratic society' means that, to be compatible with the Convention, the interference must, inter alia, correspond to a 'pressing social need' and be 'proportionate to the legitimate aim pursued'. those paragraphs of Article (sic) of the Convention which provide for an exception to a right to be guaranteed are to be narrowly interpreted.66 [ 58 ] The term 'necessary' is also used in the ICCPR in relation to permissible 64European Convention, Articles 8 to 11 and Article 2 of Protocol No. 4. 65(1983) 5 EHRR 347 at para. 97. 66An important distinction to be borne in mind is that the European Convention does not have a general limitations clause such as Section 33, but rather identifies permissible limitations on a clause by clause basis. The nature of acceptable limitations is spelt out in each clause, which makes the object of the limitation relatively easy to identify, and the application of the proportionality test a comparatively straightforward exercise. The concept of margin of appreciation also has a special meaning. It goes beyond the legitimate tolerance normally granted to the legislature to decide on matters such as budgetary priorities and the due weight to be given to competing social, moral, political and economic claims. It relates to an acknowledgment of the need to accommodate the cultural, philosophical and political diversity of the states accepting the court's jurisdiction. Robertson and Merrills in Human Rights in Europe (3rd ed. 1993) at 198-204 indicate that the width of the margin of appreciation varies a good deal. This is inevitable because situations, claims and justifications vary considerably. The margin will usually be broad if some restriction would normally be expected, or if the case presents a controversial political, economic or social issue. They point out that the cases are not always easy to reconcile, but \u201cthe result is not so much an inconsistency in the Strasbourg jurisprudence, as a demonstration of a point which is fundamental to an understanding of the Convention, that decisions about human rights are not a technical exercise in interpreting texts, but judgments about political morality\u201d. 48 \fSACHS J limitations on fundamental rights specified on an article by article basis. This has been interpreted to mean that a restriction is necessary only if it responds to a pressing public and social need, pursues a legitimate aim and is proportionate to that aim. 67 It has also been stated that the requirement of necessity implies that the restriction must be proportional in severity and intensity to the purpose being sought, and may not become the rule. Unlike the European Convention, the ICCPR does not relate the element of necessity to a democratic society; accordingly, the relevant criterion for evaluating whether interference is necessary is not a common, democratic minimum standard, but rather solely whether it was proportional in the given case.68 [ 59 ] The Siracusa Principles drawn up by a group of experts to guide the interpretation of the limitations clauses in the ICCPR state that: 10: Whenever a limitation is required in terms of the Covenant to be \u201cnecessary\u201d, this term implies that the limitation: (a) is based on one of the grounds justifying limitations recognised by the relevant article of the Covenant, (b) responds to a pressing public or social need, (c) pursues a legitimate aim, and (d) is proportionate to that aim. Any assessment as to the necessity of a limitation shall be made on 67Cf Nowak supra at 211. See also Chaskalson P in Makwanyane supra at 710G-711B citing the case of R v France (1993) 16 EHRR 1 and Langa J in Williams supra at 880F. 68Nowak supra at 325; see also at 379 and 394 where he states that the principle of proportionality requires a precise balancing of the intensity of a measure with the specific reason for interference. 49 \fobjective considerations.69 SACHS J Commenting on the general use of the word 'necessary' in international instruments, Paul Sieghart says that the principle of proportionality is inherent in the adjective 'necessary'. This means, amongst other things, that every 'formality', 'condition', 'restriction', or 'penalty' imposed must be proportionate to the legitimate aim pursued.70 [ 60 ] What all the above citations indicate is that the term \u2018necessary\u2019 is not made the subject of rigid definition, but rather is regarded as implying a series of inter-related elements in which central place is given to the proportionality of the means used to achieve a pressing and legitimate public purpose. Turning to the South African Constitution, I will not attempt a full definition of the word 'necessary', but, bearing international experience in mind, make the following observations. The requirement that the limitation should be not only reasonable but necessary would call for a high degree of justification. It would also reduce the margin of appreciation or discretion which might otherwise be allowed to Parliament. Personal freedom would have to be regarded as a core value not lightly to be interfered with. In particular, any physical restraints imposed by State coercion would have to be looked at very closely. In lay language, a strong case indeed would have to be made out in favour of a law which allowed people to be locked up other than through the pre-trial and trial procedures provided for in Section 25. Put more technically, it would not be enough that suitably 69See (1985) 7 Human Rights Quarterly 1, quoted by Erasmus in Rights and Constitutionalism supra at 644. 70Sieghart supra at 94; on margin of appreciation at 99-102. 50 \fSACHS J amended Sections 65A to 65M served the public interest in a rational way by enforcing legitimate claims of creditors, and using justifiable methods before to do so. The public interest served by these sections would have to be so pressing or compelling as clearly to outweigh the indignity and loss of freedom suffered by the judgment debtors, not to speak of the costs to the public purse. In negative terms, the law would not be permitted to impose restrictions or burdens going beyond what would be strictly required to meet the legitimate interests of judgment creditors and society as a whole. This is not to say that an impossibly high threshold would have to be established which effectively ruled out genuine weighing by Parliament of reasonable alternatives within the broad bracket of what would not be unduly oppressive in the circumstances.71 The requirement of finding \u2018the least onerous solution\u2019 would not therefore have to be seen as imposing on the court a duty to weigh each and every alternative with a view to determining precisely which imposed the least burdens. What would matter is that the means adopted by Parliament fell within the category of options which were clearly not unduly burdensome, overbroad or excessive, considering all the reasonable alternatives. The question could would than have to be asked: could the societal reasons in favour of imprisonment of judgment 71See the remarks of Wilson J in Re Singh supra at 467. 51 \fdebtors be said to be sufficiently acute and forceful to pierce the protective constitutional armour provided by the word necessary? SACHS J Civil imprisonment or contempt of court? [ 61 ] One justification of the necessity for retaining committal proceedings is that what we are really dealing with is not civil imprisonment at all but contempt of court. This indeed is the descriptive justification given in the texts of Sections 65A to 65M themselves for imprisonment of debtors in default. The institution of contempt of court has an ancient and honourable, if at times abused, history. If we are truly dealing with contempt of court then the need to keep the committal proceedings alive would be strong, because the rule of law requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained. Yet are we in truth dealing with contempt of court? In answering this question it is useful to look at the context in which Sections 65A to 65M were adopted and the manner in which they have been interpreted until now.72 Legal history shows that Sections 65A to 65M are based on a confluence of two common law principles that were previously separate and to some extent even in conflict with each other. The first related to imprisonment for civil debt, which went back to Roman times; the second was the concept of contempt of court, in terms of which persons could be fined or committed to prison for challenging the dignity or authority of a court, usually because of defying a 72The information on which the following observations are based was culled from the Report of the South African Law Commission on Committal to Prison in Respect of Debt, May 1986. The Report refers to such committal as an 'anomaly' and recommends that it be abolished. 52 \fSACHS J court order. In respect of contempt of court, the common law drew a sharp distinction between orders ad solvendam pecuniam, which related to the payment of money, and orders ad factum praestandum, which called upon a person to perform a certain act or refrain from specified action. Failure to comply with the order to pay money was not regarded as contempt of court, whereas disobedience of the latter order was. Thus, civil imprisonment for failure to pay a debt was a remedy in its own right, not dependent on proof of contempt of court. Conversely, contempt of court proceedings were not used against defaulting judgment debtors. The purport of legislation adopted in the mid-1970's was to reverse the situation: civil imprisonment as an institution was to be abolished, while failure to pay a judgment debt was to give rise to liability to be imprisoned for contempt of court. Sections 65A to 65M, introduced into the Magistrates' Courts Act in 1976, authorized the committal to prison for contempt of court of debtors who had defaulted on judgment debts. The Abolition of Civil Imprisonment Act 2 of 1977, on the other hand, purported to get rid of civil imprisonment, though it did keep alive committal proceedings in the Magistrates\u2019 Courts.73 Judges of the Supreme Court were, however, unconvinced either that civil imprisonment had been abolished or that the real reason why debtors in the Magistrates\u2019 Courts were being committed to prison was for contempt of court. Looking at the legislative history, Van Dijkhorst J felt compelled to declare that \"die daad wat strafbaar gestel word is ... die wanbetaling van die vonnisskuld\" (the act that is made punishable is the failure to pay judgment debt), and that in reality civil imprisonment 73Section 3. 53 \fSACHS J was re-introduced \"onder die dekmantel van minagting van die hof\" (under the cloak of contempt of court).74 In another case,75 the court commented that if regard was had to the wording of Section 65A(1) and 65F(1) \"the so-called contempt of court is a failure to satisfy a civil judgment\".76 In both cases, the court observed that the sections concerned made drastic inroads into the freedom of the individual and had accordingly to be interpreted restrictively rather than extensively. [ 62 ] The mere fact that what the statute refers to as contempt of court could be considered civil imprisonment under another name, (a matter which will be discussed further below), would not, of course, per se make it unconstitutional. Nor does the judicial characterization of the law as being one that makes severe inroads into the freedom of the individual mean that such inroads could not be justified in terms of Section 33. The function of this Court is limited to declaring unconstitutionality in relation to matters properly brought before it, and then only where the legislation concerned clearly resists being construed in a manner which would save it.77 This 74Quentin's v Komane 1983 (2) SA 775 (T) at 778. See also Grosskopf JA in T\u00f6dt v Ipser 1993 (3) SA 577 (A) at 588 describing the whole process as being in effect one of civil imprisonment. 75Van der Bergh v John Price Estates and Others 1987 (4) SA 58 (SE). 76See also Knott v Tuck 1968 (2) SA 495 (D) at 496H; Hofmeyr v Fourie; BJBS Contractors (Pty) Ltd v Lategan 1975 (2) 590 (C) at 590-600; Erasmus v Thyssen 1994 (3) 797 (C). 77Section 232(3) provides that if a restricted interpretation of the law concerned is possible, which would save it from making unconstitutional inroads into fundamental rights, then such interpretation must be favoured, even if it went against the prima facie meaning of the words in question. This section gives expression to the principle well known in other jurisdictions as \u2018reading down\u2019. Hogg points out that reading down allows the bulk of the legislative policy to be accomplished, while trimming off those applications that are constitutionally bad. See Hogg supra at 393-4. Like severance, it mitigates the impact of judicial review, but reading down achieves its remedial purpose solely by the interpretation of the challenged statute, whereas severance involves holding part of the statute to be invalid. It is still primarily the task of Parliament, not this Court, to adapt the laws of the country to the new democratic and rights-based dispensation. 54 \fSACHS J latter principle does not, of course, imply the opposite, namely that fundamental rights would have to be narrowly interpreted in order to keep legislation alive. Section 232 (3) would permit a pared-down construction of legislation so as to rescue it from being declared invalid; it would not require a restricted interpretation of fundamental rights so as to interfere as little as possible with pre-existing law.78 Furthermore, it would not be the function of the court to fill in lacunae79 in statutes that might not have been visible or regarded as legally significant in the era when parliamentary legislation could not be challenged, but which would become glaringly obvious in the age of constitutional rights; the requirement of reading down would not be an authorization for reading in. Critiques of Sections 65A to 65M [ 63 ] Mr Du Plessis contended on behalf of the Association of Law Societies that save for one fatal defect, the procedures outlined in Sections 65A to 65M were not only not unfair, but necessary to ensure that people paid their debts and that debt-collecting was conducted in an orderly way and not through what he termed the law of the jungle. The essence of Mr Du Plessis\u2019 argument can be summed up as follows: The threat of committal for a short period is not an inappropriate sanction for debtors who are able to pay, but refuse to do so. Without some penalty of this kind, the whole of debt- 78See Kentridge AJ in Zuma supra at 411E-G. 79See Hunter et al v Southam Inc 11 DLR (4th) 641 (1984) per Dickson J (as he then was) at 659: It should not fall to the courts to fill in the details that will render legislative lacunae constitutional. 55 \fSACHS J collecting can come to be regarded more as a matter of benign entreaty than of serious law enforcement. Worse still, strong-arm methods of debt-collecting, far more deleterious in the result than a period in prison, would inevitably follow. Far from being over-severe, a well-focused process could be quite appropriate for the objective to be achieved, namely to separate out the reprobate from the unfortunate. The correct balance between the rights of creditors and debtors would be maintained. The rule of law would be upheld. Any limitation on personal freedom that might result would be the consequence not of a harsh law, but of a conscious decision by the recalcitrant debtor to defy the court order; it would not be too drastic in the circumstances; and it would be under judicial control and function according to clearly prescribed criteria. It was reasoning along these lines which underlay Mr Du Plessis\u2019 request, on behalf of the Association of Law Societies, that we exercise our discretion to keep the current debt-collecting procedure alive while Parliament remedied what he regarded as a technical and procedural defect in a well-tried, legitimate and socially-necessary legal institution. [ 64 ] As far as counsel for the Applicants and the Government were concerned, however, the institution was intrinsically bad because it represented a continuation of civil imprisonment, under another name. In their view, it was profoundly violatory of fundamental rights in its application, and beyond repair by Parliament. For the purposes of this judgment, it is not necessary to recapitulate all their arguments or to analyse the supporting materials they made available to us. Nor is this Court obliged to make a definitive finding on whether or not the committal proceedings in Sections 65A 56 \fSACHS J to 65M are constitutionally retrievable or not. Yet it is appropriate to examine Mr Du Plessis\u2019 arguments with some attention, since if I am convinced that his overall evaluation of the committal proceedings is correct, then I could be more easily persuaded than otherwise to accede to his request to give an order in terms of Section 98(5) which would enable the committal proceedings to be rescued by Parliament. [ 65 ] If we look at the text not in abstract, but in its actual legal-historical setting and socio-economic context, and if we are sensitive both to its purpose and to its impact,80 we find strong suggestions to the effect that it does indeed represent a form of civil imprisonment in disguise, retained as a relatively quick and inexpensive means of frightening small debtors into paying up without following the procedures regarded as appropriate in the case of larger debtors. In other words, the defects might be symptomatic of a deeper unconstitutionality, so that even if each imperfect procedural detail were to be corrected, we might still be left with an unconstitutional legal institution. The picture of the operation of the provisions, as painted for us by all three counsel, was that of an institutionalized and systematic instrument of debt collecting, rather than that of a badly-tailored, yet nevertheless individualized, back-up process to deal with occasional recalcitrant and contumacious debtors; the difference between counsel was that Mr Du Plessis, in the name of the Association of Law Societies, thought the system as such was necessary and justifiable, while counsel for the Applicants and the Government thought it was not. 80See cases referred to in note 89 below. 57 \f[ 66 ] As I have said, Sections 65A to 65M do indeed describe the penalty imposed SACHS J on a defaulting debtor as being based on contempt of court, which is a well recognised legal institution of manifest virtue if properly utilized. Yet even in technical terms, there must be doubts as to whether this description is accurate. The proceedings lack the essential elements of criminal contempt of court, in that the imposition and continuation of the penalty is dependent on the will of the judgment creditor and not the court (other than through imposing the sentence).81 It is also doubtful whether it properly qualifies as civil contempt of court. A judgment debtor should in principle not be held liable through his or her person, life or liberty, for the payment of a debt, but only through the aggregate of his or her means. The long-standing distinction made in common law between orders ad pecuniam solvendam and those ad factum praestandum is therefore founded on logic and principle.82 Thus, whatever terminology may be used, we could well be dealing in reality with civil imprisonment and not with contempt of court. The essence of civil imprisonment, even in its milder forms, has always been that the debtor pays with his or her body. The Afrikaans word gyselaar (hostage) comes from the contract recognized in Roman Dutch law in terms of which a freeman pledged his person as suretyship for performance. Behind its verbal description, the committal process embodied in Section 65A can be said still to amount in practice to a form of ransom which family and friends are forced to pay to secure the release of the debtor, the only two differences being that the period is limited to ninety 81See, however, Jones and Buckle supra at 273, where the contrary position is argued. 82Specific performance, which requires the person concerned to do or to refrain from doing an identified act (such as handing over a motor car or ceasing to molest someone) by its nature can only be carried out in a particular way, whereas in the case of debt, there are other means of ensuring compliance with the court order, and if these means fail because it is impossible for the debtor to perform, then there is no real contempt of court. 58 \fSACHS J days, and that the State pays for maintenance rather than the creditor.83 Viewed historically, civil imprisonment can hardly be regarded as a tried and tested remedy deeply rooted in progressive legal tradition and necessary in a democratic society. Over the centuries and decades, its ambit has been progressively restricted so that now all that is left of it is its attenuated existence in relation to debtors hauled before the Magistrates\u2019 Court; like the Cheshire cat, it has disappeared bit by bit leaving only, not a smile, but a frown. The broad question before us would be whether, in the open and democratic society contemplated by the Constitution, it could ever be appropriate to use imprisonment as a means of ensuring that creditors got paid in full, bearing in mind that the amount to be collected would often fall below the costs of collection, not to speak of the costs to the taxpayer of keeping the debtor in prison.84 It is evident from the statistical data presented to us85 that committal to prison is in reality mainly for relatively small amounts and largely for debt in respect of goods purchased, services rendered and money borrowed. Mr Du Plessis argued that the expense to be considered would not be that of sending people to prison for trifling amounts, but rather the cost of keeping the spectre of prison sufficiently alive and deterrent 83Cf Hofmeyr v Fourie supra at 599-600. 84This could have been a factor in producing the unusual situation where it was government that asked for a simple striking down of the offensive portions of the statute, while the Association of Law Societies urged us to keep them alive pending rectification. 85In the period 1977 to 1984 the number of civil summonses for debt issued each year rose from 587,000 p.a. to 666,000 p.a. while the number of committals increased sharply from 3,600 p.a. to 9,000 p. a. A random sample showed that 37% of imprisoned debtors owed less than R100, and 83% less than R500. On average, the debtors were sentenced to 31 days each, and served 9 before being released. The causes of debt were principally goods purchased (62%), professional services - mainly to doctors and lawyers (12%), money borrowed (9%) and other services (8%). Unfortunately, the detailed statistics made available to us were not up to date, but even allowing for inflation, the amounts involved would still be relatively trivial. We were informed that the number of committals increased to approximately 18,000 p.a., or, as Mr Navsa put it, two every hour. It appears, however, that in 1994, when the new Constitution came into force, the number dropped sharply to 3,700 p.a.. See the affidavit of Johan Jacob Arno Botha submitted on behalf of the Association of Law Societies. 59 \fSACHS J (afskrikwekkend) to compel the great majority of debtors to pay up. When properly examined, however, this argument seems to condemn rather than support the institution of committal proceedings, under Sections 65A to 65M. The persons most vulnerable to committal orders would be precisely those who were unemployed, and thus could not be subject to emoluments orders,86 and those who did not have any property which could be attached.87 To penalize the workless and the poor so as to frighten those a little better off would be exactly the kind of instrumentalising of human beings which the concept of fundamental rights was designed to rebut.88 To suggest that thousands of people would rather go to jail than satisfy relatively small debts within their capacity to pay, strains the imagination. There is thus support for Mr Navsa\u2019s claim that the object of the system would be to send to jail those who could not pay in order to get money out of those who could pay. The borderline between ability to pay and refusal to pay would be a shadowy one; resigned and bewildered debtors, confused by complicated and technical notices, would inevitably get caught up with the truly recalcitrant debt- dodgers who defiantly refused to pay even when they could. [ 67 ] Furthermore, even if the corrected law were to be overtly neutral in its language, its operational effect would to a degree be discriminatory89 in that the rich 86Section 65J. 87Section 65E. 88Chaskalson P in Makwanyane supra at 723A; Langa J in Williams at 886F-G. 89Though judgment creditors in the superior courts can and do transfer judgment debts to the Magistrates\u2019 Courts for enforcement in terms of section 65M, the statistics quoted indicate that the overwhelming majority of cases are for relatively small sums. As Dickson CJC said in the Canadian case of Morgentaler supra at 408. As is so often the case in matters of interpretation ... the straightforward reading of this statutory 60 \fSACHS J who did not pay their debts would in practice be dealt with in the Supreme Court by bankruptcy procedures which respected due process, while the non-paying poor would continue to be faced with summary committal in the Magistrates\u2019 Court. It seems strange indeed that the lower courts, using attenuated procedures in relation to smaller debtors less able to defend themselves, would have greater coercive powers than would the superior courts using normal due process in relation to larger debtors, better able to assert their rights.90 [ 68 ] Finally, we must take into account the fact that other efficacious remedies would be available to judgment creditors. It would not be easy to substantiate the existence of an imperative need to use committal orders. The civil law, in fact, would provide a series of remedies for non-payment of contractual debts. These would vary depending on the nature of the contract: repossession or holding on to goods in some cases, scheme is not fully revealing. In order to understand the true nature and scope of (the section), it is necessary to investigate the practical operation of the provisions. See also his observation in Thomson Newspapers supra at 241: The courts ... cannot remain oblivious to the concrete, social, political and economic realities within which our system of constitutional rights and guarantees must operate. For the need generally to look not only at the purpose of a statute but its effect, see Pentney in Canadian Charter of Rights and Freedoms supra at 32-34. See also, White J's dissent in City of Mobile, Alabama v Bolden 446 US 55 (1980) at 102 on the importance of looking at the totality of circumstances to ensure that the 'design and impact' of a challenged legal scheme is appraised in the light of past and present reality, political and otherwise as discussed in L Tribe, American Constitutional Law (2nd ed. 1988) at 1502 et seq. The latest trend in the US Supreme Court has been the other way. See the criticism by Tribe at 1502. 90The fundamental problem would seem to be that if, as was pointed out by Ackermann J in Makwanyane supra at 728G-729A, due process is almost impossible to achieve de maximis because of the severity of the outcome (capital punishment), it is equally difficult to accomplish de minimis (jail for collecting small debts), where the relative triviality of the interest involved is overwhelmed by the cumbersome machinery required for its protection, bearing in mind that jail is involved. See comment by Jansen and Brand, Civil Imprisonment, Debt Collection and Section 65 of the Magistrates\u2019 Courts Act, Centre for Human Rights Occasional Papers, No 7, 1995 at para 9. 61 \fSACHS J evictions from premises, cutting-off of services, attachment and sale of property and deduction from wages in others. Where the assets were insufficient to cover liabilities, bankruptcy proceedings could be instituted with a view both to recovering hidden assets and to ensuring appropriate distribution of what was available. The specific remedies, other than imprisonment, which Sections 65A to 65M themselves would provide, would include: sale in execution of goods; attachment of debts due; emoluments orders and an order to pay in instalments. Another section would provide for what would amount to sequestration.91 Furthermore, creditors could arrange different forms of security for debts, ranging from mortgages to pledges to sureties. Rather than extend credit freely and then rely on the threat of imprisonment to ensure that the debt is paid, persons could prudently calculate the risks they undertook, and then depend on normal methods of securing payment where the means for such payment existed. This need not require their denying credit to the poor, but, rather, their treating the poor with the same circumspection they would apply to the better-off. [ 69 ] For the purposes of this judgment it is neither necessary nor desirable to make definitive findings on any of the above matters. Suffice to say that the constitutional vice at the heart of the committal proceedings cannot be identified with total assurance as being limited merely to the failure to provide a hearing, nor in my view, simply to the defects listed by Didcott J and Kriegler J. There are weighty arguments in favour of considering the institution as being more profoundly vitiated. 91Section 74(1) of the Magistrates\u2019 Courts Act 32 of 1944 as amended provides for the appointment of an administrator of a debtor\u2019s estate where the debtor inter alia has insufficient assets capable of attachment to satisfy a judgment or the debtor\u2019s financial obligations. 62 \f[ 70 ] Having rejected the minimalist position of contended for by Mr Du Plessis, SACHS J however, I feel it equally necessary to refuse to accept the maximalist claims of Mr Navsa. As I have stated above, the answer to the problem of constitutionality cannot be found in an abstract, either/or decision over whether the practice in the Magistrate\u2019s Court can be defined as civil imprisonment and as such automatically fall to be rejected as unacceptable (argument for both the Applicants and the Government tended to be along these lines). Rather, it would depend on an evaluation of whether, in their actual setting and operation, the provisions would involve concretely identifiable and constitutionally-indefensible invasions of the right to personal freedom. Looked at in relation to the request by the Association of Law Societies, which does not relate to constitutionality but to the appropriate order to be made, the issue presently before us is whether the institution under consideration is in itself so non-problematic and worthy of being kept alive that we should exercise our discretion under Section 98(5) in favour of this course. [ 71 ] My conclusions, on this point, are as follows: when the Law Commission says committal of judgment debtors is an anomaly that cannot be justified and should be abolished; when it is common cause that there is a general international move away from imprisonment for civil debt, of which the present committal proceedings are an adapted relic; when such imprisonment has been abolished in South Africa, save for its contested form as contempt of court in the Magistrate's Court; when the clauses concerned have already been interpreted by the courts as restrictively as possible, without their constitutionally offensive core being eviscerated; when other tried and 63 \fSACHS J tested methods exist for recovery of debt from those in a position to pay; when the violation of the fundamental right to personal freedom is manifest, and the procedures used must inevitably possess a summary character if they are to be economically worthwhile to the creditor, then the very institution of civil imprisonment, however it may be described and however well directed its procedures might be, in itself must be regarded as highly questionable and not a compelling claimant for survival. [ 72 ] This is not to say that there could never be circumstances which could justify the use of the back-up of prison to ensure that court orders for payment of judgment debts were obeyed in the same way as other orders. We are not called upon to decide this question at the moment, nor do we have sufficient material before us to make a definitive finding. The legislature, if it so chose, would be better placed than ourselves to do the requisite research, canvass opinions and receive information; it could give full consideration to relevant, inter-related factors, such as the proper management of debt collection, the way in which credit is extended, remedies for ensuring fulfilment of obligations and the proper use of court time and prison facilities. It could weigh up all the competing considerations and take account of cost implications and the availability of court and prison officials. If it chose to undertake such an investigation it would, in my opinion, have to operate within the following framework: (i) (ii) The process should not permit the imprisonment of persons merely because they were unable to pay their contractual debts; The procedures adopted would have to be manifestly fair in all the circumstances; 64 \f(iii) Imprisonment, involving as it does a major infringement of the right to personal freedom, would have to be the only reasonably available way of achieving the stated objectives. SACHS J II THE APPROPRIATE ORDER [ 73 ] In the light of the above evaluation of the use of committal proceedings for non- payment of judgment debts, I proceed to answer the question raised at the beginning of this judgment, namely, whether or not this Court should use its powers in terms of Section 98(5) to keep such proceedings alive. If my overall assessment is correct, then the necessity for retaining what amounts to a sanitized form of civil imprisonment has not been established. There accordingly seems to be little reason for pressurizing Parliament into considering these questions as a matter of priority, which use of Section 98(5) powers would require it to do. The Association of Law Societies did suggest a course of action which would result in the coming into existence of such a reason. They argued that the committal procedures were so bound up with and central to the application of the remaining debt collecting provisions, that removing imprisonment and the threat of prison would lead to the collapse of the entire system. They accordingly urged us to strike down Sections 65A to 65M as a whole and, then, in order to avoid a chaotic situation from arising in the entire area of debt-collection, to use our powers in terms of Section 98(5) to put Parliament on terms to correct the defects. Committal proceedings would then continue, pending appropriate remedial action by Parliament. 65 \fSACHS J [ 74 ] This raised the question of severability, namely, whether the impugned provisions could be excised from the rest of Sections 65A to 65M, or whether these sections must fall in their totality. If we were to follow the proposal of the Association of Law Societies, (surprisingly, in this respect, supported by the Applicants), then no debt-collecting procedures in the Magistrates\u2019 Court would remain, and the need to exercise our \u2018life-saving\u2019 discretion would indeed be great. [ 75 ] Severability is an important concept in the context of the relations between this court and Parliament; like \u2018reading down\u2019, it is an instrument of judicial restraint which reduces the danger of producing an overbroad judicial reaction to overbroad legislation. I agree with Kriegler J\u2019s analysis of the matter, subject to one methodological qualification I feel worth mentioning. It is the following: in deciding whether the legislature would have enacted what survives on its own, we must take account of the coming into force of the new Constitution in terms of which we receive our jurisdiction, and pay due regard to the values which it requires us to promote. We must, accordingly, posit a notional, contemporary Parliament dealing with the text in issue, paying attention both to the constitutional context and the moment in the country's history when the choice about severance is to be made. It is in this context that we must decide whether the good can be separated from the bad. In the instant case, the excisions which my colleague proposes would leave a statutory provision that in my view is linguistically sustainable, conceptually intact, functionally operational and economically viable; I agree with them. 66 \f[ 76 ] Having separated the good from the bad, would it then be in the interests of SACHS J justice and good government to keep the bad in existence to give it a chance to become part of the good? The words \u2018in the interests of justice and good government\u2019 are widely phrased and, in my view, it would not be appropriate, particularly at this early stage, to attempt a precise definition of their ambit. They clearly indicate the existence of something substantially more than the mere inconvenience which will almost invariably accompany any declaration of invalidity, but do not go so far as to require the threat of total breakdown of government. Within these wide parameters, the Court will have to make an assessment on a case-by-case basis as to whether more injustice would flow from the legal vacuum created by rendering the statute invalid with immediate effect, than would be the case if the measure were kept functional pending rectification. No hard and fast rules can be applied. In the present case, we are dealing with one of the core values of the Constitution. As I have endeavoured to show at some length, we cannot say with confidence that all that is needed to rectify the defect in the sections concerned is a simple set of technical amendments. It is intolerable, once the unconstitutionality of imprisonment of judgment debtors has been established, that persons should continue to be detained under the impugned provisions. It has not been established that ending committal proceedings will impair justice or interfere with good government in any drastic or irreparable way. The other remedies provided for in Sections 65A to 65M remain available to creditors. There is no reason why we should insist on a rapid decision by Parliament, one way or the other, either to accept the continuance of Sections 65A to 65M in their truncated form, or else to modify them in the light of the principles enunciated by this Court. Many issues 67 \fSACHS J which were raised before us could be considered at the appropriate time in that forum, basing itself on the kinds of broadly-based enquiry we are not in a position to undertake: for example, whether or not the whole area should be decriminalized,92 or whether a procedure should be developed in terms of which failure to attend a debt enquiry hearing, or the deliberate concealment of assets, should be made criminal offences to be prosecuted in the ordinary way.93 Policy choices of this kind, provided they are resolved within constitutional limits, belong to Parliament, not to this Court, and it would be invidious for us to pre-empt the issue by making an order keeping the present system alive pending legislative modifications. I accordingly do not think it right to accede to Mr Du Plessis\u2019 request, and for the reasons advanced above, agree fully with the order proposed by Kriegler J. AL Sachs 92In the comment referred to in note 90, Jansen and Brand propose that the entire system be de- criminalised; that the law concentrate on effective means of attachment; and that simple and effective measures be designed to extinguish debts that cannot realistically be paid. 93See South African Law Commission Further Report of August 1994. 68 \fMOKGORO J [ 77 ] MOKGORO J: I have had the opportunity to read the judgments of Kriegler J, Didcott J, Langa J and Sachs J. I respectfully agree with the order proposed by Kriegler J. To the extent that he articulates the values which underlie the fundamental rights and interests at stake in the circumstances of the issue before us, I concur in the approach and conclusions of the judgment of Sachs J. Y Mokgoro 69 \fFor the Applicants in both matters: MS Navsa SC and L Mpati instructed by the Legal Resources Centre. For the First and Second Respondents in the Coetzee matter: D Potgieter instructed by the State Attorney. For the Association of Law Societies (as amicus curiae): JC du Plessis of Du Plessis & Eksteen. 70"], "max_length_judgement_paras": 19935}, {"title": "Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others (CCT27/95) [1995] ZACC 8; 1995 (10) BCLR 1289; 1995 (4) SA 877 (22 September 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/8.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-8.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/8.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nIn the matter of:\n\nTHE EXECUTIVE COUNCIL OF THE WESTERN CAPE\nLEGISLATURE\n\nTHE PREMIER OF THE WESTERN CAPE\n\nTHE MINISTER OF LOCAL GOVERNMENT\n(WESTERN CAPE)\n\nSTAFFORD PETERSEN\n\nLESLEY HELENE ASHTON\n\nand\n\nCASE NO CCT 27/95\n\nFirst Applicant\n\nSecond Applicant\n\nThird Applicant\n\nFourth Applicant\n\nFifth Applicant\n\nTHE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA\n\nFirst Respondent\n\nTHE MINISTER FOR PROVINCIAL AFFAIRS AND\nCONSTITUTIONAL DEVELOPMENT\n\nTHE MINISTER OF JUSTICE\n\nKAMALASEN CHETTY\n\nC B HERANDIEN\n\nHeard on:\n\n16 August, 30 August and 14 September 1995\n\nDelivered on: 22 September 1995\n\nJUDGMENT\n\nSecond Respondent\n\nThird Respondent\n\nFourth Respondent\n\nFifth Respondent\n\n\f[ 1 ] CHASKALSON P: This case involves fundamental questions of constitutional law. At\n\nissue are matters of grave public moment concerning the imminent local government\n\nelections. We would have preferred more time for consideration of these questions and\n\nthe formulationof our views. Time does not permit that however. Because of the urgency\n\nof the matter and its possible impact on the local government elections there is a pressing\n\nneed to announce our conclusions and basic reasoning within the shortest possible time.\n\nIntroduction\n\n \n\n[ 2 ]\n\nThe case arises from a dispute between the Executive Council of the Western Cape and the\n\nnational government relating to the validity of amendments to the Local Government\n\nTransition Act (the \u201cTransition Act\").1 These amendments were effected by the President\n\nby proclamation purporting to act in terms of powers vested in him under the Transition\n\nAct. The validity of the proclamations embodying the amendments was challenged on\n\nconstitutional and non-constitutional grounds. \n\n[ 3 ]\n\nThe constitutional challenge was lodged with the Registrar of this Court at the end of June\n\n1995 with a request that it be dealt with as a matter of urgency.2 It was said that if the\n\ndispute was not resolved promptly the local government elections within the Cape Town\n\nmetropolitan area could not be held on the date planned, namely 1 November 1995. All\n\nthe parties asked us to deal with the matter as one of urgency. It was set down for hearing\n\non 16 August 1995 (the term commenced on 15 August) and directions were given in terms\n\n1 No. 209 of 1993.\n\n2 In terms of Rule 17 of the Rules of the Constitutional Court.\n\n2\n\n\fof Rule 17(5) for the speedy disposal of the preparatory phases of the case.\n\nCHASKALSON P\n\n[ 4 ] A simultaneous challenge on non-constitutional grounds, seeking to review the validity of\n\nthe proclamations as an abuse of the authority vested in the President, was launched in the\n\nCape Provincial Division of the Supreme Court (the \u201cCPD\u201d). The matter was dealt with\n\nas one of urgency and on 11 August 1995 the CPD (per Conradie J, K\u00fchn J concurring)\n\ndismissed the case.\n\n[ 5 ]\n\nThe relief sought by the Applicants in their original notice of motion to this Court was for\n\nan order for the following:\n\n1.\n\nGranting them direct access to this Court in terms of section 100(2) of the\n\nConstitution3 read with Rule 17, declaring unconstitutional certain amendments to\n\nthe Transition Act effected by Proclamations R 58 of 7 June 1995 and R 59 of 8\n\nJune 1995 (the \u201cProclamations\u201d), and the Proclamations themselves.\n\n2.\n\nSetting aside the appointment of the Fourth and Fifth Respondents as members of\n\nthe Provincial Committee for Local Government for the Western Cape Province\n\n(the \u201cCommittee\u201d) which had been effected pursuant to Proclamation R 58 and\n\nreinstating the Fourth and Fifth Applicants as members of the Committee (which\n\nhad been effected by the Third Applicant prior to the enactment of the\n\nProclamations).\n\n3 Act No. 200 of 1993.\n\n3\n\n\f3.\n\nDirecting that the First, Second and Third Respondents be jointly and severally\n\nliable for the costs of this application and that if the Fourth and Fifth Respondents\n\nopposed the application that all the Respondents be jointly and severally liable for\n\nCHASKALSON P\n\nsuch costs.\n\n[ 6 ]\n\nSection 245(1) of the Constitution provides that\n\nUntil elections have been held in terms of the Local Government Transition\nAct, 1993, local government shall not be restructured otherwise than in\naccordance with that Act.\n\nThe Transition Act was assented to on 20 January 1994, approximately three months\n\nbefore the Constitution came into force. It provides the machinery for the transition from\n\na racially based system of local government to a non-racial system. It establishes the\n\nprocess to be followed in order to reach this goal, a process which was to commence\n\nwhen the Act came into force on 2 February 1994, and to continue until the holding of the\n\nfirst non-racial local government elections which would take place on a date to be\n\npromulgated by the Minister of Local Government in the government of national unity.4\n\n[ 7 ]\n\nThe Constitution itself makes provision for the complex issues involved in bringing\n\ntogether again in one country, areas which had been separated under apartheid, and at the\n\nsame time establishing a constitutional state based on respect for fundamental human rights,\n\nwith a decentralised form of government in place of what had previously been\n\nauthoritarian rule enforced by a strong central government. On the day the Constitution\n\n4 Section 9(1) of the Transition Act. Ministerial responsibility was subsequently assigned to the Minister\nof Provincial Affairs and Constitutional Development in the government of national unity and the Transition Act\nwas amended by Presidential proclamation to reflect this. Proclamation No. R. 129 of 1994. The validity of that\nProclamation is also called into question in this case.\n\n4\n\n\fCHASKALSON P\n\ncame into force fourteen structures of government ceased to exist. They were the four\n\nprovincial governments, which were non-elected bodies appointed by the central\n\ngovernment, the six governments of what were known as self governing territories, which\n\nhad extensive legislative and executive competences but were part of the Republic of\n\nSouth Africa, and the legislative and executive structures of Transkei, Bophuthatswana,\n\nVenda and Ciskei which according to South African law had been independent states. \n\nTwo of these States were controlled by military regimes, and at the time of the coming into\n\nforce of the new Constitution two were being administered by administrators appointed\n\nby the South African authorities. The legislative competences of these fourteen areas were\n\nnot the same. Laws differed from area to area, though there were similarities because at\n\none time or another all had been part of South Africa. In addition the Constitution was\n\nrequired to make provision for certain functions which had previously been carried out by\n\nthe national government, to be transferred as part of the process of decentralisation to the\n\nnine new provinces which were established on the day the Constitution came into force,\n\nand simultaneously for functions that had previously been performed by the fourteen\n\nexecutive structures which had ceased to exist, to be transferred partly to the national\n\ngovernment and partly to the new provincial governments which were to be established.\n\nAll this was done to ensure constitutional legislative, executive, administrative and\n\njudicial continuity.\n\n[ 8 ]\n\nThe mechanism for this process is contained in Chapter 15 of the Constitution in a series\n\nof complex transitional provisions dealing with the continuation of laws, and the\n\ntransitional arrangements for legislative authorities, executive authorities, public\n\n5\n\n\fCHASKALSON P\n\nadministration, the courts, the judiciary, the ombudsman, local government, the transfer\n\nof assets and liabilities and financial matters such as pensions and the like. The dispute\n\nin the present case depends on the interpretation of some of these provisions. I mention\n\nthe complexity of the process because it is relevant to arguments addressed to us in regard\n\nto how we should interpret the relevant provisions.\n\n[ 9 ]\n\nSection 235(8) of the Constitution empowered the President to assign the administration\n\nof certain categories of laws to \"competent authorities\" within the jurisdiction of the\n\nvarious provinces who, by definition, were authorities designated by the Premiers. Some\n\ntime after the Constitution came into force the President, purporting to act in terms of\n\nsection 235(8), assigned the executive authority for the administration of the Transition\n\nAct to provincial administrators to be designated by the Premiers of each of the provinces.\n\nSection 235(8) also empowered the President when he assigned the administration of a\n\nlaw, or at any time thereafter, to amend or adapt such law in order to regulate its\n\napplication or interpretation. This was permissible \"to the extent that [the President]\n\nconsiders it necessary for the efficient carrying out of the assignment.\" When the President\n\npurported to assign the administration of the Transition Act to administrators in the\n\nprovinces, he also purported to amend the law in terms of his powers under section\n\n235(8). No objection was made by the Applicants at that time to the assignment or to the\n\namendments to the Transition Act. In fact, the Third Applicant claims to be the\n\nAdministrator in the Western Cape by virtue of such an assignment.\n\n[ 10 ] The process of restructuring of local government under the Transition Act proceeded and\n\n6\n\n\fCHASKALSON P\n\non 23 November 1994 Parliament amended the Act to include a provision under which the\n\nPresident was vested with the power to amend the Act by proclamation. He could do this\n\nprovided the Committees on Provincial and Constitutional Affairs of the Assembly and the\n\nSenate consented to the amendments. There was also a requirement under which the\n\namendments had to be tabled in Parliament and would fall away if Parliament passed a\n\nresolution disapproving of them. Once again no objection seems to have been taken at the\n\ntime by the Applicants to the constitutionality of this amendment. A number of\n\nproclamations were passed in terms of this provision, and no challenge was made prior\n\nto June 1995 to their constitutionality.\n\nFactual Background\n\n[ 11 ] On the day that the assignment of the administration of the Transition Act and the\n\nconsequential amendments were made (15 July 1994), the Second Applicant (the Premier\n\nof the Western Cape) designated the Third Applicant (the Minister of local government in\n\nthe Western Cape) as the competent authority for the administration of the Transition Act\n\nfor the Western Cape Province. In terms of the Transition Act, the Administrator\u2019s duties\n\nincluded the demarcation and delimitation of the Western Cape into areas of jurisdiction\n\nof transitional councils and transitional metropolitan sub-structures for the purposes of the\n\nlocal government elections anticipated to be held on 1 November 1995. Section 4(1) of\n\nthe Transition Act required the Administrator to exercise any power conferred on him by\n\nthe Act with the concurrence of the Provincial Committee, a body which (in terms of\n\nsection 3(2) of the Transition Act) has to be \u201cbroadly representative of stakeholders in\n\n7\n\n\fCHASKALSON P\n\nlocal government\u201d; section 4(1) requires the Administrator to exercise any power\n\nconferred on him by the Transition Act with the concurrence of the Provincial Committee;\n\nand section 4(3) then provides that where they fail to concur, the matter is to be resolved\n\nby the Special Electoral Court.\n\n[ 12 ] The Transition Act as originally enacted provided that after the establishment of provincial\n\ngovernment in a province members of a Provincial Committee would hold office during\n\nthe pleasure of the Executive Council of that provincial government and that vacancies\n\nwould be filled by the Executive Council. When the events which gave rise to the present\n\ndispute occurred, Mr A Boraine and Mr E Kulsen were members of the Committee.\n\nKulsen resigned on 21 February 1995 and on 10 May 1995 the Third Applicant raised the\n\nquestion of Boraine\u2019s membership of the Committee with the First Applicant, which\n\nresolved to delegate to the Third Applicant the power to dismiss Boraine and to fill the\n\ntwo vacancies. The Third Applicant exercised that power by advising Boraine on 11 May\n\n1995 that his membership was being terminated and by appointing the Fourth and the Fifth\n\nApplicants in the place of Boraine and Kulsen on 17 May 1995. The reconstituted\n\nCommittee met on 23 May 1995 and four of its six members (including the Fourth and Fifth\n\nApplicants) approved the demarcation proposal of the Third Applicant.5 The other two\n\nmembers of the Committee (and Boraine) were opposed to the Third Applicant\u2019s\n\ndemarcation proposal. His actions made it possible for him to avoid referring to the\n\n5 The Local Government Demarcation Board for the Western Cape, a statutory advisory body appointed\nin terms of section 11 of the Transition Act, had recommended dividing the Cape Town metropolitan area into six\nsub-structures. The Third Applicant\u2019s proposal combined the Board\u2019s proposed Southern and Central sub-\nstructures and its Tygerberg and Eastern sub-structures, and moved the predominantly black residential townships\nof Lingelethu West and Khayelitsha from Tygerberg into the consolidated Central sub-structure.\n\n8\n\n\fCHASKALSON P\n\nSpecial Electoral Court the dispute which would otherwise have arisen between him and\n\nthe Committee with regard to his demarcation proposal.6 Intensive negotiations ensued\n\nbetween the major political parties involved and also between representatives of the\n\nprovincial and national government authorities concerned.7 It proved impossible to find\n\ncommon ground, however. In the result the reaction of the central government was for the\n\nFirst Respondent to use his powers under section 16A of the Transition Act to promulgate\n\nthe Proclamations.\n\n[ 13 ] By Proclamation R 58 of 7 June 1995 the First Respondent amended section 3(5) of the\n\nTransition Act by transferring the power to appoint and dismiss Committee members from\n\nthe provincial to the national government.8 The amendment also served to nullify the\n\nappointment by the Third Applicant of the Fourth and Fifth Applicants. The next day the\n\nFirst Respondent amended section 10 of the Transition Act by Proclamation R 59. Before\n\nthis amendment section 10 of the Transition Act had provided the Administrator with wide\n\npowers to make proclamations, inter alia, relating to the demarcation of local government\n\n6 The Committee at all material times consisted of six members while section 3(7)(b) of the Transition\n\nAct requires a two-thirds majority for any of its decisions.\n\n7 Of the two major parties in the Government of National Unity the African National Congress holds the\nmajority in the national government and the National Party holds the majority in the Western Cape government.\n\n8 The amended sub-section reads as follows:\n\n(5)(a) A member of the Committee shall hold office as a member at the Minister\u2019s\n\n(b)\n\npleasure.\nAny vacancy in the membership of the Committee arising for any reason shall\nbe filled by a person appointed by the Minister in consultation with the\nMinister of Justice and after consultation with the Premier of the province\nconcerned: Provided that any person so appointed shall have knowledge of\nmatters concerning local government and shall reside within the province\nconcerned.\n\n(c)\n\nAny appointment of a member of the Committee made by the Executive Council of a\nprovince after 30 April 1995, is hereby terminated. \n\n9\n\n\fCHASKALSON P\n\nstructures and the division of such structures into wards. Proclamation R 59 made section\n\n10 subject to the provisions of a new subsection (4), which effectively invalidated\n\nProvincial Committee decisions of the kind in issue taken between 30 April and 7 June.\n\nSection 2 of that Proclamation then rendered the amendment explicitly retroactive. The\n\ncombined effect of the Proclamations was to nullify the appointment of the Fourth and Fifth\n\nApplicants as members of the Committee retroactively and also to nullify the Third\n\nApplicant's demarcation proposal which the Committee had approved on 23 May 1995.\n\nOn 15 June 1995 the Second Respondent, acting in consultation with the Third Respondent\n\nand after consultation with the Second Applicant, appointed the Fourth and Fifth\n\nRespondents as members of the Committee to replace Boraine and Kulsen.\n\n[ 14 ] That sequence of events led to the Applicants challenging the Proclamations before the\n\nCPD and in this Court. This set in motion a chain of events which has culminated in the\n\nApplicants challenging the constitutional validity of section 16A of the Transition Act, and\n\nthe constitutional validity of the assignment of the administration of the Act to provincial\n\nadministrators. Not only do the Applicants put in issue the validity of the Presidential\n\nproclamation from which the Third Applicant derives his own authority, but in so doing\n\nand in challenging the validity of section 16A they put in doubt the validity of everything\n\nthat has been done under the Transition Act since 15 July 1994, including all the\n\npreparations that have been made for the holding of the elections which are scheduled to\n\ntake place in most of the country on 1 November, barely a month from now.\n\nDirect and Urgent Access\n\n10\n\n\f[ 15 ] The first aspect to be considered is whether urgent and direct access to this Court should\n\nCHASKALSON P\n\nbe granted. The manner in which the Applicants launched their assault on the\n\nProclamations led to considerable difficulty, not only for the Respondents but also for this\n\nCourt. The case was brought on an urgent basis; it was submitted that we had exclusive\n\njurisdiction to hear it and that we should grant direct access to this Court under section\n\n100(2) of the Constitution and Rule 17 of the Constitutional Court Rules. We were told\n\nthat the local government elections in the Cape Town metropolitan area and in the whole\n\nof the Province would be put in jeopardy if the issues were not urgently resolved. It was\n\nimpressed upon us that the Third Applicant could not act without the concurrence of the\n\nCommittee and that, until the dispute regarding the composition of the Committee had been\n\nresolved, arrangements for local government elections in the Western Cape Province\n\nwould be at a standstill. It was pointed out that the disputed validity of the Proclamations\n\nleft in limbo whether it was the national government that had the power to change the\n\ncomposition of the Committee or whether such power still vested in the provincial\n\nauthority concerned. The Respondents agreed that the matter was of such import and\n\nurgency as to justify direct access being afforded to this Court. \n\n[ 16 ] There was disagreement, however, on the question whether the essential dispute falls\n\nwithin the exclusive jurisdiction of this Court. It is unnecessary to decide who is right on\n\nthat issue. It is clear from the provisions of section 98(2)(c) of the Constitution that we\n\ndo have jurisdiction to enquire into the constitutionality of any law and that, in terms of\n\nsection 98(2)(e), we also have jurisdiction to deal with disputes of a constitutional nature\n\n11\n\n\fbetween organs of state at any level of government.9 In any event, the matter has now been\n\nreferred to this Court by the First Respondent in terms of the powers vested in him by\n\nsection 82(1)(d) of the Constitution.10\n\nCHASKALSON P\n\n[ 17 ] Although the elections in the Western Cape metropolitan area are no longer to be held on\n\nthe 1st November, elections in other parts of the Western Cape are scheduled for that date.\n\nThe issues raised in these proceedings could also have an impact on the elections\n\nelsewhere in the country. We are satisfied that we should make every endeavour to\n\nresolve the issues expeditiously and that urgent and direct access to this Court is\n\nwarranted. An appropriate order will therefore be included at the end of this judgment.\n\nApplication to Amend Notice of Motion\n\n[ 18 ] The second aspect to be considered is whether we should grant an application by the\n\nApplicants to amend their notice of motion to include as their first prayer a challenge to\n\nthe validity of section 16A of the Transition Act. The application to amend was made so\n\nbelatedly and diffidently as to cause the Respondents considerable embarrassment and the\n\n9 The relevant provisions of section 98(2) read: \u201cThe Constitutional Court shall have jurisdiction in the\nRepublic as the court of final instance over all matters relating to the interpretation, protection and enforcement\nof the provisions of this Constitution, including-\n\n...\n(c) any inquiry into the constitutionality of any law, including an Act of\nParliament, irrespective of whether such law was passed or made before or\nafter the commencement of this Constitution;\n... [and]\n(e) any dispute of a constitutional nature between organs of state at any level of government...\u201d.\n\n10 That paragraph, inter alia, empowers the President \u201cto refer disputes of a constitutional nature between\n\n... organs of state at any level of government to the Constitutional Court ...\u201d\n\n12\n\n\fCHASKALSON P\n\nCourt no little bother. Ordinarily we would not have allowed it. However, the validity of\n\nthe section is not only central to the present matter but of vital public importance generally.\n\nThe question has to be decided now and any further delay would not be in the public\n\ninterest. For that reason the amendment must be allowed and the Court\u2019s order contains\n\nthe relevant provision to that effect.\n\nSummary of Legal Argument before this Court\n\n[ 19 ]\n\nIn their founding affidavits the Applicants attacked the Proclamations on five separate\n\ngrounds, in substance only one of which was relied upon in the first written argument\n\nlodged preparatory to the hearing. The argument that was persisted in was that the\n\nProclamations were unconstitutional because they invaded the \u201cfunctional or institutional\n\nintegrity\u201d of the Western Cape Province within the meaning of Constitutional Principle\n\nXXII, contained in Schedule 4 to the Constitution read with sections 74(1) and 232(4)\n\nthereof.11 On the day before the hearing the Applicants sought to supplement their attack\n\non the Proclamations by introducing an attack on the Proclamations on the grounds that they\n\nviolated sections 61 and 62 of the Constitution and on the further ground that section 16A\n\nof the Transition Act was itself unconstitutional for its inconsistency with those sections\n\nof the Constitution.12\n\n[ 20 ] Due to the lateness of the introduction of these fresh attacks and due to their possible\n\n11 It was also vaguely contended that the Proclamations were invalid to the extent to which they purported\n\nto have retrospective effect.\n\n12 The full text of section 61 of the Constitution is set out in paragraph [43] below.\n\n13\n\n\fCHASKALSON P\n\nimpact on the outcome of this case, the Court granted a postponement giving the Applicants\n\ntime to augment their submissions and affording the Respondents an opportunity to\n\nchallenge them so that full and proper argument could be presented. Counsel were invited\n\nto consider argument on the possibility that there could be an answer to the Applicants\u2019\n\nattack on section 16A if the First Respondent nevertheless had had the power in terms of\n\nsection 235(8) of the Constitution to do what he had done.\n\n[ 21 ] The Applicants\u2019 augmented written argument, somewhat surprisingly, contained no express\n\nattack on the constitutionality of section 16A. At best there was an alternative\n\nsubmission, relegated to a footnote. The argument also did not deal with the possible\n\napplication of section 235(8) of the Constitution. The Applicants\u2019 augmented written\n\nargument, which consolidated all the grounds on which the Applicants at that stage relied,\n\nlimited the attack on the Proclamations to three submissions. First, their alleged violation\n\nof Constitutional Principle XXII; second, their alleged subversion of sections 61 and 62(2)\n\nof the Constitution; and finally, that section 16A of the Transition Act, duly \u201cread down\u201d\n\nin accordance with section 232(3) of the Constitution so as to authorize only proclamations\n\nwhich do not violate Constitutional Principle XXII or subvert sections 61 and 62(2),\n\nrenders the Proclamations ultra vires that section.\n\n[ 22 ] While the written submissions of the Applicants avoided a substantive attack on section\n\n16A, a supplementary affidavit by the Second Applicant impugned its constitutionality. \n\nBecause of the importance of the point counsel for the Applicants were put to an election\n\nat the resumed hearing on 30 August 1995. After some vacillation they then elected to\n\n14\n\n\fCHASKALSON P\n\napply to amend the notice of motion so as to include a prayer for the striking down of\n\nsection 16A. Counsel for the Respondents opposed the application to amend and - quite\n\njustifiably - renewed a complaint expressed in their written submissions, namely that the\n\nrepeated and unheralded changes of front on the part of the Applicants put the Respondents\n\nin the invidious position of not knowing from time to time what case they were to meet.\n\nThey stressed that no proper explanation had been offered for the vacillation traced above\n\nin relation to proceedings instituted over two months earlier and emphasized that the\n\nimplications of allowing the amendment would be profound. In terms of the proclamations\n\npromulgated under the provisions of section 16A, sections 3, 4, 7, 7A, 8, 9, 10, 10A, 11,\n\n13, 16 and 16B Part VA and Schedules 1 and 4 of the Transition Act had been amended\n\nor inserted or both, some of them amended more than once. Counsel for the Respondents\n\nadvanced ex tempore argument regarding the attack on section 16A and were given an\n\nopportunity to respond further in writing.13 The Respondents also handed in an affidavit\n\nby the First Respondent dealing with his state of mind regarding the jurisdictional\n\nprerequisites to a decision to amend the Transition Act by virtue of the power to amend\n\nconferred on him by sections 235(8) of the Constitution. Relying on the line of reasoning\n\nfollowed in Latib's case14 counsel for the Respondents argued that it was of no\n\nconsequence that the Proclamations cited section 16A as the authority for their\n\npromulgation and not section 235(8) of the Constitution. They argued that, ex facie his\n\naffidavit, the First Respondent had made up his mind on the appropriate facts and had\n\n13 In substance the argument they subsequently lodged did not confront the attack on section 16A. Instead\nthey contended that the attack could not be raised at such a late stage and there was an attempt to outflank the\nargument by relying on section 235(8) of the Constitution.\n\n14 Latib v The Administrator Transvaal 1969(3) SA 186(T) at 190F-191A. See also Avenue Delicatessen\nv Natal Technikon 1986(1) SA 853(A) at 870I-J; Klerksdorpse Stadsraad v Renswyk Slaghuis (Edms) Bpk\n1988(3) SA 850(A) at 873E-F.\n\n15\n\n\fmerely exercised his consequent power under an inappropriate statutory provision.\n\nCHASKALSON P\n\n[ 23 ] Subsequent to the hearing this Court realised that there were questions regarding section\n\n235(8) of the Constitution and related provisions which had not been addressed by counsel\n\nin their written or oral argument. These questions were of such importance that we\n\nconsidered it necessary to afford the parties an opportunity and the Court the benefit of\n\ndebating them. The parties' legal representatives were therefore urgently invited to\n\ncanvass the particular issues at a further hearing set down on 14 September 1995. Having\n\nnow had that further debate we are satisfied that the case ultimately turns on the resolution\n\nof five issues. They are (i) whether the Proclamations fall foul of Constitutional Principle\n\nXXII; (ii) whether they are invalidated by section 61 of the Constitution or (iii) by section\n\n62(2) of the Constitution; (iv) whether section 16A of the Transition Act itself is\n\nunconstitutional; and (v) whether the Proclamations were nevertheless validly promulgated\n\nunder section 235(8) of the Constitution. We proceed to consider each of those issues in\n\nturn.\n\nConstitutional Principle XXII\n\n[ 24 ] The first and main basis of Applicants\u2019 attack on the Proclamations was that they were\n\nunconstitutional by reason of their being in violation of Constitutional Principle XXII\n\nwhich is contained in Schedule 4 of the Constitution. The relevant provision states:\n\nThe national government shall not exercise its powers (exclusive or concurrent) so as\nto encroach upon the geographical, functional or institutional integrity of the\nprovinces.\n\n16\n\n\f[ 25 ]\n\nIt was argued that the terms of the Constitutional Principle were contravened by virtue of\n\nCHASKALSON P\n\nthe fact that the Proclamations and the legislative amendments effected thereby gave \u201c...rise\n\nto a direct assault on the legitimate provincial autonomy and \u2018functional and institutional\n\nintegrity\u2019 \u201d of the Western Cape. The argument on behalf of the Applicants was based on\n\na characterisation of the Constitutional Principles as being immutable and a contention that\n\nthey are of application, along with the other provisions of the Constitution, to \u201call laws\n\nmade or in force and all acts performed during the period of operation of the present\n\nConstitution.\u201d\n\n[ 26 ]\n\nIn support of the argument as to the applicability of the Constitutional Principles, much\n\nreliance was placed on section 232(4) of the Constitution which provides:\n\nIn interpreting this Constitution a provision in any Schedule ... to this Constitution shall\nnot by reason only of the fact that it is contained in a Schedule, have a lesser status than\nany other provision of this Constitution which is not contained in a Schedule, and such\nprovision shall for all purposes be deemed to form part of this Constitution.\n\n \n\n[ 27 ] The argument on behalf of the Applicants amounted to this: the import in section 232(4)\n\nof the Constitution of the phrases \u201cshall not ... have a lesser status than any other provision\n\nof this Constitution\u201d and \u201cshall be deemed for all purposes\u201d admit of no qualification; it\n\nleaves no room for the suggestion that the Constitutional Principles are mere aids to\n\ninterpreting the substantive provisions of the Constitution. If anything, they have a higher\n\nstatus than the rest of the provisions in the Constitution. \n\n[ 28 ]\n\nIn response, the principal argument was that the Constitutional Principles are applicable\n\nto the making of the final Constitution and do not apply in substance to the transitional\n\nperiod. While noting that the contents of the Constitutional Principles may possibly serve\n\n17\n\n\fCHASKALSON P\n\nas an aid to interpreting the other provisions of the Constitution, it was argued that this\n\ncould not be done selectively. He pointed out that if Constitutional Principle XXII was\n\napplicable to the powers and status of provinces under the current Constitution as the\n\nApplicants contended, so too would Constitutional Principle XIX which provides, inter\n\nalia, that \u201c[t]he powers and functions at the national and provincial levels of government\n\nshall include exclusive and concurrent powers. . .\u201d Since section 126 of the Constitution\n\nprovides only for concurrent and no exclusive powers to the provinces, this Constitutional\n\nPrinciple was not intended to be complied with in terms of the current Constitution.\n\nConstitutional Principles XXI(2) and (4), XXIII and XXIV were also cited as examples\n\nof obvious inconsistencies between the current Constitution and the Constitutional\n\nPrinciples, and as indicating that the provisions of the Constitutional Principles dealing\n\nwith the status and powers of provinces related to the future and not the present.\n\n[ 29 ] The Constitutional Principles are a set of thirty-four provisions contained in Schedule 4\n\nof the Constitution. They represent principles which were agreed upon and adopted by the\n\nNegotiating Council of the Multi-Party Negotiating Process to provide definitive\n\nguidelines for the drafting of the final Constitution. The current Constitution makes a\n\nnumber of references to the Constitutional Principles. That they have a significant role to\n\nplay is obvious. The precise ambit of that role is what is in dispute.\n\n[ 30 ]\n\nIn the Preamble the Constitutional Principles are described as a \u201csolemn pact\u201d in\n\naccordance with which the elected representatives of all the people of South Africa should\n\nbe mandated to adopt a new Constitution. \n\n18\n\n\fCHASKALSON P\n\n[ 31 ] Chapter 5 of the Constitution locates their role in the context of a new constitutional text.\n\nIn terms of section 71, the new constitutional text \u201cshall comply with the Constitutional\n\nPrinciples\u201d and that text, even though it would have been passed by the Constitutional\n\nAssembly, \u201cshall not be of any force and effect unless the Constitutional Court has\n\ncertified that all the provisions of such text comply with the Constitutional Principles...\u201d\n\n[ 32 ]\n\nIn terms of section 74 of the Constitution, the Constitutional Principles cannot be repealed\n\nor amended and neither can section 74 itself nor any other provision in Chapter 5 in so far\n\nas it relates to them or to \u201cthe requirement that the new constitutional text shall comply\n\nwith the Constitutional Principles, or that such text shall be certified by the Constitutional\n\nCourt as being in compliance therewith.\u201d\n\n[ 33 ]\n\nIt is necessary to consider section 232(4) of the Constitution in context. It is contained in\n\nChapter 15 which is entitled \u201cGeneral and Transitional Provisions\u201d and the section itself,\n\naccording to the heading, deals with \u201cInterpretation\u201d. Section 232(4) is not conclusive on\n\nthe issue of the exact status of the Constitutional Principles in relation to other provisions\n\nin the current Constitution. The section is of general application to all the Schedules to the\n\nConstitution. It ensures that they are treated for all purposes as if they formed part of the\n\nmain body of the Constitution, and makes clear that they do not have a lesser status than\n\nprovisions located elsewhere in the Constitution. Ordinarily, the position with regard to\n\nmatter contained in a schedule is as set out by Kotze JA in African and European\n\nInvestment Co. Ltd. v Warren and Others 1924 AD 308 at 360:\n\n19\n\n\fNo doubt a schedule or rule attached to a Statute and forming part of it is binding, but\nin case of clear conflict between either of them and a section in the body of the Statute\nitself, the former must give way to the latter.\n\nCHASKALSON P\n\nCraies, Statute Law (7th ed. by Edgar, 1971) at 224, notes:\n\n \u2018A schedule in an Act is a mere question of drafting, a mere question of words. The\nschedule is as much a part of the statute, and is as much an enactment, as any other\npart,\u2019 but if an enactment in a schedule contradicts an earlier clause the clause prevails\nagainst the schedule. (Citation omitted).\n\nSee also Driedger on the Construction of Statutes (3rd ed. by Ruth Sullivan 1994) 278-\n\n284, and Steyn, Die Uitleg van Wette (1981) 151-152. \n\n[ 34 ] Section 232(4) therefore ensures that the Schedules to the current Constitution are regarded\n\nnot merely as an explanatory adjunct subordinated to the clause to which they are attached.\n\n Nor are the Schedules texts lacking constitutional status which could be amended by an\n\nordinary Act of Parliament in terms of section 59; on the contrary, section 232(4)\n\nguarantees that, apart from Schedule 4 (which embodies the Constitutional Principles),\n\nthey can only be amended by a two-thirds majority as provided for in section 64. See also\n\nsection 74(2). Like all provisions of the Constitution they must be interpreted in their\n\ncontext, and if relevant, can be taken into account in interpreting other provisions of the\n\nConstitution.\n\n[ 35 ] The Constitutional Principles indeed have a higher status than the rest of the Constitution\n\nin that they cannot be amended at all (see section 74). This particular status stems from\n\ntheir special function in the matrix of the two-stage constitution-making process agreed to\n\n20\n\n\fduring the Multi-Party Negotiation Process and reflected in the text of the Constitution. \n\nCHASKALSON P\n\n[ 36 ] Clearly the current Constitution is made up of various components each of which has a\n\nspecific focus. There are provisions, for instance, which deal with present arrangements\n\nand which have no special claim to being included in a future Constitution; there are also\n\nspecific provisions which are directed at the process of bringing about a new Constitution.\n\nThe question is where the Constitutional Principles, which are fully part of the current\n\nConstitution, fit into the scheme of things.\n\n[ 37 ] The language of the Constitution itself provides a strong indication of the applicability and\n\noverriding purpose of the Constitutional Principles. It should be mentioned firstly that the\n\ncurrent Constitution is, itself, a transitional measure, designed to tide the country over an\n\ninterim period while a new Constitution is being drafted. Indeed it proclaims itself as an\n\n\u201chistoric bridge\u201d; it was never intended to be the final destination. Thus while it brings\n\nabout far-reaching changes in the governance of this country, it also prescribes and\n\nregulates the process leading towards the achievement of the final Constitution. In that\n\nsense the historic bridge is not just between the past, with all that characterised it, and the\n\npresent, which is governed by this Constitution, but also between the present and the future,\n\nwhich will be governed in terms of the new Constitution. Various provisions of the current\n\nConstitution prescribe how the new Constitution should come about and the Constitutional\n\nPrinciples form part of the future-directed framework, as do certain other provisions\n\ncontained elsewhere in the current Constitution.\n\n21\n\n\f[ 38 ] Constitutional Principle I states:\n\nThe Constitution of South Africa shall provide ...\n\nCHASKALSON P\n\nThis is clearly a reference to the Constitution which the Constitutional Assembly has been\n\nmandated to draft and not the current one. Many more of the thirty-four Constitutional\n\nPrinciples are couched in similar language, clearly indicating relevance only to the final\n\nConstitution and not to the present. Some of the provisions refer in terms to the current and\n\nthe new Constitutions; Constitutional Principle II, for example, states:\n\nEvery one shall enjoy all universally accepted fundamental rights, freedoms and civil\nliberties, which shall be provided for and protected by entrenched and justiciable\nprovisions in the Constitution, which shall be drafted after having given due\nconsideration to inter alia the fundamental rights contained in Chapter 3 of this\nConstitution. (My italics).\n\nSee also Constitutional Principles XVIII(2) and (3). The whole scheme of XVIII, for\n\ninstance, clearly distinguishes between \u201cthis Constitution\u201d and \u201cthe Constitution\u201d.\n\n[ 39 ] Perhaps one of the most revealing textual features is the consistency with which the phrases\n\n\u201cthe Constitution\u201d and \u201cthis Constitution\u201d are used in the text of the current Constitution.\n\nThe former, with three notable exceptions, is used consistently in the context of the new\n\nConstitution and the latter, without exception, in that of the current Constitution. The three\n\nexceptions with regard to the former are: \n\n(a)\n\nin the Preamble, \u201c... the following provisions are adopted as the Constitution\n\nof South Africa\u201d.\n\n(b) \n\nthe short title (section 251): \u201cThis Act shall be called the Constitution of the\n\n22\n\n\fCHASKALSON P\n\nRepublic of South Africa, 1993 ...\u201d\n\n(c) \n\nin section 227(2): \u201cThe National Defence Force shall --\n\n(a) exercise its powers and perform its functions solely in the national interest\n\nby--\n\n(i) \n\n(ii)\n\nupholding the Constitution;\n\n... \u201d\n\nThe textual consistency referred to is maintained in the entire Schedule 4. \n\n \n\n[ 40 ] Constitutional Principle XXI refers to the Constitution a number of times, and the context\n\nis clearly consistent only with the future Constitution. Constitutional Principle XXIII\n\nlikewise deals with a future Constitution and the operative words are again \u201cthe\n\nConstitution\u201d. It is improbable that Constitutional Principle XXII would have been\n\nsandwiched in between those provisions if it was not also dealing with the new\n\nConstitution which is in the process of preparation.\n\n[ 41 ]\n\nIt would be strange indeed if these very widely phrased provisions, intended to be given\n\ndetailed constitutional texture in future, were to be read as impacting immediately and\n\ndirectly on the structures and functions of the present governmental system, not to speak of\n\nChapter 3 on Fundamental Rights. We have no doubt that the Constitutional Principles, like\n\nthe other provisions of Chapter 5 are intended to be of substantive application in the\n\ndrafting and adoption of the new Constitution and, by virtue of section 160(3) of the current\n\nConstitution, they are also of application to any provincial constitutions which may be\n\nadopted. Thus, the statement in section 232(4) that they are for all purposes deemed to\n\n23\n\n\fform part of the substance of this Constitution relates to their status and not to their function\n\nor operation. In my view, the Applicants\u2019 argument on this score entirely misconceives the\n\nplace of the Constitutional Principles in terms of the total constitutional scheme, and must\n\nCHASKALSON P\n\nbe rejected.\n\nSection 61 of the Constitution\n\n[ 42 ]\n\nIt was argued that the amendments to the Transition Act purportedly made in terms of\n\nProclamation R 58 constituted legislation \"affecting ... the exercise or performance of\n\npowers and functions of the provinces\", in terms of section 61 of the Constitution, and\n\ncould only lawfully be effected in accordance with the \"manner and form\" provisions of\n\nthat section. As this was not done, that Proclamation, and the action subsequently taken\n\nunder it, were invalid and of no force or effect.\n\n[ 43 ] Section 61 provides that:\n\nBills affecting the boundaries or the exercise or performance of the powers and\nfunctions of the provinces shall be deemed not to be passed by Parliament unless\npassed separately by both Houses and, in the case of a Bill, other than a Bill referred\nto in section 62, affecting the boundaries or the exercise or performance of the powers\nor functions of a particular province or provinces only, unless also approved by a\nmajority of the senators of the province or provinces in question in the Senate.\n\nIn terms it applies only to parliamentary enactments and not to legislative action such as\n\nthe making of proclamations or regulations in terms of such enactments. Any other\n\nconstruction would not only do violence to the language of the section, but would place a\n\nsevere impediment in the way of effective government. \n\n24\n\n\fCHASKALSON P\n\n[ 44 ] Prima facie the Proclamations which are in issue in the present case were within the scope\n\nof the President's powers under section 16A. But if the section is construed narrowly so\n\nas to exclude such authority, or if the section itself is inconsistent with the Constitution and\n\naccordingly invalid, the validity of the Proclamations can be impugned. \n\n[ 45 ] The principal argument for the Applicants was that section 16A, read literally, authorises\n\nthe making of legislation in a way which is contrary to the \"manner and form\"\n\nrequirements of section 61 of the Constitution, and should therefore be \"read down\" and\n\nconfined to an authority to deal with matters which are not within the scope of section 61.\n\n[ 46 ]\n\nIn the judgment given in the CPD proceedings, Conradie J points to the uncertain scope of\n\nsection 61 and to difficulties that exist in construing its provisions. There are these\n\ndifficulties; it is, however, not necessary to resolve them in the present case. The sole\n\npurpose of section 16A is to enable the President to amend the Transition Act by\n\nproclamation. The administration of the Transition Act is vested in provincial organs. If\n\nthe Transition Act deals with the powers and functions of the provinces within the meaning\n\nof section 61, it is difficult to see how the powers under section 16A could ever be\n\nexercised without affecting such powers and functions.\n\n \n\n[ 47 ] Moreover, section 61 is not the only section in the Constitution which prescribes \"manner\n\nand form\" provisions for the passing of legislation. \"Manner and form\" provisions are also\n\nprescribed by sections 59 and 60. Section 59 deals with \"ordinary\" legislation, and\n\nsection 60 with \u201cMoney Bills\u201d. No purpose would be served by reading down section\n\n25\n\n\fCHASKALSON P\n\n16A so as to avoid a challenge based on section 61 of the Constitution, if that would\n\nexpose the section as read down to a challenge under section 59. This means that we have\n\nto deal with the larger question raised by this Court during argument, namely, whether or\n\nnot it was competent for Parliament by means of section 16A to vest in the President the\n\npower to amend the Transition Act by proclamation. The answer to this question depends\n\nin the first instance upon whether under our Constitution, Parliament can delegate or assign\n\nits law-making powers to the executive or other functionaries, and if so under what\n\ncircumstances, or whether such powers must always be exercised by Parliament itself in\n\naccordance with the provisions of sections 59, 60 and 61 of the Constitution. I will deal\n\nwith that question later. But first it is necessary to address the argument based on section\n\n62(2) of the Constitution that was advanced on behalf of the Applicants.\n\nSection 62(2) of the Constitution\n\n[ 48 ] The argument was that the Proclamations in question amended the powers and executive\n\ncompetence of the provinces within the meaning of sections 126 and 144 of the\n\nConstitution, and in particular those of the Western Cape Province, and therefore had to\n\nbe enacted in accordance with the provisions of section 62(2) of the Constitution. In my\n\nview there is no substance in this argument. Section 62 deals with amendments to the\n\nConstitution and not with amendments to national legislation such as the Transition Act\n\nunder which legislative or executive functions can be vested in the provinces. The fact that\n\n26\n\n\fthe Transition Act is referred to in section 245 of the Constitution does not make it part of\n\nthe Constitution nor does it require amendments to that Act to be made in accordance with\n\nthe provisions of section 62. This is made clear by section 232(2) of the Constitution\n\nCHASKALSON P\n\nwhich provides that:\n\n(a)\n\n(b)\n\nAny reference in this Constitution to any particular law shall be construed as\na reference to that law as it exists from time to time after any amendment or\nreplacement thereof by a competent authority.\n\n An amendment, replacement or repeal of a law referred to in paragraph (a),\nshall for the purposes of section 62 not be considered to be an amendment of\nthis Constitution, and any such amendment, replacement or repeal of a law\nshall for its validity be dependent on its consistency with this Constitution in\nterms of section 4(1).\n\n \n\nIt was contended by counsel for the Applicants that this does not apply to the\n\nProclamations because they are not referred to in the Constitution and section 232(2) is\n\naccordingly not applicable to them. The short answer to this contention is that the\n\nProclamations, if valid, do not amend the Constitution. They amend the Transition Act.\n\n[ 49 ]\n\nIt was also contended that the Proclamations are inconsistent with the proviso to section\n\n62(2), which requires amendments to the legislative and executive competences of a\n\nprovince to be effected with the consent of the relevant provincial legislature. But section\n\n62(2) is a clause dealing with constitutional amendments, and the proviso must be read\n\nas qualifying the substantive part of the clause and not as an independent constitutional\n\nrequirement applicable to any legislation dealing with provincial powers and functions.\n\nS v Mhlungu and Others 1995 (7) BCLR 793 (SA) at paragraph 32. Where, as in the\n\npresent case, provincial organs are vested with powers or functions by national legislation,\n\nsuch powers and functions can be changed by national legislation. Changes thus effected\n\ndo not involve constitutional amendments and do not have to be implemented in\n\n27\n\n\faccordance with the provisions of section 62.\n\nCHASKALSON P\n\nThe validity of Section 16A of the Local Government Transition Act\n\n[ 50 ] Section 16A of the Transition Act provides:\n\n(1)\n\n(2)\n\n(3)\n\n(4)(a)\n\n (b)\n\nThe President may amend this Act and any Schedule thereto\nby proclamation in the Gazette.\nNo proclamation under subsection (1) shall be made unless\nit is approved by the select committees of the National\nAssembly and the Senate responsible for constitutional\naffairs.\nA proclamation under subsection (1) shall commence on a\ndate determined in such proclamation, which may be a date\nprior to the date of publication of such proclamation.\nThe Minister shall submit a copy of a proclamation under\nsubsection (1) within 14 days after the publication thereof\nto Parliament.\nIf Parliament by resolution disapproves of any such\nproclamation or any provision thereof, such proclamation\nor provision shall cease to be of force and effect, but\nwithout prejudice to the validity of anything done in terms\nof such proclamation or such provision before it so ceased\nto be of force and effect, or to any right or liability\nacquired or incurred in terms of such proclamation or such\nprovision before it so ceased to be of force and effect.\n\n[ 51 ] The legislative authority vested in Parliament under section 37 of the Constitution is\n\nexpressed in wide terms - \"to make laws for the Republic in accordance with this\n\nConstitution.\" In a modern state detailed provisions are often required for the purpose of\n\nimplementing and regulating laws, and Parliament cannot be expected to deal with all such\n\nmatters itself. There is nothing in the Constitution which prohibits Parliament from\n\ndelegating subordinate regulatory authority to other bodies. The power to do so is\n\nnecessary for effective law-making. It is implicit in the power to make laws for the\n\ncountry and I have no doubt that under our Constitution parliament can pass legislation\n\ndelegating such legislative functions to other bodies. There is, however, a difference\n\nbetween delegating authority to make subordinate legislation within the framework of a\n\n28\n\n\fstatute under which the delegation is made, and assigning plenary legislative power to\n\nanother body, including, as section 16A does, the power to amend the Act under which the\n\nCHASKALSON P\n\nassignment is made. \n\n[ 52 ]\n\nIn the past our courts have given effect to Acts of parliament which vested wide plenary\n\npower in the executive. Binga v Cabinet for South West Africa and Others 1988 (3) SA\n\n155(A) and R v Maharaj 1950 (3) SA 187(A) are examples of such decisions. They are\n\nin conformity with English law under which it is accepted that parliament can delegate\n\npower to the executive to amend or repeal acts of parliament. S. Wade and C. Forsyth,\n\nAdministrative Law, pp. 863-864 (Clarendon Press, Oxford, 7th ed. 1994). These\n\ndecisions were, however, given at a time when the Constitution was not entrenched and\n\nthe doctrine of parliamentary sovereignty prevailed. What has to be decided in the present\n\ncase is whether such legislation is competent under the new constitutional order in which\n\nthe Constitution is both entrenched and supreme. This requires us to consider the\n\nimplications of the separation of powers under the Constitution, the \"manner and form\"\n\nprovisions of sections 59, 60 and 61, the implications of the supremacy clause (section 4)\n\nand the requirement that parliament shall make laws in accordance with the Constitution\n\n(section 37). \n\n[ 53 ]\n\nIn the United States of America, delegation of legislative power to the executive is dealt\n\nunder the doctrine of separation of powers. Congress as the body in which all federal law-\n\nmaking power has been vested must take legislative decisions in accordance with the\n\n29\n\n\fCHASKALSON P\n\n\"single, finely wrought and exhaustively considered, procedure\" laid down by the US\n\nConstitution, which requires laws to be passed bicamerally and then presented to the\n\nPresident for consideration for a possible veto. INS v Chada 462 US 919 (1983) per\n\nBurger CJ at 951. Delegation of legislative power within prescribed limits is permissible\n\nbecause, as the Supreme Court has said, \"[w]ithout capacity to give authorizations of that\n\nsort we should have the anomaly of legislative power which in many circumstances calling\n\nfor its exertion would be but a futility.\" Per Hughes CJ in Panama Refining Co. v Ryan\n\n293 US 388, 421 (1935). The delegation must not, however, be so broad or vague that\n\nthe authority to whom the power is delegated makes law rather than acting within the\n\nframework of law made by Congress. This distinction was explained by Taft CJ in\n\nHampton & Co v United States 276 US 394, 407 (1928)(quoting Ranney J in Wilmington\n\nand Zanesville Railroad Co. v Commissioners, 1 Ohio St. 77 (1852)) as follows:\n\nThe true distinction, therefore, is, between the delegation of power to make the law,\nwhich necessarily involves a discretion as to what it shall be, and conferring an\nauthority or discretion as to its execution, to be exercised under and in pursuance of\nthe law. The first cannot be done; to the latter no valid objection can be made.\n\n[ 54 ]\n\nIn Ireland, under the influence of the United States jurisprudence, the courts have adopted\n\na similar approach. See the comments of McMahon J in the High Court in Cityview Press\n\nLimited and Another v An Chomhairle Oiliuna and Others [1980] IR 381. The Supreme\n\nCourt, confirming the decision of McMahon J in the Cityview Press case, held that whilst\n\nparliament cannot delegate its power to make laws to the executive, it is competent for it\n\nto make laws under which a regulatory power is delegated to the executive. The test as\n\nto whether lawmaking or regulatory powers have been delegated is \"whether what is\n\nchallenged as an unauthorised delegation of parliamentary power is more than the mere\n\ngiving effect to principles and policies which are contained in the statute itself. If it be,\n\n30\n\n\fthen it is not authorised; for such would constitute a purported exercise of legislative\n\npower by an authority which is not permitted to do so under the Constitution.\" Per\n\nO'Higgins CJ, supra, at 395 et seq. \n\nCHASKALSON P\n\n[ 55 ] The courts of some Commonwealth countries seem to take a broader view of the power\n\nto delegate legislative authority than the courts of the United States, and to permit\n\nparliament to delegate plenary law-making powers to the executive, including the power\n\nto amend Acts of parliament. In part this is due to the influence of English law and\n\ndecisions of the Privy Council, and in part to the form of government in such countries. In\n\nthe United States there is a clear separation of powers between the legislature and the\n\nexecutive. In Commonwealth countries there is usually a clear separation as far as the\n\njudiciary is concerned, but not always as clear a separation between the legislature and\n\nthe executive. Many of the Commonwealth countries have followed the English system of\n\nexecutive government under which the head of the government is the Prime Minister, who\n\nsits in parliament and requires its support to govern. Although there is a separation of\n\nfunctions, the Prime Minister and the members of his or her cabinet sit in parliament and\n\nare answerable to parliament for their actions.\n\n[ 56 ] The influence of English law is referred to by Dixon J in his judgment in the Australian\n\nHigh Court in Victorian Stevedoring and General Contracting Co. Pty. Ltd. & Meakes\n\nv Dignan [1931] 46 CLR 73 at pages 101-102, in which the Court declined to follow the\n\nUnited States cases. In the same case, Evatt J (at page 114) drew attention to the\n\ndifferences in the form of government of Commonwealth countries and that of the United\n\n31\n\n\fCHASKALSON P\n\nStates, saying: \n\nIn dealing with the doctrine of \"separation\" of legislative and executive powers, it must\nbe remembered that, underlying the Commonwealth frame of government, there is the\nnotion of the British system of an Executive which is responsible to Parliament. That\nsystem is not in operation under the United States Constitution.\n ...\nThis close relationship between the legislative and executive agencies of the\nCommonwealth must be kept in mind in examining the contention that it is the\nLegislature of the Commonwealth, and it alone, which may lawfully exercise legislative\npower.\n\nIn Australia, it seems to have been accepted that the Commonwealth parliament can\n\ndelegate a legislative power to the executive and vest in the executive the power to make\n\nregulations which will take precedence over Acts of Parliament. That is what was done\n\nin Dignan's case which, in the context of subordinate legislation, was cited with approval\n\nby the Privy Council in Attorney-General for Australia v The Queen 1957 AC 288 at 315.\n\nIn Cobb & Co Ltd and Others v Kropp and Others 1967 (1) AC 141 the Privy Council\n\nupheld a decision of the Supreme Court of Queensland finding that it was competent for\n\nthe state legislature to vest in its Commissioner for Transport the power to impose taxes\n\nin the form of license fees on transport operators, as well as the power to determine the\n\namount of the fees, which could be made to vary between operator and operator.\n\nQueensland had a bi-cameral legislature and the Order in Council under which it was\n\nestablished provided that \"all bills for appropriating any part of the public revenue for\n\nimposing any new rate tax or impost\" should originate in the Legislative Assembly. It was\n\nheld that the plenary powers vested in the Queensland legislature entitled it to vest this\n\nauthority in the Commissioner for Transport. A similar decision had previously been\n\ngiven by the Privy Council in Powell v Apollo Candle Company Ltd. (1885) 10 AC 282,\n\nwhere a challenge to the levying of customs duties by the Governor of New South Wales\n\nunder general empowering legislation was unsuccessful.\n\n32\n\n\f[ 57 ] Seervai in his work on the Indian Constitution deals at length with the Indian jurisprudence\n\nCHASKALSON P\n\non the power of parliament to delegate legislative power to the executive. H. M. Seervai,\n\nConstitutional Law of India, vol. II, para. 22.1 et seq. (3d ed., 1983). He refers to\n\nvarious judgments and decisions of judges in the Supreme Court of India which in his\n\nview contradict each other and vacillate between on the one hand sanctioning a broad\n\ndelegation of law-making power by parliament to the executive, and on the other,\n\nrequiring such delegation of legislative power to be carried out within a policy framework\n\nprescribed by parliament. Seervai himself takes the view that under the Indian Constitution\n\na legislature has the power to pass a law under which the executive is given the power to\n\nimplement an Act and to modify its provisions to enable it to work smoothly. He states at\n\nparagraph 21.53 that:\n\n[L]egislative power is not \"property\" to be jealously guarded by the legislature, but is\na means to an end, and if the end is desired by the legislature and the difficulties in\nachieving that end cannot be foreseen, it is not only desirable but imperative that the\npower to remove difficulties should be entrusted to the executive Government which\nwould be in charge of the day-to-day working of the law. (Citation omitted). \n\nThe cases referred to by Seervai were not available to us at the time this judgment was\n\nprepared, and in the limited time that we have had to prepare our judgments it was not\n\nfeasible to make arrangements to procure copies of the judgments or to trace the\n\ndevelopment of the law in India since the publication of the third edition of his book in\n\n1983.\n\n[ 58 ]\n\nIn Canada, under the influence of the Privy Council decision in Hodge v The Queen (1883)\n\n9 AC 117 and Shannon v Lower Mainland Dairy Products Board [1938] AC 708, it\n\nseems to be accepted that parliament has wide powers of delegation. Hogg,\n\n33\n\n\fCHASKALSON P\n\nConstitutional Law of Canada (3d ed. 1992) at paragraph 14.2, notes:\n\nThe difference between the Canadian and the American systems resides not only in the\ndifferent language of the two constitutional instruments, but in Canada's retention of\nthe British system of responsible government. The close link between the executive\nand the legislative branches which is entailed by the British system is utterly\ninconsistent with any separation of executive and legislative functions.\n\nAccording to Hogg , although delegation of legislative power between parliament and\n\nprovincial legislatures is not permitted, delegation of such power by parliament to the\n\nexecutive, \u201cshort of a complete abdication of its power\u201d, is permissible. Supra paras.\n\n14.2 and 14.3; see also, Finkelstein, Laskin\u2019s Canadian Constitutional Law, vol. 1, pp.\n\n42-46 (Carswell Student Edition, 5th ed. 1986). It is not clear what the Canadian Courts\n\nwould regard as \u201ca complete abdication of power\u201d. In Re Gray (1918) SCR 150, as cited\n\nin Hogg, in which this statement was made, upheld wide powers to make laws vested in\n\nthe Governor in Council. It was followed by the Supreme Court of Canada in Reference\n\nRe Regulations (Chemical) Under War Measures Act (1943) 1 DLR 248, where it was\n\npointed out (at p. 253) that the Privy Council had laid down the principle that, in an\n\nemergency such as war, the autonomy of the Dominion to make laws for the peace, order\n\nand good government of the nation, in view of the necessities arising from the emergency,\n\nmay \u201cdisplace or overbear the authority of the Provinces\u201d in areas which they would\n\notherwise have had exclusive jurisdiction. These were war cases, and typically greater\n\nlatitude is allowed to the legislature in such circumstances. Cf. Dignan's case (supra) at\n\n99; see also, Re Manitoba Government Employers Association and Government of\n\nManitoba 79 DLR (3d) 1 at 15, which suggests that such broad delegations may not be\n\npermissible at other times. Hogg suggests that a possible exception to this rule is the\n\nfederal taxing power because of the constitutional provisions requiring such legislation to\n\n34\n\n\fCHASKALSON P\n\noriginate in the House of Commons. He refers, at 344, to In Re Agricultural Products\n\nMarketing Act 84 DLR (3d) 257, in which such a challenge was raised but disposed of\n\nby the Supreme Court of Canada on the grounds that the disputed levies were not taxes but\n\nadministrative charges. The majority of the Court, however, rejected the argument that the\n\ntaxing power could not be delegated on the basis that if such a delegation were inconsistent\n\nwith the relevant provisions of the Canadian Constitution, the Act under which the\n\ndelegation was made should be treated as having impliedly amended them. Id., per Pigeon\n\nJ at 322. This is in accordance with the rule that an Act inconsistent with the constitution\n\nis to be regarded as amending the constitution unless the constitution prescribes special\n\nprocedures for such amendments and those procedures have not been followed. Kariapper\n\nv Wijesinha [1968] AC 717(PC) at 742F. An argument along these lines would not be\n\npermissible under our Constitution because it prescribes special procedures for\n\namendments. Harris and Others v Minister of the Interior and Another 1952 (2) SA 428\n\n(A). See also: Attorney-General for New South Wales v Trethowan [1932] AC 526 (PC)\n\nat 541; The Bribery Commissioner v Ranasinghe [1965] AC 172 (PC) at 199.\n\n[ 59 ] The Canadian cases referred to in paragraph [58] were decided before the introduction of\n\nsection 52 into the Canadian Constitution in 1982. This section provides that the\n\nConstitution shall be the supreme law and that legislation inconsistent with the Constitution\n\nshall be invalid. Neither Hogg nor Finkelstein suggest that this has had any effect on the\n\nrule in Hodge's case or the cases that have followed it. Hogg takes the position that the\n\nConstitution was in any event supreme prior to the introduction of section 52, and that the\n\namendment did no more than record what has always been accepted [Hogg para. 55.1].\n\n35\n\n\fCHASKALSON P\n\nBut there is a difference between a constitutional order which limits Parliaments authority\n\nto make certain laws and binds Parliament to legislate according to certain procedures, and\n\none which treats Parliament as supreme. Whatever the situation may be in Canada in the\n\nlight of the Privy Council decisions and the terms of that country\u2019s constitution, we have\n\nto decide this issue in the light of the terms of our own Constitution.\n\n[ 60 ] Whilst it seems to be accepted in most of the Commonwealth that parliament can delegate\n\nwide powers to the executive, the separation of powers as far as the judiciary is\n\nconcerned has been strictly enforced, and the Privy Council has held to be invalid\n\nlegislation which encroaches upon the judicial power. Attorney General for Australia v\n\nThe Queen (supra) and Liyanage v The Queen 1967 (1) AC 259 at 286C (an appeal from\n\nthe Supreme Court of Ceylon). In Liyanage's case it was said that the power to make laws\n\nderived from the Constitution and had to be exercised in accordance with its provisions.\n\nThose provisions prevented parliament from issuing bills of attainder to the judiciary.\n\n[ 61 ] This brief and somewhat limited survey of the law as it has developed in other countries\n\nis sufficient to show that where Parliament is established under a written constitution, the\n\nnature and extent of its power to delegate legislative powers to the executive depends\n\nultimately on the language of the Constitution, construed in the light of the country's own\n\nhistory. Our history, like the history of Commonwealth countries such as Australia, India\n\nand Canada was a history of parliamentary supremacy. But our Constitution of 1993\n\nshows a clear intention to break away from that history. The preamble to the Constitution\n\nbegins by stating the \"need to create a new order.\" That order is established in section 4\n\n36\n\n\fof the Constitution which lays down that:\n\nCHASKALSON P\n\n(1)\n\n(2)\n\nThis Constitution shall be the supreme law of the Republic and any law or Act\ninconsistent with its provisions shall, unless otherwise provided expressly or\nby necessary implication in this Constitution, be of no force and effect to the\nextent of the inconsistency.\n\nThis Constitution shall bind all legislative executive and judicial organs of the\nState at all levels of government. \n\nSub-section (2) is of particular importance in the present case.\n\n[ 62 ] The new Constitution establishes a fundamentally different order to that which previously\n\nexisted. Parliament can no longer claim supreme power subject to limitations imposed\n\nby the Constitution; it is subject in all respects to the provisions of the Constitution and\n\nhas only the powers vested in it by the Constitution expressly or by necessary implication.\n\n Section 37 of the Constitution spells out what those powers are. It provides that:\n\nThe legislative authority of the Republic shall, subject to this Constitution,\nvest in Parliament, which shall have the power to make laws for the Republic\nin accordance with this Constitution.\n\nThe supremacy of the Constitution is reaffirmed in section 37 in two respects. First, the\n\nlegislative power is declared to be \"subject to\" the Constitution, which emphasises the\n\ndominance of the provisions of the Constitution over Parliament\u2019s legislative power, S v\n\nMarwane 1982(3) SA 717(A) at 747 H - 748 A, and secondly laws have to be made \"in\n\naccordance with this Constitution.\" In paragraph [51] of this judgment we I pointed out\n\nwhy it is a necessary implication of the Constitution that Parliament should have the power\n\nto delegate subordinate legislative powers to the executive. To do so is not inconsistent\n\nwith the Constitution; on the contrary it is necessary to give efficacy to the primary\n\n37\n\n\fCHASKALSON P\n\nlegislative power that Parliament enjoys. But to delegate to the executive the power to\n\namend or repeal Acts of Parliament is quite different. To hold that such power exists by\n\nnecessary implication from the terms of the Constitution could be subversive of the\n\n\"manner and form\" provisions of sections 59, 60 and 61. Those provisions are not merely\n\ndirectory. They prescribe how laws are to be made and changed and are part of a scheme\n\nwhich guarantees the participation of both houses in the exercise of the legislative authority\n\nvested in Parliament under the Constitution, and also establish machinery for breaking\n\ndeadlocks. There may be exceptional circumstances such as war and emergencies in\n\nwhich there will be a necessary implication that laws can be made without following the\n\nforms and procedures prescribed by sections 59, 60 and 61. Section 34 of the Constitution\n\nmakes provision for the declaration of states of emergency in which provisions of the\n\nConstitution can be suspended. It is possible that circumstances short of war or states of\n\nemergency will exist from which a necessary implication can arise that Parliament may\n\nauthorise urgent action to be taken out of necessity. A national disaster as a result of\n\nfloods or other forces of nature may call for urgent action to be taken inconsistent with\n\nexisting laws such as environmental laws. And there may well be other situations of\n\nurgency in which this type of action will be necessary. But even if this is so (and there\n\nis no need to decide this issue in the present case) the conditions in which section 16A\n\nwere enacted fall short of such an emergency. There was, of course, urgency associated\n\nwith the implementation of the Transition Act, but the Minister has regulatory powers\n\nunder the Act, and legislation could have been passed to authorise the President to issue\n\nproclamations not inconsistent with the Act. Whether this could have included a power\n\nto amend other Acts of Parliament need not now be decided. An unrestricted power to\n\n38\n\n\fCHASKALSON P\n\namend the Transition Act itself cannot be justified on the grounds of necessity, nor can it\n\nbe said to be a power which by necessary implication is granted by the Constitution to the\n\nPresident. Sections 59, 60 and 61 of the Constitution are part of an entrenched and\n\nsupreme Constitution. They can only be departed from where the Constitution permits this\n\nexpressly [section 235 (8) is such a case] or by necessary implication. In the present case\n\nneither of these requirements is present.\n\n[ 63 ]\n\nInsistence upon compliance with the manner and form provisions of the Constitution in\n\nthese circumstances is not elevating form above substance. The authorisation of legislation\n\nsuch as section 16A allows control over legislation to pass from Parliament to the\n\nexecutive. Later this power could be used to introduce contentious provisions into what\n\nwas previously uncontentious legislation. Assuming this is done at a time party A has a\n\nmajority in the Assembly, but not in the Senate, it would be difficult for other parties to\n\nsecure a resolution of Parliament which would be needed to invalidate the delegation. It\n\nwould also render ineffective the special procedures prescribed by sections 60 and 61.\n\nA contention that this would be a consequence of the Assembly and the Senate having\n\npassed the legislation in the first place, would be of little solace to parties in the Senate\n\nin a situation in which the authorisation is given at a time when Party A has a majority in\n\nthe Assembly and the Senate, but later loses its majority in the Senate. In such\n\ncircumstances, it could block a resolution objecting to legislation enacted under the\n\ndelegation which could never have been passed without such delegation.\n\n[ 64 ] Mr Gauntlett on behalf of the Respondents placed considerable reliance on the fact --\n\n39\n\n\fCHASKALSON P\n\nwhich is also been mentioned in some of the Commowealth judgments -- that Parliament\n\nretains control over the functionary to whom plenary legislative power is delegated and\n\ncan withdraw it if the power is not exercised in accordance with its wishes. In the present\n\ncase that element of control clearly exists, for the President can only legislate with the\n\nconsent of the appropriate committees of both the Senate and the Assembly, on which there\n\nis multi-party representation, and Parliament can by resolution disapprove of the\n\nlegislation made by the President, in which event it will cease to have validity. There is\n\nalso the fact that the statute in issue in the present case is essentially a transitional\n\nprovision, designed to manage the difficult and complicated transition to democratic local\n\ngovernment for a limited period of time. The power vested in the President is a power to\n\namend the Transition Act, which because of its far reaching implications would, even if\n\nsection 16A were valid, have to be narrowly construed, R v Secretary of State for Social\n\nSecurity, Ex Parte Britnell 1991 (1) WLR 198 (HL), and would not necessarily include\n\nthe power to make fundamental changes to the Act, S v Mngadi and Others 1986 (1) SA\n\n526 (N)(but compare the judgment in the case on appeal sub nom, Attorney-General,\n\nNatal v Mngadi and Others 1989 (2) SA 13 (A) at 21C-F with 21H). These are all\n\nfactors which could be relied upon to explain and justify the delegation of law-making\n\npower to the President in terms of section 16A. But if Parliament does not have the\n\nconstitutional authority to delegate this power to the executive or to any other body, the\n\nreasonableness of the delegation or the absence of objection is irrelevant. The only way\n\nin which Parliament can confer power on itself to act contrary to the Constitution is to\n\namend the Constitution. And this was not done in the present case.\n\n40\n\n\f[ 65 ] The Respondents placed considerable reliance on the fact that section 10 of the Transition\n\nCHASKALSON P\n\nAct vests extensive powers in the Administrator who is a provincial functionary. These\n\npowers include the power to modify or even repeal Acts of Parliament for the purpose of\n\nimplementing decisions taken in terms of the Transition Act for the establishment and\n\nempowerment of transitional councils. This, they contend, is incorporated by reference\n\nthrough section 245 of the Constitution which requires the restructuring of local\n\ngovernment to be carried out in accordance with the provisions of the Transition Act and\n\nimpliedly sanctions the provisions of section 10 of that Act. Even if it is assumed that the\n\nprovisions of section 10 of the Transition Act are sanctioned by section 245 of the\n\nConstitution (and there is no need to express any opinion on that issue) it does not follow\n\nthat section 16A which is contained in a post-constitutional Act of Parliament was also\n\nsanctioned. The powers vested in the Administrator by section 10 of the Transition Act\n\nare limited to the making of \"enactments not inconsistent with this [Transition] Act with\n\na view to the transitional regulation of any matter relating to local government\". It is\n\nessentially a regulatory power which, because of the conflicting provisions of various\n\nenactments which were given the force of law by section 229 of the Constitution, might\n\nhave been needed in order to cut across the provisions of old laws which had not yet been\n\nrepealed. Section 16A is quite different. It is a general power to amend the Transition Act\n\nitself. It is subject to no express limitation and can not be equated to the regulatory powers\n\nvested in the Administrators by section 10 of the Transition Act. Such a power cannot be\n\ninferred from section 245 of the Constitution.\n\nSection 235 (8) of the Constitution\n\n41\n\n\f[ 66 ]\n\nIn the circumstances it is necessary to consider whether the two Proclamations can be\n\nCHASKALSON P\n\njustified under the provisions of section 235 (8) of the Constitution. The Respondents\n\ncontend that if section 16A is inconsistent with the Constitution, the Proclamations were\n\nnonetheless within the President's powers under section 235 of the Constitution. Because\n\nof the arguments relied on by the Applicants in response to this contention it is necessary\n\nto set out the full terms of section 235. It reads as follows:\n\n(1)\n\nA person who immediately before the commencement of this Constitution\nwas-\n\n(a)\n\n(b)\n\n(c)\n\nthe State President or a Minister or Deputy\nMinister of the Republic within the meaning of the\nprevious Constitution;\nthe Administrator or a member of the Executive\nCouncil of a province; or\nthe President, Chief Minister or other chief\nexecutive or a Minister, Deputy Minister or other\npolitical functionary in a government under any\nother constitution or constitutional arrangement\nwhich was in force in an area which forms part of\nthe national territory,\n\nshall continue in office until the President has been elected\nin terms of section 77(1)(a) and has assumed office:\nProvided that a person referred to in paragraph (a), (b) or\n(c) shall for the purposes of section 42(1)(e) and while\ncontinuing in office, be deemed not to hold an office of\nprofit under the Republic.\n\nAny vacancy which may occur in an office referred to in\nsubsection (1)(a), (b) or (c) shall, if necessary, be filled by\na person designated by the persons continuing in office in\nterms of subsection (1)(a), acting in consultation with the\nTransitional Executive Council.\n\nthe commencement of \n\nExecutive authority which was vested in a person or persons\nreferred to in subsection (1)(a), (b) or (c) in terms of a\nconstitution or constitutional arrangement in force\nimmediately before \nthis\nConstitution, shall during the period in which the said\nperson or persons continue in office in terms of subsection\n(1), be exercised in accordance with such constitution or\nconstitutional arrangement, as if it had not been repealed or\nsuperseded by this Constitution, and any such person or\npersons shall continue to be competent to administer any\ndepartment of state, administration, force or other\ninstitution which was entrusted to, and to exercise and\nperform any power or function which was vested in, him or\n\n42\n\n(2)\n\n(3)\n\n\fCHASKALSON P\n\n(b)\n\nher or them immediately before the said commencement:\nProvided that -\n(a)\n\nno such executive authority, power or function\nshall be exercised or performed if the Transitional\nExecutive Council disapproves thereof; and\nonce the election results of the National Assembly\nhave been certified by the Independent Electoral\nCommission in terms of the Independent Electoral\nCommission Act, 1993, the State President\nreferred to in subsection (1)(a) shall exercise and\nperform his or her powers and functions in\nconsultation with the leader of the party which has\nreceived the largest number of votes in the said\nelection.\n\n(4)\n\n(5)\n\nThe Transitional Executive Council may by resolution of a\nmajority of all its members at any time during the period in\nwhich the said State President continues in office in terms\nof subsection (1), require him or her, or any other\nappropriate authority, to take such steps in terms of any law\nas are necessary to maintain law and order, including the\ndeclaration of a state of emergency or of an area to be an\nunrest area in terms of an applicable law.\n\nUpon the assumption of office by the President in terms of this\nConstitution -\n(a)\n\nthe executive authority of the Republic as\ncontemplated in section 75 shall vest in\nthe President acting in accordance with\nthis Constitution; and \n\n(b)\n\nthe executive authority of a province as\ncontemplated in section 144 shall,\nsubject to subsections (8) and (9), vest in\nthe Premier of that province acting in\naccordance with this Constitution, or\nwhile the Premier of a province has not\nyet assumed office, in the President\nacting in accordance with section 75\nuntil the Premier assumes office.\n\n(6)\n\nThe power to exercise executive authority in terms of laws which,\nimmediately prior to the commencement of this Constitution, were\nin force in any area which forms part of the national territory and\nwhich in terms of section 229 continue in force after such\ncommencement, shall be allocated as follows:\n\n(a)\n\nAll laws with regard to matters which -\n\n(i)\n\ndo not fall within the\nf u n c t i o n a l a r e a s\nspecified in Schedule\n\n43\n\n\fCHASKALSON P\n\n(ii)\n\n6; or\n\ndo fall within such\nfunctional areas but are\nmatters referred to in\nparagraphs (a) to (e) of\nsection 126(3) (which\nshall be deemed to\ninclude all policing\nmatters until the laws\nin question have been\na s s i g n e d u n d e r\nsubsection (8) and for\nthe purposes of which\nsubsection (8) shall\na p p l y m u t a t i s\nmutandis),\n\nfunctions which but \n\nshall be administered by a competent\nauthority within the jurisdiction of the\nnational government: Provided that any\npolicing \nfor\nsubparagraph (ii) would have been\nperformed subject to the directions of a\nmember of the Executive Council of a\nprovince in terms of section 219(1) shall\nbe performed after consultation with the\nsaid member within that province.\n\n(b)\n\nAll laws with regard to matters which fall\nwithin the functional areas specified in\nSchedule 6 and which are not matters\nreferred to in paragraphs (a) to (e) of\nsection 126(3) shall -\n\n(i)\n\nif any such law was\nimmediately before\nthe commencement of\nthis Constitution\nadministered by or\nunder the authority of a\nfunctionary referred to\nin subsection (1) (a) or\n(b), be administered by\na competent authority\nwithin the jurisdiction\no f \nt h e n a t i o n a l\ngovernment until the\nadministration of any\nsuch law is with regard\nto any particular\nprovince assigned\nunder subsection (8) to\n\n44\n\n\fCHASKALSON P\n\na competent authority\nwithin the jurisdiction\nof the government of\nsuch province; or\n\n(ii)\n\n \n\nif any such law was\nimmediately before\nt h e \ns a i d\nc o m m e n c e m e n t\nadministered by or\nunder the authority of a\nfunctionary \nreferred\nin subsection\nto \n(1)(c), subject \nto\nsubsections (8) and (9)\nbe administered by a\ncompetent authority\nwithin the jurisdiction\nof the government of\nthe province in which\nthat law applies, to the\nextent \nit so\napplies: Provided that\nthis sub-paragraph\nshall not apply \nto\npolicing matters,\nwhich shall be dealt\nwith as contemplated\nin paragraph (a).\n\nthat \n\n(c)\n\nIn this subsection and subsection (8) \"competent authority\" shall mean -\n\n(i)\n\n(ii)\n\nin relation to a law of\nt h e\nw h i c h \nis\nadministration \nallocated \nthe\nnational government,\nan authority designated\nby the President; and \n\nto \n\nto \n\nin relation to a law of\nt h e\nw h i c h \nis\nadministration \nallocated \nthe\ngovernment of a\nprovince, an authority\nthe\ndesignated by \nP r e m i e r o f \nt h e\nprovince.\n\n(7)\n\n(a)\n\nThe President may, after consultation\nwith the Premier of a province, by\nproclamation in the Gazette take such\n\n45\n\n\fCHASKALSON P\n\nmeasures, including legislative measures,\nas he or she considers necessary for the\nbetter achievement of this section.\n\n(b)\n\nA copy of a proclamation under\nparagraph (a), shall be submitted to\nParliament within 14 days after the\npublication thereof.\n\n \n\n(c)\n\n(8)\n\n(a)\n\n (b)\n\nit \n\nto which \n\nthe extent \n\nIf Parliament disapproves of any such\nproclamation or any provision thereof,\nsuch proclamation or provision shall\nthereafter cease to be of force and effect\nto \nis so\ndisapproved, but without prejudice to the\nvalidity of anything done in terms of such\nproclamation up to the date upon which it\nso ceased to be of force and effect, or to\nany right, privilege, obligation or liability\nacquired, accrued or incurred as at the\nsaid date under and by virtue of such\nproclamation.\n\nThe President may, and shall if so\nrequested by the Premier of a province,\nand provided the province has the\nadministrative capacity to exercise and\nperform the powers and functions in\nquestion, by proclamation in the Gazette\nassign, within the framework of section\n126, the administration of a law referred\nto in subsection (6)(b) to a competent\nauthority within the jurisdiction of the\ngovernment of a province, either\ngenerally or to the extent specified in the\nproclamation.\n\nWhen the President so assigns the\nadministration of a law, or at any time\nthereafter, and to the extent that the or\nshe considers it necessary for the\nefficient carrying out of the assignment,\nhe or she may -\n\n(i)\n\n(ii)\n\namend or adapt such\nlaw in order to regulate\nits application or\ninterpretation;\n\nwhere the assignment\ndoes not relate to the\nwhole of such law,\nrepeal and re-enact,\n\n46\n\n\fCHASKALSON P\n\n(iii)\n\nwhether with or\nwithout an amendment\no r \na d a p t a t i o n\nc o n t e m p l a t e d \ni n\nsubparagraph (i), those\nof its provisions to\nwhich the assignment\nrelates or to the extent\nthat \nthe assignment\nrelates to them; and\n\nregulate any other\nmatter necessary, in\nhis or her opinion, as a\nr e s u l t o f \nt h e\nassignment, including\nmatters relating to the\ntransfer or secondment\nof persons (subject to\nsections 236 and 237)\nand relating \nthe\ntransfer of assets,\nliabilities, rights and\nobligations, including\nfunds, to or from the\nnational or a provincial\ngovernment or any\ndepartment of state,\nadministration, force\nor other institution.\n\nto \n\n (c)\n\n (d)\n\n(9)\n\n(a)\n\nIn regard to any policing power the\nPresident may only make that assignment\neffective upon the rationalisation of the\npolice service as contemplated in section\n237: Provided that such assignment to a\nprovince may be made where such\nrationalisation has been completed in\nsuch a province.\n\nAny reference in a law to the authority\nadministering such law, shall upon the\nassignment of such law in terms of\nparagraph (a) be deemed to be a\nreference mutatis mutandis to the\nappropriate authority of the province\nconcerned.\n\nIf for any reason a provincial government\nis unable to assume responsibility within\n14 days after the election of its Premier,\nfor the administration of a law referred\nto in subsection (6)(b), the President\n\n47\n\n\fCHASKALSON P\n\nshall by proclamation in the Gazette\nassign the administration of such law to a\nspecial administrator or other\nappropriate authority within \nthe\njurisdiction of the national government,\neither generally or to the extent specified\nin the proclamation, until that provincial\ngovernment is able to assume the said\nresponsibility.\n\n (b)\n\nSubsection (8) (b) and (d) shall mutatis\nmutandis \n apply in respect of an\nassignment under paragraph (a) of this\nsubsection.\n\nThe Respondents' contention was that the administration of the Transition Act had been\n\nassigned by the President to competent authorities within the provinces in terms of\n\nsubsection (8) and that the making of the Proclamations was within the scope of his\n\nlegislative power under sub-section (8) to \"amend and adapt\" laws assigned under this\n\nsection.\n\n[ 67 ]\n\nIt was not disputed that the President had purported to assign the administration of parts\n\nof the Transition Act to \"competent authorities\" within the provinces. The Applicants\n\ndisputed, however, that this was sufficient to give validity to the Proclamations. They\n\nadvanced three arguments in answer to the Respondents' contention. First, that the\n\nPresident did not purport to act under section 235(8) of the Constitution and in the\n\ncircumstances he cannot rely on any power that he might have had under it. Second, that\n\nthe Transition Act did not fall within the scope of the President's powers under section\n\n235(8) to assign laws. And last, if the President was entitled to assign the Transition Act\n\nunder section 235(8) he was not empowered by that section to make Proclamations R 58\n\nand R 59.\n\n48\n\n\fCHASKALSON P\n\n[ 68 ]\n\nIn view of the conclusion to which I have come, it is not necessary to decide whether the\n\nPresident can rely on his powers under section 235(8) even though he did not purport to\n\nact in terms of such powers when he made the Proclamations. For the purposes of this\n\njudgment, I will assume that this can be done.\n\n[ 69 ] The remaining two questions depend upon the proper construction of section 235 of the\n\nConstitution. This section makes provision for the transfer of executive authority from the\n\nold order to the new order. This purpose, and the circumstances in which it was known\n\nthat the transfer would have to take place, provide a contextual background relevant to the\n\nconstruction of the section.\n\n[ 70 ] Under the old order, executive authority in what is presently the national territory, was\n\nregulated by laws of different legal and constitutional orders. There was the legislation of\n\nthe Republic of South Africa which was in force in approximately 87% of the national\n\nterritory. In the remainder of the national territory there was the legislation of the six self-\n\ngoverning territories, and also the legislation of Transkei, Bophuthatswana, Venda and\n\nCiskei (the TBVC states) which according to South African law were sovereign\n\nindependent states.\n\n[ 71 ]\n\nIn the Republic of South Africa executive authority was vested in the State President under\n\nsection 19 of the 1983 Constitution. It was exercised by the State President himself and\n\nby Ministers, Deputy-Ministers, Provincial Administrators, and members of the Executive\n\n49\n\n\fCouncils of the provinces. These were all functionaries of the national government and\n\nall held their positions at the discretion of the State President. \n\nCHASKALSON P\n\n[ 72 ]\n\nIn the self-governing territories executive authority was exercised by Chief Ministers and\n\nMinisters. In the TBVC states only Bophuthatswana functioned under a Constitutional form\n\nof government at the time the Constitution was adopted. The other three states were ruled\n\nby military regimes who made laws by decree. Constitutional government collapsed in\n\nBophuthatswana before the elections took place and the military regime in Ciskei\n\nabandoned its control of that territory. The vacuum in these two territories was filled by\n\nSouth African administrators, who also made law by decree. \n\n[ 73 ] The laws in force in different parts of the national territory identified the political\n\nfunctionaries who had responsibility for the implementation of these laws. Under the new\n\nconstitutional order they would cease to have power, and provision had to be made in the\n\nConstitution for the manner in which this responsibility would be transferred from the old\n\norder to the new order. The framework of the scheme according to which this object was\n\nto be achieved was as follows:\n\ni)\n\nAll laws in force in any part of the national territory would continue in force\n\nsubject to repeal or amendment by a competent authority [Section 229].\n\nii)\n\nThe political functionaries exercising executive power in different parts of the\n\nnational territory would retain that power until a President had been elected under\n\n50\n\n\fthe new Constitution and had assumed office [Section 235 (1) and (5)].\n\nCHASKALSON P\n\niii)\n\nSubject to certain conditions not relevant to this case the executive power referred\n\nto in (ii) was to be exercised in accordance with the laws previously in existence\n\nunder the constitutional arrangements previously in force [Section 235(3)].\n\niv)\n\nOn the assumption of office by the President elected under the new Constitution\n\nexecutive power would pass from the old functionaries [whose power came to an\n\nend at that moment], to the President and Premiers under the new Constitution\n\n[Sections 75, 144 and 235(5)].\n\n[ 74 ] There were a number of problems which had to be addressed in order to carry out this\n\nscheme: \n\ni)\n\nThe new Constitution allocates legislative power to parliament and to the\n\nprovincial legislatures. In terms of section 37 parliament is given legislative\n\ncompetence over the whole of the national territory and in respect of all matters.\n\nThe legislative competence of the provincial legislatures, dealt with in section 126\n\nof the Constitution, is restricted. They have concurrent competence with\n\nparliament in respect of the matters referred to in schedule 6 to the Constitution and\n\ntheir territorial competence is limited to the provincial territory. Section 126(3)\n\nmakes provision for the way in which any conflict that might arise between\n\nnational laws and provincial laws in this field of concurrent powers is to be\n\n51\n\n\fCHASKALSON P\n\nresolved. If there should be such conflict, national laws are given precedence in\n\nso far as they meet criteria specified in sections 126(3)(a) to (e) and provincial\n\nlaws are given precedence in respect of other matters. \n\nii)\n\nThe \"old laws\" had been designed for a different constitutional order. They did\n\nnot fit the new order territorially, and they vested powers in functionaries who no\n\nlonger held office and had no precise counterparts under the new constitutional\n\norder. They had also been drafted to deal with the powers and functions of\n\nlegislative bodies which no longer existed and now had to be applied to a different\n\nconstitutional order in which there were different legislative bodies with different\n\npowers and functions. Some of the \"old laws\" would have dealt with matters\n\nwhich would be within the exclusive competence of parliament, and some with\n\nmatters which would be within the concurrent competence of the parliament and\n\nthe provincial legislatures. This distinction could exist not only between different\n\nlaws, but also within particular laws.\n\niii)\n\nSection 75 of the Constitution provides that:\n\nThe executive authority of the Republic with regard to all matters\nfalling within the legislative competence of Parliament shall vest in\nthe President, who shall exercise and perform his or her powers and\nfunctions subject to and in accordance with this Constitution. \n\nThe provinces are given executive competence by section 144(2)over:\n\n...all mattes in respect of which such province has exercised its\nlegislative competence, matters assigned to it by or under section\n235 or any law, and matters delegated to it by or under any law.\n\n52\n\n\fiv) With the possible exception of the Transition Act with which I will deal later, none\n\nCHASKALSON P\n\nof the \"old laws\" vested legislative powers in the nine new provinces. On the other\n\nhand the matters dealt with by the \"old laws\" were within the legislative\n\ncompetence of Parliament which has competence in respect of all matters. Subject\n\nto an assignment or delegation of power to the provinces under an old law -- and\n\nthis calls for consideration later when the terms of the Transition Act are dealt\n\nwith -- the source of executive power that the provinces have in respect of the \"old\n\nlaws\" is the assignment provisions of section 235. In the absence of such\n\nprovisions executive power under the \"old laws\", not being provincial laws within\n\nthe meaning of section 144 of the Constitution, would have vested in the President\n\nand would have been administered by functionaries appointed by him.\n\n[ 75 ] The broad scheme under which these problems are dealt with under the Constitution is as\n\nfollows\n\ni)\n\nThe old laws remain in force in the parts of the national territory in which they\n\nwere previously in force until repealed or amended by a competent authority\n\n[S229].\n\nii)\n\nThey are classified according to the criteria specified in schedule 6 and section\n\n126(3) in order to determine whether the executive authority under such laws\n\nshould be exercised by a national functionary or a provincial functionary. This is\n\na practical way of arranging for the transfer of executive functions under the old\n\n53\n\n\fCHASKALSON P\n\nlaws to appropriate functionaries under the new constitutional order. It also\n\npermits provinces to establish executive government in the fields of their\n\nlegislative competence without having first to enact laws for that purpose.\n\n[ 76 ] The details according to which the scheme is to be implemented are set out in sections\n\n235(6),(8) and (9). These sub-sections do not seek to classify the laws as laws of\n\nParliament or laws of the provinces. They remain \"old laws\" in force in parts of the\n\nnational territory which correspond neither with the national territory nor the provincial\n\nterritories. What the sub-sections deal with is \"the power to exercise executive authority\"\n\nin terms of such laws. \n\n[ 77 ] What sections 235(6), (8) and (9) seek to accomplish is the allocation of the power to\n\nexercise executive authority from the President, in whom such authority vested when he\n\nassumed office (section 235 (5)(a)) to the Premiers of the province in whom the executive\n\nauthority of the provinces is vested under the Constitution. It does this by setting criteria\n\nfor the identification of the \"competent authorities\" who for this purpose are defined as\n\nfollows in sub-section 6(c):\n\n(i)\n\n(ii)\n\nin relation to a law of which the administration is allocated to the national\ngovernment, an authority designated by the President: and\n\nin relation to a law of which the administration is allocated to the government\nof a province, an authority designated by the Premier of the province.\n\nIn this way recognition is given to the constitutional status of the President and the\n\nPremiers in whom the executive authority of the Republic and the provinces is vested.\n\n54\n\n\f[ 78 ] Section 235(6) specifies the criteria according to which the allocations are to be made.\n\nThe two criteria which are of importance in the present case are:\n\ni)\n\nIs the matter one which falls within the functional areas specified in schedule 6.\n\nCHASKALSON P\n\nii)\n\nIs the matter one which is referred to in paragraphs (a) to (e) of section 126.\n\n[ 79 ] The allocation is to be made to a competent authority within the provinces if \n\ni)\n\nIt is a matter which falls within the functional areas specified in schedule 6; and\n\nii)\n\nit is not a matter referred to in paragraphs (a) to (e) of section 126.\n\n[ 80 ] Sub-sections (8)(a) and (9) cater for a situation in which a province does not have the\n\nadministrative capacity to carry out the assignment. The Premier of a province can only\n\nrequire the assignment to be made if the administrative capacity to do so exists within the\n\nprovince. If that capacity is not established within fourteen days after the election of the\n\nPremier of the province concerned the matter is to be dealt with by \"a special\n\nadministrator or other appropriate authority within the national government\" until the\n\nprovincial government is able to assume that responsibility.\n\n[ 81 ] The laws governing the matters to be assigned had not been designed for the new\n\nconstitutional order, but provision is made in section 235(8)(b) for the President to amend\n\nor adapt the laws in order to deal with this problem.\n\n55\n\n\fCHASKALSON P\n\n[ 82 ] This then is the framework provided by section 235 for dealing with the problem of\n\ntransferring the power to exercise executive authority from the old order to the new order.\n\nIn respect of some laws it would have been reasonably clear whether the matter was one\n\nwhich was to go to an authority within the province, or to stay under the control of the\n\nnational government. But there would have been other instances - and the Transition Act\n\nis one - in which there is some difficulty in determining how to deal with the matter. In\n\nview of the complexity of the process this is not surprising.\n\n[ 83 ] As far as the Transition Act is concerned the difficulties are these. The first is to determine\n\nwhether or not the Transition Act is a law which falls to be dealt with in terms of section\n\n235(6) of the Constitution, which identifies the laws which are subject to assignment by\n\nthe President. If it is, the next question is whether it is a law \"with regard to matters which\n\nfall within the functional areas specified in schedule 6\". If it is not, then it did not fall\n\nwithin the powers of assignment given to the President under section 235(8)(a). If it is,\n\nthen the last question that arises is whether it is a law which deals with \"matters referred\n\nto in paragraphs (a) to (e) of section 126(3)\u201d. Such laws, too, are not subject to\n\nassignment under section 235(8)(a).\n\n[ 84 ] The overall purpose to be achieved through the application of section 235 is a systematic\n\nallocation of the \"power to exercise executive authority\" in terms of each of the \"old laws\",\n\nto an authority within the national government or authorities within the provincial\n\ngovernments. Sub-section 8(b)(ii) indicates that this authority may be allocated to\n\n56\n\n\fCHASKALSON P\n\nprovincial functionaries in respect of parts of a law and in respect of other parts of the\n\nsame law, to national functionaries. To achieve this purpose the President is given the\n\npower in sub-section 8(b) to amend or adapt the laws to the extent that he considers it\n\nnecessary \"for the efficient carrying out of the assignment\". The purpose of this power is\n\nclearly to provide a mechanism whereby a fit can be achieved between the old laws and\n\nthe new order. \n\n[ 85 ] The Transition Act was designed for the new order. It is referred to in section 245 of the\n\nConstitution as the law which will regulate the holding of the first elections for local\n\ngovernment structures, and its provisions deal with the process to be followed from the\n\ntime of its enactment (January 1994) until the elections which would only take place after\n\nthe Constitution came into force. It identifies the functionaries that are to have\n\nadministrative powers during the pre-constitutional phase and those who are to have such\n\npowers after the Constitution has come into force. In this respect it is materially different\n\nto other \"old laws\". What has to be decided is whether this takes it outside the scope of the\n\nallocation process that is to take place under section 235.\n\n[ 86 ] Section 235(6) makes provision for the allocation scheme described in that section to\n\napply to \"laws which, immediately prior to the commencement of this Constitution, were\n\nin force in any area which forms part of the national territory and which in terms of section\n\n229 continue in force\". No exceptions or qualifications are made in respect of laws falling\n\nwithin this description. The Transition Act was a law which was in force in the whole of\n\nthe Republic of South Africa, including the self-governing territories [section 2 of the\n\n57\n\n\fCHASKALSON P\n\nTransition Act as originally enacted], prior to the coming into force of the Constitution.\n\nIt did not in terms apply to the TBVC states during this period; if it had purported to do so,\n\nthen according to South African law then in force, it would have been an exercise in extra-\n\nterritorial jurisdiction. During the resumed argument counsel for the Applicants and the\n\nRespondents were asked whether they were aware of any legislation in the TBVC states\n\nincorporating the Transition Act by reference. Neither counsel was in a position to\n\nanswer this question. Counsel were asked to make enquiries as to whether or not this was\n\nthe case. On the 15th September this Court was advised in writing by Mr Gauntlett that\n\nthe Department of Provincial Affairs and Constitutional Development in the government\n\nof national unity had made enquiries and to the best of their knowledge there was no such\n\nlegislation. The Respondents have not sought to contradict this statement. I am not aware\n\nof any such legislation and I have dealt with the matter on the basis that prior to the coming\n\ninto force of the Constitution the Transition Act was in force in part only of what is now\n\nthe national territory.\n\n[ 87 ] Section 229 provides a constitutional foundation for the continuation of the \"old laws\" after\n\nthe coming into force of the Constitution. It is applicable to \"all laws ... in force in an area\n\nwhich formed part of the national territory...\u201d This would include the Transition Act. In\n\nterms, however, the continuity given by section 229 is applicable only to the areas in\n\nwhich such laws were in force prior to the commencement of the Constitution. This means\n\nthat in terms of section 229 the Transition Act is given post-constitutional validity only in\n\nthat part of the national territory which was the old Republic of South Africa.\n\n58\n\n\f[ 88 ] Reverting to section 235(6), the Transition Act is a law referred to in the preamble to that\n\nCHASKALSON P\n\nsub-section. It was in force prior to the commencement of the Constitution in \"any area\n\nwhich forms part of the national territory\" and it continued to be in force \"in terms of\n\nsection 229\". The Transition Act therefore meets the two requirements specified in sub-\n\nsection (6) for bringing laws within its purview. It therefore meets the qualification for\n\nassignment in terms of section 235(8).\n\n[ 89 ] How then is the allocation to be made? Sections 235(6) deals with the power to exercise\n\nexecutive authority and it does so in the context of the administration of laws. The\n\nemphasis on administration of laws is repeated in sub-section (8), which also specifies as\n\na pre-condition for any assignment to a provincial functionary, the existence of an\n\nadministrative capacity within the province concerned to carry out the assignment. Public\n\nadministration in the transition is dealt with in section 236. What section 235 is concerned\n\nwith is the capacity of provinces to establish departments of provincial government under\n\npolitical functionaries answerable to the Premiers. Thus in sub-section 6(c) it is specified\n\nthat the competent authorities must be functionaries designated by the Premiers. And it is\n\nto them that the power to exercise executive authority has to be assigned. They assume the\n\npolitical responsibility for the implementation of the laws within their provinces.\n\n[ 90 ] The difficulty that exists in applying the criteria laid down by section 235(6) to the\n\nTransition Act, lies not only in the fact that the Act was designed to cater for the post-\n\nconstitutional period, but also in the fact that section 235(6) is concerned with executive\n\npowers at the level of administration, and uses for this purpose, schedule 6 which deals\n\n59\n\n\fwith legislative competence, and paragraphs (a) to (e) of section 126(3) which deal not\n\nwith legislative competence, but with how conflicts between provincial legislation and\n\nnational legislation in the realm of Schedule 6 functional areas are to be resolved.\n\nCHASKALSON P\n\n[ 91 ] Accepting as I do that the Transition Act has to be dealt with in accordance with section\n\n235(6), the two questions that are determinative of the allocation to be made must be\n\naddressed. First, is it a law which deals with a matter within a functional area referred\n\nto in Schedule 6. The emphasis is on functional area and not on legislative capacity. The\n\nanswer to the question must be yes. The law deals with local government matters which\n\nare matters within the functional areas specified in Schedule 6. \n\n[ 92 ] Secondly, does the law deal with matters referred to in sub-paragraphs (a) to (e) of section\n\n126(3)? Only two of these paragraphs are relevant. They are sub-paragraphs (a) and (b).\n\n[ 93 ] Sub-paragraph (a) refers to \"a matter that cannot be regulated effectively by provincial\n\nlegislation\". There are such matters in the Transition Act. They are the matters dealt with\n\nby section 9(1) and section 12 of the Act which vest powers in the responsible Minister\n\nin the national government. But executive authority in respect of such matters was not\n\nassigned to provincial functionaries. The other matters dealt with in the Act could be\n\nregulated by provincial legislation. They deal with the implementation of the Act at\n\nprovincial level. Under the Act in the form in which it was when it was enacted, and\n\n\"continued\" under section 229, the Administrator was the Executive Council of the\n\nprovince. It was given the power under section 10(1)(a) of the Act to make enactments\n\n60\n\n\fCHASKALSON P\n\n\"not inconsistent with this Act with a view to the transitional regulation of any matter\n\nrelating to local government\". In terms of section 10(1)(b) this power included the power\n\nto amend or repeal any Act of Parliament or legislative assembly of any Self-governing\n\nTerritory, and in terms of section 10(1)(c) the powers of the Administrator included the\n\npower to extend the application of such laws to local government bodies within the\n\nprovince and to adapt such laws for that purpose. It is not necessary to decide whether\n\nthese powers are inconsistent with the Constitution or whether, because of the reference\n\nto the Transition Act in section 245, they enjoy a special status. What they demonstrate is\n\nthat all the matters dealt with in the sections other than section 9(1) and 12 are to be\n\nimplemented at provincial level by provincial functionaries with the power to make laws\n\nin respect of all such matters. The Act itself tells us that these matters can be regulated\n\neffectively by provincial legislation and administered by provincial functionaries and\n\nmakes provision for that to be done. The fact that the provincial powers are derived from\n\nan Act of parliament and not the Constitution, does not alter the character of the matters\n\nwhich are made the subject of provincial legislation. If the Act is amended by a competent\n\nauthority the matters could possibly be taken out of that category; but at the time the\n\nConstitution came into force that had not been done, and the matters remained matters\n\nwhich could be regulated effectively in terms of the Act by means of subordinate\n\nprovincial legislation.\n\n[ 94 ] Sub-paragraph (b) of section 126(3) refers to a matter \"that, to be performed effectively,\n\nrequires to be regulated or co-ordinated by uniform norms or standards that apply\n\ngenerally throughout the Republic.\" The sections of the Transition Act in respect of which\n\n61\n\n\fCHASKALSON P\n\nthe power to exercise executive competence was assigned to provincial functionaries dealt\n\nwith matters which, within the framework of the Act, did not have to be dealt with\n\naccording to uniform standards. In fact, the Act makes it clear that the Administrators in\n\nthe different provinces could make their own laws within the prescribed framework, and\n\nspecifically empowered them to do so.\n\n[ 95 ] We are not concerned in this case with the legislative power to amend the Transition Act;\n\nit can be assumed that only Parliament has that power. What we are concerned with is the\n\nfunctionaries to whom executive authority to administer the Act as drafted should be\n\nassigned. As long as the Act falls within the scope of section 235(6), and in my view it\n\ndoes, that power must be assigned in accordance with the provisions of that section. \n\n[ 96 ] The assignments that were in fact made were to a functionary designated by the President\n\nas far as matters within section 9(1) and 12 were concerned and to functionaries\n\ndesignated by the Premiers as far as other matters were concerned. In my view this was\n\nconsistent with the scheme laid down by sub-section (6). The administration of the\n\nparticular matters assigned to the control of functionaries designated by the President were\n\npre-eminently concerned with matters which belonged at national level. The\n\nadministration of matters assigned to provincial functionaries were all matters which\n\ncalled for action to be taken at provincial level and for decisions in respect of such matters\n\nto be taken within the framework of the legislation by provincial functionaries. It was\n\nmoreover consistent in broad terms with the provisions of the Act itself. The Act which\n\nhad been drafted with an eye to the future required adaptation in minor respects only. It\n\n62\n\n\fCHASKALSON P\n\nhad to be made applicable to the whole of South Africa, and this was done by Presidential\n\nproclamation in terms of section 235(8). The definition of Administrator was changed and\n\nbecame an authority designated by the Premier of a province, and this adaptation was also\n\neffected by Presidential proclamation. These amendments do not give rise to any conflict\n\nbetween section 235(8) and section 245. Section 245 refers to the Transition Act, but\n\naccording to section 232(2)(a) that means the Act \u201cas it exists from time to time after any\n\namendment or replacement thereof by a competent authority.\u201d This would include\n\namendments or adaptations properly made in terms of section 235(8).\n\n[ 97 ] This detailed analysis of the relevant provisions of the Constitution and their application\n\nto the Transition Act is also relevant to the second question. Section 235(8) which\n\nempowers the President to amend Acts of Parliament must be construed in the context of\n\nthe constitutional provision of which it forms part, and as giving the President no greater\n\npowers than are necessary for that purpose. Cf., R v Secretary for Social Security, ex\n\nParte Britnell 1991 WLR 198 (HL). The analysis which has been made of the relevant\n\nprovisions of the Constitution suggests that the power vested in the President in terms of\n\nsection 235(8) was for the purpose of enabling him to amend or adapt laws to make them\n\nfit the new situation. Althought the President is given a subjective discretion in deciding\n\nwhat is or is not necessary, the discretion must be exercised for the purpose of \u201cthe\n\nefficient carrying out of the assignment\u201d. The purpose of the power was to enable the\n\nPresident to do what he considered necessary to achieve functional efficiency in the\n\nadministration of the assigned laws. The legislation could be amended or adapted in so\n\nfar as it was necessary for that purpose. That was the extent of the President's power. He\n\n63\n\n\fcould not change the laws because he did not like them, or because he felt that they would\n\nbe more likely with substantive amendments to achieve what he considered to be the\n\nCHASKALSON P\n\nobjects of the legislation.\n\n[ 98 ]\n\nIn his affidavit filed in these proceedings the President states that he considered the\n\namendments effected by the Proclamations as necessary for the efficient carrying out of the\n\nassignment of the administration of the Transition Act to competent authorities within the\n\njurisdiction of the provinces. The \u201cinefficiency\u201d to which he refers was not a functional\n\ninefficiency arising out of the assignment that had been made; it was an inefficiency\n\nresulting from a weakness in the checks and balances prescribed by the Act, which enabled\n\na Provincial Executive Council to avoid referring disputed issues of demarcation to the\n\nSpecial Electoral Court by the simple expedient of changing the composition of the\n\nProvincial Committee. This weakness was only discerned when the Committee of the\n\nWestern Cape was reconstituted in the circumstances which have previously been\n\ndescribed. The amendments made to the Act under the Proclamations were not necessary\n\nto make the Act fit the new Constitutional order. The inefficiency in the Act that they\n\nsought to address is not the sort of inefficiency contemplated by section 235(8). The\n\nchanges which were made by the Proclamations were therefore outside the scope of the\n\npowers vested in the President by section 235(6) of the Act. In fact the President did not\n\npurport to act under section 235(8) when he made Proclamations R 58 and R 59. He acted\n\nunder section 16A. If that section is invalid the powers conferred on the President under\n\nsection 235(8) are not sufficiently wide to provide a source of power on which reliance\n\ncan now be placed.\n\n64\n\n\fCHASKALSON P\n\nDeclaration of Invalidity\n\n[ 99 ] We have said previously that our role as Justices of this Court is not to \"second guess\" the\n\nexecutive or legislative branches of government or interfere with affairs that are properly\n\ntheir concern. We have also made it clear that we will not look at the Constitution\n\nnarrowly. Our task is to give meaning to the Constitution and, where possible, to do so\n\nin ways which are consistent with its underlying purposes and are not detrimental to\n\neffective government. The issues raised in the present case are, however, of fundamental\n\nimportance. They concern the powers of Parliament and how it is required to function\n\nunder the Constitution. They concern also the validity of executive proclamations issued\n\nby the President which are intended to have the force of law. Constitutional control over\n\nsuch matters goes to the root of a democratic order. Adherence to the prescribed forms\n\nand procedures and insistence upon the executive not exceeding its powers are important\n\nsafeguards in the Constitution. Section 16A was specifically authorised by Parliament and\n\nproclamations under that section were issued in consultation with and had the approval of\n\nthe relevant committees of both houses of Parliament. The proclamations were tabled in\n\nParliament and could have been invalidated by resolution, and no such resolution was\n\npassed. Yet, what was done, is inconsistent with what is required by the Constitution. \n\n[ 100 ] Constitutional cases cannot be decided on the basis that Parliament or the President acted\n\nin good faith or on the basis that there was no objection to action taken at the time that it\n\n65\n\n\fCHASKALSON P\n\nwas carried out. It is of crucial importance at this early stage of the development of our\n\nnew constitutional order, to establish respect for the principle that the Constitution is\n\nsupreme. The Constitution itself allows this Court to control the consequences of a\n\ndeclaration of invalidity if it should be necessary to do so. Our duty is to declare\n\nlegislative and executive action which is inconsistent with the Constitution to be invalid,\n\nand then to deal with the consequences of the invalidity in accordance with the provisions\n\nof the Constitution.\n\n[ 101 ] Despite differences in their reasoning, the members of this Court are unanimous in their\n\nconclusion that, by virtue of their inconsistency with the Constitution, the provisions of\n\nsection 16A of the Local Government Transition Act are invalid. The Court has further,\n\nby a majority of 9 to 2, come to the conclusion, though for different reasons, that\n\nProclamations R 58 and R 59 of 1995, which were purportedly promulgated under the\n\nprovisions of section 16A of the Transition Act, cannot be validated under the provisions\n\nof section 235 of the Constitution. In the result an order has to be made declaring that\n\nSection 16A of the Transition Act is inconsistent with the Constitution.\n\nSections 98(5) and 98(6) of the Constitution\n\n[ 102 ] The conclusion that section 16A of the Transition Act is inconsistent with the Constitution\n\nhas consequences which go far beyond the fact that the Proclamations will be invalidated.\n\n Although the other proclamations made under section 16A are not in issue in the present\n\nproceedings, this finding of invalidity cannot be ignored. The Proclamations depend on\n\n66\n\n\fCHASKALSON P\n\nsection 16A for their validity. If section 16A is invalid, so are they. In practical terms this\n\nmeans that every step taken in preparation of the local government elections pursuant to\n\nthose proclamations will be invalidated. Unless this can be rectified, the local government\n\nelections cannot proceed, as planned, on 1st November.15 \n\n[ 103 ] Sections 98 (5) and 98(6) of the Constitution provide:\n\n98 (5)\n\nIn the event of the Constitutional Court finding that any law or any provision\nthereof is inconsistent with this Constitution, it shall declare such law or\nprovision invalid to the extent of its inconsistency: Provided that the\nConstitutional Court may, in the interests of justice and good government,\nrequire Parliament or any other competent authority, within a period specified\nby the Court, to correct the defect in the law or provision, which shall then\nremain in force pending correction or the expiry of the period so specified.\n\n98 (6) Unless the Constitutional Court in the interests of justice and good\ngovernment orders otherwise, and save to the extent that it so orders, the\ndeclaration of invalidity of a law or a provision thereof - \n\na)\n\nb)\n\nexisting at the commencement of this Constitution, shall\nnot invalidate anything done or permitted in terms thereof\nbefore the coming into effect of such declaration of\ninvalidity; or\n\npassed after such commencement, shall \neverything done or permitted in terms thereof.\n\ninvalidate\n\n[ 104 ] The implications of section 98(6) are that if section 16A is declared to be invalid all the\n\nproclamations issued under it and everything done pursuant to those proclamations will as\n\na matter of constitutional law, be invalidated unless an order to the contrary is made by this\n\nCourt.\n\n[ 105 ] Section 98(6) entitles a court that declares a law to be invalid to direct that \"anything\"\n\ndone or permitted in terms of such law shall not be invalidated. Taken literally this may\n\n15 We deal with this more fully in paragraph [110] below.\n\n67\n\n\fCHASKALSON P\n\nbe wide enough to be applicable to Proclamations having the force of law, issued under\n\na law declared to be invalid. In my view, however, there must at least be some doubt\n\nwhether the section should be construed in this way. The section is capable of being\n\nconstrued more narrowly to refer only to acts performed, and not laws made, under an\n\ninvalid law. But even if the word \"anything\" is given a wide meaning to encompass the\n\ngiving of validity to legislation made under an invalid law, it will seldom, if ever, be\n\nappropriate to use this power to validate amendments made to Acts of Parliament. It is\n\nlogically inconsistent to strike down the empowering legislation, and at the same time, to\n\nvalidate Proclamations made under it, which will have the result that the \u201cthings\u201d validated\n\n-- laws which should be made only by Parliament -- will apply not only to the past, but to\n\nthe future as well. This is a task for Parliament and not for the Court.\n\n[ 106 ] Section 98 (5) permits this Court to put Parliament on terms to correct the defect in an\n\ninvalid law within a prescribed time. If exercised, this power has the effect of making the\n\ndeclaration of invalidity subject to a resolutive condition. If the matter is rectified, the\n\ndeclaration falls away and what was done in terms of the law is given validity. If not, the\n\ndeclaration of invalidity takes place at the expiry of the prescribed period, and the normal\n\nconsequences attaching to such a declaration ensue. In the present case that would mean\n\nthat Section 16A and everything done under it would be invalidated.\n\n[ 107 ] The powers conferred on the Courts by sections 98(5) and (6) are necessary powers.\n\nWhen the Constitution came into force there were many old laws on the statute book which\n\nwere inconsistent with the Constitution. If all of them were to have been struck down and\n\n68\n\n\fCHASKALSON P\n\nall action taken under them declared to be invalid there could have been a legislative\n\nvacuum and chaotic conditions. Sections 98 (5) and (6) enable the Court to regulate the\n\nimpact of a declaration of invalidity and avoid such consequences. There may also be\n\nsituations in which it is necessary for the Court to act to avoid or control the consequences\n\nof a declaration of invalidity of post-constitutional legislation where the result of\n\ninvalidating everything done under such legislation is disproportional to the harm which\n\nwould result from giving the legislation temporary validity. The need for the Courts to\n\nhave such a power has been recognised in other countries. In Canada for instance where\n\nno provision is made specifically in the Constitution for such powers, the Courts have\n\nachieved this result by suspending an order invalidating a statute for sufficient time to\n\nallow Parliament to take remedial action. See, for example, Reference re Language\n\nRights under s 23 of Manitoba Act, 1870 (1985) 19 DLR (4th) 1 at 21 et seq.; R v\n\nBrydges [1990] 46 CRR 236 at 258; Schachter v Canada 10 CRR (2d) 1 (1992) at 30.16\n\n[ 108 ] Where this Court finds that laws enacted before the coming into force of the Constitution\n\nare inconsistent with the Constitution it will more readily exercise the special powers\n\nvested in it by sections 98 (5) and (6) than it will do in respect of laws passed after the\n\ncoming into force of the Constitution. The former are an inheritance from the past. The\n\nlatter are the actions of a legislature in a constitutional state and special circumstances\n\nmust exist to justify a decision by the Court to give validity to such legislation. This\n\n16 For a discussion of the Canadian law, see, N Duclos and K Roach \"Constitutional Remedies as\nConstitutional Hints.\" A Comment on R v Schachter \" 36 (1991) McGill LJ 1-38; C Rogerson 'The Judicial\nSearch for Appropriate Remedies under the Charter: The examples of overbreadth and vagueness in R Sharpe,\nCharter Litigation (1987: Butterworths) pp 233-306. See also, Reform Party of Canada v Attorney General\n(1993) 13 CRR (2d) 107 (Alb), which dealt with a provision in the Canada Elections Act. Moshansky J found the\nprovision unconstitutional but suspended the declaration of invalidity for a period of 6 months.\n\n69\n\n\fCHASKALSON P\n\ndistinction is specifically made in section 98(6) of the Constitution which assumes that\n\nthings done under \"old laws\" which are declared to be inconsistent with the Constitution\n\nwill ordinarily be validated, while things done under \"new laws\" which are declared to\n\nbe inconsistent with the Constitution, will ordinarily be invalidated. The question then\n\nis whether special circumstances exist in the present case which would justify us in\n\nexercising our powers under sections 98(5) or 98(6).\n\n[ 109 ] The arguments in this case were concluded a little more than six weeks before the local\n\ngovernment elections are to be held. This judgment will be given approximately five\n\nweeks before the election date. The proclamations other than R 58 and R 59 which will\n\nbe rendered invalid by the finding that section 16A is inconsistent with the Constitution\n\nmake provision for matters concerned with the functioning of local government as well as\n\nmatters connected with the holding of these elections. Proclamation R 54 validates all\n\ntransitional councils established after the dates specified in sections 7 or 7A of the\n\nTransition Act and Proclamation R 65 establishes rural local government. The\n\ninvalidation of these two proclamations could have serious adverse effects on local\n\ngovernment. As far as the elections are concerned, a number of the Proclamations deal\n\nwith important amendments to the Transition Act, covering matters such as the\n\nestablishment of provincial and local government structures for elections administration\n\nand financing, addressing issues such as demarcation, polling and voter registration,\n\ndevolution of power to local government coordinating committees [R 174 and R 35], voter\n\nand candidate eligibility [R 174 and R 35], dispute resolution [R 174], the establishment\n\nof, and the coordination of decision making between transitional councils and the\n\n70\n\n\fCHASKALSON P\n\nAdministrator, which decisions would necessarily involve issues relating to elections [R\n\n174], the establishment of forums to negotiate the creation of metropolitan/transitional\n\ncouncils, the legitimate authority of which inter alia concerning actions taken by such\n\ncouncils in regard to elections would be subject to challenge [R 174 and R 54] and the\n\nparticipation of \u201cinterest groups\u201d in establishment of rural local government (rural and\n\ndistrict councils), which participation on matters inter alia related to elections\n\nadministration would also be subject to challenge [R 65]. If these proclamations are\n\ninvalidated the legality of transitional structures and the arrangements made by them for\n\nservices and other matters will be brought into question. It will, moreover, not be possible\n\nto hold the elections on the 1st November unless Parliament is convened as a matter of\n\nurgency to take action to validate the consequentially-invalidated Proclamations. We must\n\ntake judicial cognisance of the fact that the local government elections are of national\n\nimportance and that the establishment of democratic local governments is widely seen as\n\nbeing necessary for reconstruction and development to proceed at a grass roots level.\n\n[ 110 ] An order which would in effect disrupt the functioning of transitional local government\n\nstructures and prevent the elections from being held would not in my view be in the\n\ninterests of good government. It could lead to increased tension in areas where the\n\ninhabitants are anxious to democratise their local structures and to considerable waste of\n\nexpenditure bearing in mind the preparations that are already under way and the steps that\n\nhave been taken to lay the groundwork for such elections. Action can no doubt be taken\n\nto ratify most of these matters, but the uncertainty that is likely to be generated in the\n\ninterim by nullifying what has been done under the proclamations made in terms of sections\n\n71\n\n\f16A are factors that need to be taken into account in weighing up the decision to be taken\n\nCHASKALSON P\n\nby us under section 98.\n\n[ 111 ] If an order is made in terms of Section 98(5) it would keep alive the provisions of Section\n\n16A of the Transition Act and the Proclamations issued under it temporarily for the period\n\nallowed for the correction of the defect. If within the prescribed time the defect is\n\ncorrected, or if the action taken under the defective law is validated, the transitional\n\nstructures will be lawful, and elections can be held. Both the Applicants and the\n\nRespondents, through their counsel, informed us that they would prefer the elections to\n\nproceed. The Applicants\u2019 counsel said, however, that if the choice open to his clients was\n\nthat the elections should go ahead or that Proclamations R 58 and R 59 should be\n\ninvalidated, their choice would be to invalidate the Proclamations.\n\n[ 112 ] Parliament is the only body which can validate the amendments to the Transition Act made\n\nin terms of proclamations issued under section 16A of the Act and the steps taken pursuant\n\nthereto. It must be given the opportunity to do so if that is considered to be necessary; it\n\nmust also be given the opportunity to decide whether it wishes to take the steps necessary\n\nto permit the elections to proceed on the 1st November in those areas where they are\n\nscheduled to take place on that date. In my view Section 16A should be given continued\n\nvalidity for sufficient time to enable such decisions to be taken. The decisions must be\n\ntaken before the election date, otherwise they could be influenced by the outcome of the\n\nelections. The prejudice to the Applicants consequent upon such an order being made is,\n\nby comparison, not substantial. No objection was taken by the Applicants to anything done\n\n72\n\n\fCHASKALSON P\n\nunder Section 16A other than the making of Proclamations R 58 and R 59. Counsel for\n\nthe Applicants made it clear that there was no objection to the validation of the other\n\nproclamations as long as this could be done without validating the Proclamations R 58 and\n\nR 59. This we cannot do in terms of section 98(5) of the Constitution. Proclamations R\n\n58 and R 59 which are attacked seem to be relevant only to the elections in the Cape\n\nMetropolitan Area, which in any event have been postponed. If Parliament corrects the\n\ndefect in the Transition Act and ratifies what has been done (including, if that be its\n\ndecision, the validity of the Proclamations), the demarcation dispute which led to this\n\nlitigation will be referred to the Special Electoral Court, which is the institution\n\nestablished for the purpose of resolving disputes of this nature. It can be assumed that that\n\ncourt will do its duty and that the outcome of any hearing before it, will be a just outcome.\n\nWeighing this limited potential prejudice as far as the Applicants are concerned against\n\nthe much greater prejudice to local government generally, and the holding of elections in\n\nparticular, which will result if the Proclamations are declared invalid with immediate\n\neffect, it seems clear that \"justice and good government\" requires that Parliament be given\n\nthe opportunity if it wishes to do so, to remedy the situation. It will then be for Parliament\n\nto decide what, if any, action should be taken in the circumstances brought about by the\n\ndeclaration that Section 16A is inconsistent with the Constitution. This is preeminently a\n\ndecision for Parliament and not for the Court.\n\n[ 113 ] I have no doubt therefore that this is a case in which the Court should exercise its powers\n\nunder section 98(5). It is important to make clear that when a court makes an order in\n\nterms of the proviso to section 98(5), Parliament\u2019s powers to legislate in order to address\n\n73\n\n\fCHASKALSON P\n\nthe consequences of a declaration of invalidity are not limited in any way. Parliament may\n\nchoose simply to correct the defect in the invalidated law within the period specified or,\n\non the other hand, it may choose not to correct the defect, but take any other appropriate\n\nlegislative steps to address the effect of the declaration of invalidity. In the event of the\n\nlatter, the declaration of invalidity will come into effect on the specified date. Section\n\n98(6) provides that, in the case of a law or provision enacted after the 27th April 1994,\n\nsuch as section 16A of the Transition Act, the effect of such declaration of invalidity will\n\nbe to invalidate retrospectively everything done in terms of that law.\n\n[ 114 ] A majority of this Court has held that the Transition Act was not assignable under section\n\n235(8) of the Constitution. No relief was claimed by the Applicants in this regard and no\n\norder is made in regard thereto. The implications of this finding are, however, far reaching\n\nand impugn both the validity of Proclamation R 129 of 1994 and the actions taken pursuant\n\nthereto. It brings into question the validity of every step taken since July 1994 in the\n\nimplementation of local government. This also calls for urgent consideration by\n\nParliament.\n\n[ 115 ] The matter is clearly one of great urgency and Parliament must decide without delay\n\nwhether or not it wants an opportunity to correct the defect. Unfortunately, Parliament is\n\nnot presently in session, but it can be called together for this purpose. In Canada, a Court\n\nallowed Parliament six months to correct a defect in electoral legislation.17 That luxury\n\ncannot be allowed to Parliament in the present case. If the defect is to be corrected this\n\n17 Reform Party of Canada v Attorney General (1993) 13 CRR (2d) 107 (Alb)(in which elections act\n\nprovisions found unconstitutional, but declaration of invalidity was suspended for 6 months).\n\n74\n\n\fCHASKALSON P\n\nmust happen before the elections. A period between the date of this judgment and the 25th\n\nOctober should provide sufficient time to enable Parliament to take action if it chooses to\n\ndo so. If a decision is taken to postpone the elections it will be open to the Respondents\n\nto approach this Court, on notice to the Applicants, to ask for the time within which the\n\ndefect must be corrected to be extended for a period which will terminate within a\n\nreasonable time prior to the postponed election date.\n\nContempt\n\n[ 116 ] One matter remains to be dealt with. On the morning of the 8th September a report\n\nappeared in Die Burger of a speech made the previous evening by the Third Applicant.\n\nAccording to the report the speech was delivered in the Sarepta Community Hall in front\n\nof an enthusiastic crowd of the Third Applicant's political supporters who had come from\n\nfar afield to hear him. According to the report the following comment was made by Third\n\nApplicant in the course of his speech:\n\nDie Wes-Kaapse regering het 'n uitstekende kans om die saak in die\nKonstitusionele Hof te wen as die uitspraak nie 'n politieke een gaan wees nie,\nhet die Wes-Kaapse LUR vir Plaaslike Bestuur, mnr Peter Marais, gisteraand\nges\u00ea.\n\n[ 117 ] On the day the report appeared in Die Burger the Respondents\u2019 attorney wrote to the Third\n\nApplicant's attorney referring to the passage from his speech which had been quoted in Die\n\nBurger and saying:\n\nIn die lig van die implikasies wat so 'n stelling dra verneem ek namens die\nRespondente voor 12:00 vandag of u kli\u00ebnt die berig gaan repudieer al dan nie,\nen indien wel of hy dit in die vorm van 'n persberig sal doen.\n\n75\n\n\f[ 118 ] On the same day the Third Applicant issued a press statement which read as follows:\n\nCHASKALSON P\n\n'n Berig in \"Die Burger\" van vandag het die indruk geskep dat ek op 'n openbare\nvergadering in Kuilsrivier sou beweer het dat as die Wes-Kaapse Regering sy\nsaak in die Konstitutsionele Hof sou verloor, dit 'n \"politieke uitspraak\" sou\nwees.\n\nEk ontken uitdruklik dat dit my bedoeling was om die Konstitusionele Hof te\nminag of te insinueer dat party politieke oorwegings 'n invloed sal h\u00ea op die\nHof se beslissing. Ek trek die stelling onvoorwaardelik terug insoverre dit so\nopgeneem kan word.\n\nDie posisie is die volgende: selfs al sou die Hof bevind dat die twee omstrede\nproklamasies ongeldig is, kan die Hof kragtens die Grondwet die proklamasies\nvir 'n bepaalde tyd in stand hou as die Hof dit in belang van \"goeie\nstaatsbestuur\" ag. Myns insiens sou so 'n besluit dus op praktiese\nstaatkundige/politieke gronde gebaseer moet wees. Ek het in hierdie konteks\nna hierdie moontlikheid verwys in die aangehaalde deel van my toespraak.\n\n[ 119 ] Counsel for the Respondents raised this matter in their written argument which was\n\nsubmitted to the Court, saying \"the suggestion of bias and judicial dishonesty on the part\n\nof the Court if it finds for the Respondents is plain.\" They drew attention in their written\n\nargument to the fact that there was no suggestion in the letter of the Third Applicant's\n\nattorneys written in response to the complaint made by the Respondents\u2019 attorneys that the\n\nreport in Die Burger was inaccurate. They also pointed out that the Third Applicant's\n\n\"endeavour to explain what he intended is neither a repudiation nor an unequivocable\n\nretraction and apology.\" They submitted that the reported statement constituted a serious\n\ncontempt of Court, whether on the basis of a contempt tending to prejudice the outcome of\n\na case or one scandalising the Court. In this regard they referred to Joubert (ed) Law of\n\nSouth Africa, Vol. 6 para. 200; Hunt, S.A. Criminal Law and Procedure Vol. II (2nd ed\n\n1982) 199-204; and Attorney General v Times Newspapers Ltd. [1973] 3 AII ER 54(HL)\n\nat 60 b et seq.\n\n76\n\n\f[ 120 ] During the course of the resumed argument Mr Gauntlett specifically asked us to deal with\n\nCHASKALSON P\n\nthis issue, saying that the statement attributed to the Third Applicant, which had not been\n\ndenied by him, was highly prejudicial to the Respondents. It was calculated on the one\n\nhand to create the impression in the minds of the public that if the Applicants lost the case\n\nit would be the result of a political decision and on the other hand to put subtle pressure\n\non the Court to avoid such an outcome. It goes without saying that we have not been\n\ninfluenced in any way by the press report, but the damage which can be done by such\n\nstatements is obvious and to be deplored.\n\n[ 121 ] Mr Potgieter made it clear that he did not dispute the sentiments expressed by Mr Gauntlett.\n\nHe said that his client had not spoke from a prepared text and had not intended to impute\n\nimproper motives to the Court or to bring it into contempt. If what had been said created\n\nsuch an implication, his instructions were to apologise to us.\n\n[ 122 ] In my view an ordinary person attending a political gathering such as that described in Die\n\nBurger, and the ordinary reader of its report, would have understood the statement\n\nattributed to the Third Applicant in the manner suggested by the Respondents. It\n\nundermines not only this Court, but constitutionalism itself, of which this Court is a\n\nguardian. Having regard to the high political office held by the Third Applicant, the\n\nconsequences of a statement impugning the integrity of this Court might have been\n\nparticularly harmful. All citizens are free to attend Court, to listen to proceedings, to\n\ncomment on them and on the judgments given and to criticize such judgments, even\n\n77\n\n\fvigorously, where it is appropriate to do so, but it is irresponsible to make unfounded\n\nstatements which impugn the integrity of the Court. I leave the matter there.\n\nCHASKALSON P\n\nCosts\n\n[ 123 ] The Applicants have succeeded in having Section 16A of the Transition Act declared\n\ninconsistent with the Constitution. Although this relief was only sought at a late stage of\n\nthe proceedings there is no reason to believe that the Respondents' opposition would have\n\nfallen away if that relief had been sought earlier. The Applicants have tendered to the\n\nRespondents the wasted costs occasioned by the postponement on the 16th August. They\n\nare, however, entitled to the other costs that have been incurred. The case is clearly one\n\nin which the briefing of two counsel was warranted.\n\nThe Order\n\n[ 124 ] The following order is made\n\n1.\n\n2.\n\nThe Application for direct access in terms of rule 17 is granted.\n\nThe Application dated 30 August 1995 to amend the notice of\n\nmotion is granted.\n\n3.\n\nSubject to the provisions of paragraph 4 of this order section 16A\n\nof the Local Government Transition Act No. 209 of 1993 is\n\n78\n\n\fCHASKALSON P\n\ndeclared to be invalid by reason of its inconsistency with the\n\nConstitution, and accordingly all Proclamations made under it,\n\nincluding Proclamations R 58 and R 59, are also invalid.\n\n4.\n\nIn terms of the proviso to section 98(5) of the Constitution --\n\n(a)\n\nParliament is required to correct the defect in Section 16A of the Local\n\nGovernment Transition Act, 1994 by not later than 25 October 1995; and\n\n(b)\n\nThe said section and the Proclamations made under it shall remain in force\n\npending the correction of the defect or the expiry of the period specified\n\nherein.\n\n5.\n\nIf all the local government elections scheduled to take place on 1 November 1995\n\nare postponed, the Respondents may apply to this Court, on notice to the\n\nApplicants, for an order that the time within which the defect in section 16A of the\n\nLocal Government Transition Act, 1994 is to be corrected, be extended to a date\n\nprior to the new election date.\n\n6.\n\n(a)\n\nThe Respondents are directed to make payment,\n\njointly and severally, to the Applicants of the costs\n\nof this application, save for the costs referred to in\n\nsub-paragraph (b) hereof.\n\n(b)\n\nThe Applicants are directed to make payment,\n\njointly and severally, to the Respondents of all\n\nwasted costs occasioned by the postponement of\n\nthe hearing from the 16th August to the 30th August\n\n1995.\n\n79\n\n\f(c)\n\nThe costs referred to in sub-paragraphs (a) and (b)\n\nare to include the costs of two Counsel. \n\nMAHOMED DP\n\n[ 125 ] MAHOMED DP. I have had the advantage of reading the judgment of Chaskalson P and\n\nI am in agreement with the orders which he proposes. Generally, I am in agreement with\n\nthe reasons he gives for those orders but I think it is advisable for me to set out briefly my\n\nown reasons for concluding that section 16A of the Transition Act is invalid and for\n\nconcluding that Proclamations R58 and R59 which the Applicants have attacked in these\n\nproceedings cannot be saved by reliance on the provisions of section 235(8) of the\n\nConstitution.\n\nConstitutionality of section 16A\n\n[ 126 ] The constitutional attack on section 16A is basically premised on the proposition that it\n\nconstitutes an impermissible delegation of legislative powers by Parliament to the\n\nPresident.\n\n[ 127 ] The authority of Parliament to make laws is contained in section 37 of the Constitution\n\nwhich provides that:\n\n\u201cThe legislative authority of the Republic shall, subject to this Constitution, vest in\nParliament, which shall have the power to make laws for the Republic in accordance\nwith this Constitution.\u201d\n\n[ 128 ] Conceptually, it is possible to adopt different approaches to the application of this section.\n\nThe first approach is to say that because legislative authority vests in Parliament, it, and\n\nit alone, must make the laws of the country, \u201cin accordance with the Constitution\u201d and that\n\n80\n\n\fit therefore cannot delegate that function to another authority, however eminent that\n\nauthority may be. The second approach would contend that precisely because Parliament\n\nis the ultimate legislative authority with the power to make laws for the Republic it must\n\nhave the power, in appropriate circumstances, to authorize other organs to exercise law-\n\nmaking powers if it considers such delegation to be necessary for the proper discharge of\n\nits own functions. The law providing for such delegation, it is emphasised, is also a law\n\nwhich it makes pursuant to its law-making power. \n\n[ 129 ] Both these strains find expression in the jurisprudence dealing with this problem. A\n\nconsideration of that jurisprudence suggests, however, that there is no inherently\n\nirreconcilable conflict between these strains.\n\n[ 130 ] The American authorities emphasize the constitutional doctrine of a separation of powers\n\nbetween the Legislature, the Executive and the Judiciary and have repeatedly held that\n\nfederal law-making power is vested in Congress alone and cannot for that reason be\n\ndelegated to the Executive.1 The federal courts in the United States have, however,\n\nappreciated that a national legislature cannot effectively make the vast network of laws\n\nnecessary to regulate life and living in a complex modern civilization and for that reason\n\nhave consistently upheld the constitutionality of delegations to the Executive or the\n\nAdministration, subject to the proviso that what is delegated is the power to give effect to\n\nthe principles and policies which are contained in the statute itself.2 That distinction has\n\n1 Panama Refining Co. v. Ryan, 293 U.S. 388 at 421 (1935); A.L.A. Schechter Poultry Corp. et al. v.\n\nUnited States, 295 U.S. 495 (1935) at 529. \n\n2 Panama Refining Co. case (supra) at 415 and 418; A.L.A. Schechter Poultry Corp. case (supra) at\n\n530.\n\n81\n\n\fbeen expressed as follows:-\n\nMAHOMED DP\n\n\u201cThe true distinction, therefore, is, between the delegation of power to make the law,\nwhich necessarily involves a discretion as to what it shall be, and conferring an\nauthority or discretion as to its execution, to be exercised under and in pursuance of\nthe law. The first cannot be done; to the latter no valid objection can be made.3\n\n[ 131 ] The rationale for the American jurisprudence in respect of this problem is based not only\n\non the wording of the relevant provisions of the United States Constitution but also upon\n\ntwo very important concerns: the first concern is that since the Constitution reposes\n\nconfidence in the political judgment of those elected to Congress and in their capacity to\n\nmake policies pursuant to that judgment, it would be constitutionally subversive to allow\n\nsuch political judgments and such policies effectively to be made by those not identified\n\nfor that purpose in the Constitution4; the second concern is that if the law-making function\n\nvested in Congress is delegated to members of the Executive or the Administration in a\n\nmanner which allows the delegatee to make political assessments and assessments of\n\npolicy, the exercise of the delegated power would not be subject to adequate judicial\n\nchecks; discretions and functions exercised on political grounds cannot easily be the\n\nsubject of judicial review5.\n\n[ 132 ] Although both these concerns have been specially articulated in American jurisprudence\n\nthey are of manifest relevance in all countries where the courts have to grapple with the\n\n3 Hampton & Co. v. United States, 276 U.S. 394 at 407 (1928) quoting from Wilmington and\n\nZanesville \n\n Railroad Co. v. Commissioners,1 Ohio, St. 77 (1852).\n\n4 United States v. Robel, 389 U.S. 258 at 276 (1967). \n\n5 Industrial Union Department AFL-CI0 v. American Petroleum Institute, 448 U.S. 607 (1980).\n\n82\n\n\fpermissible parameters of delegation by a supreme law-making body to any part of the\n\nMAHOMED DP\n\nExecutive. \n\n[ 133 ] The American approach has found substantial resonance in the Irish Courts. The test\n\nexpressed by O\u2019Higgins CJ6 was\n\n\u201cWhether what is challenged as an unauthorized delegation of Parliamentary power is\nmore than the mere giving (of) effect to principles and policies which are contained in\nthe statute itself. If it be, then it is not authorized; for such would constitute a\npurported exercise of legislative power by an authority which is not permitted to do so\nunder the Constitution.\u201d\n\n[ 134 ] The courts in the old commonwealth countries have been more benevolent in tolerating\n\ndelegation of law-making functions from Parliament to the Executive. This development\n\nwas historically influenced by the English doctrine of the absolute sovereignty of\n\nParliament which carried with it the necessary consequence that Parliament could in the\n\nexercise of that sovereignty enact any law delegating law-making power to the King or his\n\nMinisters. It was also influenced by the English system of \u201cresponsible government\u201d\n\nwhich permitted a greater coalescence between the legislature and the executive than was\n\npermitted by the Constitution of the United States.7 The influence of those doctrines has\n\nimpacted on much of the jurisprudence of countries such as Canada, Australia and India.\n\nBut even in those countries the courts were not prepared to hold that the power of\n\ndelegation was unrestrained. The Canadian Supreme Court has held that Parliament\u2019s\n\npower of delegation was not absolute and that an \u201cabdication\u201d, \u201cabandonment\u201d or\n\n6 Cityview Press Limited and another v An Chomhiarle Oiliuna and others [1980] IR 381 at 395.\n\n7 Hogg: Constitutional Law of Canada (3d. ed. 1992) paragraph 14.2; Shannon v Lower Mainland Dairy\nProducts Board (1938) A.C. 708.\n\n83\n\n\fMAHOMED DP\n\n\u201csurrender\u201d of Parliament\u2019s legislative authority to the Executive would be invalid8.\n\nSimilarly, in Rajnarainsingh\u2019s case9, decided in the Supreme Court of India, Bose J held\n\nthat it was an essential characteristic of legislative power that it laid down a policy or\n\nstandard and that such an essential feature could not be delegated; moreover that the\n\nmodifications or restrictions which may be permitted are those which do not involve a\n\nchange in such essential policy or standard and that the power to repeal a law is essentially\n\nlegislative and could not be delegated.10 \n\n[ 135 ] In Australia the leading case is that of The Victorian Stevedoring & General Contracting\n\nCompany (Pty) Ltd v Dignan.11 In that case a certain statute had purported to confer\n\npower upon the Governor-General to make regulations not inconsistent with that statute\n\n\u201cwith respect to the employment of transport workers and, in particular, for regulating the\n\nengagement, service, and discharge of such workers, and the licensing of persons engaged\n\nas transport workers, and for regulating or prohibiting the employment of unlicensed\n\npersons as transport workers\u201d. An attack on the statute on the ground that it was an\n\nimpermissible delegation of legislative powers failed, but it was made clear by the\n\nAustralian High Court that it was not competent for Parliament to \u201cabdicate its powers of\n\nlegislation\u201d. At page 121, Evatt J stated:\n\n\u201cThis is not because Parliament is bound to perform any or all of its legislative powers\nor functions, for it may elect not to do so; and not because the doctrine of separation\n\n8 Re Gray (1918) 57 S.C.R. 150 at 157, 165, 171, 176.\n\n9 Rajnarainsingh v Chairman Patna Administration Committee, Patna (1955) 1 S.C.R. 290.\n\n10 Rajnarainsingh\u2019s case (supra) at 298-9, referring to the issues dealt with in the case of In re the\n\nDelhi Laws \n\nAct (1951) S.C.R. 747. \n\n11 46 C.L.R. 73.\n\n84\n\n\fMAHOMED DP\n\nof powers prevents Parliament from granting authority to other bodies to make laws or\nby-laws and thereby exercise legislative power, for it does so in almost every statute;\nbut because each and every one of the laws passed by Parliament must answer the\ndescription of a law upon one or more of the subject matters stated in the Constitution.\nA law by which Parliament gave all its law-making authority to another body would be\nbad merely because it would fail to pass the test last mentioned.\u201d\n\nAt page 120 of the report the learned Judge deals with some of the considerations relevant\n\nfor the determination of the issue. \n\n\u201cThe following matters would appear to be material in examining the question of the\nvalidity of an Act of the Parliament of the Commonwealth Parliament which purports\nto give power to the Executive or some other agency to make regulations or by-laws:-\n1.\n\nThe fact that the grant of power is made to the Executive\nGovernment rather than to an authority which is not responsible to\nParliament, may be a circumstance which assists the validity of the\nlegislation. The further removed the law-making authority is from\ncontinuous contact with Parliament, the less likely is it that the law\nwill be a law with respect to any of the subject matters enumerated\nin secs. 51 and 52 of the Constitution.\nThe scope and extent of the power of regulation-making conferred will, of\ncourse, be very important circumstances. The greater the extent of law-\nmaking power conferred, the less likely is it that the enactment will be a law\nwith respect to any subject matter assigned to the Commonwealth \nParliament.\nThe fact that Parliament can repeal or amend legislation conferring\nlegislative power will not be a relevant matter because parliamentary\npower of repeal or amendment applies equally to all enactments. But\nall other restrictions placed by Parliament upon the exercise of\npower by the subordinate law-making authority will be important.\nThe circumstances existing at the time when the law conferring power is\npassed or is intended to operate, may be very relevant upon the question of\nvalidity. A law conferring power to regulate, in time of war or national\nemergency or under circumstances where it is essential to retain in some\nauthority a continuous power of alteration or amendment of regulations,\nalthough clearly a law with respect to legislative power, might also be truly\ndescribed as a law with respect to the subject matter of naval and military\ndefence, or external affairs or another subject matter.\nThe fact that a Commonwealth statute confers power to make\nregulations merely for the purpose of carrying out a scheme\ncontained in the statute itself, will not prevent the section conferring\npower to make regulations from being a law with respect to\nlegislative power. But ordinarily it will also retain the character of\na law with respect to the subject matter dealt with in the statute.\nAs is assumed in 5, supra, a Commonwealth enactment is valid if it is a law\nwith respect to a granted subject matter, although it is also a law with respect\nto the exercise of legislative power.\nThe fact that the regulations made by the subordinate authority are themselves\nlaws with respect to a subject matter enumerated in secs. 51 and 52, does not\nconclude the question whether the statute or enactment of the Commonwealth\n\n85\n\n2.\n\n3.\n\n4.\n\n5.\n\n6.\n\n7.\n\n\fMAHOMED DP\n\nParliament conferring power is valid. A regulation will not bind as a\nCommonwealth law unless both it and the statute conferring power to regulate\nare laws with respect to a subject matter enumerated in sec. 51 or 52. As a\nrule, no doubt, the regulation will answer the required description, if the\nstatute conferring power to regulate is valid, and the regulation is not\ninconsistent with such statute.\u201d \n\n[ 136 ] The competence of a democratic Parliament to delegate its law-making function cannot be\n\ndetermined in the abstract. It depends inter-alia on the constitutional instrument in\n\nquestion, the powers of the legislature in terms of that instrument, the nature and ambit of\n\nthe purported delegation, the subject-matter to which it relates, the degree of delegation,\n\nthe control and supervision retained or exercisable by the delegator over the delegatee, the\n\ncircumstances prevailing at the time when the delegation is made and when it is expected\n\nto be exercised, the identity of the delegatee and practical necessities generally.12 The\n\nissue as to whether section 16A constitutes a permissible delegation of the legislative\n\npowers must be examined having regard to such considerations. There are, in the present\n\ncase, various considerations which are relevant both in expanding and in limiting the\n\nparameters of the powers which Parliament can legitimately delegate to the President.\n\n1.\n\nThe purported delegation is in respect of a very special kind of subject-\n\nmatter. It is the subject-matter of the transition to local democratic\n\ngovernment contained in the Transition Act. It is not a delegation of\n\npowers in respect of a very wide subject-matter such as \u201cgood\n\ngovernment\u201d or even \u201cefficient local government\u201d.\n\n12 Cf Baxter, Administrative Law (Juta & Co Ltd, 1984) pg 435.\n\n86\n\n\fMAHOMED DP\n\n2.\n\nThe authority to which the delegation is made is not some impersonal body\n\nof faceless persons whose identity and qualifications are not easily\n\nascertainable by Parliament. It is to the President, himself.\n\n3.\n\nThe delegation is made at a special time in our constitutional evolution\n\nwhen the first democratic local government elections in the country are to\n\nbe held and an effective transition is to be made on a local level from\n\napartheid to democracy.\n\n4.\n\nThe circumstances which prevailed at the time when the delegation was\n\nmade and when it was expected to be exercised are exceptional. There has\n\nbeen no previous precedent in the country for local elections on such a\n\nlevel and for infrastructures suitable and effective to facilitate their\n\nobjectives. (This kind of factor influenced the enactment of other\n\ntransition measures (albeit prior to the commencement of the present\n\nconstitutional regime) such as the Transitional Executive Council Act 151\n\nof 1993 which effectively delegated substantial legislative and executive\n\npower to an unelected body to facilitate the transition to democracy.)\n\n5.\n\nPractical problems were anticipated pertaining to the administration and\n\nexecution of the local election process and there might have been\n\nlegitimate grounds for believing that some of the mechanisms structured by\n\nthe Transition Act would have to be amended or adapted to accommodate\n\n87\n\n\fsuch problems.\n\nMAHOMED DP\n\n6.\n\nParliament itself might not have been in session when one or more of these\n\nproblems might have required a practical response.\n\n7.\n\nThe President had no authority to make any proclamation under section\n\n16A unless it \u201cwas approved by the select committees of the National\n\nAssembly and the Senate responsible for constitutional affairs.\u201d\n\n8.\n\nParliament had to be informed of such a proclamation within 14 days of its\n\npublication.\n\n9.\n\nThe Proclamation could be invalidated by a Parliamentary resolution of\n\ndisapproval.\n\n10.\n\nThe principle that Executive proclamations may amend a Parliamentary\n\nlaw was accepted in section 235 of the Constitution itself.\n\n[ 137 ] All the aforegoing considerations would appear to favour the legitimacy of conferring the\n\npowers on the President which section 16A purports to do. But they have to be balanced\n\nagainst other considerations which militate against that inference.\n\n1.\n\nSection 16A does not purport to limit the Presidential powers of\n\n88\n\n\fMAHOMED DP\n\namendment to those mechanisms which can legitimately be said to be of\n\na nature which might require ad hoc responses while Parliament is not in\n\nsession. In its terms the section purports to give to the President the power\n\nto change even the basic structures in the Transition Act and even at a time\n\nwhen Parliament is in session.\n\n2.\n\nTheoretically the section puts the President into a position not only to\n\nchange structures but even to change the basic policy decisions which\n\nParliament itself had made in regard to the conduct of local elections.\n\n3.\n\nThe President is not equipped with any directives or decisional criteria\n\nwithin which he or she is required to operate before amending any part of\n\nthe Act. The presence of such decisional criteria might have been very\n\nimportant in ensuring that the President does not change the basic policy\n\nof the Act or the fundamental structures Parliament identified to give effect\n\nto that policy.\n\n4.\n\nThe robust terms of section 16A carry the inherent danger that a President\n\ncould theoretically make a local government transition Act wholly different\n\nin principle, in quality and in structure from the Transition Act which\n\nParliament itself had made.\n\n89\n\n\fMAHOMED DP\n\n5.\n\nThe wide terms of section 16A might make it possible for the President to\n\nmake amendments to the Transition Act of a nature which Parliament itself\n\ncould not have done without complying with the prescribed forms and\n\nprocedures which are set out in sections 59, 60 and 61 of the Act.\n\n6.\n\nThe jurisprudential philosophy which informs and underpins the\n\nConstitution is based not on the doctrine of parliamentary supremacy but\n\non the doctrine of constitutional supremacy. The Constitution has expressly\n\nsought to allocate different functions to Parliament and to the President.\n\nThe law-making function is entrusted to the former; the executive function\n\nto the latter. Although the President is elected by \n\nParliament and the members of his Cabinet are members of Parliament,\n\ntheir functions remain constitutionally distinct.\n\nParliamentary laws which impact on the allocation of these functions carry\n\nthe inherent danger of subverting the constitutional objective of ensuring\n\nthat the legislative authority does not effectively surrender its true function\n\nto the Executive. Such laws must therefore be approached with great\n\ncaution in order to examine their justification in the special circumstances\n\nof a particular case.\n\n[ 138 ] These are indeed formidable considerations against the purported delegation in section\n\n90\n\n\f16A. In addition thereto, it has been suggested that there were two decisive legal\n\narguments against the constitutionality of section 16A. \n\nMAHOMED DP\n\n[ 139 ] The first legal argument advanced was that a delegation of legislative powers which\n\npermitted an amendment to another statute might in certain circumstances be permissible\n\nbut, that it is constitutionally incompetent for Parliament to delegate to a functionary the\n\npower to amend the very Act under which he is given his powers of delegation. I am\n\nunable to agree with this argument in that form. There is no logical reason why a\n\ndistinction should be made between a delegated power to amend a section of the law\n\nwhich is delegated to a delegatee and a delegated power to amend some section of some\n\nother law. There is however a logical and relevant distinction between the power to\n\namend the section of the Act which gives to the President his power under the Act and\n\nother sections of the same Act. The former is the very source of his authority - his own\n\ndomestic Constitution; he cannot constitutionally amend it. The latter is not open to that\n\nobjection but may nevertheless be unconstitutional on the more general ground that it\n\nconstitutes an impermissibly wide delegation of legislative authority.\n\n[ 140 ] The second legal objection is that it is per se unconstitutional to authorize the President to\n\nmake amendments which Parliament itself would not have been entitled to make without\n\nfollowing the forms and procedures prescribed by sections 59, 60 and 61 of the\n\nConstitution. It is contended that for this reason it is really irrelevant whether or not the\n\nbalance of the factors in favour or against the legitimacy of delegating legislative powers\n\nindeed favours the conclusion that such delegation should be upheld in a particular case.\n\n91\n\n\fMAHOMED DP\n\nI am unable to agree with so rigid an approach to the problem. Much would depend on the\n\nsubject-matter of the delegation and the relevant circumstances which might be prevailing\n\nat the time. The degree to which the balance to which I have referred favours the necessity\n\nfor such delegation is also relevant. Classically, in a situation such as war or national\n\nemergency there may be a necessary implication that the Executive can exercise such\n\ndelegated powers notwithstanding the forms and procedures prescribed by sections 59, 60\n\nand 61. But this is not because wars and national emergencies constitute, by themselves,\n\nlegal exceptions to the general policy against the legitimacy of legislative delegation. They\n\nare simply examples of situations which might support a more general jurisprudential\n\napproach possibly permitting such delegation where the subject-matter of the delegation,\n\nthe applicable circumstances pertaining at the time, and the degree to which the balance\n\nof the relevant factors to which I have referred, favours the legitimacy of such delegation.\n\nIt is not necessary to decide on the constitutional validity of such an approach and its\n\nparameters in the present case.\n\n[ 141 ] Returning therefore to the considerations relevant to the determination of the\n\nconstitutionality of section 16A, there is arguably a case that can be made for the\n\ndelegation of special legislative powers to the President to make amendments to the\n\nTransition Act in the special circumstances of our present constitutional evolution. My\n\nreal difficulty is that on any approach, the section goes too far and effectively constitutes\n\nan abdication of Parliament\u2019s legislative function in terms of section 37 of the Constitution,\n\nleaving the President absolutely free to change the entire structure and policy of the Act in\n\nhis or her absolute discretion as long as the approval of the relevant select committees is\n\n92\n\n\fobtained. Nothing in the jurisprudence of the United States or the more benevolent\n\njurisprudence of parts of the commonwealth or the special terms of our Constitution\n\npermits so robust a devolution of legislative power. \n\nMAHOMED DP\n\n[ 142 ] I am therefore compelled to the conclusion that section 16A in its present form is\n\nunconstitutional. This does not mean, however, that any Act of Parliament which purports\n\nto delegate to the President the power to make amendments to the Transition Act would\n\nalways be unconstitutional in the special circumstances pertaining to the conduct of local\n\ngovernment elections in our present constitutional history. I leave that issue open. Much\n\nmight depend on whether the power conferred is limited to what is reasonably necessary\n\nand expedient for the efficient conduct and execution of local government in the country\n\nand on whether there are suitable directions and controls to ensure that Parliament was not\n\neffectively abdicating its law-making function in this area.\n\nSection 235(8)\n\n[ 143 ] Chaskalson P is clearly correct in his conclusion that Proclamations R58 and R59 cannot\n\nproperly be authorized by section 235(8) of the Constitution but, in my respectful view, he\n\nis incorrect in concluding, as he does, that the power vesting in the President, in terms of\n\nthat section, includes the power to assign and amend the Transition Act. My reasons for\n\nthat view are substantially the reasons which Kriegler J has articulated in his judgment and\n\nin the circumstances of the present case I do not find it necessary to deal with them in any\n\ngreater detail. I would, however, mention one additional problem in this regard arising\n\n93\n\n\fMAHOMED DP\n\nfrom the reliance on section 245 by Kriegler J in his judgment. It could be contended that\n\nthat section must be read together with section 232(2)(a) of the Constitution which\n\nprovides that any reference in the Constitution to any particular law shall be construed as\n\na reference to that law as it exists from time to time after any amendment or replacement\n\nthereof by a competent authority. It was suggested that the effect of section 232(2)(a) was\n\ntherefore to allow local government to be restructured in terms of the amendments which\n\nwere made to the Transition Act by Parliament enacting section 16A and by the President\n\nmaking amendments pursuant thereto. If Parliament had itself made the amendments which\n\nrestructured local government there might have been some substance in this argument, but\n\nit did not. It simply enacted a section authorizing the President to do so. That section was\n\nsection 16A. It is a constitutionally invalid section. The amendments made by the\n\nPresident were therefore not amendments made by \u201ca competent authority\u201d within the\n\nmeaning of that phrase in section 232(2)(a). Until elections have been held in terms of the\n\nTransition Act, local government must in terms of section 245, therefore be restructured\n\nin accordance with the Transition Act before its purported amendment by the President.\n\n[ 144 ] Because I have concluded that the Transition Act is not an assignable law in terms of\n\nsection 235(8), it is strictly unnecessary for me to say anything further about the other\n\narguments upon which Chaskalson P relies for his inference that Proclamations R58 and\n\nR59 are not authorized by section 235(8). I am nevertheless of the view that his\n\ninterpretation of the permissible parameters of Presidential authority to act in terms of\n\nsection 235(8) (if that section was, in fact, applicable), might be too restrictive. In my\n\nview there are, in terms of section 235(8)(b)(i), only two limitations on the power of the\n\n94\n\n\fPresident to amend a law which is assigned pursuant to that section:\n\nMAHOMED DP\n\n(1)\n\nhe or she must consider such amendment to be necessary for the efficient\n\ncarrying out of the assignment;\n\n(2)\n\nthe amendment must be made in order to regulate the application or\n\ninterpretation of such law.\n\n[ 145 ] As long as the President bona fide considers the amendment to be \u201cnecessary for the\n\nefficient carrying out of the assignment\u201d, the jurisdictional fact entitling him or her to make\n\nthe amendment, is satisfied. The amendment which he or she then makes cannot be\n\nchallenged as long as it is rationally capable of facilitating the efficient carrying out of the\n\nassignment and rationally capable of regulating the application or interpretation of the law.\n\nIn my view, the amendments to the Transition Act which the President purported to make\n\nin terms of the impugned Proclamations cannot therefore be constitutionally assailed\n\nsimply on the grounds that:-\n\n(a)\n\nthey were not objectively necessary for the efficient carrying out of the\n\nassignment; or \n\n(b)\n\nalthough they were rationally capable of regulating the application or\n\ninterpretation of the law, the objectives of the President could equally or\n\neven better have been achieved without any such amendments or by\n\ndifferent amendments; or\n\n95\n\n\f(c)\n\nthe amendments were objectively not necessary to carry out the \u201cfunctional\n\nACKERMANN AND O\u2019REGAN JJ\n\nefficiency\u201d of the assignment.\n\nMokgoro J concurred in the judgment of Mahomed DP.\n\n[ 146 ] Ackermann and O\u2019Regan JJ: We concur in the judgment of Kriegler J and the order\n\nproposed by Chaskalson P. We also concur in the remainder of the judgment given by\n\nChaskalson P, save in the respects hereinafter set forth.\n\nSection 16A of the Local Government Transition Act, No. 209 of 1993\n\n[ 147 ] We agree that the provisions of section 16A of the said Act (\"the Transition Act\") are\n\ninconsistent with the Constitution and broadly with Chaskalson P's reasons for reaching\n\nthis conclusion.\n\n[ 148 ] We also agree that, as stated in paragraph [51] of his judgment, Parliament has the implicit\n\npower to pass legislation delegating legislative functions within the framework of a statute\n\nunder which the delegation is made and that there is a difference between this situation and\n\n\"assigning plenary legislative power to another body, including, as section 16A does, the\n\npower to amend the Act under which the assignment is made\". In our view, however, it\n\nmakes no difference in principle whether, in the latter case, the power to amend includes\n\nthe power to amend the Act under which the delegation occurs. The great difference lies\n\nin the delegation of legislative power which is subordinate to Acts of Parliament as\n\nopposed to the delegation of legislative power to amend Acts of Parliament; it being\n\n96\n\n\firrelevant, in our view, whether this power to amend applies to the Act conferring the\n\nACKERMANN AND O\u2019REGAN JJ\n\npower or to any other Act of Parliament.\n\n[ 149 ] In paragraph [62] Chaskalson P, having referred earlier in his judgment to section 4(1) of\n\nthe Constitution which contains the phrase \"unless otherwise provided expressly or by\n\nnecessary implication in this Constitution\", states that -\n\nThere may be exceptional circumstances such as war and emergencies in which there\nwill be a necessary implication that laws can be made without following the forms and\nprocedures prescribed by sections 59, 60 and 61.\n\nIn our view it is unnecessary and undesirable even to pose the question in this form. We\n\nare quite unsure whether the \"necessary implication\" phrase in section 4(1) applies at all\n\nto the manner and form provisions of sections 59, 60 or 61. We should like to leave the\n\nmatter completely open and be able to consider the question in the future, should it arise,\n\nwithout any impediment as to the nature of argument which might be addressed or the\n\nsolution which could be adopted.\n\n[ 150 ] The provisions of section 34(1) of the Constitution provide for the proclamation of a state\n\nof emergency where \"the security of the Republic is threatened by war, invasion, general\n\ninsurrection or disorder or at a time of national disaster\" and if the declaration of a state\n\nof emergency is \"necessary to restore peace or order\". In paragraph [62], Chaskalson P\n\nposes the hypothetical possibility that \"circumstances short of war or states of emergency\n\nwill exist from which a necessary implication can arise that Parliament may authorise\n\nurgent action to be taken out of necessity. A national disaster as a result of floods or other\n\nforces may call for urgent action to be taken...\" We would, with all due respect, desist\n\n97\n\n\ffrom any comment on such a possibility, particularly in view of the fact that no argument\n\nfrom necessity was addressed to us. The postulation of such a possibility, however\n\nqualified, runs the risk of causing uncertainty as to the nature of our present Constitution.\n\nThere may, after all, be constitutional ways of dealing with such a situation other than\n\nimplying a power in Parliament to legislate otherwise than in accordance with sections 59,\n\n60 or 61.\n\n[ 151 ] Chaskalson P has pointed out in paragraph [61] that the Constitution begins by stating the\n\n\"need to create a new order\". It is, we agree, important to stress this feature. It is also\n\nnecessary to point out that in the same preamble the \"new order\" embodies, amongst other\n\nthings, a \"constitutional state\". We would, at this very early stage of our constitutional\n\njurisprudence, hold section 16A invalid on the simple basis that it purports to authorise the\n\nPresident to legislate in conflict with Acts of Parliament in a manner clearly inconsistent\n\nwith the Constitution. To permit Parliament to do this would be to permit the making of\n\nlaws for the Republic by an actor other than Parliament, in a manner not \"in accordance\n\nwith this Constitution\" and not \"subject to this Constitution\" and therefore quite contrary\n\nto section 37 and the concept of the supremacy of the Constitution as embodied in section\n\n4.\n\nThe applicability of sections 235(6)(b)(i) and (8) of the Constitution to the Transition Act\n\n[ 152 ] We do not, with respect, agree that the Transition Act is a law which falls under subsection\n\n6(b)(i) of section 235. Its administration could not therefore have been assigned by the\n\nPresident under subsection 8(a) to a competent authority within the jurisdiction of the\n\n98\n\n\fACKERMANN AND O\u2019REGAN JJ\n\ngovernment of a province and the President could consequently not amend or adapt (by\n\nProclamations R58 and R59) the law in question pursuant to the provisions of subsection\n\n8(b). We agree, however, (for the reasons stated by Chaskalson P) that, even if its\n\nadministration could be so assigned, the provisions of subsection 8(b) do not authorise the\n\npromulgation of Proclamations R58 and R59. \n\n[ 153 ] The restructuring of local government in terms of the Transition Act is specifically dealt\n\nwith in section 245(1) of the Constitution, which provides that until elections have been\n\nheld in terms of the Transition Act local government shall not be restructured otherwise\n\nthan in accordance with the Transition Act. It is in this context that the functional area\n\n\"Local government subject to the provisions of Chapter 10\" in the list of Legislative\n\nCompetences of Provinces in Schedule 6 to the Constitution must be construed. Chapter\n\n10 does not deal with transitional arrangements as such, but is concerned with the\n\nframework for local government after transition. In other words, Chapter 10 deals with the\n\nsubstantive permanent features and requirements of local government, not with the process\n\nof transition towards this constitutional goal. When regard is had to the fact that the\n\nAdministrator (as defined in the Transition Act) is limited in his or her powers of\n\nenactment by the Transition Act, then the legislative competence of a province in the\n\nSchedule 6 area referred to above, is in our view something quite different from the area\n\ncovered by the Transition Act. For this reason alone, it seems to us, the Transition Act\n\ncannot be said to fall within any functional area listed in Schedule 6 and thus not under the\n\nprovisions of section 235(6)(b)(i) of the Constitution.\n\n[ 154 ] We are further strengthened in the above conclusion by the fact that were the Transition Act\n\n99\n\n\fACKERMANN AND O\u2019REGAN JJ\n\nto fall within the ambit of section 235(6)(b)(i) there would be a conflict between this\n\nprovision and section 245(1), which imposes a constitutional requirement that local\n\ngovernment be restructured in terms of the Transition Act. At the time when the\n\nConstitution came into force the (for present purposes) relevant part of section 1(1)(i) of\n\nthe Transition Act defined Administrator as -\n\nthe Administrator as defined in section 1 of the Provincial Government Act, 1986 (Act\nNo. 69 of 1986) ... Provided further that at the establishment of a provincial\ngovernment for the province concerned in terms of the Constitution of the Republic\nof South Africa, 1993, any reference to the Administrator shall be construed as a\nreference to the Executive Council of that province ...\n\nIt is not clear from section 235(6) precisely what \"executive authority\" means. Further\n\nuncertainty is caused by the reference in section 235(8) to the \"administration of a law\"\n\nand not to \"executive authority\". Having regard to the wide powers conferred on the\n\nAdministrator in terms of the Transition Act, we are of the view that the effect of the above\n\ndefinition, in the context of the Transition Act, is to delegate executive authority to\n\nfunctionaries in the provinces.\n\n[ 155 ] If section 235(6)(b)(i) of the Constitution applied to the Transition Act the transfer of\n\nexecutive authority would take place quite differently. The Transition Act would -\n\nbe administered by a competent authority within the jurisdiction of the national\ngovernment until the administration of any such law is ... assigned under sub-section\n(8) to a competent authority (i.e. in terms of sub-section 6(c)(ii) \"an authority\ndesignated by the Premier of the province\") of such province.\"\n\nIn terms of the Transition Act executive power passes ex lege from the Administrator (as\n\ndefined) to the Executive Council immediately a provincial government is established. The\n\nprovisions of section 235(6)(b)(i) therefore conflict in two ways with this provision of the\n\nTransition Act. Firstly, the President is not obliged to assign the administration of the\n\nTransition Act until requested by a premier to do so (subsection (8)). In terms of the\n\n100\n\n\fACKERMANN AND O\u2019REGAN JJ\n\nTransition Act, however, the Executive Council becomes the Administrator immediately\n\na provincial government is established. Second, the President (in terms of section\n\n235(6)(b)(i)) assigns an act to a competent authority designated in terms of section\n\n235(6)(c)(ii) by the Premier of a province. On the other hand, in terms of the Transition\n\nAct, the successor to the Administrator is the Executive Council. Preference should be\n\ngiven to a reasonable construction of section 235(6)(b) which avoids such a conflict. Such\n\na construction is the one suggested above, namely, that the Transition Act does not fall\n\nwithin any functional area of Schedule 6. In our view the definition of \"Administrator\" as\n\nit existed when the Constitution came into effect was a mechanism to delegate executive\n\nauthority to the provinces as contemplated by section 144(2). This section provides that\n\nprovinces may obtain executive authority from three sources: provincial legislation,\n\nassignments under section 235(8) and delegation. \n\n[ 156 ] The provision in section 245(1) of the Constitution that until elections have been held in\n\nterms of the Transition Act local government shall not be restructured otherwise than in\n\naccordance with that Act effectively deprives provincial legislatures of the power to\n\nlegislate on local government until the first elections have been held. It therefore seems\n\nplain that the Transition Act is legislation which falls within the purview of section\n\n126(3)(a) in that it is legislation which deals with matters which cannot effectively (or\n\nindeed at all) be dealt with by provincial legislatures before the first election for local\n\ngovernment has been held. We do not agree with Chaskalson P, who suggests at paragraph\n\n[93] of his judgment that the wide powers granted to the Administrator by section 10 of the\n\nTransition Act, including the power to make enactments amending a law in force in a\n\n101\n\n\fACKERMANN AND O\u2019REGAN JJ\n\nparticular province (including an Act of Parliament), are an indication that provincial\n\nlegislatures can legislate on the subject matter of the Transition Act. Section 10(1)(a)\n\nexpressly provides that such enactments may not be inconsistent with the Transition Act.\n\nAccordingly, the Administrator's law-making powers in section 10 may not alter the\n\nprovisions of the Transition Act itself. This is consistent with section 245(1): the process\n\nof local government transition as provided for in the Transition Act is not a provincial\n\nlegislative matter until the first local government elections have taken place. The regulation\n\nof that process, consistent with the Transition Act, may be regulated by Administrators but\n\nno provincial variation of the procedures and mechanisms established in the Transition Act\n\nare permissible unless provided for in the Transition Act itself.\n\n[ 157 ] It has been suggested that if the administration of the Transition Act does not fall to be\n\nassigned under section 235(8), its provisions (as they stand) do not apply to the former\n\nTranskei, Venda, Boputhatswana or Ciskei. At most this might constitute a legislative\n\nlacuna, but could be rectified by a simple amendment of the Transition Act itself. The\n\nexistence of such a lacuna cannot be relevant to the question of whether section 235(8) is\n\nof application to the Transition Act at all. The purpose of section 235(8), as discussed by\n\nChaskalson P in paragraphs [70] to [81] of his judgment, is to redirect executive authority\n\nin the light of the significant constitutional changes that were occasioned by the interim\n\nConstitution. The fact that legislative lacunae might have been created by the re-\n\nincorporation of the formerly independent bantustans is a different mischief. It may be that\n\nwhere section 235(8) is properly relied upon, the State President may use his powers in\n\nterms of section 235(8)(b) to regulate the application of a law by extending it to parts of\n\n102\n\n\fthe national territory to which it did not previously apply. It cannot be concluded from this,\n\nhowever, that the existence of a legislative lacuna itself would render section 235(8)\n\nACKERMANN AND O\u2019REGAN JJ\n\napplicable.\n\nThe Order\n\n[ 158 ] In paragraphs [106] to [115], Chaskalson P considers the question of whether an order\n\nshould be made in terms of the proviso to section 98(5) which provides that:\n\nProvided that the Constitutional Court may, in the interests of justice and good\ngovernment, require Parliament or any other competent authority, within a period\nspecified by the Court, to correct the defect in the law or provision, which shall then\nremain in force pending correction or the expiry of the period so specified.\n\nIn this case, we have found section 16A to be invalid. In terms of section 98(5), therefore,\n\ntwo choices of remedy are available. We can declare section 16A invalid with immediate\n\neffect, or we can refer the matter to Parliament to correct the defect and keep section 16A\n\nand all proclamations under it, and administrative steps taken in terms of such\n\nproclamations, in force as provided for in subsection (5). We do not have the power in\n\nterms of section 98(5) to save only some of the proclamations promulgated under section\n\n16A. If we had such a power, we might well have considered that there were cogent\n\nreasons to exempt R58 and R59 from an order in terms of the proviso. For the reasons\n\nsuggested by Chaskalson P we also consider that, on a proper construction, section 98(6)\n\nis not applicable to legislative acts, such as the proclamations. Therefore the route of\n\npartial invalidation under section 98(6) is also not available for proclamations issued in\n\nterms of section 16A.\n\n103\n\n\f[ 159 ] In considering whether we should exercise our powers in terms of section 98(5), we agree\n\nACKERMANN AND O\u2019REGAN JJ\n\nwith Chaskalson P that the interests of \"good government\" are overwhelmingly in favour\n\nof giving Parliament an opportunity to correct the situation, in order to prevent serious and\n\nfar-reaching disruption to the local government elections. However, we are not as sanguine\n\nas he, that the interests of the applicant in obtaining the order that they sought are not\n\nconsiderably impaired by our order. Justice would generally dictate that successful\n\nlitigants should obtain the relief they seek. The consequence of our order is, however, the\n\nfate of every litigant who is successful in having an Act of Parliament, or any part thereof,\n\ndeclared invalid but finds it maintained in force because of an order in terms of the proviso\n\nto section 98(5). In Re Dixon and Attorney-General of British Columbia 59 D.L.R. (4th)\n\n247 (1989) (British Columbia Supreme Court), the Court declared invalid certain core\n\nprovisions of the British Columbia legislation establishing provincial electoral districts\n\non the grounds that the impugned provisions did not establish relative equality of voting\n\nguaranteed by section 3 of the Canadian Charter of Rights and Freedoms. In deciding to\n\nspecify a temporary period during which the existing legislation remained valid the Court\n\nmotivated its decision to do so as follows per \n\nMcLachlin C.J.S.C. at 282 - 283:\n\nThe Supreme Court of Canada faced a similar dilemma in Reference re Language\nRights under the Manitoba Act, 1870 (1985), 19 D.L.R. (4th) 1, [1985] 1 S.C.R. 721,\n[1985] 4 W.W.R. 385. The petitioners there challenged the validity of all of the\nprovincial statutes enacted by the Province of Manitoba in English only, contrary to the\nprovisions contained in s. 23 of the Manitoba Act, 1870. However, after finding this\nlegislation unconstitutional, and therefore invalid and of no force or effect, the court\nheld that it had the jurisdiction to temporarily relieve against this finding on the basis\nthat to render all laws in the province invalid would create a state of emergency.\nAccordingly, it deemed all acts of the Manitoba Legislature temporarily valid and\neffective from the date of this judgment to the expiry of the minimum period necessary\nfor translation, re-enactment, printing and publishing in bilingual form.\n\n104\n\n\fKRIEGLER J\n\nThe absence of the machinery necessary to conduct an election in a system where in\ntheory an election can be required at any time, qualifies as an emergency of the\nmagnitude of suspension of all provincial legislation. In my view, it is open to this\ncourt to specify a temporary period during which the existing legislation remains valid\nand during which the legislation enacts and brings into force an apportionment scheme\nwhich complies with the Charter.\n\nThe situation faced by this Court is an a fortiori one. From the point of view of good\n\ngovernment, the government's duty, to all voters in South Africa, to ensure that democratic\n\nlocal elections are held at the appointed time is of the highest and most compelling order.\n\nIf the position in British Columbia, where no elections had been scheduled, qualified as\n\nan emergency of such magnitude as to justify suspending the order of invalidity, it ought to\n\ndo so in the present case. Literally millions of citizens, previously disenfranchised, have\n\nwith much anticipation been awaiting the first local government elections. These elections\n\nare an indispensable part of the transition to full democracy. They ought not to be delayed.\n\nThe interest of good government in ensuring this is acute. Under all the circumstances we\n\nare therefore of the view that this Court ought to exercise its powers under the proviso to\n\nsection 98(5) of the Constitution. At the same time we are strongly of the view that the\n\nelections ought not to be held under statutory provisions which are (in substance) invalid,\n\nalthough their temporary validity has been secured by an order under the said proviso. For\n\nthis reason it is essential that the period specified in the order within which the\n\nconstitutional defect in the law in question is to be corrected, should expire before the date\n\nupon which any of the elections is held.\n\n[ 160 ] KRIEGLER J: I have had the benefit of studying the judgment of Chaskalson P and\n\nrespectfully concur in the orders he has formulated. In respect of one aspect of my learned\n\ncolleague's judgment, however, I prefer to express my views a little more forcefully. I am\n\n105\n\n\freferring to his discussion of the constitutionality of section 16A of the Transition Act.1\n\nOn that aspect I agree with the views expressed by Ackermann and O\u2019Regan JJ in their\n\nKRIEGLER J\n\njudgment.\n\n[ 161 ] In respect of another aspect of the judgment of Chaskalson P I beg to differ. The difference\n\nof opinion relates to the question whether the Transition Act falls within the scope of the\n\nPresident's powers under section 235(8) of the Constitution. Chaskalson P concludes that\n\nit does.2 But he also holds that such power did not encompass the changes to the Act\n\npurportedly made by Proclamations R 58 and R 59 of 1995.3 In my view the President was\n\nnot empowered by section 235 to assign - and hence to amend - any of the provisions of\n\nthe Transition Act. Our differing views lead to the same conclusion in this case but my\n\nline of reasoning is not only significantly different, it also has an important additional\n\nimplication. I am therefore obliged to set out my conclusion and reasons in some detail.\n\n[ 162 ] By way of introduction I sketch the bare bones of my reasoning:\n\na.\n\nThe President's power to assign executive authority under section 235(8) of the\n\nConstitution is expressly confined to the administration of laws referred to in\n\nsection 235(6)(b).\n\nb.\n\nThe laws referred to in section 235(6)(b) are confined to laws which both fall\n\n1 The Local Government Transitional Act No. 209 of 1993.\n\n2 In paragraphs 83 to 96 of his judgment.\n\n3 In paragraphs 97 and 98 of his judgment.\n\n106\n\n\fKRIEGLER J\n\nwithin the functional areas specified in Schedule 6 and fall outside the purview of\n\nparagraphs (a) to (e) of section 126(3).\n\nc.\n\nThe Transition Act is not a law falling within the scope of Schedule 6, nor does it\n\nfall outside sections 126(3)(a) and (b).\n\nd.\n\nThat conclusion is indicated by the terms of the Transition Act itself, by its scope\n\nand purpose in the overall scheme of the negotiated transition, and by the manner\n\nin which it is dealt with in the Constitution.\n\ne.\n\nThe Transition Act was intended and drafted to govern the reconstruction of local\n\ngovernment from A to Z. (In many areas of the country \u201creconstruction\u201d was a\n\neuphemism for creation.) Its principles and terms were separately negotiated. It\n\nwas then passed by the \"old\" Parliament as part of the statutory scaffolding agreed\n\nupon by the negotiating parties as necessary before, during and after the transition\n\nof national and provincial government. \n\nf.\n\nThe Transition Act represents a \"turn-key operation\", commencing with tentative\n\nnegotiating forums for local councils, continuing with temporary local government\n\nstructures and carrying on until new structures have been democratically elected\n\nand put in place. \n\ng.\n\nThe Transition Act accordingly makes provision within its own four corners for\n\nthe executive authority needed for its administration at all stages. The definitions\n\nof \"Administrator\", \u201cinterim phase\u201d and \"province\" in section 1 of the Act show\n\nthat the transmission of executive authority v\u00ecs-a-v\u00ecs local government\n\nreconstruction from the old regime to the new was pre-ordained. There was no\n\nneed - and indeed no room - for the assignment of such authority under section 235\n\n107\n\n\fof the Constitution.\n\nh.\n\nWhen Schedule 6 speaks of \"local government\", it expressly refers to Chapter 10\n\nwhich, in turn, clearly contemplates coming into operation at some stage in future\n\nin terms of provincial laws yet to be made. That would clearly be after the\n\n\"interim phase\" governed by the Transition Act. There is therefore no legislative\n\ncompetence under Schedule 6 until expiry of that \"interim phase\". The\n\nadministration of local government at provincial level simply continues under the\n\nTransition Act.\n\ni.\n\nMoreover, the Transition Act vests ultimate control of the reconstruction of local\n\ngovernment in the national government.4 Because national standards or norms and\n\nnational control were necessary, section 126(3) of the Constitution comes into\n\nplay.\n\nj.\n\nAlso, because of the unique and comprehensive purpose and scope of the\n\nTransition Act, the Constitution affords it special recognition in section 245.\n\nSubsections (1) and (2) of that section make plain that unless and until local\n\ngovernment had been established in terms thereof, the Transition Act, and it alone,\n\nwould govern the reconstruction of local government.\n\nk.\n\n\u201cReconstructed\u201d local government had not been established when the President\n\npurported to assign executive authority under section 235(8)of the Constitution.\n\nl.\n\nViewed from any one of a number of angles, therefore, the answer is the same:\n\nThe President had no power of assignment under section 235(8) of the\n\nConstitution.\n\n4 See sections 9(1) and 12 of the Transition Act.\n\n108\n\n\f[ 163 ] The basic argument on behalf of the Respondents was that, irrespective of the validity of\n\nsection 16A, the Proclamations5 should not be invalidated. There are three pillars to the\n\nKRIEGLER J\n\nargument:\n\n(i)\n\nthe First Respondent could lawfully have promulgated the Proclamations under\n\nsection 235(8);\n\n(ii)\n\nthe requisite jurisdictional facts existed at the time for their promulgation under\n\nsection 235(8); and\n\n(iii)\n\ntherefore it mattered not that the Proclamations cited section 16A as authority for\n\ntheir promulgation instead of section 235(8).\n\n[ 164 ] Logic dictates commencing with an examination of the first contention. If it fails the\n\nargument fails. Before analysing section 235(8) itself, it would be useful to consider its\n\ncontext and function. Section 235 forms part of Chapter 15 of the Constitution which is\n\nheaded \"General and Transitional Provisions\u201d. The Constitution as a whole reveals the\n\nmagnitude of the transition the country undertook; but it is Chapter 15 that most vividly\n\ndemonstrates the complexity of that undertaking. More specifically the transitional\n\nprovisions, which make up the bulk of the Chapter, show the myriad of detailed steps that\n\nhad to be organised. A veritable checkerboard of disparate political entities each with its\n\nown paraphernalia of state, its own laws and customs, its own political masters,\n\nbureaucracy and policies, its own assets and liabilities, had to be moulded, somehow, into\n\na single state divided into nine provinces, most of whose borders cut across historical\n\n5 Proclamations R 58 and R 59 of 1995, the effect of which is set out in paragraph 13 of the main\n\njudgment.\n\n109\n\n\fboundaries. \n\nKRIEGLER J\n\n[ 165 ] Chapter 15 aims at orderly transition in these difficult circumstances. The starting point\n\nwas to retain all existing laws until their repeal or amendment (section 229). The staff of\n\nexisting legislative authorities were kept on pending rationalisation (section 234), as were\n\nthe staff of all public administrations (sections 236, 237 and 238). The transfer of public\n\nassets, liabilities and revenue was organised (sections 239 and 240), as was the transition\n\nof the judiciary and other key offices (sections 241, 242, 243 and 244). The two sections\n\nof Chapter 15 which are of primary importance in the current discussion are sections 235\n\nand 245, which deal with the transitional arrangements for executive authority and local\n\ngovernment respectively.\n\n[ 166 ] Section 235 is headed \"Transitional arrangements: Executive authorities\" and comprises\n\nnine subsections. The first four deal with the continuation in office of the State President\n\nand other persons wielding executive authority until the new President assumes office.\n\nSubsection (5) then lays down the principle that upon such assumption of office, national\n\nexecutive authority vests in the President and provincial executive authority in provincial\n\nPremiers.6\n\n6 Subsection (5) reads:\n\n(5) Upon the assumption of office by the President in terms of this Constitution\u2014\n\n(a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in\naccordance with this Constitution; and\n\n(b) the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9),\nvest in the Premier of that province acting in accordance with this Constitution, or while the Premier of a province\nhas not yet assumed office, in the President acting in accordance with section 75 until the Premier assumes office.\n\n110\n\n\f[ 167 ] Section 235 is, of course, concerned with executive authority and not with legislative\n\nKRIEGLER J\n\ncompetences. But we know that the scheme of the Constitution is to circumscribe\n\nexecutive authority by reference to legislative competence, not only in section 235 itself\n\nbut elsewhere. In sections 75 and 144(2) the executive authority of the President and a\n\nprovincial Premier respectively is made dependent upon the legislative competence of\n\nParliament and of a provincial legislature. Section 235(5) makes the allocation of\n\nexecutive authority in accordance with sections 75 and 144.\n\n[ 168 ] Conformably, subsection (6) deals with the allocation of executive authority to either the\n\nnational or the provincial governments and lays down the criteria for the allocation of such\n\npower.7 Subsection (7), which is not relevant to this case,8 provides the President the\n\n7 Subsection (6) reads:\n\n(6) The power to exercise executive authority in terms of laws which, immediately prior to the\ncommencement of this Constitution, were in force in any area which forms part of the national\nterritory and which in terms of section 229 continue in force after such commencement, shall\nbe allocated as follows:\n\n(a) All laws with regard to matters which\n\n(i) do not fall within the functional areas specified in Schedule 6; or\n\n(ii) do fall within such functional areas but are matters referred to in paragraphs (a) to\n(e) of section 126(3) (which shall be deemed to include all policing matters until the\nlaws in question have been assigned under subsection (8) and for the purposes of which\nsubsection (8) shall apply mutatis mutandis),\n\nshall be administered by a competent authority within the jurisdiction of the national\ngovernment: Provided that any policing function which but for subparagraph (ii) would have been\nperformed subject to the directions of a member of the Executive Council of a province in\nterms of section 219(1) shall be performed after consultation with the said member within that\nprovince.\n\n(b) All laws with regard to matters which fall within the functional areas specified in Schedule\n6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3) shall\n\n(i) if any such law was immediately before the commencement of this Constitution\nadministered by or under the authority of a functionary referred to in subsection (1)(a)\n\n111\n\n\fKRIEGLER J\n\npower - after consultation with provincial premiers and subject to a parliamentary veto -\n\nto make proclamations in order better to achieve the whole of section 235. Subsection (8)\n\nprovides for the assignment of executive authority to provinces according to those laws\n\nidentified in subsection (6)(b) and determines when and how such assignment is to take\n\nplace. And finally subsection (9) provides for the situation where a provincial government\n\nis not ready to take assignment within 14 days of its establishment.\n\n[ 169 ] We are now in a position to understand section 235(8) better in the light of the scheme of\n\nwhich it is an integral part. It reads as follows:\n\n(8)(a) The President may, and shall if so requested by the Premier of a province, and\nprovided the province has the administrative capacity to exercise and perform the\npowers and functions in question, by proclamation in the Gazette assign, within the\nframework of section 126, the administration of a law referred to in subsection (6)(b)\nto a competent authority within the jurisdiction of the government of a province, either\ngenerally or to the extent specified in the proclamation.\n\n(b) When the President so assigns the administration of a law, or at any time thereafter,\nand to the extent that he or she considers it necessary for the efficient carrying out of\nthe assignment, he or she may\n\n(i) amend or adapt such law in order to regulate its application or interpretation;\n\n(ii) where the assignment does not relate to the whole of such law, repeal and re-enact,\n\nor (b), be administered by a competent authority within the jurisdiction of the national\ngovernment until the administration of any such law is with regard to any particular\nprovince assigned under subsection (8) to a competent authority within the jurisdiction\nof the government of such province; or\n\n(ii) if any such law was immediately before the said commencement administered by\nor under the authority of a functionary referred to in subsection (1)(c), subject to\nsubsections (8) or (9) be administered by a competent authority within the jurisdiction\nof the government of the province in which that law applies, to the extent that it so\napplies: Provided that this subparagraph shall not apply to policing matters, which shall\nbe dealt with as contemplated in paragraph (a).\n\n8 Facts that could possibly trigger that subsection have not been alleged and no-one has sought to rely on\n\nthe subsection.\n\n112\n\n\fKRIEGLER J\n\nwhether with or without an amendment or adaptation contemplated in subparagraph (i),\nthose of its provisions to which the assignment relates or to the extent that the\nassignment relates to them; and\n\n(iii) regulate any other matter necessary, in his or her opinion, as a result of the\nassignment, including matters relating to the transfer or secondment of persons\n(subject to sections 236 and 237) and relating to the transfer of assets, liabilities,\nrights and obligations, including funds, to or from the national or a provincial\ngovernment or any department of state, administration, force or other institution.\n\n(c) In regard to any policing power the President may only make that assignment\neffective upon the rationalisation of the police service as contemplated in section 237:\nProvided that such assignment to a province may be made where such rationalisation\nhas been completed in such a province.\n\n(d) Any reference in a law to the authority administering such law, shall upon the\nassignment of such law in terms of paragraph (a) be deemed to be a reference mutatis\nmutandis to the appropriate authority of the province concerned.\n\nThe primary purpose of the subsection is set out in paragraph (a), namely to specify when\n\nand how the executive authority allocated to a province in terms of section 235(6)(b) is\n\nto be transferred from the interim administration by the national government to the\n\nprovincial government. Subsidiarily, paragraph (b) provides authority to the national\n\ngovernment to amend or adapt a law, the administration of which has been assigned, to\n\nregulate its application. What the drafters of the Constitution had in mind here is that the\n\ntransition would leave in place the numerous laws of the former legislatures which might\n\nbe contradictory and would not fit the new provincial functionaries or areas, territorially\n\nor substantively. The President was therefore empowered to tailor existing laws to suit\n\nthe new provincial structures.\n\n[ 170 ] The interpretation of paragraph (a) presents a number of difficulties, as does that of\n\nparagraph (b). For the purposes of this case, fortunately, it is not necessary to grapple with\n\nmost of the difficulties because this much is clear: the subsection relates - and can only\n\n113\n\n\frelate - to \"the administration of a law referred to in subsection (6)(b)\". It is therefore\n\nnecessary to examine subsection 6(b) to see what laws are referred to therein.\n\nKRIEGLER J\n\n[ 171 ] Section 235(6) specifies the criteria for the allocation of executive authority to the national\n\nand provincial governments respectively. The principal distinguishing criterion is the kind\n\nof law that has to be administered. Depending upon the nature of the matters dealt with by\n\na law, the executive authority to administer such law falls in the one or the other category.\n\nParagraphs (a) and (b) of section (6) make that allocation on the basis of provincial\n\nlegislative competence as set out in Schedule 6 but subject to paragraphs (a) to (e) of\n\nsection 126(3). \n\n[ 172 ] Schedule 6, which is introduced by section 126(1) of the Constitution, is headed\n\n\"Legislative Competences of Provinces\" and lists 29 functional areas, including \"Local\n\ngovernment, subject to the provisions of Chapter 10\". Chapter 10 lays down broad\n\nprinciples which are to apply to local government once it has been established pursuant\n\nto elections held under the Transition Act. In terms of section 126(1) provincial\n\nlegislative competence with regard to matters falling within Schedule 6 is subject, inter\n\nalia, to section 126(3). That subsection provides that a provincial law prevails over a\n\nnational law, except in so far as the national law deals with one or other of a number of\n\nmatters set out in paragraphs (a) to (e). Paragraph (a) speaks of matters \"that cannot be\n\nregulated effectively by provincial legislation\" and paragraph (b) of matters \"that, to be\n\nperformed effectively [require] to be regulated or co-ordinated by uniform norms or\n\nstandards that apply generally throughout the Republic\".\n\n114\n\n\fKRIEGLER J\n\n[ 173 ] Returning then to section 235(6), it is important to note how the drafters use the assignment\n\ncriteria. Two points need to be made at the outset of this leg of the enquiry. First, it is\n\nimportant to distinguish between the assignment of executive authority under section 235(8)\n\nand delegation thereof in accordance with section 144, the section defining executive\n\npower for the provincial governments. Section 144(2) of the Constitution draws a clear\n\ndistinction between assignment and delegation which should be maintained in construing\n\nsection 235. Section 235(8) deals with assignment, i.e. the transfer to a province of the\n\nexecutive authority to which it is entitled in terms of the Constitution. It is not concerned\n\nwith delegation. Delegation postulates revocable transmission of subsidiary authority.\n\nThe assignment contemplated by section 235 relates to the formal vesting of authority\n\nderived from the Constitution.\n\n[ 174 ] Second, it is crucial to see that the division in section 235(6) makes the national\n\ngovernment the residual repository of the authority to execute pre-Constitution laws. The\n\nuse of the negative in subparagraphs (i) and (ii) of paragraph (a) has the effect that, unless\n\na law can be identified as dealing with matters within the ambit of Schedule 6 and outside\n\nthe ambit of paragraphs (a) to (e) of section 126(3), its administration is a national\n\nexecutive responsibility. \n\n[ 175 ] Once a law meets that dual qualification it falls into paragraph (b) of section 235(6). The\n\nadministration of a law that used to fall under an \"old\" South African national or provincial\n\nexecutive functionary (mentioned in sections 235(1)(a) or (b)) falls temporarily to the\n\n115\n\n\fKRIEGLER J\n\nnational government under subparagraph 235(6)(b)(i). The administration of a law that\n\nused to fall under the authority of a black executive functionary (mentioned in section\n\n235(1)(c)) falls to the provincial governments under subparagraph 235(6)(b)(ii), but\n\nsubject to subsection (8) and (9).9 In both cases the administration is intended to be\n\nassigned in due course to the provinces in terms of subsection (8) or (9). Section\n\n235(6)(c) then completes the picture by providing that the President designates the\n\ncompetent authority in relation to a law allocated to the national government while the\n\nrelevant Premier does so where the task goes to provincial governments.\n\n[ 176 ] It would be useful to digress for a moment to observe what happens once the\n\nadministration of a law has been allocated in terms of section 235(6). Section 236 keeps\n\nthe whole of the public institutions of the former governments intact until rationalised\n\nunder section 237. Section 237, in turn, makes provision for the allocation of the requisite\n\nhuman resources to provide effective administration at the national and provincial levels\n\nof government to deal with matters within their respective jurisdictions. The logical\n\nallocation of executive authority and human resources is then continued in section 239,\n\nwhich allocates material assets \"applied or intended to be applied for or in connection\n\nwith a matter\" along the same lines as the allocation of authority in section 235(6). The\n\nscheme is clear and consistent. You divide laws according to their subject matter; if a law\n\nfalls within a subject matter which is a competence of provinces in terms of Schedule 6\n\nand does not deal with any of the matters mentioned in subsections (a) to (e) of section\n\n9 It is unclear how category (6)(b)(ii) laws can be assigned in accordance with the provisions of\nsubsections 8 or 9 since the administration of such laws falls already to provincial governments under subsection\n6(b)(ii). However, such issue is not of moment in this case. \n\n116\n\n\fKRIEGLER J\n\n126, the power to execute the law together with the requisite human and material resources\n\nare allocated to provinces. In that event section 235(6)(b) provides and section 237(2)(b)\n\nand section 239(1)(c) expressly envisage that the power (and requisite resources) will be\n\ntemporarily administered by the national government until their assignment in terms of\n\nsection 235(8).\n\n[ 177 ] Now we are in a position to examine the Transition Act to see if its administration can be\n\nassigned in accordance with section 235(8). The first step is to see whether the Transition\n\nAct is \"a law\" referred to in subsection 6(b) of section 235. That, we know by now,\n\nentails establishing (i) whether it is a law with regard to a matter which falls within the\n\nambit of provincial legislative competence delineated in Schedule 6, and, if so, (ii)\n\nwhether it is a matter that cannot be regulated effectively by provincial legislation or\n\nrequires to be regulated by nation-wide norms or standards for its effective performance\n\nin terms of subsections (a) to (e) of section 126(3). In order to answer these two\n\nquestions, one must examine (i) the Transition Act itself, (ii) its place in the legislative\n\npattern of the transition process and also (iii) in the context of the interim Constitution.\n\n[ 178 ] The most salient feature of the Transition Act is, of course, that it deals with transition.\n\nThat is manifest from its very name, its long title and virtually every section thereof. The\n\nstatute addresses the arduous and delicate process of establishing interim local government\n\nstructures throughout the country. What the Transition Act governs is a continuing\n\nmetamorphosis, commencing with a \"pre-interim phase\"10, through the \"interim phase\" and\n\n10 The pre-interim phase began with the commencement of the Transition Act on 2 February 1994 and\n\nis to end with the elections to be held in accordance with the Act.\n\n117\n\n\fKRIEGLER J\n\nending with the implementation of final arrangements to be enacted by a legislative\n\nauthority competent to do so.11 The metamorphosis starts with the formation of local\n\nnegotiating forums (in terms of part IV of the Transition Act), the first tentative step on the\n\nlong road from the discriminatory past. The metamorphosis is governed by the Transition\n\nAct all the way up to the point where the democratically elected structures have taken over.\n\nThus the Act provides for the establishment of transitional local authorities in successive\n\nphases and for them to function as local governments until they are ultimately replaced by\n\nbodies elected according to detailed rules contained in or authorised by the Transition Act.\n\n[ 179 ] An important feature of the Transition Act is that it vests the Minister (as well as the\n\nAdministrator) with extensive powers to control and promote the process.12 In terms of\n\nsections 10 and 12 both the Administrator in his or her area of jurisdiction and the Minister\n\nin the whole country are afforded wide regulatory authority with which to execute the Act.\n\nThe Minister can \"make regulations concerning any matter referred to in this Act which in\n\nhis or her opinion are necessary or expedient for the effective carrying out or furtherance\n\nof the provisions and objects of this Act.\"13 Local government was to be restructured at\n\nthe grassroots level by local role-players under the guidance and supervision of the\n\n11 Section 1(1)(iv) of the Transition Act provides:\n\n\"interim phase\" means the period commencing on the day after elections are held for transitional\ncouncils as contemplated in section 9, and ending with the implementation of final arrangements\nto be enacted by a competent legislative authority.\n\n12 The definitions of Administrator and Minister were changed by amendment, but such amendment is not\n\nimportant in this context.\n\n13 Section 12 of the Transition Act provides:\n\n12. The Minister may, after consultation with the Administrator, make regulations concerning any matter referred\nto in this Act which in his or her opinion are necessary or expedient for the effective carrying out or furtherance\nof the provisions and objects of this Act.\n\n118\n\n\fprovincial Administrators, but the national government, through the Minister, retained\n\ncontrol. Furthermore section 9(1) reserved the power to set the date for and call the first\n\nlocal government elections to the Minister. \n\nKRIEGLER J\n\n[ 180 ] At the time when it was enacted by the then Parliament and until the advent of the\n\nConstitution, the Transition Act did not apply in Transkei, Bophuthatswana, Venda and\n\nCiskei. However the definitions of \"Administrator\" and \"province\", by their very wording,\n\nand the Transition Act generally anticipated the formation of provincial governments and\n\nprovided for the automatic transmission of authority from the old regime to the new. From\n\nthe outset it applied expressly to the Self-governing Territories as explicitly stated in\n\nsection 2 of the Act (as originally enacted). The original definitions of \u201cAdministrator\u201d\n\nand \u201cprovince\u201d, make plain that, once constitutional provincial governments had come into\n\noperation, they would administer the Transition Act within the whole of their territories\n\nincluding, of course, the areas of formerly independent states. \u201cAdministrator\u201d is defined\n\nin the Transition Act as:\n\n\"Administrator\" means the Administrator as defined in section 1 of the Provincial\nGovernment Act, 1986 (Act No. 69 of 1986): Provided that where the Administrator\nis required to exercise any power in respect of any local government body which is\nsituate within that part of the province which forms part of a Self-governing Territory,\nthe Administrator shall act after consultation with the Chief Minister of that Self-\ngoverning Territory: Provided further that at the establishment of a provincial\ngovernment for the province concerned in terms of the Constitution of the Republic\nof South Africa, 1993, any reference to the Administrator shall be construed as a\nreference to the Executive Council of that province and any reference to a province\nshall be construed as a reference to the corresponding province.\n\n\u201cProvince\u201d is defined in the Transition Act as:\n\n119\n\n\f\"province\" means any existing province, and from the establishment of a provincial\ngovernment for the province concerned in terms of the Constitution of the Republic\nof South Africa, 1993, the corresponding province.\n\nKRIEGLER J\n\nTo all intents and purposes the terms of the Transition Act itself manifest that it was a\n\nunique piece of legislation designed to restructure local government throughout the country\n\naccording to a blueprint governing every step of a \"turn-key operation\".\n\n[ 181 ] This impression is materially reinforced if one has regard to the broader context in which\n\nthe Transition Act came to be adopted. The overall \u201ctransition to democracy\u201d agreements\n\nhammered out by the negotiating parties necessitated the formulation of a number of\n\nstatutory measures and their adoption by the former South African Parliament. The most\n\nimportant, of course, was the interim Constitution which was intended, as the postscript\n\nthereto proclaims, to bridge the transition to a final constitutional state. But there were a\n\nnumber of other laws that were also vital to the transition. Some of them, such as the\n\nTransitional Executive Council Act, were intended to operate only during the phase\n\nleading up to the inauguration of the new government.14 Others, such as the Electoral Act,\n\nwere intended to serve a specific short-term purpose, i.e. the conduct of the first elections\n\nfor national and provincial governments.15 The Transition Act, although negotiated in a\n\ndifferent forum16, was an important part of the package of negotiated statutory measures for\n\nthe reconstruction of the country. It was intended to operate in its own field from the date\n\n14 Transitional Executive Council Act No. 151 of 1993.\n\n15 Electoral Act No. 202 of 1993.\n\n16 It is a matter of public record that the negotiation process regarding the transition of power at the\nnational and provincial levels was conducted separately from the negotiations relating to the transformation of\ngovernment at local level.\n\n120\n\n\fKRIEGLER J\n\nof its adoption, months before the first national and provincial elections were held (and\n\nthe Constitution came into full operation). It was also intended to continue operating\n\nduring those elections, through the inauguration of the new national and provincial\n\ngovernments, and to continue thereafter until duly reconstructed and elected local\n\ngovernment bodies had been put in place.\n\n[ 182 ] The third source of information regarding the nature of the Transition Act is the\n\nConstitution itself. The Constitution specifically refers to the Transition Act in section\n\n245. That section deals expressly and solely with the transitional arrangements for local\n\ngovernment. The section, which is titled \u201cTransitional arrangements: Local government\u201d,\n\nreads as follows:\n\n245.(1) Until elections have been held in terms of the Local Government Transition\nAct, 1993, local government shall not be restructured otherwise than in accordance\nwith that Act.\n\n(2) Restructuring of local government which takes place as a result of legislation\nenacted by a competent authority after the elections referred to in subsection (1) have\nbeen held, shall be effected in accordance with the principles embodied in Chapter 10\nand the Constitution as a whole.\n\n(3)(a) For the purposes of the first election of members of a local government after\nthe commencement of this Constitution, the areas of jurisdiction of such local\ngovernment shall be divided into wards in accordance with the Act referred to in\nsubsection (1).\n\n(b) Forty per cent of the members of the local government shall be elected according\nto the system of proportional representation applicable to an election of the National\nAssembly and regulated specifically by or under the Act referred to in subsection (1),\nand sixty per cent of the members shall be elected on the basis that each such member\nshall represent a ward as contemplated in paragraph (a): Provided that, notwithstanding\nanything to the contrary contained in this Constitution, where the area of jurisdiction\nof the local government includes\n\n(i) the area of jurisdiction of any institution or body as was referred to in\nsection 84(1)(f) of the Provincial Government Act, 1961 (Act No. 32 of\n1961); and\n\n121\n\n\fKRIEGLER J\n\n(ii) any other area not falling within the area of jurisdiction of the institution\nor body referred to in subparagraph (i)\n\nno area referred to in subparagraph (i) or (ii) shall be allocated less than half of the\ntotal number of wards of the local government concerned: Provided further that an area\nreferred to in subparagraph (i) shall be deemed not to include any area for which a local\ngovernment body referred to in paragraphs (a), (b) and (c) of the definition of \"local\ngovernment body\" in section 1(1) of the Act referred to in subsection (1) of this\nsection (as that Act exists at the commencement of this Constitution), has been\nestablished.17\n\nThe provisions of subsection (1) are quite unequivocal: the restructuring of local\n\ngovernment was to be governed exclusively by the Transition Act until elections had been\n\nheld under its provisions. It is obviously significant that the negotiating parties thought it\n\nnecessary to elevate the restructuring of local government to a constitutionally protected\n\ntopic. That does not mean that the Transition Act as it then read was cast in stone. The\n\nConstitution does not say the Act cannot be amended and the qualification in brackets at\n\nthe end of subsection (3) contemplates possible amendment thereof. But what it does mean\n\nis that only the Transition Act, amended or not, would govern the restructuring. What that\n\nmeans, in turn, is that the restructuring of local government was constitutionally excluded\n\nfrom the legislative competence of provinces.\n\n[ 183 ] That is made even clearer by the provisions of subsection (2). Consistently with the\n\nexclusion of provincial legislative competence under subsection (1), subsection (2)\n\ndictates that, once the elections under the Transition Act have been held, the Chapter 10\n\nprinciples will then govern legislation for the restructuring of local government. Chapter\n\n10, comprising sections 174 to 180 of the Constitution, lays down a number of broad\n\n17 Section 245 was amended by the Constitution of the Republic of South Africa Second Amendment Act\n\nNo. __ of 1995. Such amendment is not, however, relevant here.\n\n122\n\n\fKRIEGLER J\n\nprinciples to be observed by both Parliament and provincial legislatures when making\n\nlaws for the establishment and conduct of local government. Within the framework of\n\nthose principles and within the ambit of its legislative competence, a particular province\n\nwill be at liberty to devise its own local government structures. But the basic\n\nreconstruction, up to the first elections, is to be governed by the Transition Act. In respect\n\nof local government, provincial legislative competence is clearly excluded during the\n\noperation of the Transition Act, and limited by Chapter 10 thereafter.18\n\n[ 184 ] The untenability of Respondents\u2019 reliance on section 235(8) as the lawful source of the\n\nauthority to promulgate the Proclamations can also be demonstrated by reference to a\n\nconundrum to which it gives rise: Postulate that the President is not satisfied under\n\nsubsection (8)(a) that a particular province has the requisite administrative capacity and\n\ndeclines to assign the administration of the Transition Act to that province. What would\n\nthen happen to the powers (essential for the continuation of local government) conferred\n\nby the Transition Act and contemplated by it to be exercised by the Administrator before,\n\nduring and after the inauguration of the President?\n\n[ 185 ] The Transition Act on its own terms applied throughout the period of transition\n\ncontemplated in section 235; the executive authority it conferred and the transfer of such\n\nauthority occurred automatically by virtue of the Act itself. Ultimately there was no\n\nadministration under the Transition Act which could be assigned under section 235(8) of\n\nthe Constitution. The Transition Act is not a law contemplated by section 235(6)(b). It\n\n18 Significantly, it is also limited by section 126 thereafter.\n\n123\n\n\fKRIEGLER J\n\nis not a law with regard to a matter falling within the functional areas specified in\n\nSchedule 6. On the contrary, it is a law which on its own terms and by reason of the\n\nsuspensive provisions of section 245 of the Constitution falls outside Schedule 6. In any\n\nevent it is a law with regard to a matter that cannot be regulated effectively by provincial\n\nlegislation and requires nation-wide regulation and co-ordination according to uniform\n\nnorms and standards. It deals with a matter covered by paragraphs (a) and (b) of section\n\n126(3). The Act is therefore incapable of assignment under section 235(8) and therefore\n\nincapable of amendment thereunder.\n\n[ 186 ] The agreement reached with regard to the reconstruction of local government - as\n\nembodied in the Transition Act - recognises that during the transition local government\n\nrestructuring should not be left to political whim at any level of government. The hands-on\n\nmanagement of the process requires more localised knowledge and sensitivity than a\n\ncentralised authority can satisfactorily provide. That is why the Transition Act was\n\ndesigned to be implemented provincially and locally. But at the same time, the\n\nreconstruction was manifestly recognised as a matter of such national moment that the basic\n\npolicy was fixed by a national law to be under the ultimate control of the national\n\ngovernment through the then Minister of Local Government. Section 245 of the\n\nConstitution makes clear the national import of the reconstruction of local government.\n\nThe engine provided by the Transition Act would drive the process along the agreed\n\ntracks towards a common destination. Keeping the ultimate brake in the hands of the\n\nnational government19 means that it had the final say in determining the process. That being\n\n19 Significantly, section 9 keeps the power to fix the date for local government elections firmly in the\n\nhands of the Minister.\n\n124\n\n\fso, it is unthinkable that the executive authority, or the power to exercise executive\n\nauthority,20 with regard to the Transition Act could lawfully be assigned to a province.\n\nThe first pillar of the argument on behalf of the Respondents must therefore fail.\n\nKRIEGLER J\n\n[ 187 ] The implications of the finding that executive authority with regard to the Transition Act\n\nis not assignable under section 235(8) of the Constitution are serious. It means, in the first\n\nplace, that Proclamations R 58 and R 59 of 1995 cannot be saved. In the second place -\n\nand more importantly - the finding inevitably means that the other proclamations\n\npurportedly promulgated under section 16A of the Transition Act are also incapable of\n\nbeing saved by section 235 of the Constitution. The successful attack on the validity of\n\nSection 16A brought in its train the invalidation of the proclamations promulgated under\n\nits putative authority. That being the case, temporary preservation of Section 16A under\n\nthe powers vested in us by the proviso to section 98(5) of the Constitution, warrants co-\n\nextensive validation of such proclamations. There is another proclamation, however, to\n\nwhich that does not apply. I deal with it in the next paragraph.\n\n[ 188 ] By far the most important consequence of the finding is that it jeopardizes Proclamation\n\nR 129 of 1994. That Proclamation, promulgated on 15 July 1994, in a very real sense has\n\nbeen the basic local government charter for the last fourteen months. It was that\n\nProclamation that ostensibly clothed the provinces with the requisite authority to\n\nadminister the Transition Act within their respective areas. It was also that Proclamation\n\nthat ostensibly authorised a number of vital amendments to the Transition Act. One of\n\n20 The wording is taken from Section 235(6) of the Constitution.\n\n125\n\n\fKRIEGLER J\n\nthose was the amendment of the definition of \"Administrator\" so as to denote \"a competent\n\nauthority within the jurisdiction of the government of that particular province designated\n\nby the Premier ....\" The Third Applicant - and his eight opposite numbers in the other\n\nprovinces - have been controlling local government reconstruction at the provincial level\n\npursuant to the assignment of executive authority under, and concomitant amendments to,\n\nthe Transition Act believed to be authorised by section 235(8) of the Constitution. My\n\nconclusion that such belief was mistaken has no immediate consequences. The validity of\n\nProclamation R 129 of 1994 has not been challenged in this case; nor is it indirectly\n\nimpugned, as were the other proclamations dependent on Section 16A for their validity.\n\nThat means that although Proclamation R 129 of 1994 cannot be struck down under section\n\n98(5) of the Constitution in this case, it can also not be preserved under the proviso to that\n\nsubsection.\n\n[ 189 ] On the face of it the resultant situation is highly undesirable; a vital piece of legislation is\n\nrendered vulnerable to attack at any time and from any quarter in the run-up to countrywide\n\nelections. I therefore recommend that if steps are taken to correct the defects in Section\n\n16A of the Transition Act and its satellite proclamations, Proclamation 129 of 1994 be\n\nrectified as well. In the interim any prospective impugner of that Proclamation should\n\nknow that it is likely to enjoy the same temporary preservation under the proviso to section\n\n98(5) of the Constitution as is being afforded to the other Proclamations.\n\n[ 190 ] LANGA J: I have had the benefit of reading the different judgments of my colleagues and,\n\nas I do not deem it necessary to re-discuss the issues which have already been canvassed\n\n126\n\n\fin much detail, I merely record my agreement or otherwise with regard to the major issues\n\nLANGA J\n\nidentified.\n\nJudgment and Order\n\n[ 191 ] I am in substantial agreement with the judgment of Chaskalson P save in the respects\n\nspecifically indicated herein. I concur fully in the order proposed by him.\n\nSection 16A of the Local Government Transition Act, No 209 of 1993\n\n[ 192 ] I agree with Chaskalson P\u2019s reasoning and, in particular, the conclusion that the provisions\n\nof section 16A of the Local Government Transition Act are inconsistent with the\n\nConstitution. I agree with the view that the effect of the amendment is to vest the\n\nPresident with extensive legislative powers which enable him to act in a manner which\n\nexceeds the competence of Parliament itself, and which circumvents the \u201cmanner and form\u201d\n\nprovisions as set out in section 61 of the Constitution. What the position might be in\n\ndifferent circumstances is a question that does not arise and on which I express no opinion.\n\n \n\nThe Applicability of section 235 of the Constitution\n\n[ 193 ] I do not, with respect, agree that the Local Government Transition Act is a law the\n\nadministration of which was capable of being assigned by the President in terms of section\n\n127\n\n\f235(8). In that respect I am in full agreement with the reasoning of Kriegler J as stated in\n\nparagraphs 161 to 189 of his judgment. It follows therefore that the President could not\n\nvalidly \u201camend or adapt\u201d that law pursuant to section 235(8)(b).\n\nLANGA J\n\n[ 194 ] Having concluded that the Local Government Transition Act was not assignable, it\n\nbecomes unnecessary for me to express a view on the further interpretation of 235(8)(b).\n\nWhether the view of that taken by Chaskalson P or Mahomed DP is the better one is\n\ntherefore a question on which I prefer to say nothing.\n\nProclamations R58 and R59\n\n[ 195 ] I am accordingly in respectful agreement with Chaskalson P\u2019s conclusion that\n\nProclamations R58 and R59 could not properly be authorised either on the basis of section\n\n16A of the Local Government Transition Act or section 235(8) of the Constitution.\n\nDidcott J concurs in the judgment of Langa J.\n\n[ 196 ] SACHS J: The pressure under which we worked, the constant changes of argument and\n\nthe need to produce a swift result, has made it difficult to subject the important issues\n\nbefore us to the research, debate and reflection they deserve. In expressing my\n\nconcurrence with the order proposed by Chaskalson P., I do so subject to the comments\n\nand reservations which follow.\n\n128\n\n\f[ 197 ] I fully endorse the President\u2019s concern with maintaining constitutionalism, and support the\n\nSACHS J\n\noverall tenor of his judgment. We have suffered far too much in the past from government\n\nby Proclamation not to look with the closest scrutiny at any attempt by Parliament to\n\nabdicate its legislative tasks and responsibilities, however well-motivated. I also agree\n\nfully with his reasoning and conclusions on the proper interpretation of Principle XXII.\n\nIn broad terms, I furthermore support his approach and conclusions in relation to the\n\n\u2018manner and form\u2019 provisions of Sections 59, 60 and 61.\n\n[ 198 ] I have reservations about his interpretation of Section 235(8) and feel that there is\n\nconsiderable merit in the arguments of Madala J. and Ngoepe J. Once an assignment of\n\npowers comes into the picture, as I think it should in this case, a literal reading of Section\n\n235(8) would seem to authorise what the President did. A more purposive approach,\n\nhowever, locating the issue in the context of the general transitional arrangements for local\n\ngovernment, tips the balance of my thought in favour of an interpretation that would narrow\n\nthe scope of the President\u2019s discretion in the way mentioned by Chaskalson P.\n\n[ 199 ] My major reservations relate to the manner in which Section 16A should be approached.\n\nIn particular, without far more argument and reflection, I believe it would be dangerous\n\nto lay down rigid rules concerning fundamental questions relating to the characterization\n\nof the function and powers of Parliament. We unfortunately did not have the benefit of\n\nhearing argument from the point of view of Parliament itself, and I regard the matter as\n\nlargely unexplored. I have had the benefit of reading the judgment of Mahomed DP.,\n\nwhich in a manner that is far more elegant and rigorous than the raw notes that follow,\n\n129\n\n\fdeals convincingly with Section 16A. I agree fully with this approach. Since my starting\n\noff point is somewhat different from his, however, and because of the importance of the\n\nsubject, I will attempt to complement his judgment with some views of my own.\n\nSACHS J\n\n[ 200 ] In my opinion, the new Parliament should be seen as a dynamic and organic part of the new\n\nconstitutional order. It is not merely the old Parliament \u2018cribbed, cabined and confined\u2019\n\nby the new Constitution; it is a fundamental component of the new democratic dispensation\n\nushered in by the Constitution and given its legitimacy and composition by the elections\n\nof April 27, 1994. Like the fundamental rights enshrined in Chapter 3, it is a feature of\n\nmodern, democratic society, acknowledged, structured and integrated into the new\n\nconstitutional order. The Constitution no more invents or creates Parliament than it invents\n\nor creates the right to life or the right to equality. It entrust the legislative authority to\n\nParliament in an open-ended way, without seeking to define specific terms of competence.\n\nThe assumption is that Parliament will do what Parliaments do, namely, make laws for the\n\ngovernance of the country, and find the necessary funds for their implementation.\n\n[ 201 ] I therefore regard Parliament as an institution with powers, functions and responsibilities\n\nestablished and defined by the interim Constitution, rather than as its \u2018creature\u2019.\n\nParliament can, if it follows certain procedures, amend the Constitution which gave it life;\n\nits powers and competence are not expressly defined in the way that the powers of local\n\nauthorities, regarded as \u2018creatures of statute\u2019, have been. I would therefore consider it as\n\nstarting the wrong way round to say that Parliament must seek in each and every case to\n\nfind express or implied textual justification for its capacity to pass laws. It cannot be\n\n130\n\n\fSACHS J\n\nequated to a town council writ large, but should rather be regarded as the centrepiece of\n\nour constitutional democracy. My understanding of Parliament is therefore that it is a body\n\nentrusted with very broad powers and responsibilities which have to be exercised within\n\na framework established by the Constitution. It is this framework, not the powers, that is\n\nexpressly delineated; in each and every case it is necessary to enquire not whether\n\nParliament had the power to legislate - this is given to it in an unqualified way by Section\n\n37 - but whether it exercised such power \u201cin accordance with the Constitution\u201d, that is\n\nwithin the framework established by the Constitution.\n\n[ 202 ] This framework has four express components, all of which, taken together, articulate the\n\ntransformation from a system based on Parliamentary sovereignty to one founded on\n\nParliamentary democracy in a constitutional state. The first element of the Constitutional\n\nframework is provided by Chapter 3, which establishes fundamental rights which cannot\n\nbe infringed by Parliament; this is a substantive provision which impacts on the reach of\n\nlegislation. Secondly, the legislative power of Parliament is limited both substantively and\n\nprocedurally in relation to the power of the provinces (Section 126 read with Schedule 6\n\ndefines principles for deciding which law prevails in the case of conflict between national\n\nand provincial legislation; Sections 61 and 62(2) impose special \u2018manner and form\u2019\n\nrequirements in cases where certain fundamental features of provincial government are\n\naffected, or where a national law affects one province only). Thirdly, the powers of\n\nParliament to amend the Constitution are subject to special procedures requiring a high\n\nmajority. Fourthly, in its capacity as Constitutional Assembly responsible for drafting a\n\nnew Constitution, Parliament is obliged to comply with the 34 Principles contained in\n\n131\n\n\fSchedule 4. Fourthly, certain procedures affecting the functions of and relationship\n\nbetween the National Assembly and the Senate are laid down by the provisions of Sections\n\n59, 60 and 61. \n\n[ 203 ] As I read them, these latter sections are directed towards the manner in which \u2018Bills\u2019 are\n\nto be dealt with before they can become Acts of Parliament. I do not see them as\n\npurporting to prescribe the only way in which laws can be made. They simply refer to the\n\nmanner in which legislation before Parliament has to be adopted, and being a constitutional\n\nprescription, they cannot be amended by Parliament itself without first amending the\n\nConstitution. I see nothing in these sections which deals directly or by necessary\n\nimplication with the question of delegated legislative powers. The Act which inserted\n\nSection 16A into the Transitional Local Government Act (TLGA) was itself passed with\n\ndue manner and form as an ordinary Bill of Parliament. Mr Seligson contended that\n\nbecause of its effect, it should have been subjected to the manner and form procedures\n\nprescribed in Sections 61 and 62(2). I am doubtful whether this proposition is correct.\n\nThe provisions of Section 235 read with the TLGA relating to the power of the President\n\nto issue proclamations, clearly and directly contemplate the restructuring of government\n\nin the provinces by direct Presidential action, which as a result would appear to fall\n\noutside the matter subject to special procedural protection as envisaged by Sections 61 and\n\n62(2).\n\n[ 204 ] The question at issue does not seem to me to be one of the manner and form in which\n\nParliament acted or of the extent of its powers, but rather of its capacity to delegate any\n\nauthority which it undoubtedly has. The Constitution contains no express limitation on the\n\n132\n\n\fSACHS J\n\npower of Parliament to pass a law delegating its legislative authority. If we look at the\n\ndesign and structure of the Constitution as a whole, however, I have no doubt that such a\n\nlimit must be implied. Indeed it flows from the very majesty of Parliament, not from its\n\nimpotence. Certain tasks are entrusted to it and to it alone. Parliament has not only\n\nextensive powers but heavy responsibilities; under our Constitution, it is the centrepiece\n\nof the whole governmental structure. The President is chosen by Parliament from its ranks\n\n(Section 77), and Deputy-Presidents are also selected from amongst its members (Section\n\n84). Unlike countries where there is a strict separation of power between the executive\n\nand the legislature, members of the cabinet in South Africa are directly accountable to\n\nParliament for the handling of their portfolios (Section 92). Even in time of war and\n\nnational emergency, the Constitution ensures that Parliament will continue to have a central\n\nrole (Section 34). I would be inclined to go a step further. There are certain fundamental\n\nfeatures of Parliamentary democracy which are not spelt out in the Constitution but which\n\nare inherent in its very nature, design and purpose. Thus, the question has arisen in other\n\ncountries as to whether there are certain features of the constitutional order so fundamental\n\nthat even if Parliament followed the necessary amendment procedures, it could not change\n\nthem. I doubt very much if Parliament could abolish itself, even if it followed all the\n\nframework principles mentioned above. Nor, to mention another extreme case, could it\n\ngive itself eternal life - the constant renewal of its membership is fundamental to the whole\n\ndemocratic constitutional order. Similarly, it could neither declare a perpetual holiday,\n\nnor, to give a far less extreme example, could it in my view, shuffle off the basic\n\nlegislative responsibilities entrusted to it by the Constitution.\n\n133\n\n\f[ 205 ] The issue in this case is therefore not whether Parliament can find the authority to do what\n\nSACHS J\n\nit did, but whether it can give away the authority which the Constitution expected it to\n\nexercise. I do not feel that the answer to this question can be found in simply\n\ndistinguishing in a formal way between an Act of Parliament that extends plenary power\n\nto legislate (impermissible) and an Act of Parliament which extends power to make\n\nsubordinate legislation (permissible). This will frequently be a matter of degree rather\n\nthan substance. I would prefer to start my enquiry by looking at the fundamental purpose\n\nthat Parliament was designed to serve. The reason why full legislative authority, within\n\nthe constitutional framework mentioned above, is entrusted to Parliament and Parliament\n\nalone, would seem to be that the procedures for open debate subject to ongoing press and\n\npublic criticism, the visibility of the decision-making process, the involvement of civil\n\nsociety in relation to committee hearings, and the pluralistic interaction between different\n\nviewpoints which Parliamentary procedure promotes, are regarded as essential features\n\nof the open and democratic society contemplated by the Constitution. It is Parliament\u2019s\n\nfunction and responsibility to deal with the broad and controversial questions of legislative\n\npolicy according to these processes. It is not its duty to attend to all the details of\n\nimplementation. Indeed, if it were to attempt to do so, it would not have the time to serve\n\nits primary function. Hence the need for delegated legislation, which has become a feature\n\nof Parliamentary democracies throughout the world. The power to delegate should\n\ntherefore be considered as an integral part of the legislative authority; it simply cannot\n\nlegislate wisely if it tries to legislate too well. \n\n[ 206 ] At the same time, if it is not to fail to discharge the functions entrusted to it by the\n\n134\n\n\fSACHS J\n\nConstitution, there must be some limit on the matters which it can delegate. I do not think\n\nit would be helpful to attempt to find a single formulation or criterion for deciding when\n\ndelegation is permissible and when not, I feel that a complex balancing of various relevant\n\nfactors has to be done, against a background of what Parliament is there for in the first\n\ncase. There would seem to be a continuum between forms of delegation that are clearly\n\nimpermissible at the one extreme, and those that are manifestly permissible at the other.\n\nTo take tragic but telling examples from history, it would obviously be beyond the scope\n\nof Parliament to do what the Reichstag did when it entrusted supreme law making powers\n\nto Adolph Hitler, or in the manner of a Roman Emperor, to declare itself a god, and its\n\nhorse a consul. At the other extreme, Parliament can, within the framework of clearly\n\nestablished criteria, delegate to other authorities or persons law-making power to regulate\n\nthe implementation of its laws. There is however a large amount of delegation in between\n\nthese two extremes that might or might not be permissible. As I have said, I do not think\n\nthat any hard and fast rule or simple formula can be used to find a point on the continuum\n\nthat automatically distinguishes between the two classes of case. To my mind, what would\n\nhave to be considered in relation to each Act of Parliament purporting to delegate law-\n\nmaking authority, is whether or not it involved a shuffling-off of responsibilities which in\n\nthe nature of the particular case and its special circumstances, and bearing in mind the\n\nspecific role, responsibility and function that Parliament has, should not be entrusted to any\n\nother agency. This will include an evaluation of factors such as the following:\n\na.\n\nThe extent to which the discretion of the delegated authority (delegatee) is\n\nstructured and guided by the enabling Act;\n\nb.\n\nThe public importance and constitutional significance of the measure - the more it\n\n135\n\n\ftouches on questions of broad public importance and controversy, the greater will\n\nSACHS J\n\nbe the need for scrutiny;\n\nThe shortness of the time period involved;\n\nThe degree to which Parliament continues to exercise its control as a public forum\n\nin which issues can be properly debated and decisions democratically made; \n\nc.\n\nd.\n\ne.\n\nThe extent to which the subject matter necessitates the use of forms of rapid\n\nintervention which the slow procedures of Parliament would inhibit; \n\nf.\n\nAny indications in the Constitution itself as to whether such delegation was\n\nexpressly or impliedly contemplated.\n\n[ 207 ] These items should in not in my view be regarded as a checklist to be counted off, but as\n\nexamples of the interactive factors which have to be balanced against each other with a\n\nview to determining whether or not delegation in the circumstances was consistent with\n\nthe responsibilities of Parliament. None of them, it should be emphasized, permit\n\nParliament to infringe fundamental rights, violate protected spheres of provincial autonomy\n\nor in any other way deviate from the constitutional framework within which Parliament\n\nmust function. Delegation takes place within, not outside the constitutional framework, but\n\neven within that framework it can be unconstitutional if it fails to satisfy the above criteria.\n\n[ 208 ] Applying these criteria to the present case, I would note the following relevant factors: the\n\nspecial circumstances relating to the swift-moving and complex process of restructuring\n\nprovincial and local government; the shortness of the time period involved, and the fact\n\nthat Parliament was in recess for much of it; the fact that the delegatee was the President,\n\n136\n\n\fSACHS J\n\nwho as head of a government of national unity, was required to involve the whole Cabinet\n\nincluding members of the opposition parties, in the process of making his decisions; the\n\nprovisions of the Constitution itself contained in Section 235, especially sub-section 7,\n\nwhich clearly contemplated that presidential proclamations would be issued without the\n\nnecessity of following normal Parliamentary procedures; the degree to which Parliament\n\nretained control in the sense that the legislative powers to be exercised under Section 16A\n\nhad to be approved of by the appropriate committees of both the National Assembly and\n\nthe Senate, and that Parliament as a whole retained the power by simple resolution to\n\nnullify them. \n\n[ 209 ] On the other hand, there is the glaring fact that Section 16A provides no clear guidelines\n\nas to how the President is to exercise his legislative powers. In the circumstance\n\nmentioned above, my view is that if Parliament had established clear guidelines structured\n\naround and not going beyond the principles contained in Section 235 read with Section 241\n\nof the Constitution, Section 16A would comfortably have passed muster. This would have\n\nbeen so even if such a provision had permitted the President to repeal or alter laws\n\nincluding the LGTA (as Section 235 clearly contemplated) without following the manner\n\nand form requirements of a Parliamentary Bill. The exigencies, circumstances and\n\ncontrols would have been such that Parliament would not have been abdicating its\n\nresponsibilities, but, rather, fulfilling them. The acceptable constitutional balance would\n\nhave been maintained by ensuring that the extensive powers delegated could only be\n\nexercised for a short time and according to criteria laid down by Parliament and subject\n\nto Parliamentary control.\n\n137\n\n\fMADALA J, NGOEPE AJ\n\n[ 210 ] Before concluding this judgment, I wish to mention a theme I have not been able to deal\n\nwith, because the need for a rapid answer to the questions raised has outweighed the\n\nnecessity for completeness. It relates to the topic of \u2018reading down\u2019. For the reasons I\n\nhave given, I feel that Section 16A could not be read down so as to make it compatible\n\nwith the defence of provincial autonomy in the manner argued for by Mr Seligson. I feel,\n\nhowever, that we have not done full justice to his arguments in this particular regard. More\n\nparticularly, I would have wished to explore whether Sections 16A could not have been\n\nread down in another way, namely so as to respect the limitations on the powers which\n\nParliament could permissibly delegate. Reading down is not an option; if it is possible, we\n\nmust do it [Section 232(3)]. Like severance it is an important mechanism of judicial\n\nrestraint, which permits constitutionality to be upheld at minimum legislative and social\n\ncost. The matter was never argued in that way, so I raise the issue without attempting to\n\ndecide it. I suspect that, like the debate on the powers of Parliament, the full implications\n\nof Section 232(2) will have to be considered in many future cases.\n\n[ 211 ] Madala J, Ngoepe AJ: Although we agree with some of the conclusions to which\n\nChaskalson P and some of our colleagues subscribe, we cannot agree with the conclusion\n\nthat, Section 235(8)(b) of the Constitution, could not have provided a source of power for\n\nFirst Respondent to issue Proclamations R58 and R59 of 1995, and we deal with the\n\nmatter accordingly. We are, with our colleagues, in the situation that we would have\n\n138\n\n\fpreferred to have had more time to develop our ideas on the approach we take in this\n\nmatter, but accept that time constraints militate against this being done.\n\nMADALA J, NGOEPE AJ\n\n[ 212 ] We proceed in this judgement on the basis that there has been no answer to the attack by\n\nthe Applicants on Section 16A of the Local Government Transition Act (\u201cTransition Act\u201d)\n\nand that, therefore, the said Section is unconstitutional by reason of its inconsistency with\n\nthe Constitution.\n\nThe facts of this case appear more fully in the judgment of Chaskalson P and, consequently,\n\nwe do not need to repeat them.\n\n[ 213 ] At the resumed hearing of this matter on the 30th August, 1995, it became apparent to this\n\nCourt that although the parties had presented their argument in respect of Section 235(8)\n\nand related provisions, certain aspects had not been dealt with satisfactorily either in the\n\nwritten or oral submissions. Counsel were, accordingly, requested to present further\n\nargument on the 14th September, 1995 on the following aspects outlined in the Registrar\u2019s\n\ndirections:\n\n\u201cA.\n\nInasmuch as:\n\ni)\n\nii)\n\nThe President\u2019s powers under Section 235(8) of the Constitution are confined\nto laws referred to in section 235(6)(b); and\n\nThe laws referred to in the latter Section are confined to laws \u201cwhich fall\nwithin the functional areas specified in schedule 6 and which are not matters\nreferred to in paragraphs (a) to (e) of Section 126(3).\u201d\n\nWas the first respondent empowered by section 235(8) to do what he purported to do by\nProclamation R58 and R59 of 1995?\n\nB:\n\nIn this regard the Court requires argument, in particular, on \n\n139\n\n\fMADALA J, NGOEPE AJ\n\n(a)\n\nWhether or not in the light of the specific provisions of Section 245 of the\nConstitution and the scope and provisions of the Local Government Transition\nAct, which make provision for the administration of that Act both before and\nafter the coming into force of the Constitution, that Act can be said to be a law\nreferred to in Section 235(6)(b)(i) of the Constitution; and\n\n(b)(i) Whether or not in the light of the specific provisions of Section 245 of the\nConstitution and the scope and provisions of the Local Government Transition\nAct, that Act can be said to deal with a matter which falls within Schedule 6 of\nthe Constitution, and if so\nWhether or not the matter is one which falls within the purview of sub-\nparagraphs (a) to (e) of Section 126(3) of the Constitution.\n\n(ii)\n\nC.\n\nIf Section 235(8) of the Constitution does not apply to the Local Government\nTransition Act is invalid, what are the implications of this for other proclamations,\nincluding proclamation R129 of 1994, issued by the President in respect of the Local\nGovernment Transition Act. What, if any, relevance does this have to the exercise of\nthe powers vested in this Court by Sections 98(5) (6) and (7) of the Constitution ?\u201d\n(Our underlining.)\n\n[ 214 ] It was submitted on behalf of the Applicants that Section 16A was an unconstitutional\n\ndelegation of the power by Parliament to the First Respondent. In this respect it was\n\nargued that as Parliament itself was bound by Sections 61 and 62 of the Constitution\n\n(which provisions were themselves entrenched in terms of Section 62(1)), Parliament\n\ncould not have delegated more authority than Parliament itself had. (See Harris and\n\nOthers v Minister of the Interior and Another 1952(2) SA 428(A) at 456F and Minister\n\nof the Interior v Harris 1952(4) SA 769(A) at 779H - 781H; 784H - 785A; 790B - D;\n\n797D.) It was further contended that because Section 16A of the Transition Act was itself\n\nan unconstitutional delegation of power by Parliament to the First Respondent, the\n\nProclamations effected by the First Respondent under Section 16A must, ipso facto, also\n\nbe unconstitutional and hence invalid.\n\nThis appears to be the position adopted by the majority of our colleagues. Our view, on\n\nthe other hand, is that the First Respondent was empowered under Section 235(8) of the\n\n140\n\n\fConstitution to do what he did - promulgate Proclamations R58 and R59 of 1995. We now\n\nMADALA J, NGOEPE AJ\n\nattempt to develop this view.\n\n[ 215 ] Counsel for the Respondents submitted that, although First Respondent, on the face of the\n\nProclamations, purported to have issued them in terms of Section 16A, First Respondent\n\nis entitled to rely on Section 235(8), provided the jurisdictional facts required in terms of\n\nthe latter Section, are established. (See Latib v The Administrator, Transvaal 1969(3)\n\nSA 186 at 190F - 191A; Avenue Delicatessen v Natal Technikon 1986(1) SA 853(A) at\n\n870I - J; Klerkdorpse Stadsraad v Renswyk Slaghuis (Edms) Bpk 1988(3) SA 850(A) at\n\n873E - F.)\n\n[ 216 ] We deal, herein specifically with the impact of Section 235, and we believe that any\n\nunravelling of the problem must be systematically and analytically carried out. Basically,\n\nthe issue we consider hereunder is whether the Proclamations were validly promulgated\n\nunder Section 235(8) of the Constitution. \n\n[ 217 ] As a starting point in this matter, one needs to have regard to Section 75 of the\n\nConstitution, which states that the executive authority of the Republic in respect of all\n\nmatters falling within the legislative competence of Parliament, shall vest in the President,\n\nwho must exercise his powers and perform his functions in accordance with the\n\nConstitution.\n\nOn the other hand, the executive authority of a province vests in the Premier of the\n\n141\n\n\fprovince, who, likewise, is expected to exercise his power and perform his duties subject\n\nto and in accordance with the Constitution (Section 144(1)).\n\nMADALA J, NGOEPE AJ\n\nA province exercises its executive authority over:\n\na.\n\nb.\n\nc.\n\nall matters in respect of which it has exercised its legislative competence;\n\nmatters assigned to it by or under Section 235 or any law; \n\nmatters delegated to it by or under any law.(Section 144(2)).\n\n[ 218 ] The proceedings before this Court were initially aimed at attacking the validity of\n\nProclamations R58 and R59, which were promulgated by the First Respondent attempting\n\nto amend Sections 3(5) and 10 of the Transition Act; the attack was not aimed at the\n\nvalidity of Section 16A of the Transition Act. On the proclamations, the Applicants\n\nlaunched a three-pronged attack:\n\na.\n\nThey contend that the proclamations and the legislative amendments\n\neffected in terms of those proclamations give rise to a direct assault on the\n\nWestern Cape Province\u2019s legitimate provincial autonomy, and thereby\n\nviolate constitutional principle XX11 in schedule 4 of the Constitution.\n\nb.\n\nIn the alternative, the Applicants contend that the proclamations and the\n\nlegislative amendments effected thereby constitute an unconstitutional\n\nattempt to subvert Sections 61 and 62 of the Constitution. \n\nc.\n\nIn the third alternative, the Applicants contend that Section 16A of the\n\nTransition Act must be restrictively interpreted or \u201cread down\u201d in\n\naccordance with Section 232(3) of the Constitution. \n\n142\n\n\fIt was only at a late stage in the proceedings that the Applicants sought to launch an attack\n\nagainst the validity of Section 16A of the Transition Act (by way of a small entry in a\n\nfootnote). It was contended by the Applicants that the proclamations were promulgated\n\nin terms of what has been called a \u201cHenry VIII\u201d clause, this being, according to them, a\n\nprovision in an act of parliament empowering someone to make regulations amending that\n\nact or another act. \n\n[ 219 ] It was argued on behalf of the Applicants that the effect of Proclamation R58 was to\n\nwithdraw the power to appoint and to dismiss members of the Provincial Committee - as\n\nhappened to the Fourth and Fifth Applicants. Proclamation R59 sought to nullify the\n\ndemarcation that had already been proposed. It was further argued that this had nothing to\n\ndo with \u201cthe efficient carrying out of the assignment\u201d of the administration of the Transition\n\nAct. It was on this basis contended that the President had no power to issue the\n\nProclamations under 235(8).\n\n[ 220 ] In considering Section 235, it must be remembered that we are here dealing with a series\n\nof transitional measures put in place to ensure that the democratic process takes place, and\n\nprocedures implemented. Section 235 of the Constitution deals with \u201cTransitional\n\narrangements: Executive authorities\u201d. It seeks to devise a scheme through which executive\n\npowers would evolve at the commencement of the Constitution and upon the assumption\n\nof office by the President. The scheme is broadly as follows:\n\n(a)\n\nIt starts from Section 229 of the Constitution. The Section reads as follows:\n\n\u201cSubject to this Constitution, all laws which immediately before the commencement\nof this Constitution were in force in any area which forms part of the national territory,\nshall continue in force in such area, subject to any repeal or amendment of such laws\n\n143\n\n\fby a competent authority\u201d. \n\n (We shall return to the significance of the words we underlined).\n\nMADALA J, NGOEPE AJ\n\n(b)\n\nNext relevant, is section 235(5), which reads as follows :\n\n\u201cUpon the assumption of office by the President in terms of this Constitution-\n (a)\n\nthe executive authority of the Republic as contemplated in section 75 shall\nvest in the President acting in accordance with this Constitution;\nand\nthe executive authority of a province as contemplated in section 144 shall,\nsubject to subsections (8) and (9), vest in the Premier of that province acting\nin accordance with this Constitution, or while the Premier of a province has\nnot yet assumed office, in the President acting in accordance with section 75\nuntil the premier assumes office.\u201d\n\n (b)\n\n(c)\n\nNext is Section 235(6) in terms of which all laws referred to in Section 235(6)(a)\n\nare to be administered by the national government. The laws referred to in Section\n\n235 (6)(b) are further divided, for the purpose of their administration into those\n\nfalling under Section 235(6)(b)(i) (which are to be administered by the national\n\ngovernment even though they are with regard to matters within the functional areas\n\nof the provinces), and those falling under Section 235 (6)(b)(ii) which, except\n\npolicing matters, are to be administered by the provinces. \n\n(d)\n\nNext relevant, is Section 235 (8)(a):\n\n\u201cThe President may, and shall if so requested by the Premier of a province, and\nprovided the province has the administrative capacity to exercise and perform the\npowers and functions in question, by proclamation in the Gazette assign, within the\nframework of section 126, the administration of a law referred to in subsection (6)(b)\nto a competent authority within the jurisdiction of the government of a province, either\ngenerally or to the extent specified in the proclamation.\u201d\n\nSubsection (8)(b) deals with the measures or steps the President may take during\n\nor after the assignment of a law.\n\n144\n\n\fMADALA J, NGOEPE AJ\n\n[ 221 ] Section 235(6)(b), on which First Respondent relies, states that all laws with regard to\n\nmatters falling within the functional areas set out in Schedule 6 and which do not fall under\n\nSection 126(3) (a) to (e) shall be administered by a competent authority of the national\n\ngovernment until such laws have been assigned to provinces. Section 235(6)(b)(i) reads\n\nas follows:\n\n\u201cAll laws with regard to matters which fall under the functional areas specified in Schedule 6 and\nwhich are not matters referred to in paragraphs (a) to (e) of section 126(3) shall-\n(i)\n\nif any such law was immediately before the commencement of this Constitution\nadministered by or under the authority of a functionary referred to in subsection (1)(a)\nor (be administered by a competent authority within the jurisdiction of the national\ngovernment until the administration of any such law is with regard to any particular\nprovince assigned under subsection (8) to a competent Authority within the jurisdiction\nof the government of such province...\u201d\n\n[ 222 ] We interpret this Section to mean that all laws which came into operation before the\n\nConstitution (the Transition Act included), and which are matters with regard to which\n\nboth central and provincial government have concurrent powers (local government\n\nincluded), shall vest in the President until he assigns them to the competent authorities in\n\nthe provinces. For a possible successful reliance on Section 235 and, in particular Section\n\n235 (6)(b)(i), First Respondent must, therefore, first bring the Transition Act within the\n\ngroup of laws referred to in Section 229 of the Constitution. The significance of the words\n\n\u201cin any area\u201d, underlined above, is that for a law to be brought within the ambit of the\n\nSection, such law need not have been in force in the whole of what is now the national\n\nterritory; it is sufficient if it was, for example, in force only in an area which constituted\n\nthe \u201cold\u201d South Africa. The Transition Act was in fact, immediately before the\n\ncommencement of the Constitution, in force in the \u201cold\u201d South Africa; it therefore falls\n\nwithin the ambit of Section 229 of the Constitution.\n\n145\n\n\fMADALA J, NGOEPE AJ\n\nSection 235 (6) of the Constitution is very pertinent. It vests the President with executive\n\npower in respect of not only national functional areas [235(6)(a)] but also in respect of\n\nlaws with regard to matters falling within the functional areas of the provinces [235\n\n(6)(b)]. Such powers would vest in him upon his assumption of office [Section 235(5)].\n\nSections 235(6)(a) and 235(6)(b) are all inclusive, referring as they both do to \u201call\u201d such\n\nlaws. In our view, the words \u201call laws\u201d mean exactly that. Executive power in respect\n\nof all the laws which, immediately prior to the commencement of the Constitution were in\n\nforce in any area which forms part of the national territory, were collapsed into Section\n\n235, and made to vest in the President. Therefore, executive powers in respect of the\n\nTransition Act did not escape the process, inasmuch as the Act itself must surely be\n\nincluded amongst \u201call laws\u201d. \n\nWe have already referred to the all-embracing nature of Section 235(6). Even if the\n\nTransition Act did contain its own scheme (and surely every act does contain a scheme of\n\nsome kind) it (the Transition Act) must succumb (like all other acts) to the force of Section\n\n235(6), which is a constitutional provision.\n\nIt seems as if Section 245(1) is being perceived as elevating the Transition Act to an\n\nextraordinary status. In this respect reference was made during argument to facts\n\nextraneous of that Act (and of the Section itself), such as that the Transition Act was the\n\nproduct of delicate and protracted negotiations. That kind of exercise can lead to\n\nspeculation and one would be slow to found important decisions on that. It is one thing to\n\nrefer to background material to understand an act, but, in our view, quite another thing to\n\n146\n\n\fMADALA J, NGOEPE AJ\n\naccord an act an extra-ordinary status on the basis thereof. Section 245(1) is clear and\n\nstraightforward: all it does is to direct that until elections referred to therein have been\n\nheld, the restructuring of local government must not be done otherwise than in accordance\n\nwith the Transition Act. The Transition Act can of course be amended, and Section 245(1)\n\nof the Constitution should be understood as directing that the restructuring of local\n\ngovernment be in accordance with the Act as (duly) amended from time to time. The\n\nSection does not prescribe as to what the contents of the Transition Act should be. The\n\npurpose of the Section is therefore simply, to ensure that the restructuring be in accordance\n\nwith the Transition Act, whatever the contents of the Act may be at any given time or from\n\ntime to time, as long as properly amended. The fact that the Transition Act is amendable\n\nalso disposes of any arguments based on possible conflicts between it on the one hand, and\n\nthe provisions of Section 235 of the Constitution on the other hand, which may result from\n\nbringing it within the purview of the said Section; such conflicts will simply be removed.\n\nIn fact, such conflicts or anomalies should be expected, given the plethora of laws by a\n\nnumber of different legislative bodies, with different constitutional status, that existed in\n\nvarious areas before the commencement of the Constitution. Hence the power of the\n\nPresident to amend, adapt etc. such laws upon assignment. It is, in our view, therefore,\n\nirrelevant, in considering whether or not the Transition Act falls under Section 235(6) of\n\nthe Constitution, to take into account possible conflicts which may result.\n\n[ 223 ] It has also been contended that the Transition Act could be some kind of a lex specialis,\n\ndevising a scheme which should be seen as standing on its own outside of the one\n\ncontained in Section 235 of the Constitution. Apparently this argument is based on the\n\n147\n\n\fprovisions of Section 245(1) of the Constitution, which reads as follows:\n\n\u201c(1) Until elections have been held in terms of the Local Government Transition Act, 1993,\nlocal government shall not be restructured otherwise that in accordance with that Act...\u201d\n\nMADALA J, NGOEPE AJ\n\nWe have already addressed this argument in the aforegoing paragraph.\n\n[ 224 ] A further consideration is whether the whole Act can be said to be assignable. We do not\n\nfind it necessary to express our view on this issue, for the present purpose. In our view,\n\nthere is little doubt that the administration of the Sections sought to be amended by\n\nProclamations R58 and R59, namely, Sections 3(5) and 10 respectively, is assignable. We\n\nconsider, therefore, that it would be wrong to approach the matter on the basis that a law\n\ncannot be partially assignable. A reading of Section 235(8)(b)(ii) clearly contemplates\n\nsuch a possibility.\n\n[ 225 ] In the present case, the First Respondent assigned only part of the Transition Act, in\n\naccordance with Section 235(8)(a). This is apparent from paragraph (a) of Proclamation\n\nR129 of 1994, which reads \u201c ... assign ... excluding Section 9(1) and 12 ...\u201d. The\n\nProclamation, therefore, effects the partial assignment of the administration of the\n\nTransition Act.\n\n[ 226 ] As Proclamations R58 and R59 themselves reflect, the President did in fact \u201camend or\n\nadapt such law in order to regulate its application or interpretation;\u201d, having come to the\n\nconclusion, as he says in his affidavit dated 13 August, 1995, that the issuing of the said\n\nproclamation was \u201cnecessary for the efficient carrying out of the assignment\u201d of the\n\nadministration of the Sections which were assigned in terms of Proclamation R129.\n\n148\n\n\fMADALA J, NGOEPE AJ\n\n[ 227 ] We differ with the conclusion, reached by Chaskalson P, that Section 235 (8)(b) of the\n\nConstitution could not have provided a source of power for the President to issue\n\nProclamations R58 and R59, which were issued respectively on the 7th June, 1995 and the\n\n8th June, 1995.\n\n[ 228 ] We find the interpretation by Chaskalson P, of the words \u201cnecessary for the efficient\n\ncarrying out of the assignment\u201d too restrictive. Firstly, we think that the legislature, in\n\ninserting Sections 235 (6), 235 (7) and 235 (8), deliberately took a robust attitude towards\n\nthe plethora of laws which were to be in force at the commencement of the Constitution;\n\nlaws which emanated from a variety of legislative authorities with, for that matter,\n\ndifferent constitutional status. Thus, Section 235 (8)(b) was intended to deal with\n\nproblems the exact nature and scope of which could not be foreseen. A narrow\n\ninterpretation would undermine its efficacy. There is another reason why we would not\n\ninterpret the Section as aiming at remedying only functional inefficiencies arising out of\n\nthe assignment. It is because of our reading of the words \u201c(w)hen the President so assigns\n\nthe administration of a law...\u201d. (Our underlining). We understand these words as\n\nconveying that the President can amend or adapt the law concerned already at the time of\n\nthe assignment, the implication being that the powers to amend are not restricted to dealing\n\nwith deficiencies arising only from the actual administration of the law concerned. In our\n\nview, therefore, the President can deal, by way of amendment, also with deficiencies\n\nwhich were already inherent in the law concerned before the assignment. \n\n149\n\n\f[ 229 ] The reasons for the President\u2019s move appear from his affidavit above - he saw the\n\npossibility of a crisis developing in the process of the restructuring of local government.\n\nMADALA J, NGOEPE AJ\n\nFor the purpose of keeping the process on course, the President is given a variety of wide\n\npowers, intended to last for the duration of the transitional or interim phase only. In\n\nparticular, Section 235 is the vehicle for the achievement of this. It must also have been\n\nenvisaged by the framers of the Constitution that there might arise situations where a\n\nprovincial government might not be functioning properly or was unable to assume\n\nresponsibility for organising local government elections.\n\nThe vesting of these wide-ranging powers to the President is an act sui generis\n\nnecessitated by the unique circumstances of transition which the country was or is facing\n\nand it cannot have been intended that they would be permanent. After all, are we not\n\ncalled upon, in interpreting the Constitution to do so purposively ?\n\n[ 230 ] We would, therefore, not be able to strike down the Proclamations on the basis that there\n\ncould not have been a valid assignment of the administration of the relevant sections of the\n\nTransition Act.\n\nWe would, accordingly, hold that Section 235(8) provided a source of power for the First\n\nRespondent to issue Proclamations R58 and R59, of the 7th and 8th June, 1995,\n\nrespectively.\n\n150\n\n\fIn the circumstances, we agree with paragraphs 1, 2, 6(b) and (c) of the order made by\n\nMADALA J, NGOEPE AJ\n\nChaskalson P.\n\n151\n\n\fFor the Applicants\n\nM Seligson SC\n\nT D Potgieter\n\nFor the First to Third Respondents\n\nJ J Gauntlett SC\n\nJ C Heunis\n\n\f"}, "id": "43523ef2-9fe2-48e6-9d43-6d85d0307874", "update_date": "2021-03-15 17:08:56.815549", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter of: THE EXECUTIVE COUNCIL OF THE WESTERN CAPE LEGISLATURE THE PREMIER OF THE WESTERN CAPE THE MINISTER OF LOCAL GOVERNMENT (WESTERN CAPE) STAFFORD PETERSEN LESLEY HELENE ASHTON and CASE NO CCT 27/95 First Applicant Second Applicant Third Applicant Fourth Applicant Fifth Applicant THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA First Respondent THE MINISTER FOR PROVINCIAL AFFAIRS AND CONSTITUTIONAL DEVELOPMENT THE MINISTER OF JUSTICE KAMALASEN CHETTY C B HERANDIEN Heard on: 16 August, 30 August and 14 September 1995 Delivered on: 22 September 1995 JUDGMENT Second Respondent Third Respondent Fourth Respondent Fifth Respondent \f[ 1 ] CHASKALSON P: This case involves fundamental questions of constitutional law. At issue are matters of grave public moment concerning the imminent local government elections. We would have preferred more time for consideration of these questions and the formulationof our views. Time does not permit that however. Because of the urgency of the matter and its possible impact on the local government elections there is a pressing need to announce our conclusions and basic reasoning within the shortest possible time. Introduction [ 2 ] The case arises from a dispute between the Executive Council of the Western Cape and the national government relating to the validity of amendments to the Local Government Transition Act (the \u201cTransition Act\").1 These amendments were effected by the President by proclamation purporting to act in terms of powers vested in him under the Transition Act. The validity of the proclamations embodying the amendments was challenged on constitutional and non-constitutional grounds. [ 3 ] The constitutional challenge was lodged with the Registrar of this Court at the end of June 1995 with a request that it be dealt with as a matter of urgency.2 It was said that if the dispute was not resolved promptly the local government elections within the Cape Town metropolitan area could not be held on the date planned, namely 1 November 1995. All the parties asked us to deal with the matter as one of urgency. It was set down for hearing on 16 August 1995 (the term commenced on 15 August) and directions were given in terms 1 No. 209 of 1993. 2 In terms of Rule 17 of the Rules of the Constitutional Court. 2 \fof Rule 17(5) for the speedy disposal of the preparatory phases of the case. CHASKALSON P [ 4 ] A simultaneous challenge on non-constitutional grounds, seeking to review the validity of the proclamations as an abuse of the authority vested in the President, was launched in the Cape Provincial Division of the Supreme Court (the \u201cCPD\u201d). The matter was dealt with as one of urgency and on 11 August 1995 the CPD (per Conradie J, K\u00fchn J concurring) dismissed the case. [ 5 ] The relief sought by the Applicants in their original notice of motion to this Court was for an order for the following: 1. Granting them direct access to this Court in terms of section 100(2) of the Constitution3 read with Rule 17, declaring unconstitutional certain amendments to the Transition Act effected by Proclamations R 58 of 7 June 1995 and R 59 of 8 June 1995 (the \u201cProclamations\u201d), and the Proclamations themselves. 2. Setting aside the appointment of the Fourth and Fifth Respondents as members of the Provincial Committee for Local Government for the Western Cape Province (the \u201cCommittee\u201d) which had been effected pursuant to Proclamation R 58 and reinstating the Fourth and Fifth Applicants as members of the Committee (which had been effected by the Third Applicant prior to the enactment of the Proclamations). 3 Act No. 200 of 1993. 3 \f3. Directing that the First, Second and Third Respondents be jointly and severally liable for the costs of this application and that if the Fourth and Fifth Respondents opposed the application that all the Respondents be jointly and severally liable for CHASKALSON P such costs. [ 6 ] Section 245(1) of the Constitution provides that Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act. The Transition Act was assented to on 20 January 1994, approximately three months before the Constitution came into force. It provides the machinery for the transition from a racially based system of local government to a non-racial system. It establishes the process to be followed in order to reach this goal, a process which was to commence when the Act came into force on 2 February 1994, and to continue until the holding of the first non-racial local government elections which would take place on a date to be promulgated by the Minister of Local Government in the government of national unity.4 [ 7 ] The Constitution itself makes provision for the complex issues involved in bringing together again in one country, areas which had been separated under apartheid, and at the same time establishing a constitutional state based on respect for fundamental human rights, with a decentralised form of government in place of what had previously been authoritarian rule enforced by a strong central government. On the day the Constitution 4 Section 9(1) of the Transition Act. Ministerial responsibility was subsequently assigned to the Minister of Provincial Affairs and Constitutional Development in the government of national unity and the Transition Act was amended by Presidential proclamation to reflect this. Proclamation No. R. 129 of 1994. The validity of that Proclamation is also called into question in this case. 4 \fCHASKALSON P came into force fourteen structures of government ceased to exist. They were the four provincial governments, which were non-elected bodies appointed by the central government, the six governments of what were known as self governing territories, which had extensive legislative and executive competences but were part of the Republic of South Africa, and the legislative and executive structures of Transkei, Bophuthatswana, Venda and Ciskei which according to South African law had been independent states. Two of these States were controlled by military regimes, and at the time of the coming into force of the new Constitution two were being administered by administrators appointed by the South African authorities. The legislative competences of these fourteen areas were not the same. Laws differed from area to area, though there were similarities because at one time or another all had been part of South Africa. In addition the Constitution was required to make provision for certain functions which had previously been carried out by the national government, to be transferred as part of the process of decentralisation to the nine new provinces which were established on the day the Constitution came into force, and simultaneously for functions that had previously been performed by the fourteen executive structures which had ceased to exist, to be transferred partly to the national government and partly to the new provincial governments which were to be established. All this was done to ensure constitutional legislative, executive, administrative and judicial continuity. [ 8 ] The mechanism for this process is contained in Chapter 15 of the Constitution in a series of complex transitional provisions dealing with the continuation of laws, and the transitional arrangements for legislative authorities, executive authorities, public 5 \fCHASKALSON P administration, the courts, the judiciary, the ombudsman, local government, the transfer of assets and liabilities and financial matters such as pensions and the like. The dispute in the present case depends on the interpretation of some of these provisions. I mention the complexity of the process because it is relevant to arguments addressed to us in regard to how we should interpret the relevant provisions. [ 9 ] Section 235(8) of the Constitution empowered the President to assign the administration of certain categories of laws to \"competent authorities\" within the jurisdiction of the various provinces who, by definition, were authorities designated by the Premiers. Some time after the Constitution came into force the President, purporting to act in terms of section 235(8), assigned the executive authority for the administration of the Transition Act to provincial administrators to be designated by the Premiers of each of the provinces. Section 235(8) also empowered the President when he assigned the administration of a law, or at any time thereafter, to amend or adapt such law in order to regulate its application or interpretation. This was permissible \"to the extent that [the President] considers it necessary for the efficient carrying out of the assignment.\" When the President purported to assign the administration of the Transition Act to administrators in the provinces, he also purported to amend the law in terms of his powers under section 235(8). No objection was made by the Applicants at that time to the assignment or to the amendments to the Transition Act. In fact, the Third Applicant claims to be the Administrator in the Western Cape by virtue of such an assignment. [ 10 ] The process of restructuring of local government under the Transition Act proceeded and 6 \fCHASKALSON P on 23 November 1994 Parliament amended the Act to include a provision under which the President was vested with the power to amend the Act by proclamation. He could do this provided the Committees on Provincial and Constitutional Affairs of the Assembly and the Senate consented to the amendments. There was also a requirement under which the amendments had to be tabled in Parliament and would fall away if Parliament passed a resolution disapproving of them. Once again no objection seems to have been taken at the time by the Applicants to the constitutionality of this amendment. A number of proclamations were passed in terms of this provision, and no challenge was made prior to June 1995 to their constitutionality. Factual Background [ 11 ] On the day that the assignment of the administration of the Transition Act and the consequential amendments were made (15 July 1994), the Second Applicant (the Premier of the Western Cape) designated the Third Applicant (the Minister of local government in the Western Cape) as the competent authority for the administration of the Transition Act for the Western Cape Province. In terms of the Transition Act, the Administrator\u2019s duties included the demarcation and delimitation of the Western Cape into areas of jurisdiction of transitional councils and transitional metropolitan sub-structures for the purposes of the local government elections anticipated to be held on 1 November 1995. Section 4(1) of the Transition Act required the Administrator to exercise any power conferred on him by the Act with the concurrence of the Provincial Committee, a body which (in terms of section 3(2) of the Transition Act) has to be \u201cbroadly representative of stakeholders in 7 \fCHASKALSON P local government\u201d; section 4(1) requires the Administrator to exercise any power conferred on him by the Transition Act with the concurrence of the Provincial Committee; and section 4(3) then provides that where they fail to concur, the matter is to be resolved by the Special Electoral Court. [ 12 ] The Transition Act as originally enacted provided that after the establishment of provincial government in a province members of a Provincial Committee would hold office during the pleasure of the Executive Council of that provincial government and that vacancies would be filled by the Executive Council. When the events which gave rise to the present dispute occurred, Mr A Boraine and Mr E Kulsen were members of the Committee. Kulsen resigned on 21 February 1995 and on 10 May 1995 the Third Applicant raised the question of Boraine\u2019s membership of the Committee with the First Applicant, which resolved to delegate to the Third Applicant the power to dismiss Boraine and to fill the two vacancies. The Third Applicant exercised that power by advising Boraine on 11 May 1995 that his membership was being terminated and by appointing the Fourth and the Fifth Applicants in the place of Boraine and Kulsen on 17 May 1995. The reconstituted Committee met on 23 May 1995 and four of its six members (including the Fourth and Fifth Applicants) approved the demarcation proposal of the Third Applicant.5 The other two members of the Committee (and Boraine) were opposed to the Third Applicant\u2019s demarcation proposal. His actions made it possible for him to avoid referring to the 5 The Local Government Demarcation Board for the Western Cape, a statutory advisory body appointed in terms of section 11 of the Transition Act, had recommended dividing the Cape Town metropolitan area into six sub-structures. The Third Applicant\u2019s proposal combined the Board\u2019s proposed Southern and Central sub- structures and its Tygerberg and Eastern sub-structures, and moved the predominantly black residential townships of Lingelethu West and Khayelitsha from Tygerberg into the consolidated Central sub-structure. 8 \fCHASKALSON P Special Electoral Court the dispute which would otherwise have arisen between him and the Committee with regard to his demarcation proposal.6 Intensive negotiations ensued between the major political parties involved and also between representatives of the provincial and national government authorities concerned.7 It proved impossible to find common ground, however. In the result the reaction of the central government was for the First Respondent to use his powers under section 16A of the Transition Act to promulgate the Proclamations. [ 13 ] By Proclamation R 58 of 7 June 1995 the First Respondent amended section 3(5) of the Transition Act by transferring the power to appoint and dismiss Committee members from the provincial to the national government.8 The amendment also served to nullify the appointment by the Third Applicant of the Fourth and Fifth Applicants. The next day the First Respondent amended section 10 of the Transition Act by Proclamation R 59. Before this amendment section 10 of the Transition Act had provided the Administrator with wide powers to make proclamations, inter alia, relating to the demarcation of local government 6 The Committee at all material times consisted of six members while section 3(7)(b) of the Transition Act requires a two-thirds majority for any of its decisions. 7 Of the two major parties in the Government of National Unity the African National Congress holds the majority in the national government and the National Party holds the majority in the Western Cape government. 8 The amended sub-section reads as follows: (5)(a) A member of the Committee shall hold office as a member at the Minister\u2019s (b) pleasure. Any vacancy in the membership of the Committee arising for any reason shall be filled by a person appointed by the Minister in consultation with the Minister of Justice and after consultation with the Premier of the province concerned: Provided that any person so appointed shall have knowledge of matters concerning local government and shall reside within the province concerned. (c) Any appointment of a member of the Committee made by the Executive Council of a province after 30 April 1995, is hereby terminated. 9 \fCHASKALSON P structures and the division of such structures into wards. Proclamation R 59 made section 10 subject to the provisions of a new subsection (4), which effectively invalidated Provincial Committee decisions of the kind in issue taken between 30 April and 7 June. Section 2 of that Proclamation then rendered the amendment explicitly retroactive. The combined effect of the Proclamations was to nullify the appointment of the Fourth and Fifth Applicants as members of the Committee retroactively and also to nullify the Third Applicant's demarcation proposal which the Committee had approved on 23 May 1995. On 15 June 1995 the Second Respondent, acting in consultation with the Third Respondent and after consultation with the Second Applicant, appointed the Fourth and Fifth Respondents as members of the Committee to replace Boraine and Kulsen. [ 14 ] That sequence of events led to the Applicants challenging the Proclamations before the CPD and in this Court. This set in motion a chain of events which has culminated in the Applicants challenging the constitutional validity of section 16A of the Transition Act, and the constitutional validity of the assignment of the administration of the Act to provincial administrators. Not only do the Applicants put in issue the validity of the Presidential proclamation from which the Third Applicant derives his own authority, but in so doing and in challenging the validity of section 16A they put in doubt the validity of everything that has been done under the Transition Act since 15 July 1994, including all the preparations that have been made for the holding of the elections which are scheduled to take place in most of the country on 1 November, barely a month from now. Direct and Urgent Access 10 \f[ 15 ] The first aspect to be considered is whether urgent and direct access to this Court should CHASKALSON P be granted. The manner in which the Applicants launched their assault on the Proclamations led to considerable difficulty, not only for the Respondents but also for this Court. The case was brought on an urgent basis; it was submitted that we had exclusive jurisdiction to hear it and that we should grant direct access to this Court under section 100(2) of the Constitution and Rule 17 of the Constitutional Court Rules. We were told that the local government elections in the Cape Town metropolitan area and in the whole of the Province would be put in jeopardy if the issues were not urgently resolved. It was impressed upon us that the Third Applicant could not act without the concurrence of the Committee and that, until the dispute regarding the composition of the Committee had been resolved, arrangements for local government elections in the Western Cape Province would be at a standstill. It was pointed out that the disputed validity of the Proclamations left in limbo whether it was the national government that had the power to change the composition of the Committee or whether such power still vested in the provincial authority concerned. The Respondents agreed that the matter was of such import and urgency as to justify direct access being afforded to this Court. [ 16 ] There was disagreement, however, on the question whether the essential dispute falls within the exclusive jurisdiction of this Court. It is unnecessary to decide who is right on that issue. It is clear from the provisions of section 98(2)(c) of the Constitution that we do have jurisdiction to enquire into the constitutionality of any law and that, in terms of section 98(2)(e), we also have jurisdiction to deal with disputes of a constitutional nature 11 \fbetween organs of state at any level of government.9 In any event, the matter has now been referred to this Court by the First Respondent in terms of the powers vested in him by section 82(1)(d) of the Constitution.10 CHASKALSON P [ 17 ] Although the elections in the Western Cape metropolitan area are no longer to be held on the 1st November, elections in other parts of the Western Cape are scheduled for that date. The issues raised in these proceedings could also have an impact on the elections elsewhere in the country. We are satisfied that we should make every endeavour to resolve the issues expeditiously and that urgent and direct access to this Court is warranted. An appropriate order will therefore be included at the end of this judgment. Application to Amend Notice of Motion [ 18 ] The second aspect to be considered is whether we should grant an application by the Applicants to amend their notice of motion to include as their first prayer a challenge to the validity of section 16A of the Transition Act. The application to amend was made so belatedly and diffidently as to cause the Respondents considerable embarrassment and the 9 The relevant provisions of section 98(2) read: \u201cThe Constitutional Court shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution, including- ... (c) any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution; ... [and] (e) any dispute of a constitutional nature between organs of state at any level of government...\u201d. 10 That paragraph, inter alia, empowers the President \u201cto refer disputes of a constitutional nature between ... organs of state at any level of government to the Constitutional Court ...\u201d 12 \fCHASKALSON P Court no little bother. Ordinarily we would not have allowed it. However, the validity of the section is not only central to the present matter but of vital public importance generally. The question has to be decided now and any further delay would not be in the public interest. For that reason the amendment must be allowed and the Court\u2019s order contains the relevant provision to that effect. Summary of Legal Argument before this Court [ 19 ] In their founding affidavits the Applicants attacked the Proclamations on five separate grounds, in substance only one of which was relied upon in the first written argument lodged preparatory to the hearing. The argument that was persisted in was that the Proclamations were unconstitutional because they invaded the \u201cfunctional or institutional integrity\u201d of the Western Cape Province within the meaning of Constitutional Principle XXII, contained in Schedule 4 to the Constitution read with sections 74(1) and 232(4) thereof.11 On the day before the hearing the Applicants sought to supplement their attack on the Proclamations by introducing an attack on the Proclamations on the grounds that they violated sections 61 and 62 of the Constitution and on the further ground that section 16A of the Transition Act was itself unconstitutional for its inconsistency with those sections of the Constitution.12 [ 20 ] Due to the lateness of the introduction of these fresh attacks and due to their possible 11 It was also vaguely contended that the Proclamations were invalid to the extent to which they purported to have retrospective effect. 12 The full text of section 61 of the Constitution is set out in paragraph [43] below. 13 \fCHASKALSON P impact on the outcome of this case, the Court granted a postponement giving the Applicants time to augment their submissions and affording the Respondents an opportunity to challenge them so that full and proper argument could be presented. Counsel were invited to consider argument on the possibility that there could be an answer to the Applicants\u2019 attack on section 16A if the First Respondent nevertheless had had the power in terms of section 235(8) of the Constitution to do what he had done. [ 21 ] The Applicants\u2019 augmented written argument, somewhat surprisingly, contained no express attack on the constitutionality of section 16A. At best there was an alternative submission, relegated to a footnote. The argument also did not deal with the possible application of section 235(8) of the Constitution. The Applicants\u2019 augmented written argument, which consolidated all the grounds on which the Applicants at that stage relied, limited the attack on the Proclamations to three submissions. First, their alleged violation of Constitutional Principle XXII; second, their alleged subversion of sections 61 and 62(2) of the Constitution; and finally, that section 16A of the Transition Act, duly \u201cread down\u201d in accordance with section 232(3) of the Constitution so as to authorize only proclamations which do not violate Constitutional Principle XXII or subvert sections 61 and 62(2), renders the Proclamations ultra vires that section. [ 22 ] While the written submissions of the Applicants avoided a substantive attack on section 16A, a supplementary affidavit by the Second Applicant impugned its constitutionality. Because of the importance of the point counsel for the Applicants were put to an election at the resumed hearing on 30 August 1995. After some vacillation they then elected to 14 \fCHASKALSON P apply to amend the notice of motion so as to include a prayer for the striking down of section 16A. Counsel for the Respondents opposed the application to amend and - quite justifiably - renewed a complaint expressed in their written submissions, namely that the repeated and unheralded changes of front on the part of the Applicants put the Respondents in the invidious position of not knowing from time to time what case they were to meet. They stressed that no proper explanation had been offered for the vacillation traced above in relation to proceedings instituted over two months earlier and emphasized that the implications of allowing the amendment would be profound. In terms of the proclamations promulgated under the provisions of section 16A, sections 3, 4, 7, 7A, 8, 9, 10, 10A, 11, 13, 16 and 16B Part VA and Schedules 1 and 4 of the Transition Act had been amended or inserted or both, some of them amended more than once. Counsel for the Respondents advanced ex tempore argument regarding the attack on section 16A and were given an opportunity to respond further in writing.13 The Respondents also handed in an affidavit by the First Respondent dealing with his state of mind regarding the jurisdictional prerequisites to a decision to amend the Transition Act by virtue of the power to amend conferred on him by sections 235(8) of the Constitution. Relying on the line of reasoning followed in Latib's case14 counsel for the Respondents argued that it was of no consequence that the Proclamations cited section 16A as the authority for their promulgation and not section 235(8) of the Constitution. They argued that, ex facie his affidavit, the First Respondent had made up his mind on the appropriate facts and had 13 In substance the argument they subsequently lodged did not confront the attack on section 16A. Instead they contended that the attack could not be raised at such a late stage and there was an attempt to outflank the argument by relying on section 235(8) of the Constitution. 14 Latib v The Administrator Transvaal 1969(3) SA 186(T) at 190F-191A. See also Avenue Delicatessen v Natal Technikon 1986(1) SA 853(A) at 870I-J; Klerksdorpse Stadsraad v Renswyk Slaghuis (Edms) Bpk 1988(3) SA 850(A) at 873E-F. 15 \fmerely exercised his consequent power under an inappropriate statutory provision. CHASKALSON P [ 23 ] Subsequent to the hearing this Court realised that there were questions regarding section 235(8) of the Constitution and related provisions which had not been addressed by counsel in their written or oral argument. These questions were of such importance that we considered it necessary to afford the parties an opportunity and the Court the benefit of debating them. The parties' legal representatives were therefore urgently invited to canvass the particular issues at a further hearing set down on 14 September 1995. Having now had that further debate we are satisfied that the case ultimately turns on the resolution of five issues. They are (i) whether the Proclamations fall foul of Constitutional Principle XXII; (ii) whether they are invalidated by section 61 of the Constitution or (iii) by section 62(2) of the Constitution; (iv) whether section 16A of the Transition Act itself is unconstitutional; and (v) whether the Proclamations were nevertheless validly promulgated under section 235(8) of the Constitution. We proceed to consider each of those issues in turn. Constitutional Principle XXII [ 24 ] The first and main basis of Applicants\u2019 attack on the Proclamations was that they were unconstitutional by reason of their being in violation of Constitutional Principle XXII which is contained in Schedule 4 of the Constitution. The relevant provision states: The national government shall not exercise its powers (exclusive or concurrent) so as to encroach upon the geographical, functional or institutional integrity of the provinces. 16 \f[ 25 ] It was argued that the terms of the Constitutional Principle were contravened by virtue of CHASKALSON P the fact that the Proclamations and the legislative amendments effected thereby gave \u201c...rise to a direct assault on the legitimate provincial autonomy and \u2018functional and institutional integrity\u2019 \u201d of the Western Cape. The argument on behalf of the Applicants was based on a characterisation of the Constitutional Principles as being immutable and a contention that they are of application, along with the other provisions of the Constitution, to \u201call laws made or in force and all acts performed during the period of operation of the present Constitution.\u201d [ 26 ] In support of the argument as to the applicability of the Constitutional Principles, much reliance was placed on section 232(4) of the Constitution which provides: In interpreting this Constitution a provision in any Schedule ... to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of this Constitution. [ 27 ] The argument on behalf of the Applicants amounted to this: the import in section 232(4) of the Constitution of the phrases \u201cshall not ... have a lesser status than any other provision of this Constitution\u201d and \u201cshall be deemed for all purposes\u201d admit of no qualification; it leaves no room for the suggestion that the Constitutional Principles are mere aids to interpreting the substantive provisions of the Constitution. If anything, they have a higher status than the rest of the provisions in the Constitution. [ 28 ] In response, the principal argument was that the Constitutional Principles are applicable to the making of the final Constitution and do not apply in substance to the transitional period. While noting that the contents of the Constitutional Principles may possibly serve 17 \fCHASKALSON P as an aid to interpreting the other provisions of the Constitution, it was argued that this could not be done selectively. He pointed out that if Constitutional Principle XXII was applicable to the powers and status of provinces under the current Constitution as the Applicants contended, so too would Constitutional Principle XIX which provides, inter alia, that \u201c[t]he powers and functions at the national and provincial levels of government shall include exclusive and concurrent powers. . .\u201d Since section 126 of the Constitution provides only for concurrent and no exclusive powers to the provinces, this Constitutional Principle was not intended to be complied with in terms of the current Constitution. Constitutional Principles XXI(2) and (4), XXIII and XXIV were also cited as examples of obvious inconsistencies between the current Constitution and the Constitutional Principles, and as indicating that the provisions of the Constitutional Principles dealing with the status and powers of provinces related to the future and not the present. [ 29 ] The Constitutional Principles are a set of thirty-four provisions contained in Schedule 4 of the Constitution. They represent principles which were agreed upon and adopted by the Negotiating Council of the Multi-Party Negotiating Process to provide definitive guidelines for the drafting of the final Constitution. The current Constitution makes a number of references to the Constitutional Principles. That they have a significant role to play is obvious. The precise ambit of that role is what is in dispute. [ 30 ] In the Preamble the Constitutional Principles are described as a \u201csolemn pact\u201d in accordance with which the elected representatives of all the people of South Africa should be mandated to adopt a new Constitution. 18 \fCHASKALSON P [ 31 ] Chapter 5 of the Constitution locates their role in the context of a new constitutional text. In terms of section 71, the new constitutional text \u201cshall comply with the Constitutional Principles\u201d and that text, even though it would have been passed by the Constitutional Assembly, \u201cshall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles...\u201d [ 32 ] In terms of section 74 of the Constitution, the Constitutional Principles cannot be repealed or amended and neither can section 74 itself nor any other provision in Chapter 5 in so far as it relates to them or to \u201cthe requirement that the new constitutional text shall comply with the Constitutional Principles, or that such text shall be certified by the Constitutional Court as being in compliance therewith.\u201d [ 33 ] It is necessary to consider section 232(4) of the Constitution in context. It is contained in Chapter 15 which is entitled \u201cGeneral and Transitional Provisions\u201d and the section itself, according to the heading, deals with \u201cInterpretation\u201d. Section 232(4) is not conclusive on the issue of the exact status of the Constitutional Principles in relation to other provisions in the current Constitution. The section is of general application to all the Schedules to the Constitution. It ensures that they are treated for all purposes as if they formed part of the main body of the Constitution, and makes clear that they do not have a lesser status than provisions located elsewhere in the Constitution. Ordinarily, the position with regard to matter contained in a schedule is as set out by Kotze JA in African and European Investment Co. Ltd. v Warren and Others 1924 AD 308 at 360: 19 \fNo doubt a schedule or rule attached to a Statute and forming part of it is binding, but in case of clear conflict between either of them and a section in the body of the Statute itself, the former must give way to the latter. CHASKALSON P Craies, Statute Law (7th ed. by Edgar, 1971) at 224, notes: \u2018A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment, as any other part,\u2019 but if an enactment in a schedule contradicts an earlier clause the clause prevails against the schedule. (Citation omitted). See also Driedger on the Construction of Statutes (3rd ed. by Ruth Sullivan 1994) 278- 284, and Steyn, Die Uitleg van Wette (1981) 151-152. [ 34 ] Section 232(4) therefore ensures that the Schedules to the current Constitution are regarded not merely as an explanatory adjunct subordinated to the clause to which they are attached. Nor are the Schedules texts lacking constitutional status which could be amended by an ordinary Act of Parliament in terms of section 59; on the contrary, section 232(4) guarantees that, apart from Schedule 4 (which embodies the Constitutional Principles), they can only be amended by a two-thirds majority as provided for in section 64. See also section 74(2). Like all provisions of the Constitution they must be interpreted in their context, and if relevant, can be taken into account in interpreting other provisions of the Constitution. [ 35 ] The Constitutional Principles indeed have a higher status than the rest of the Constitution in that they cannot be amended at all (see section 74). This particular status stems from their special function in the matrix of the two-stage constitution-making process agreed to 20 \fduring the Multi-Party Negotiation Process and reflected in the text of the Constitution. CHASKALSON P [ 36 ] Clearly the current Constitution is made up of various components each of which has a specific focus. There are provisions, for instance, which deal with present arrangements and which have no special claim to being included in a future Constitution; there are also specific provisions which are directed at the process of bringing about a new Constitution. The question is where the Constitutional Principles, which are fully part of the current Constitution, fit into the scheme of things. [ 37 ] The language of the Constitution itself provides a strong indication of the applicability and overriding purpose of the Constitutional Principles. It should be mentioned firstly that the current Constitution is, itself, a transitional measure, designed to tide the country over an interim period while a new Constitution is being drafted. Indeed it proclaims itself as an \u201chistoric bridge\u201d; it was never intended to be the final destination. Thus while it brings about far-reaching changes in the governance of this country, it also prescribes and regulates the process leading towards the achievement of the final Constitution. In that sense the historic bridge is not just between the past, with all that characterised it, and the present, which is governed by this Constitution, but also between the present and the future, which will be governed in terms of the new Constitution. Various provisions of the current Constitution prescribe how the new Constitution should come about and the Constitutional Principles form part of the future-directed framework, as do certain other provisions contained elsewhere in the current Constitution. 21 \f[ 38 ] Constitutional Principle I states: The Constitution of South Africa shall provide ... CHASKALSON P This is clearly a reference to the Constitution which the Constitutional Assembly has been mandated to draft and not the current one. Many more of the thirty-four Constitutional Principles are couched in similar language, clearly indicating relevance only to the final Constitution and not to the present. Some of the provisions refer in terms to the current and the new Constitutions; Constitutional Principle II, for example, states: Every one shall enjoy all universally accepted fundamental rights, freedoms and civil liberties, which shall be provided for and protected by entrenched and justiciable provisions in the Constitution, which shall be drafted after having given due consideration to inter alia the fundamental rights contained in Chapter 3 of this Constitution. (My italics). See also Constitutional Principles XVIII(2) and (3). The whole scheme of XVIII, for instance, clearly distinguishes between \u201cthis Constitution\u201d and \u201cthe Constitution\u201d. [ 39 ] Perhaps one of the most revealing textual features is the consistency with which the phrases \u201cthe Constitution\u201d and \u201cthis Constitution\u201d are used in the text of the current Constitution. The former, with three notable exceptions, is used consistently in the context of the new Constitution and the latter, without exception, in that of the current Constitution. The three exceptions with regard to the former are: (a) in the Preamble, \u201c... the following provisions are adopted as the Constitution of South Africa\u201d. (b) the short title (section 251): \u201cThis Act shall be called the Constitution of the 22 \fCHASKALSON P Republic of South Africa, 1993 ...\u201d (c) in section 227(2): \u201cThe National Defence Force shall -- (a) exercise its powers and perform its functions solely in the national interest by-- (i) (ii) upholding the Constitution; ... \u201d The textual consistency referred to is maintained in the entire Schedule 4. [ 40 ] Constitutional Principle XXI refers to the Constitution a number of times, and the context is clearly consistent only with the future Constitution. Constitutional Principle XXIII likewise deals with a future Constitution and the operative words are again \u201cthe Constitution\u201d. It is improbable that Constitutional Principle XXII would have been sandwiched in between those provisions if it was not also dealing with the new Constitution which is in the process of preparation. [ 41 ] It would be strange indeed if these very widely phrased provisions, intended to be given detailed constitutional texture in future, were to be read as impacting immediately and directly on the structures and functions of the present governmental system, not to speak of Chapter 3 on Fundamental Rights. We have no doubt that the Constitutional Principles, like the other provisions of Chapter 5 are intended to be of substantive application in the drafting and adoption of the new Constitution and, by virtue of section 160(3) of the current Constitution, they are also of application to any provincial constitutions which may be adopted. Thus, the statement in section 232(4) that they are for all purposes deemed to 23 \fform part of the substance of this Constitution relates to their status and not to their function or operation. In my view, the Applicants\u2019 argument on this score entirely misconceives the place of the Constitutional Principles in terms of the total constitutional scheme, and must CHASKALSON P be rejected. Section 61 of the Constitution [ 42 ] It was argued that the amendments to the Transition Act purportedly made in terms of Proclamation R 58 constituted legislation \"affecting ... the exercise or performance of powers and functions of the provinces\", in terms of section 61 of the Constitution, and could only lawfully be effected in accordance with the \"manner and form\" provisions of that section. As this was not done, that Proclamation, and the action subsequently taken under it, were invalid and of no force or effect. [ 43 ] Section 61 provides that: Bills affecting the boundaries or the exercise or performance of the powers and functions of the provinces shall be deemed not to be passed by Parliament unless passed separately by both Houses and, in the case of a Bill, other than a Bill referred to in section 62, affecting the boundaries or the exercise or performance of the powers or functions of a particular province or provinces only, unless also approved by a majority of the senators of the province or provinces in question in the Senate. In terms it applies only to parliamentary enactments and not to legislative action such as the making of proclamations or regulations in terms of such enactments. Any other construction would not only do violence to the language of the section, but would place a severe impediment in the way of effective government. 24 \fCHASKALSON P [ 44 ] Prima facie the Proclamations which are in issue in the present case were within the scope of the President's powers under section 16A. But if the section is construed narrowly so as to exclude such authority, or if the section itself is inconsistent with the Constitution and accordingly invalid, the validity of the Proclamations can be impugned. [ 45 ] The principal argument for the Applicants was that section 16A, read literally, authorises the making of legislation in a way which is contrary to the \"manner and form\" requirements of section 61 of the Constitution, and should therefore be \"read down\" and confined to an authority to deal with matters which are not within the scope of section 61. [ 46 ] In the judgment given in the CPD proceedings, Conradie J points to the uncertain scope of section 61 and to difficulties that exist in construing its provisions. There are these difficulties; it is, however, not necessary to resolve them in the present case. The sole purpose of section 16A is to enable the President to amend the Transition Act by proclamation. The administration of the Transition Act is vested in provincial organs. If the Transition Act deals with the powers and functions of the provinces within the meaning of section 61, it is difficult to see how the powers under section 16A could ever be exercised without affecting such powers and functions. [ 47 ] Moreover, section 61 is not the only section in the Constitution which prescribes \"manner and form\" provisions for the passing of legislation. \"Manner and form\" provisions are also prescribed by sections 59 and 60. Section 59 deals with \"ordinary\" legislation, and section 60 with \u201cMoney Bills\u201d. No purpose would be served by reading down section 25 \fCHASKALSON P 16A so as to avoid a challenge based on section 61 of the Constitution, if that would expose the section as read down to a challenge under section 59. This means that we have to deal with the larger question raised by this Court during argument, namely, whether or not it was competent for Parliament by means of section 16A to vest in the President the power to amend the Transition Act by proclamation. The answer to this question depends in the first instance upon whether under our Constitution, Parliament can delegate or assign its law-making powers to the executive or other functionaries, and if so under what circumstances, or whether such powers must always be exercised by Parliament itself in accordance with the provisions of sections 59, 60 and 61 of the Constitution. I will deal with that question later. But first it is necessary to address the argument based on section 62(2) of the Constitution that was advanced on behalf of the Applicants. Section 62(2) of the Constitution [ 48 ] The argument was that the Proclamations in question amended the powers and executive competence of the provinces within the meaning of sections 126 and 144 of the Constitution, and in particular those of the Western Cape Province, and therefore had to be enacted in accordance with the provisions of section 62(2) of the Constitution. In my view there is no substance in this argument. Section 62 deals with amendments to the Constitution and not with amendments to national legislation such as the Transition Act under which legislative or executive functions can be vested in the provinces. The fact that 26 \fthe Transition Act is referred to in section 245 of the Constitution does not make it part of the Constitution nor does it require amendments to that Act to be made in accordance with the provisions of section 62. This is made clear by section 232(2) of the Constitution CHASKALSON P which provides that: (a) (b) Any reference in this Constitution to any particular law shall be construed as a reference to that law as it exists from time to time after any amendment or replacement thereof by a competent authority. An amendment, replacement or repeal of a law referred to in paragraph (a), shall for the purposes of section 62 not be considered to be an amendment of this Constitution, and any such amendment, replacement or repeal of a law shall for its validity be dependent on its consistency with this Constitution in terms of section 4(1). It was contended by counsel for the Applicants that this does not apply to the Proclamations because they are not referred to in the Constitution and section 232(2) is accordingly not applicable to them. The short answer to this contention is that the Proclamations, if valid, do not amend the Constitution. They amend the Transition Act. [ 49 ] It was also contended that the Proclamations are inconsistent with the proviso to section 62(2), which requires amendments to the legislative and executive competences of a province to be effected with the consent of the relevant provincial legislature. But section 62(2) is a clause dealing with constitutional amendments, and the proviso must be read as qualifying the substantive part of the clause and not as an independent constitutional requirement applicable to any legislation dealing with provincial powers and functions. S v Mhlungu and Others 1995 (7) BCLR 793 (SA) at paragraph 32. Where, as in the present case, provincial organs are vested with powers or functions by national legislation, such powers and functions can be changed by national legislation. Changes thus effected do not involve constitutional amendments and do not have to be implemented in 27 \faccordance with the provisions of section 62. CHASKALSON P The validity of Section 16A of the Local Government Transition Act [ 50 ] Section 16A of the Transition Act provides: (1) (2) (3) (4)(a) (b) The President may amend this Act and any Schedule thereto by proclamation in the Gazette. No proclamation under subsection (1) shall be made unless it is approved by the select committees of the National Assembly and the Senate responsible for constitutional affairs. A proclamation under subsection (1) shall commence on a date determined in such proclamation, which may be a date prior to the date of publication of such proclamation. The Minister shall submit a copy of a proclamation under subsection (1) within 14 days after the publication thereof to Parliament. If Parliament by resolution disapproves of any such proclamation or any provision thereof, such proclamation or provision shall cease to be of force and effect, but without prejudice to the validity of anything done in terms of such proclamation or such provision before it so ceased to be of force and effect, or to any right or liability acquired or incurred in terms of such proclamation or such provision before it so ceased to be of force and effect. [ 51 ] The legislative authority vested in Parliament under section 37 of the Constitution is expressed in wide terms - \"to make laws for the Republic in accordance with this Constitution.\" In a modern state detailed provisions are often required for the purpose of implementing and regulating laws, and Parliament cannot be expected to deal with all such matters itself. There is nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to other bodies. The power to do so is necessary for effective law-making. It is implicit in the power to make laws for the country and I have no doubt that under our Constitution parliament can pass legislation delegating such legislative functions to other bodies. There is, however, a difference between delegating authority to make subordinate legislation within the framework of a 28 \fstatute under which the delegation is made, and assigning plenary legislative power to another body, including, as section 16A does, the power to amend the Act under which the CHASKALSON P assignment is made. [ 52 ] In the past our courts have given effect to Acts of parliament which vested wide plenary power in the executive. Binga v Cabinet for South West Africa and Others 1988 (3) SA 155(A) and R v Maharaj 1950 (3) SA 187(A) are examples of such decisions. They are in conformity with English law under which it is accepted that parliament can delegate power to the executive to amend or repeal acts of parliament. S. Wade and C. Forsyth, Administrative Law, pp. 863-864 (Clarendon Press, Oxford, 7th ed. 1994). These decisions were, however, given at a time when the Constitution was not entrenched and the doctrine of parliamentary sovereignty prevailed. What has to be decided in the present case is whether such legislation is competent under the new constitutional order in which the Constitution is both entrenched and supreme. This requires us to consider the implications of the separation of powers under the Constitution, the \"manner and form\" provisions of sections 59, 60 and 61, the implications of the supremacy clause (section 4) and the requirement that parliament shall make laws in accordance with the Constitution (section 37). [ 53 ] In the United States of America, delegation of legislative power to the executive is dealt under the doctrine of separation of powers. Congress as the body in which all federal law- making power has been vested must take legislative decisions in accordance with the 29 \fCHASKALSON P \"single, finely wrought and exhaustively considered, procedure\" laid down by the US Constitution, which requires laws to be passed bicamerally and then presented to the President for consideration for a possible veto. INS v Chada 462 US 919 (1983) per Burger CJ at 951. Delegation of legislative power within prescribed limits is permissible because, as the Supreme Court has said, \"[w]ithout capacity to give authorizations of that sort we should have the anomaly of legislative power which in many circumstances calling for its exertion would be but a futility.\" Per Hughes CJ in Panama Refining Co. v Ryan 293 US 388, 421 (1935). The delegation must not, however, be so broad or vague that the authority to whom the power is delegated makes law rather than acting within the framework of law made by Congress. This distinction was explained by Taft CJ in Hampton & Co v United States 276 US 394, 407 (1928)(quoting Ranney J in Wilmington and Zanesville Railroad Co. v Commissioners, 1 Ohio St. 77 (1852)) as follows: The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. [ 54 ] In Ireland, under the influence of the United States jurisprudence, the courts have adopted a similar approach. See the comments of McMahon J in the High Court in Cityview Press Limited and Another v An Chomhairle Oiliuna and Others [1980] IR 381. The Supreme Court, confirming the decision of McMahon J in the Cityview Press case, held that whilst parliament cannot delegate its power to make laws to the executive, it is competent for it to make laws under which a regulatory power is delegated to the executive. The test as to whether lawmaking or regulatory powers have been delegated is \"whether what is challenged as an unauthorised delegation of parliamentary power is more than the mere giving effect to principles and policies which are contained in the statute itself. If it be, 30 \fthen it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution.\" Per O'Higgins CJ, supra, at 395 et seq. CHASKALSON P [ 55 ] The courts of some Commonwealth countries seem to take a broader view of the power to delegate legislative authority than the courts of the United States, and to permit parliament to delegate plenary law-making powers to the executive, including the power to amend Acts of parliament. In part this is due to the influence of English law and decisions of the Privy Council, and in part to the form of government in such countries. In the United States there is a clear separation of powers between the legislature and the executive. In Commonwealth countries there is usually a clear separation as far as the judiciary is concerned, but not always as clear a separation between the legislature and the executive. Many of the Commonwealth countries have followed the English system of executive government under which the head of the government is the Prime Minister, who sits in parliament and requires its support to govern. Although there is a separation of functions, the Prime Minister and the members of his or her cabinet sit in parliament and are answerable to parliament for their actions. [ 56 ] The influence of English law is referred to by Dixon J in his judgment in the Australian High Court in Victorian Stevedoring and General Contracting Co. Pty. Ltd. & Meakes v Dignan [1931] 46 CLR 73 at pages 101-102, in which the Court declined to follow the United States cases. In the same case, Evatt J (at page 114) drew attention to the differences in the form of government of Commonwealth countries and that of the United 31 \fCHASKALSON P States, saying: In dealing with the doctrine of \"separation\" of legislative and executive powers, it must be remembered that, underlying the Commonwealth frame of government, there is the notion of the British system of an Executive which is responsible to Parliament. That system is not in operation under the United States Constitution. ... This close relationship between the legislative and executive agencies of the Commonwealth must be kept in mind in examining the contention that it is the Legislature of the Commonwealth, and it alone, which may lawfully exercise legislative power. In Australia, it seems to have been accepted that the Commonwealth parliament can delegate a legislative power to the executive and vest in the executive the power to make regulations which will take precedence over Acts of Parliament. That is what was done in Dignan's case which, in the context of subordinate legislation, was cited with approval by the Privy Council in Attorney-General for Australia v The Queen 1957 AC 288 at 315. In Cobb & Co Ltd and Others v Kropp and Others 1967 (1) AC 141 the Privy Council upheld a decision of the Supreme Court of Queensland finding that it was competent for the state legislature to vest in its Commissioner for Transport the power to impose taxes in the form of license fees on transport operators, as well as the power to determine the amount of the fees, which could be made to vary between operator and operator. Queensland had a bi-cameral legislature and the Order in Council under which it was established provided that \"all bills for appropriating any part of the public revenue for imposing any new rate tax or impost\" should originate in the Legislative Assembly. It was held that the plenary powers vested in the Queensland legislature entitled it to vest this authority in the Commissioner for Transport. A similar decision had previously been given by the Privy Council in Powell v Apollo Candle Company Ltd. (1885) 10 AC 282, where a challenge to the levying of customs duties by the Governor of New South Wales under general empowering legislation was unsuccessful. 32 \f[ 57 ] Seervai in his work on the Indian Constitution deals at length with the Indian jurisprudence CHASKALSON P on the power of parliament to delegate legislative power to the executive. H. M. Seervai, Constitutional Law of India, vol. II, para. 22.1 et seq. (3d ed., 1983). He refers to various judgments and decisions of judges in the Supreme Court of India which in his view contradict each other and vacillate between on the one hand sanctioning a broad delegation of law-making power by parliament to the executive, and on the other, requiring such delegation of legislative power to be carried out within a policy framework prescribed by parliament. Seervai himself takes the view that under the Indian Constitution a legislature has the power to pass a law under which the executive is given the power to implement an Act and to modify its provisions to enable it to work smoothly. He states at paragraph 21.53 that: [L]egislative power is not \"property\" to be jealously guarded by the legislature, but is a means to an end, and if the end is desired by the legislature and the difficulties in achieving that end cannot be foreseen, it is not only desirable but imperative that the power to remove difficulties should be entrusted to the executive Government which would be in charge of the day-to-day working of the law. (Citation omitted). The cases referred to by Seervai were not available to us at the time this judgment was prepared, and in the limited time that we have had to prepare our judgments it was not feasible to make arrangements to procure copies of the judgments or to trace the development of the law in India since the publication of the third edition of his book in 1983. [ 58 ] In Canada, under the influence of the Privy Council decision in Hodge v The Queen (1883) 9 AC 117 and Shannon v Lower Mainland Dairy Products Board [1938] AC 708, it seems to be accepted that parliament has wide powers of delegation. Hogg, 33 \fCHASKALSON P Constitutional Law of Canada (3d ed. 1992) at paragraph 14.2, notes: The difference between the Canadian and the American systems resides not only in the different language of the two constitutional instruments, but in Canada's retention of the British system of responsible government. The close link between the executive and the legislative branches which is entailed by the British system is utterly inconsistent with any separation of executive and legislative functions. According to Hogg , although delegation of legislative power between parliament and provincial legislatures is not permitted, delegation of such power by parliament to the executive, \u201cshort of a complete abdication of its power\u201d, is permissible. Supra paras. 14.2 and 14.3; see also, Finkelstein, Laskin\u2019s Canadian Constitutional Law, vol. 1, pp. 42-46 (Carswell Student Edition, 5th ed. 1986). It is not clear what the Canadian Courts would regard as \u201ca complete abdication of power\u201d. In Re Gray (1918) SCR 150, as cited in Hogg, in which this statement was made, upheld wide powers to make laws vested in the Governor in Council. It was followed by the Supreme Court of Canada in Reference Re Regulations (Chemical) Under War Measures Act (1943) 1 DLR 248, where it was pointed out (at p. 253) that the Privy Council had laid down the principle that, in an emergency such as war, the autonomy of the Dominion to make laws for the peace, order and good government of the nation, in view of the necessities arising from the emergency, may \u201cdisplace or overbear the authority of the Provinces\u201d in areas which they would otherwise have had exclusive jurisdiction. These were war cases, and typically greater latitude is allowed to the legislature in such circumstances. Cf. Dignan's case (supra) at 99; see also, Re Manitoba Government Employers Association and Government of Manitoba 79 DLR (3d) 1 at 15, which suggests that such broad delegations may not be permissible at other times. Hogg suggests that a possible exception to this rule is the federal taxing power because of the constitutional provisions requiring such legislation to 34 \fCHASKALSON P originate in the House of Commons. He refers, at 344, to In Re Agricultural Products Marketing Act 84 DLR (3d) 257, in which such a challenge was raised but disposed of by the Supreme Court of Canada on the grounds that the disputed levies were not taxes but administrative charges. The majority of the Court, however, rejected the argument that the taxing power could not be delegated on the basis that if such a delegation were inconsistent with the relevant provisions of the Canadian Constitution, the Act under which the delegation was made should be treated as having impliedly amended them. Id., per Pigeon J at 322. This is in accordance with the rule that an Act inconsistent with the constitution is to be regarded as amending the constitution unless the constitution prescribes special procedures for such amendments and those procedures have not been followed. Kariapper v Wijesinha [1968] AC 717(PC) at 742F. An argument along these lines would not be permissible under our Constitution because it prescribes special procedures for amendments. Harris and Others v Minister of the Interior and Another 1952 (2) SA 428 (A). See also: Attorney-General for New South Wales v Trethowan [1932] AC 526 (PC) at 541; The Bribery Commissioner v Ranasinghe [1965] AC 172 (PC) at 199. [ 59 ] The Canadian cases referred to in paragraph [58] were decided before the introduction of section 52 into the Canadian Constitution in 1982. This section provides that the Constitution shall be the supreme law and that legislation inconsistent with the Constitution shall be invalid. Neither Hogg nor Finkelstein suggest that this has had any effect on the rule in Hodge's case or the cases that have followed it. Hogg takes the position that the Constitution was in any event supreme prior to the introduction of section 52, and that the amendment did no more than record what has always been accepted [Hogg para. 55.1]. 35 \fCHASKALSON P But there is a difference between a constitutional order which limits Parliaments authority to make certain laws and binds Parliament to legislate according to certain procedures, and one which treats Parliament as supreme. Whatever the situation may be in Canada in the light of the Privy Council decisions and the terms of that country\u2019s constitution, we have to decide this issue in the light of the terms of our own Constitution. [ 60 ] Whilst it seems to be accepted in most of the Commonwealth that parliament can delegate wide powers to the executive, the separation of powers as far as the judiciary is concerned has been strictly enforced, and the Privy Council has held to be invalid legislation which encroaches upon the judicial power. Attorney General for Australia v The Queen (supra) and Liyanage v The Queen 1967 (1) AC 259 at 286C (an appeal from the Supreme Court of Ceylon). In Liyanage's case it was said that the power to make laws derived from the Constitution and had to be exercised in accordance with its provisions. Those provisions prevented parliament from issuing bills of attainder to the judiciary. [ 61 ] This brief and somewhat limited survey of the law as it has developed in other countries is sufficient to show that where Parliament is established under a written constitution, the nature and extent of its power to delegate legislative powers to the executive depends ultimately on the language of the Constitution, construed in the light of the country's own history. Our history, like the history of Commonwealth countries such as Australia, India and Canada was a history of parliamentary supremacy. But our Constitution of 1993 shows a clear intention to break away from that history. The preamble to the Constitution begins by stating the \"need to create a new order.\" That order is established in section 4 36 \fof the Constitution which lays down that: CHASKALSON P (1) (2) This Constitution shall be the supreme law of the Republic and any law or Act inconsistent with its provisions shall, unless otherwise provided expressly or by necessary implication in this Constitution, be of no force and effect to the extent of the inconsistency. This Constitution shall bind all legislative executive and judicial organs of the State at all levels of government. Sub-section (2) is of particular importance in the present case. [ 62 ] The new Constitution establishes a fundamentally different order to that which previously existed. Parliament can no longer claim supreme power subject to limitations imposed by the Constitution; it is subject in all respects to the provisions of the Constitution and has only the powers vested in it by the Constitution expressly or by necessary implication. Section 37 of the Constitution spells out what those powers are. It provides that: The legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution. The supremacy of the Constitution is reaffirmed in section 37 in two respects. First, the legislative power is declared to be \"subject to\" the Constitution, which emphasises the dominance of the provisions of the Constitution over Parliament\u2019s legislative power, S v Marwane 1982(3) SA 717(A) at 747 H - 748 A, and secondly laws have to be made \"in accordance with this Constitution.\" In paragraph [51] of this judgment we I pointed out why it is a necessary implication of the Constitution that Parliament should have the power to delegate subordinate legislative powers to the executive. To do so is not inconsistent with the Constitution; on the contrary it is necessary to give efficacy to the primary 37 \fCHASKALSON P legislative power that Parliament enjoys. But to delegate to the executive the power to amend or repeal Acts of Parliament is quite different. To hold that such power exists by necessary implication from the terms of the Constitution could be subversive of the \"manner and form\" provisions of sections 59, 60 and 61. Those provisions are not merely directory. They prescribe how laws are to be made and changed and are part of a scheme which guarantees the participation of both houses in the exercise of the legislative authority vested in Parliament under the Constitution, and also establish machinery for breaking deadlocks. There may be exceptional circumstances such as war and emergencies in which there will be a necessary implication that laws can be made without following the forms and procedures prescribed by sections 59, 60 and 61. Section 34 of the Constitution makes provision for the declaration of states of emergency in which provisions of the Constitution can be suspended. It is possible that circumstances short of war or states of emergency will exist from which a necessary implication can arise that Parliament may authorise urgent action to be taken out of necessity. A national disaster as a result of floods or other forces of nature may call for urgent action to be taken inconsistent with existing laws such as environmental laws. And there may well be other situations of urgency in which this type of action will be necessary. But even if this is so (and there is no need to decide this issue in the present case) the conditions in which section 16A were enacted fall short of such an emergency. There was, of course, urgency associated with the implementation of the Transition Act, but the Minister has regulatory powers under the Act, and legislation could have been passed to authorise the President to issue proclamations not inconsistent with the Act. Whether this could have included a power to amend other Acts of Parliament need not now be decided. An unrestricted power to 38 \fCHASKALSON P amend the Transition Act itself cannot be justified on the grounds of necessity, nor can it be said to be a power which by necessary implication is granted by the Constitution to the President. Sections 59, 60 and 61 of the Constitution are part of an entrenched and supreme Constitution. They can only be departed from where the Constitution permits this expressly [section 235 (8) is such a case] or by necessary implication. In the present case neither of these requirements is present. [ 63 ] Insistence upon compliance with the manner and form provisions of the Constitution in these circumstances is not elevating form above substance. The authorisation of legislation such as section 16A allows control over legislation to pass from Parliament to the executive. Later this power could be used to introduce contentious provisions into what was previously uncontentious legislation. Assuming this is done at a time party A has a majority in the Assembly, but not in the Senate, it would be difficult for other parties to secure a resolution of Parliament which would be needed to invalidate the delegation. It would also render ineffective the special procedures prescribed by sections 60 and 61. A contention that this would be a consequence of the Assembly and the Senate having passed the legislation in the first place, would be of little solace to parties in the Senate in a situation in which the authorisation is given at a time when Party A has a majority in the Assembly and the Senate, but later loses its majority in the Senate. In such circumstances, it could block a resolution objecting to legislation enacted under the delegation which could never have been passed without such delegation. [ 64 ] Mr Gauntlett on behalf of the Respondents placed considerable reliance on the fact -- 39 \fCHASKALSON P which is also been mentioned in some of the Commowealth judgments -- that Parliament retains control over the functionary to whom plenary legislative power is delegated and can withdraw it if the power is not exercised in accordance with its wishes. In the present case that element of control clearly exists, for the President can only legislate with the consent of the appropriate committees of both the Senate and the Assembly, on which there is multi-party representation, and Parliament can by resolution disapprove of the legislation made by the President, in which event it will cease to have validity. There is also the fact that the statute in issue in the present case is essentially a transitional provision, designed to manage the difficult and complicated transition to democratic local government for a limited period of time. The power vested in the President is a power to amend the Transition Act, which because of its far reaching implications would, even if section 16A were valid, have to be narrowly construed, R v Secretary of State for Social Security, Ex Parte Britnell 1991 (1) WLR 198 (HL), and would not necessarily include the power to make fundamental changes to the Act, S v Mngadi and Others 1986 (1) SA 526 (N)(but compare the judgment in the case on appeal sub nom, Attorney-General, Natal v Mngadi and Others 1989 (2) SA 13 (A) at 21C-F with 21H). These are all factors which could be relied upon to explain and justify the delegation of law-making power to the President in terms of section 16A. But if Parliament does not have the constitutional authority to delegate this power to the executive or to any other body, the reasonableness of the delegation or the absence of objection is irrelevant. The only way in which Parliament can confer power on itself to act contrary to the Constitution is to amend the Constitution. And this was not done in the present case. 40 \f[ 65 ] The Respondents placed considerable reliance on the fact that section 10 of the Transition CHASKALSON P Act vests extensive powers in the Administrator who is a provincial functionary. These powers include the power to modify or even repeal Acts of Parliament for the purpose of implementing decisions taken in terms of the Transition Act for the establishment and empowerment of transitional councils. This, they contend, is incorporated by reference through section 245 of the Constitution which requires the restructuring of local government to be carried out in accordance with the provisions of the Transition Act and impliedly sanctions the provisions of section 10 of that Act. Even if it is assumed that the provisions of section 10 of the Transition Act are sanctioned by section 245 of the Constitution (and there is no need to express any opinion on that issue) it does not follow that section 16A which is contained in a post-constitutional Act of Parliament was also sanctioned. The powers vested in the Administrator by section 10 of the Transition Act are limited to the making of \"enactments not inconsistent with this [Transition] Act with a view to the transitional regulation of any matter relating to local government\". It is essentially a regulatory power which, because of the conflicting provisions of various enactments which were given the force of law by section 229 of the Constitution, might have been needed in order to cut across the provisions of old laws which had not yet been repealed. Section 16A is quite different. It is a general power to amend the Transition Act itself. It is subject to no express limitation and can not be equated to the regulatory powers vested in the Administrators by section 10 of the Transition Act. Such a power cannot be inferred from section 245 of the Constitution. Section 235 (8) of the Constitution 41 \f[ 66 ] In the circumstances it is necessary to consider whether the two Proclamations can be CHASKALSON P justified under the provisions of section 235 (8) of the Constitution. The Respondents contend that if section 16A is inconsistent with the Constitution, the Proclamations were nonetheless within the President's powers under section 235 of the Constitution. Because of the arguments relied on by the Applicants in response to this contention it is necessary to set out the full terms of section 235. It reads as follows: (1) A person who immediately before the commencement of this Constitution was- (a) (b) (c) the State President or a Minister or Deputy Minister of the Republic within the meaning of the previous Constitution; the Administrator or a member of the Executive Council of a province; or the President, Chief Minister or other chief executive or a Minister, Deputy Minister or other political functionary in a government under any other constitution or constitutional arrangement which was in force in an area which forms part of the national territory, shall continue in office until the President has been elected in terms of section 77(1)(a) and has assumed office: Provided that a person referred to in paragraph (a), (b) or (c) shall for the purposes of section 42(1)(e) and while continuing in office, be deemed not to hold an office of profit under the Republic. Any vacancy which may occur in an office referred to in subsection (1)(a), (b) or (c) shall, if necessary, be filled by a person designated by the persons continuing in office in terms of subsection (1)(a), acting in consultation with the Transitional Executive Council. the commencement of Executive authority which was vested in a person or persons referred to in subsection (1)(a), (b) or (c) in terms of a constitution or constitutional arrangement in force immediately before this Constitution, shall during the period in which the said person or persons continue in office in terms of subsection (1), be exercised in accordance with such constitution or constitutional arrangement, as if it had not been repealed or superseded by this Constitution, and any such person or persons shall continue to be competent to administer any department of state, administration, force or other institution which was entrusted to, and to exercise and perform any power or function which was vested in, him or 42 (2) (3) \fCHASKALSON P (b) her or them immediately before the said commencement: Provided that - (a) no such executive authority, power or function shall be exercised or performed if the Transitional Executive Council disapproves thereof; and once the election results of the National Assembly have been certified by the Independent Electoral Commission in terms of the Independent Electoral Commission Act, 1993, the State President referred to in subsection (1)(a) shall exercise and perform his or her powers and functions in consultation with the leader of the party which has received the largest number of votes in the said election. (4) (5) The Transitional Executive Council may by resolution of a majority of all its members at any time during the period in which the said State President continues in office in terms of subsection (1), require him or her, or any other appropriate authority, to take such steps in terms of any law as are necessary to maintain law and order, including the declaration of a state of emergency or of an area to be an unrest area in terms of an applicable law. Upon the assumption of office by the President in terms of this Constitution - (a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in accordance with this Constitution; and (b) the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9), vest in the Premier of that province acting in accordance with this Constitution, or while the Premier of a province has not yet assumed office, in the President acting in accordance with section 75 until the Premier assumes office. (6) The power to exercise executive authority in terms of laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force after such commencement, shall be allocated as follows: (a) All laws with regard to matters which - (i) do not fall within the f u n c t i o n a l a r e a s specified in Schedule 43 \fCHASKALSON P (ii) 6; or do fall within such functional areas but are matters referred to in paragraphs (a) to (e) of section 126(3) (which shall be deemed to include all policing matters until the laws in question have been a s s i g n e d u n d e r subsection (8) and for the purposes of which subsection (8) shall a p p l y m u t a t i s mutandis), functions which but shall be administered by a competent authority within the jurisdiction of the national government: Provided that any policing for subparagraph (ii) would have been performed subject to the directions of a member of the Executive Council of a province in terms of section 219(1) shall be performed after consultation with the said member within that province. (b) All laws with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3) shall - (i) if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (1) (a) or (b), be administered by a competent authority within the jurisdiction o f t h e n a t i o n a l government until the administration of any such law is with regard to any particular province assigned under subsection (8) to 44 \fCHASKALSON P a competent authority within the jurisdiction of the government of such province; or (ii) if any such law was immediately before t h e s a i d c o m m e n c e m e n t administered by or under the authority of a functionary referred in subsection to (1)(c), subject to subsections (8) and (9) be administered by a competent authority within the jurisdiction of the government of the province in which that law applies, to the extent it so applies: Provided that this sub-paragraph shall not apply to policing matters, which shall be dealt with as contemplated in paragraph (a). that (c) In this subsection and subsection (8) \"competent authority\" shall mean - (i) (ii) in relation to a law of t h e w h i c h is administration allocated the national government, an authority designated by the President; and to to in relation to a law of t h e w h i c h is administration allocated the government of a province, an authority the designated by P r e m i e r o f t h e province. (7) (a) The President may, after consultation with the Premier of a province, by proclamation in the Gazette take such 45 \fCHASKALSON P measures, including legislative measures, as he or she considers necessary for the better achievement of this section. (b) A copy of a proclamation under paragraph (a), shall be submitted to Parliament within 14 days after the publication thereof. (c) (8) (a) (b) it to which the extent If Parliament disapproves of any such proclamation or any provision thereof, such proclamation or provision shall thereafter cease to be of force and effect to is so disapproved, but without prejudice to the validity of anything done in terms of such proclamation up to the date upon which it so ceased to be of force and effect, or to any right, privilege, obligation or liability acquired, accrued or incurred as at the said date under and by virtue of such proclamation. The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation. When the President so assigns the administration of a law, or at any time thereafter, and to the extent that the or she considers it necessary for the efficient carrying out of the assignment, he or she may - (i) (ii) amend or adapt such law in order to regulate its application or interpretation; where the assignment does not relate to the whole of such law, repeal and re-enact, 46 \fCHASKALSON P (iii) whether with or without an amendment o r a d a p t a t i o n c o n t e m p l a t e d i n subparagraph (i), those of its provisions to which the assignment relates or to the extent that the assignment relates to them; and regulate any other matter necessary, in his or her opinion, as a r e s u l t o f t h e assignment, including matters relating to the transfer or secondment of persons (subject to sections 236 and 237) and relating the transfer of assets, liabilities, rights and obligations, including funds, to or from the national or a provincial government or any department of state, administration, force or other institution. to (c) (d) (9) (a) In regard to any policing power the President may only make that assignment effective upon the rationalisation of the police service as contemplated in section 237: Provided that such assignment to a province may be made where such rationalisation has been completed in such a province. Any reference in a law to the authority administering such law, shall upon the assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis mutandis to the appropriate authority of the province concerned. If for any reason a provincial government is unable to assume responsibility within 14 days after the election of its Premier, for the administration of a law referred to in subsection (6)(b), the President 47 \fCHASKALSON P shall by proclamation in the Gazette assign the administration of such law to a special administrator or other appropriate authority within the jurisdiction of the national government, either generally or to the extent specified in the proclamation, until that provincial government is able to assume the said responsibility. (b) Subsection (8) (b) and (d) shall mutatis mutandis apply in respect of an assignment under paragraph (a) of this subsection. The Respondents' contention was that the administration of the Transition Act had been assigned by the President to competent authorities within the provinces in terms of subsection (8) and that the making of the Proclamations was within the scope of his legislative power under sub-section (8) to \"amend and adapt\" laws assigned under this section. [ 67 ] It was not disputed that the President had purported to assign the administration of parts of the Transition Act to \"competent authorities\" within the provinces. The Applicants disputed, however, that this was sufficient to give validity to the Proclamations. They advanced three arguments in answer to the Respondents' contention. First, that the President did not purport to act under section 235(8) of the Constitution and in the circumstances he cannot rely on any power that he might have had under it. Second, that the Transition Act did not fall within the scope of the President's powers under section 235(8) to assign laws. And last, if the President was entitled to assign the Transition Act under section 235(8) he was not empowered by that section to make Proclamations R 58 and R 59. 48 \fCHASKALSON P [ 68 ] In view of the conclusion to which I have come, it is not necessary to decide whether the President can rely on his powers under section 235(8) even though he did not purport to act in terms of such powers when he made the Proclamations. For the purposes of this judgment, I will assume that this can be done. [ 69 ] The remaining two questions depend upon the proper construction of section 235 of the Constitution. This section makes provision for the transfer of executive authority from the old order to the new order. This purpose, and the circumstances in which it was known that the transfer would have to take place, provide a contextual background relevant to the construction of the section. [ 70 ] Under the old order, executive authority in what is presently the national territory, was regulated by laws of different legal and constitutional orders. There was the legislation of the Republic of South Africa which was in force in approximately 87% of the national territory. In the remainder of the national territory there was the legislation of the six self- governing territories, and also the legislation of Transkei, Bophuthatswana, Venda and Ciskei (the TBVC states) which according to South African law were sovereign independent states. [ 71 ] In the Republic of South Africa executive authority was vested in the State President under section 19 of the 1983 Constitution. It was exercised by the State President himself and by Ministers, Deputy-Ministers, Provincial Administrators, and members of the Executive 49 \fCouncils of the provinces. These were all functionaries of the national government and all held their positions at the discretion of the State President. CHASKALSON P [ 72 ] In the self-governing territories executive authority was exercised by Chief Ministers and Ministers. In the TBVC states only Bophuthatswana functioned under a Constitutional form of government at the time the Constitution was adopted. The other three states were ruled by military regimes who made laws by decree. Constitutional government collapsed in Bophuthatswana before the elections took place and the military regime in Ciskei abandoned its control of that territory. The vacuum in these two territories was filled by South African administrators, who also made law by decree. [ 73 ] The laws in force in different parts of the national territory identified the political functionaries who had responsibility for the implementation of these laws. Under the new constitutional order they would cease to have power, and provision had to be made in the Constitution for the manner in which this responsibility would be transferred from the old order to the new order. The framework of the scheme according to which this object was to be achieved was as follows: i) All laws in force in any part of the national territory would continue in force subject to repeal or amendment by a competent authority [Section 229]. ii) The political functionaries exercising executive power in different parts of the national territory would retain that power until a President had been elected under 50 \fthe new Constitution and had assumed office [Section 235 (1) and (5)]. CHASKALSON P iii) Subject to certain conditions not relevant to this case the executive power referred to in (ii) was to be exercised in accordance with the laws previously in existence under the constitutional arrangements previously in force [Section 235(3)]. iv) On the assumption of office by the President elected under the new Constitution executive power would pass from the old functionaries [whose power came to an end at that moment], to the President and Premiers under the new Constitution [Sections 75, 144 and 235(5)]. [ 74 ] There were a number of problems which had to be addressed in order to carry out this scheme: i) The new Constitution allocates legislative power to parliament and to the provincial legislatures. In terms of section 37 parliament is given legislative competence over the whole of the national territory and in respect of all matters. The legislative competence of the provincial legislatures, dealt with in section 126 of the Constitution, is restricted. They have concurrent competence with parliament in respect of the matters referred to in schedule 6 to the Constitution and their territorial competence is limited to the provincial territory. Section 126(3) makes provision for the way in which any conflict that might arise between national laws and provincial laws in this field of concurrent powers is to be 51 \fCHASKALSON P resolved. If there should be such conflict, national laws are given precedence in so far as they meet criteria specified in sections 126(3)(a) to (e) and provincial laws are given precedence in respect of other matters. ii) The \"old laws\" had been designed for a different constitutional order. They did not fit the new order territorially, and they vested powers in functionaries who no longer held office and had no precise counterparts under the new constitutional order. They had also been drafted to deal with the powers and functions of legislative bodies which no longer existed and now had to be applied to a different constitutional order in which there were different legislative bodies with different powers and functions. Some of the \"old laws\" would have dealt with matters which would be within the exclusive competence of parliament, and some with matters which would be within the concurrent competence of the parliament and the provincial legislatures. This distinction could exist not only between different laws, but also within particular laws. iii) Section 75 of the Constitution provides that: The executive authority of the Republic with regard to all matters falling within the legislative competence of Parliament shall vest in the President, who shall exercise and perform his or her powers and functions subject to and in accordance with this Constitution. The provinces are given executive competence by section 144(2)over: ...all mattes in respect of which such province has exercised its legislative competence, matters assigned to it by or under section 235 or any law, and matters delegated to it by or under any law. 52 \fiv) With the possible exception of the Transition Act with which I will deal later, none CHASKALSON P of the \"old laws\" vested legislative powers in the nine new provinces. On the other hand the matters dealt with by the \"old laws\" were within the legislative competence of Parliament which has competence in respect of all matters. Subject to an assignment or delegation of power to the provinces under an old law -- and this calls for consideration later when the terms of the Transition Act are dealt with -- the source of executive power that the provinces have in respect of the \"old laws\" is the assignment provisions of section 235. In the absence of such provisions executive power under the \"old laws\", not being provincial laws within the meaning of section 144 of the Constitution, would have vested in the President and would have been administered by functionaries appointed by him. [ 75 ] The broad scheme under which these problems are dealt with under the Constitution is as follows i) The old laws remain in force in the parts of the national territory in which they were previously in force until repealed or amended by a competent authority [S229]. ii) They are classified according to the criteria specified in schedule 6 and section 126(3) in order to determine whether the executive authority under such laws should be exercised by a national functionary or a provincial functionary. This is a practical way of arranging for the transfer of executive functions under the old 53 \fCHASKALSON P laws to appropriate functionaries under the new constitutional order. It also permits provinces to establish executive government in the fields of their legislative competence without having first to enact laws for that purpose. [ 76 ] The details according to which the scheme is to be implemented are set out in sections 235(6),(8) and (9). These sub-sections do not seek to classify the laws as laws of Parliament or laws of the provinces. They remain \"old laws\" in force in parts of the national territory which correspond neither with the national territory nor the provincial territories. What the sub-sections deal with is \"the power to exercise executive authority\" in terms of such laws. [ 77 ] What sections 235(6), (8) and (9) seek to accomplish is the allocation of the power to exercise executive authority from the President, in whom such authority vested when he assumed office (section 235 (5)(a)) to the Premiers of the province in whom the executive authority of the provinces is vested under the Constitution. It does this by setting criteria for the identification of the \"competent authorities\" who for this purpose are defined as follows in sub-section 6(c): (i) (ii) in relation to a law of which the administration is allocated to the national government, an authority designated by the President: and in relation to a law of which the administration is allocated to the government of a province, an authority designated by the Premier of the province. In this way recognition is given to the constitutional status of the President and the Premiers in whom the executive authority of the Republic and the provinces is vested. 54 \f[ 78 ] Section 235(6) specifies the criteria according to which the allocations are to be made. The two criteria which are of importance in the present case are: i) Is the matter one which falls within the functional areas specified in schedule 6. CHASKALSON P ii) Is the matter one which is referred to in paragraphs (a) to (e) of section 126. [ 79 ] The allocation is to be made to a competent authority within the provinces if i) It is a matter which falls within the functional areas specified in schedule 6; and ii) it is not a matter referred to in paragraphs (a) to (e) of section 126. [ 80 ] Sub-sections (8)(a) and (9) cater for a situation in which a province does not have the administrative capacity to carry out the assignment. The Premier of a province can only require the assignment to be made if the administrative capacity to do so exists within the province. If that capacity is not established within fourteen days after the election of the Premier of the province concerned the matter is to be dealt with by \"a special administrator or other appropriate authority within the national government\" until the provincial government is able to assume that responsibility. [ 81 ] The laws governing the matters to be assigned had not been designed for the new constitutional order, but provision is made in section 235(8)(b) for the President to amend or adapt the laws in order to deal with this problem. 55 \fCHASKALSON P [ 82 ] This then is the framework provided by section 235 for dealing with the problem of transferring the power to exercise executive authority from the old order to the new order. In respect of some laws it would have been reasonably clear whether the matter was one which was to go to an authority within the province, or to stay under the control of the national government. But there would have been other instances - and the Transition Act is one - in which there is some difficulty in determining how to deal with the matter. In view of the complexity of the process this is not surprising. [ 83 ] As far as the Transition Act is concerned the difficulties are these. The first is to determine whether or not the Transition Act is a law which falls to be dealt with in terms of section 235(6) of the Constitution, which identifies the laws which are subject to assignment by the President. If it is, the next question is whether it is a law \"with regard to matters which fall within the functional areas specified in schedule 6\". If it is not, then it did not fall within the powers of assignment given to the President under section 235(8)(a). If it is, then the last question that arises is whether it is a law which deals with \"matters referred to in paragraphs (a) to (e) of section 126(3)\u201d. Such laws, too, are not subject to assignment under section 235(8)(a). [ 84 ] The overall purpose to be achieved through the application of section 235 is a systematic allocation of the \"power to exercise executive authority\" in terms of each of the \"old laws\", to an authority within the national government or authorities within the provincial governments. Sub-section 8(b)(ii) indicates that this authority may be allocated to 56 \fCHASKALSON P provincial functionaries in respect of parts of a law and in respect of other parts of the same law, to national functionaries. To achieve this purpose the President is given the power in sub-section 8(b) to amend or adapt the laws to the extent that he considers it necessary \"for the efficient carrying out of the assignment\". The purpose of this power is clearly to provide a mechanism whereby a fit can be achieved between the old laws and the new order. [ 85 ] The Transition Act was designed for the new order. It is referred to in section 245 of the Constitution as the law which will regulate the holding of the first elections for local government structures, and its provisions deal with the process to be followed from the time of its enactment (January 1994) until the elections which would only take place after the Constitution came into force. It identifies the functionaries that are to have administrative powers during the pre-constitutional phase and those who are to have such powers after the Constitution has come into force. In this respect it is materially different to other \"old laws\". What has to be decided is whether this takes it outside the scope of the allocation process that is to take place under section 235. [ 86 ] Section 235(6) makes provision for the allocation scheme described in that section to apply to \"laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force\". No exceptions or qualifications are made in respect of laws falling within this description. The Transition Act was a law which was in force in the whole of the Republic of South Africa, including the self-governing territories [section 2 of the 57 \fCHASKALSON P Transition Act as originally enacted], prior to the coming into force of the Constitution. It did not in terms apply to the TBVC states during this period; if it had purported to do so, then according to South African law then in force, it would have been an exercise in extra- territorial jurisdiction. During the resumed argument counsel for the Applicants and the Respondents were asked whether they were aware of any legislation in the TBVC states incorporating the Transition Act by reference. Neither counsel was in a position to answer this question. Counsel were asked to make enquiries as to whether or not this was the case. On the 15th September this Court was advised in writing by Mr Gauntlett that the Department of Provincial Affairs and Constitutional Development in the government of national unity had made enquiries and to the best of their knowledge there was no such legislation. The Respondents have not sought to contradict this statement. I am not aware of any such legislation and I have dealt with the matter on the basis that prior to the coming into force of the Constitution the Transition Act was in force in part only of what is now the national territory. [ 87 ] Section 229 provides a constitutional foundation for the continuation of the \"old laws\" after the coming into force of the Constitution. It is applicable to \"all laws ... in force in an area which formed part of the national territory...\u201d This would include the Transition Act. In terms, however, the continuity given by section 229 is applicable only to the areas in which such laws were in force prior to the commencement of the Constitution. This means that in terms of section 229 the Transition Act is given post-constitutional validity only in that part of the national territory which was the old Republic of South Africa. 58 \f[ 88 ] Reverting to section 235(6), the Transition Act is a law referred to in the preamble to that CHASKALSON P sub-section. It was in force prior to the commencement of the Constitution in \"any area which forms part of the national territory\" and it continued to be in force \"in terms of section 229\". The Transition Act therefore meets the two requirements specified in sub- section (6) for bringing laws within its purview. It therefore meets the qualification for assignment in terms of section 235(8). [ 89 ] How then is the allocation to be made? Sections 235(6) deals with the power to exercise executive authority and it does so in the context of the administration of laws. The emphasis on administration of laws is repeated in sub-section (8), which also specifies as a pre-condition for any assignment to a provincial functionary, the existence of an administrative capacity within the province concerned to carry out the assignment. Public administration in the transition is dealt with in section 236. What section 235 is concerned with is the capacity of provinces to establish departments of provincial government under political functionaries answerable to the Premiers. Thus in sub-section 6(c) it is specified that the competent authorities must be functionaries designated by the Premiers. And it is to them that the power to exercise executive authority has to be assigned. They assume the political responsibility for the implementation of the laws within their provinces. [ 90 ] The difficulty that exists in applying the criteria laid down by section 235(6) to the Transition Act, lies not only in the fact that the Act was designed to cater for the post- constitutional period, but also in the fact that section 235(6) is concerned with executive powers at the level of administration, and uses for this purpose, schedule 6 which deals 59 \fwith legislative competence, and paragraphs (a) to (e) of section 126(3) which deal not with legislative competence, but with how conflicts between provincial legislation and national legislation in the realm of Schedule 6 functional areas are to be resolved. CHASKALSON P [ 91 ] Accepting as I do that the Transition Act has to be dealt with in accordance with section 235(6), the two questions that are determinative of the allocation to be made must be addressed. First, is it a law which deals with a matter within a functional area referred to in Schedule 6. The emphasis is on functional area and not on legislative capacity. The answer to the question must be yes. The law deals with local government matters which are matters within the functional areas specified in Schedule 6. [ 92 ] Secondly, does the law deal with matters referred to in sub-paragraphs (a) to (e) of section 126(3)? Only two of these paragraphs are relevant. They are sub-paragraphs (a) and (b). [ 93 ] Sub-paragraph (a) refers to \"a matter that cannot be regulated effectively by provincial legislation\". There are such matters in the Transition Act. They are the matters dealt with by section 9(1) and section 12 of the Act which vest powers in the responsible Minister in the national government. But executive authority in respect of such matters was not assigned to provincial functionaries. The other matters dealt with in the Act could be regulated by provincial legislation. They deal with the implementation of the Act at provincial level. Under the Act in the form in which it was when it was enacted, and \"continued\" under section 229, the Administrator was the Executive Council of the province. It was given the power under section 10(1)(a) of the Act to make enactments 60 \fCHASKALSON P \"not inconsistent with this Act with a view to the transitional regulation of any matter relating to local government\". In terms of section 10(1)(b) this power included the power to amend or repeal any Act of Parliament or legislative assembly of any Self-governing Territory, and in terms of section 10(1)(c) the powers of the Administrator included the power to extend the application of such laws to local government bodies within the province and to adapt such laws for that purpose. It is not necessary to decide whether these powers are inconsistent with the Constitution or whether, because of the reference to the Transition Act in section 245, they enjoy a special status. What they demonstrate is that all the matters dealt with in the sections other than section 9(1) and 12 are to be implemented at provincial level by provincial functionaries with the power to make laws in respect of all such matters. The Act itself tells us that these matters can be regulated effectively by provincial legislation and administered by provincial functionaries and makes provision for that to be done. The fact that the provincial powers are derived from an Act of parliament and not the Constitution, does not alter the character of the matters which are made the subject of provincial legislation. If the Act is amended by a competent authority the matters could possibly be taken out of that category; but at the time the Constitution came into force that had not been done, and the matters remained matters which could be regulated effectively in terms of the Act by means of subordinate provincial legislation. [ 94 ] Sub-paragraph (b) of section 126(3) refers to a matter \"that, to be performed effectively, requires to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic.\" The sections of the Transition Act in respect of which 61 \fCHASKALSON P the power to exercise executive competence was assigned to provincial functionaries dealt with matters which, within the framework of the Act, did not have to be dealt with according to uniform standards. In fact, the Act makes it clear that the Administrators in the different provinces could make their own laws within the prescribed framework, and specifically empowered them to do so. [ 95 ] We are not concerned in this case with the legislative power to amend the Transition Act; it can be assumed that only Parliament has that power. What we are concerned with is the functionaries to whom executive authority to administer the Act as drafted should be assigned. As long as the Act falls within the scope of section 235(6), and in my view it does, that power must be assigned in accordance with the provisions of that section. [ 96 ] The assignments that were in fact made were to a functionary designated by the President as far as matters within section 9(1) and 12 were concerned and to functionaries designated by the Premiers as far as other matters were concerned. In my view this was consistent with the scheme laid down by sub-section (6). The administration of the particular matters assigned to the control of functionaries designated by the President were pre-eminently concerned with matters which belonged at national level. The administration of matters assigned to provincial functionaries were all matters which called for action to be taken at provincial level and for decisions in respect of such matters to be taken within the framework of the legislation by provincial functionaries. It was moreover consistent in broad terms with the provisions of the Act itself. The Act which had been drafted with an eye to the future required adaptation in minor respects only. It 62 \fCHASKALSON P had to be made applicable to the whole of South Africa, and this was done by Presidential proclamation in terms of section 235(8). The definition of Administrator was changed and became an authority designated by the Premier of a province, and this adaptation was also effected by Presidential proclamation. These amendments do not give rise to any conflict between section 235(8) and section 245. Section 245 refers to the Transition Act, but according to section 232(2)(a) that means the Act \u201cas it exists from time to time after any amendment or replacement thereof by a competent authority.\u201d This would include amendments or adaptations properly made in terms of section 235(8). [ 97 ] This detailed analysis of the relevant provisions of the Constitution and their application to the Transition Act is also relevant to the second question. Section 235(8) which empowers the President to amend Acts of Parliament must be construed in the context of the constitutional provision of which it forms part, and as giving the President no greater powers than are necessary for that purpose. Cf., R v Secretary for Social Security, ex Parte Britnell 1991 WLR 198 (HL). The analysis which has been made of the relevant provisions of the Constitution suggests that the power vested in the President in terms of section 235(8) was for the purpose of enabling him to amend or adapt laws to make them fit the new situation. Althought the President is given a subjective discretion in deciding what is or is not necessary, the discretion must be exercised for the purpose of \u201cthe efficient carrying out of the assignment\u201d. The purpose of the power was to enable the President to do what he considered necessary to achieve functional efficiency in the administration of the assigned laws. The legislation could be amended or adapted in so far as it was necessary for that purpose. That was the extent of the President's power. He 63 \fcould not change the laws because he did not like them, or because he felt that they would be more likely with substantive amendments to achieve what he considered to be the CHASKALSON P objects of the legislation. [ 98 ] In his affidavit filed in these proceedings the President states that he considered the amendments effected by the Proclamations as necessary for the efficient carrying out of the assignment of the administration of the Transition Act to competent authorities within the jurisdiction of the provinces. The \u201cinefficiency\u201d to which he refers was not a functional inefficiency arising out of the assignment that had been made; it was an inefficiency resulting from a weakness in the checks and balances prescribed by the Act, which enabled a Provincial Executive Council to avoid referring disputed issues of demarcation to the Special Electoral Court by the simple expedient of changing the composition of the Provincial Committee. This weakness was only discerned when the Committee of the Western Cape was reconstituted in the circumstances which have previously been described. The amendments made to the Act under the Proclamations were not necessary to make the Act fit the new Constitutional order. The inefficiency in the Act that they sought to address is not the sort of inefficiency contemplated by section 235(8). The changes which were made by the Proclamations were therefore outside the scope of the powers vested in the President by section 235(6) of the Act. In fact the President did not purport to act under section 235(8) when he made Proclamations R 58 and R 59. He acted under section 16A. If that section is invalid the powers conferred on the President under section 235(8) are not sufficiently wide to provide a source of power on which reliance can now be placed. 64 \fCHASKALSON P Declaration of Invalidity [ 99 ] We have said previously that our role as Justices of this Court is not to \"second guess\" the executive or legislative branches of government or interfere with affairs that are properly their concern. We have also made it clear that we will not look at the Constitution narrowly. Our task is to give meaning to the Constitution and, where possible, to do so in ways which are consistent with its underlying purposes and are not detrimental to effective government. The issues raised in the present case are, however, of fundamental importance. They concern the powers of Parliament and how it is required to function under the Constitution. They concern also the validity of executive proclamations issued by the President which are intended to have the force of law. Constitutional control over such matters goes to the root of a democratic order. Adherence to the prescribed forms and procedures and insistence upon the executive not exceeding its powers are important safeguards in the Constitution. Section 16A was specifically authorised by Parliament and proclamations under that section were issued in consultation with and had the approval of the relevant committees of both houses of Parliament. The proclamations were tabled in Parliament and could have been invalidated by resolution, and no such resolution was passed. Yet, what was done, is inconsistent with what is required by the Constitution. [ 100 ] Constitutional cases cannot be decided on the basis that Parliament or the President acted in good faith or on the basis that there was no objection to action taken at the time that it 65 \fCHASKALSON P was carried out. It is of crucial importance at this early stage of the development of our new constitutional order, to establish respect for the principle that the Constitution is supreme. The Constitution itself allows this Court to control the consequences of a declaration of invalidity if it should be necessary to do so. Our duty is to declare legislative and executive action which is inconsistent with the Constitution to be invalid, and then to deal with the consequences of the invalidity in accordance with the provisions of the Constitution. [ 101 ] Despite differences in their reasoning, the members of this Court are unanimous in their conclusion that, by virtue of their inconsistency with the Constitution, the provisions of section 16A of the Local Government Transition Act are invalid. The Court has further, by a majority of 9 to 2, come to the conclusion, though for different reasons, that Proclamations R 58 and R 59 of 1995, which were purportedly promulgated under the provisions of section 16A of the Transition Act, cannot be validated under the provisions of section 235 of the Constitution. In the result an order has to be made declaring that Section 16A of the Transition Act is inconsistent with the Constitution. Sections 98(5) and 98(6) of the Constitution [ 102 ] The conclusion that section 16A of the Transition Act is inconsistent with the Constitution has consequences which go far beyond the fact that the Proclamations will be invalidated. Although the other proclamations made under section 16A are not in issue in the present proceedings, this finding of invalidity cannot be ignored. The Proclamations depend on 66 \fCHASKALSON P section 16A for their validity. If section 16A is invalid, so are they. In practical terms this means that every step taken in preparation of the local government elections pursuant to those proclamations will be invalidated. Unless this can be rectified, the local government elections cannot proceed, as planned, on 1st November.15 [ 103 ] Sections 98 (5) and 98(6) of the Constitution provide: 98 (5) In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified. 98 (6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof - a) b) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or passed after such commencement, shall everything done or permitted in terms thereof. invalidate [ 104 ] The implications of section 98(6) are that if section 16A is declared to be invalid all the proclamations issued under it and everything done pursuant to those proclamations will as a matter of constitutional law, be invalidated unless an order to the contrary is made by this Court. [ 105 ] Section 98(6) entitles a court that declares a law to be invalid to direct that \"anything\" done or permitted in terms of such law shall not be invalidated. Taken literally this may 15 We deal with this more fully in paragraph [110] below. 67 \fCHASKALSON P be wide enough to be applicable to Proclamations having the force of law, issued under a law declared to be invalid. In my view, however, there must at least be some doubt whether the section should be construed in this way. The section is capable of being construed more narrowly to refer only to acts performed, and not laws made, under an invalid law. But even if the word \"anything\" is given a wide meaning to encompass the giving of validity to legislation made under an invalid law, it will seldom, if ever, be appropriate to use this power to validate amendments made to Acts of Parliament. It is logically inconsistent to strike down the empowering legislation, and at the same time, to validate Proclamations made under it, which will have the result that the \u201cthings\u201d validated -- laws which should be made only by Parliament -- will apply not only to the past, but to the future as well. This is a task for Parliament and not for the Court. [ 106 ] Section 98 (5) permits this Court to put Parliament on terms to correct the defect in an invalid law within a prescribed time. If exercised, this power has the effect of making the declaration of invalidity subject to a resolutive condition. If the matter is rectified, the declaration falls away and what was done in terms of the law is given validity. If not, the declaration of invalidity takes place at the expiry of the prescribed period, and the normal consequences attaching to such a declaration ensue. In the present case that would mean that Section 16A and everything done under it would be invalidated. [ 107 ] The powers conferred on the Courts by sections 98(5) and (6) are necessary powers. When the Constitution came into force there were many old laws on the statute book which were inconsistent with the Constitution. If all of them were to have been struck down and 68 \fCHASKALSON P all action taken under them declared to be invalid there could have been a legislative vacuum and chaotic conditions. Sections 98 (5) and (6) enable the Court to regulate the impact of a declaration of invalidity and avoid such consequences. There may also be situations in which it is necessary for the Court to act to avoid or control the consequences of a declaration of invalidity of post-constitutional legislation where the result of invalidating everything done under such legislation is disproportional to the harm which would result from giving the legislation temporary validity. The need for the Courts to have such a power has been recognised in other countries. In Canada for instance where no provision is made specifically in the Constitution for such powers, the Courts have achieved this result by suspending an order invalidating a statute for sufficient time to allow Parliament to take remedial action. See, for example, Reference re Language Rights under s 23 of Manitoba Act, 1870 (1985) 19 DLR (4th) 1 at 21 et seq.; R v Brydges [1990] 46 CRR 236 at 258; Schachter v Canada 10 CRR (2d) 1 (1992) at 30.16 [ 108 ] Where this Court finds that laws enacted before the coming into force of the Constitution are inconsistent with the Constitution it will more readily exercise the special powers vested in it by sections 98 (5) and (6) than it will do in respect of laws passed after the coming into force of the Constitution. The former are an inheritance from the past. The latter are the actions of a legislature in a constitutional state and special circumstances must exist to justify a decision by the Court to give validity to such legislation. This 16 For a discussion of the Canadian law, see, N Duclos and K Roach \"Constitutional Remedies as Constitutional Hints.\" A Comment on R v Schachter \" 36 (1991) McGill LJ 1-38; C Rogerson 'The Judicial Search for Appropriate Remedies under the Charter: The examples of overbreadth and vagueness in R Sharpe, Charter Litigation (1987: Butterworths) pp 233-306. See also, Reform Party of Canada v Attorney General (1993) 13 CRR (2d) 107 (Alb), which dealt with a provision in the Canada Elections Act. Moshansky J found the provision unconstitutional but suspended the declaration of invalidity for a period of 6 months. 69 \fCHASKALSON P distinction is specifically made in section 98(6) of the Constitution which assumes that things done under \"old laws\" which are declared to be inconsistent with the Constitution will ordinarily be validated, while things done under \"new laws\" which are declared to be inconsistent with the Constitution, will ordinarily be invalidated. The question then is whether special circumstances exist in the present case which would justify us in exercising our powers under sections 98(5) or 98(6). [ 109 ] The arguments in this case were concluded a little more than six weeks before the local government elections are to be held. This judgment will be given approximately five weeks before the election date. The proclamations other than R 58 and R 59 which will be rendered invalid by the finding that section 16A is inconsistent with the Constitution make provision for matters concerned with the functioning of local government as well as matters connected with the holding of these elections. Proclamation R 54 validates all transitional councils established after the dates specified in sections 7 or 7A of the Transition Act and Proclamation R 65 establishes rural local government. The invalidation of these two proclamations could have serious adverse effects on local government. As far as the elections are concerned, a number of the Proclamations deal with important amendments to the Transition Act, covering matters such as the establishment of provincial and local government structures for elections administration and financing, addressing issues such as demarcation, polling and voter registration, devolution of power to local government coordinating committees [R 174 and R 35], voter and candidate eligibility [R 174 and R 35], dispute resolution [R 174], the establishment of, and the coordination of decision making between transitional councils and the 70 \fCHASKALSON P Administrator, which decisions would necessarily involve issues relating to elections [R 174], the establishment of forums to negotiate the creation of metropolitan/transitional councils, the legitimate authority of which inter alia concerning actions taken by such councils in regard to elections would be subject to challenge [R 174 and R 54] and the participation of \u201cinterest groups\u201d in establishment of rural local government (rural and district councils), which participation on matters inter alia related to elections administration would also be subject to challenge [R 65]. If these proclamations are invalidated the legality of transitional structures and the arrangements made by them for services and other matters will be brought into question. It will, moreover, not be possible to hold the elections on the 1st November unless Parliament is convened as a matter of urgency to take action to validate the consequentially-invalidated Proclamations. We must take judicial cognisance of the fact that the local government elections are of national importance and that the establishment of democratic local governments is widely seen as being necessary for reconstruction and development to proceed at a grass roots level. [ 110 ] An order which would in effect disrupt the functioning of transitional local government structures and prevent the elections from being held would not in my view be in the interests of good government. It could lead to increased tension in areas where the inhabitants are anxious to democratise their local structures and to considerable waste of expenditure bearing in mind the preparations that are already under way and the steps that have been taken to lay the groundwork for such elections. Action can no doubt be taken to ratify most of these matters, but the uncertainty that is likely to be generated in the interim by nullifying what has been done under the proclamations made in terms of sections 71 \f16A are factors that need to be taken into account in weighing up the decision to be taken CHASKALSON P by us under section 98. [ 111 ] If an order is made in terms of Section 98(5) it would keep alive the provisions of Section 16A of the Transition Act and the Proclamations issued under it temporarily for the period allowed for the correction of the defect. If within the prescribed time the defect is corrected, or if the action taken under the defective law is validated, the transitional structures will be lawful, and elections can be held. Both the Applicants and the Respondents, through their counsel, informed us that they would prefer the elections to proceed. The Applicants\u2019 counsel said, however, that if the choice open to his clients was that the elections should go ahead or that Proclamations R 58 and R 59 should be invalidated, their choice would be to invalidate the Proclamations. [ 112 ] Parliament is the only body which can validate the amendments to the Transition Act made in terms of proclamations issued under section 16A of the Act and the steps taken pursuant thereto. It must be given the opportunity to do so if that is considered to be necessary; it must also be given the opportunity to decide whether it wishes to take the steps necessary to permit the elections to proceed on the 1st November in those areas where they are scheduled to take place on that date. In my view Section 16A should be given continued validity for sufficient time to enable such decisions to be taken. The decisions must be taken before the election date, otherwise they could be influenced by the outcome of the elections. The prejudice to the Applicants consequent upon such an order being made is, by comparison, not substantial. No objection was taken by the Applicants to anything done 72 \fCHASKALSON P under Section 16A other than the making of Proclamations R 58 and R 59. Counsel for the Applicants made it clear that there was no objection to the validation of the other proclamations as long as this could be done without validating the Proclamations R 58 and R 59. This we cannot do in terms of section 98(5) of the Constitution. Proclamations R 58 and R 59 which are attacked seem to be relevant only to the elections in the Cape Metropolitan Area, which in any event have been postponed. If Parliament corrects the defect in the Transition Act and ratifies what has been done (including, if that be its decision, the validity of the Proclamations), the demarcation dispute which led to this litigation will be referred to the Special Electoral Court, which is the institution established for the purpose of resolving disputes of this nature. It can be assumed that that court will do its duty and that the outcome of any hearing before it, will be a just outcome. Weighing this limited potential prejudice as far as the Applicants are concerned against the much greater prejudice to local government generally, and the holding of elections in particular, which will result if the Proclamations are declared invalid with immediate effect, it seems clear that \"justice and good government\" requires that Parliament be given the opportunity if it wishes to do so, to remedy the situation. It will then be for Parliament to decide what, if any, action should be taken in the circumstances brought about by the declaration that Section 16A is inconsistent with the Constitution. This is preeminently a decision for Parliament and not for the Court. [ 113 ] I have no doubt therefore that this is a case in which the Court should exercise its powers under section 98(5). It is important to make clear that when a court makes an order in terms of the proviso to section 98(5), Parliament\u2019s powers to legislate in order to address 73 \fCHASKALSON P the consequences of a declaration of invalidity are not limited in any way. Parliament may choose simply to correct the defect in the invalidated law within the period specified or, on the other hand, it may choose not to correct the defect, but take any other appropriate legislative steps to address the effect of the declaration of invalidity. In the event of the latter, the declaration of invalidity will come into effect on the specified date. Section 98(6) provides that, in the case of a law or provision enacted after the 27th April 1994, such as section 16A of the Transition Act, the effect of such declaration of invalidity will be to invalidate retrospectively everything done in terms of that law. [ 114 ] A majority of this Court has held that the Transition Act was not assignable under section 235(8) of the Constitution. No relief was claimed by the Applicants in this regard and no order is made in regard thereto. The implications of this finding are, however, far reaching and impugn both the validity of Proclamation R 129 of 1994 and the actions taken pursuant thereto. It brings into question the validity of every step taken since July 1994 in the implementation of local government. This also calls for urgent consideration by Parliament. [ 115 ] The matter is clearly one of great urgency and Parliament must decide without delay whether or not it wants an opportunity to correct the defect. Unfortunately, Parliament is not presently in session, but it can be called together for this purpose. In Canada, a Court allowed Parliament six months to correct a defect in electoral legislation.17 That luxury cannot be allowed to Parliament in the present case. If the defect is to be corrected this 17 Reform Party of Canada v Attorney General (1993) 13 CRR (2d) 107 (Alb)(in which elections act provisions found unconstitutional, but declaration of invalidity was suspended for 6 months). 74 \fCHASKALSON P must happen before the elections. A period between the date of this judgment and the 25th October should provide sufficient time to enable Parliament to take action if it chooses to do so. If a decision is taken to postpone the elections it will be open to the Respondents to approach this Court, on notice to the Applicants, to ask for the time within which the defect must be corrected to be extended for a period which will terminate within a reasonable time prior to the postponed election date. Contempt [ 116 ] One matter remains to be dealt with. On the morning of the 8th September a report appeared in Die Burger of a speech made the previous evening by the Third Applicant. According to the report the speech was delivered in the Sarepta Community Hall in front of an enthusiastic crowd of the Third Applicant's political supporters who had come from far afield to hear him. According to the report the following comment was made by Third Applicant in the course of his speech: Die Wes-Kaapse regering het 'n uitstekende kans om die saak in die Konstitusionele Hof te wen as die uitspraak nie 'n politieke een gaan wees nie, het die Wes-Kaapse LUR vir Plaaslike Bestuur, mnr Peter Marais, gisteraand ges\u00ea. [ 117 ] On the day the report appeared in Die Burger the Respondents\u2019 attorney wrote to the Third Applicant's attorney referring to the passage from his speech which had been quoted in Die Burger and saying: In die lig van die implikasies wat so 'n stelling dra verneem ek namens die Respondente voor 12:00 vandag of u kli\u00ebnt die berig gaan repudieer al dan nie, en indien wel of hy dit in die vorm van 'n persberig sal doen. 75 \f[ 118 ] On the same day the Third Applicant issued a press statement which read as follows: CHASKALSON P 'n Berig in \"Die Burger\" van vandag het die indruk geskep dat ek op 'n openbare vergadering in Kuilsrivier sou beweer het dat as die Wes-Kaapse Regering sy saak in die Konstitutsionele Hof sou verloor, dit 'n \"politieke uitspraak\" sou wees. Ek ontken uitdruklik dat dit my bedoeling was om die Konstitusionele Hof te minag of te insinueer dat party politieke oorwegings 'n invloed sal h\u00ea op die Hof se beslissing. Ek trek die stelling onvoorwaardelik terug insoverre dit so opgeneem kan word. Die posisie is die volgende: selfs al sou die Hof bevind dat die twee omstrede proklamasies ongeldig is, kan die Hof kragtens die Grondwet die proklamasies vir 'n bepaalde tyd in stand hou as die Hof dit in belang van \"goeie staatsbestuur\" ag. Myns insiens sou so 'n besluit dus op praktiese staatkundige/politieke gronde gebaseer moet wees. Ek het in hierdie konteks na hierdie moontlikheid verwys in die aangehaalde deel van my toespraak. [ 119 ] Counsel for the Respondents raised this matter in their written argument which was submitted to the Court, saying \"the suggestion of bias and judicial dishonesty on the part of the Court if it finds for the Respondents is plain.\" They drew attention in their written argument to the fact that there was no suggestion in the letter of the Third Applicant's attorneys written in response to the complaint made by the Respondents\u2019 attorneys that the report in Die Burger was inaccurate. They also pointed out that the Third Applicant's \"endeavour to explain what he intended is neither a repudiation nor an unequivocable retraction and apology.\" They submitted that the reported statement constituted a serious contempt of Court, whether on the basis of a contempt tending to prejudice the outcome of a case or one scandalising the Court. In this regard they referred to Joubert (ed) Law of South Africa, Vol. 6 para. 200; Hunt, S.A. Criminal Law and Procedure Vol. II (2nd ed 1982) 199-204; and Attorney General v Times Newspapers Ltd. [1973] 3 AII ER 54(HL) at 60 b et seq. 76 \f[ 120 ] During the course of the resumed argument Mr Gauntlett specifically asked us to deal with CHASKALSON P this issue, saying that the statement attributed to the Third Applicant, which had not been denied by him, was highly prejudicial to the Respondents. It was calculated on the one hand to create the impression in the minds of the public that if the Applicants lost the case it would be the result of a political decision and on the other hand to put subtle pressure on the Court to avoid such an outcome. It goes without saying that we have not been influenced in any way by the press report, but the damage which can be done by such statements is obvious and to be deplored. [ 121 ] Mr Potgieter made it clear that he did not dispute the sentiments expressed by Mr Gauntlett. He said that his client had not spoke from a prepared text and had not intended to impute improper motives to the Court or to bring it into contempt. If what had been said created such an implication, his instructions were to apologise to us. [ 122 ] In my view an ordinary person attending a political gathering such as that described in Die Burger, and the ordinary reader of its report, would have understood the statement attributed to the Third Applicant in the manner suggested by the Respondents. It undermines not only this Court, but constitutionalism itself, of which this Court is a guardian. Having regard to the high political office held by the Third Applicant, the consequences of a statement impugning the integrity of this Court might have been particularly harmful. All citizens are free to attend Court, to listen to proceedings, to comment on them and on the judgments given and to criticize such judgments, even 77 \fvigorously, where it is appropriate to do so, but it is irresponsible to make unfounded statements which impugn the integrity of the Court. I leave the matter there. CHASKALSON P Costs [ 123 ] The Applicants have succeeded in having Section 16A of the Transition Act declared inconsistent with the Constitution. Although this relief was only sought at a late stage of the proceedings there is no reason to believe that the Respondents' opposition would have fallen away if that relief had been sought earlier. The Applicants have tendered to the Respondents the wasted costs occasioned by the postponement on the 16th August. They are, however, entitled to the other costs that have been incurred. The case is clearly one in which the briefing of two counsel was warranted. The Order [ 124 ] The following order is made 1. 2. The Application for direct access in terms of rule 17 is granted. The Application dated 30 August 1995 to amend the notice of motion is granted. 3. Subject to the provisions of paragraph 4 of this order section 16A of the Local Government Transition Act No. 209 of 1993 is 78 \fCHASKALSON P declared to be invalid by reason of its inconsistency with the Constitution, and accordingly all Proclamations made under it, including Proclamations R 58 and R 59, are also invalid. 4. In terms of the proviso to section 98(5) of the Constitution -- (a) Parliament is required to correct the defect in Section 16A of the Local Government Transition Act, 1994 by not later than 25 October 1995; and (b) The said section and the Proclamations made under it shall remain in force pending the correction of the defect or the expiry of the period specified herein. 5. If all the local government elections scheduled to take place on 1 November 1995 are postponed, the Respondents may apply to this Court, on notice to the Applicants, for an order that the time within which the defect in section 16A of the Local Government Transition Act, 1994 is to be corrected, be extended to a date prior to the new election date. 6. (a) The Respondents are directed to make payment, jointly and severally, to the Applicants of the costs of this application, save for the costs referred to in sub-paragraph (b) hereof. (b) The Applicants are directed to make payment, jointly and severally, to the Respondents of all wasted costs occasioned by the postponement of the hearing from the 16th August to the 30th August 1995. 79 \f(c) The costs referred to in sub-paragraphs (a) and (b) are to include the costs of two Counsel. MAHOMED DP [ 125 ] MAHOMED DP. I have had the advantage of reading the judgment of Chaskalson P and I am in agreement with the orders which he proposes. Generally, I am in agreement with the reasons he gives for those orders but I think it is advisable for me to set out briefly my own reasons for concluding that section 16A of the Transition Act is invalid and for concluding that Proclamations R58 and R59 which the Applicants have attacked in these proceedings cannot be saved by reliance on the provisions of section 235(8) of the Constitution. Constitutionality of section 16A [ 126 ] The constitutional attack on section 16A is basically premised on the proposition that it constitutes an impermissible delegation of legislative powers by Parliament to the President. [ 127 ] The authority of Parliament to make laws is contained in section 37 of the Constitution which provides that: \u201cThe legislative authority of the Republic shall, subject to this Constitution, vest in Parliament, which shall have the power to make laws for the Republic in accordance with this Constitution.\u201d [ 128 ] Conceptually, it is possible to adopt different approaches to the application of this section. The first approach is to say that because legislative authority vests in Parliament, it, and it alone, must make the laws of the country, \u201cin accordance with the Constitution\u201d and that 80 \fit therefore cannot delegate that function to another authority, however eminent that authority may be. The second approach would contend that precisely because Parliament is the ultimate legislative authority with the power to make laws for the Republic it must have the power, in appropriate circumstances, to authorize other organs to exercise law- making powers if it considers such delegation to be necessary for the proper discharge of its own functions. The law providing for such delegation, it is emphasised, is also a law which it makes pursuant to its law-making power. [ 129 ] Both these strains find expression in the jurisprudence dealing with this problem. A consideration of that jurisprudence suggests, however, that there is no inherently irreconcilable conflict between these strains. [ 130 ] The American authorities emphasize the constitutional doctrine of a separation of powers between the Legislature, the Executive and the Judiciary and have repeatedly held that federal law-making power is vested in Congress alone and cannot for that reason be delegated to the Executive.1 The federal courts in the United States have, however, appreciated that a national legislature cannot effectively make the vast network of laws necessary to regulate life and living in a complex modern civilization and for that reason have consistently upheld the constitutionality of delegations to the Executive or the Administration, subject to the proviso that what is delegated is the power to give effect to the principles and policies which are contained in the statute itself.2 That distinction has 1 Panama Refining Co. v. Ryan, 293 U.S. 388 at 421 (1935); A.L.A. Schechter Poultry Corp. et al. v. United States, 295 U.S. 495 (1935) at 529. 2 Panama Refining Co. case (supra) at 415 and 418; A.L.A. Schechter Poultry Corp. case (supra) at 530. 81 \fbeen expressed as follows:- MAHOMED DP \u201cThe true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.3 [ 131 ] The rationale for the American jurisprudence in respect of this problem is based not only on the wording of the relevant provisions of the United States Constitution but also upon two very important concerns: the first concern is that since the Constitution reposes confidence in the political judgment of those elected to Congress and in their capacity to make policies pursuant to that judgment, it would be constitutionally subversive to allow such political judgments and such policies effectively to be made by those not identified for that purpose in the Constitution4; the second concern is that if the law-making function vested in Congress is delegated to members of the Executive or the Administration in a manner which allows the delegatee to make political assessments and assessments of policy, the exercise of the delegated power would not be subject to adequate judicial checks; discretions and functions exercised on political grounds cannot easily be the subject of judicial review5. [ 132 ] Although both these concerns have been specially articulated in American jurisprudence they are of manifest relevance in all countries where the courts have to grapple with the 3 Hampton & Co. v. United States, 276 U.S. 394 at 407 (1928) quoting from Wilmington and Zanesville Railroad Co. v. Commissioners,1 Ohio, St. 77 (1852). 4 United States v. Robel, 389 U.S. 258 at 276 (1967). 5 Industrial Union Department AFL-CI0 v. American Petroleum Institute, 448 U.S. 607 (1980). 82 \fpermissible parameters of delegation by a supreme law-making body to any part of the MAHOMED DP Executive. [ 133 ] The American approach has found substantial resonance in the Irish Courts. The test expressed by O\u2019Higgins CJ6 was \u201cWhether what is challenged as an unauthorized delegation of Parliamentary power is more than the mere giving (of) effect to principles and policies which are contained in the statute itself. If it be, then it is not authorized; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution.\u201d [ 134 ] The courts in the old commonwealth countries have been more benevolent in tolerating delegation of law-making functions from Parliament to the Executive. This development was historically influenced by the English doctrine of the absolute sovereignty of Parliament which carried with it the necessary consequence that Parliament could in the exercise of that sovereignty enact any law delegating law-making power to the King or his Ministers. It was also influenced by the English system of \u201cresponsible government\u201d which permitted a greater coalescence between the legislature and the executive than was permitted by the Constitution of the United States.7 The influence of those doctrines has impacted on much of the jurisprudence of countries such as Canada, Australia and India. But even in those countries the courts were not prepared to hold that the power of delegation was unrestrained. The Canadian Supreme Court has held that Parliament\u2019s power of delegation was not absolute and that an \u201cabdication\u201d, \u201cabandonment\u201d or 6 Cityview Press Limited and another v An Chomhiarle Oiliuna and others [1980] IR 381 at 395. 7 Hogg: Constitutional Law of Canada (3d. ed. 1992) paragraph 14.2; Shannon v Lower Mainland Dairy Products Board (1938) A.C. 708. 83 \fMAHOMED DP \u201csurrender\u201d of Parliament\u2019s legislative authority to the Executive would be invalid8. Similarly, in Rajnarainsingh\u2019s case9, decided in the Supreme Court of India, Bose J held that it was an essential characteristic of legislative power that it laid down a policy or standard and that such an essential feature could not be delegated; moreover that the modifications or restrictions which may be permitted are those which do not involve a change in such essential policy or standard and that the power to repeal a law is essentially legislative and could not be delegated.10 [ 135 ] In Australia the leading case is that of The Victorian Stevedoring & General Contracting Company (Pty) Ltd v Dignan.11 In that case a certain statute had purported to confer power upon the Governor-General to make regulations not inconsistent with that statute \u201cwith respect to the employment of transport workers and, in particular, for regulating the engagement, service, and discharge of such workers, and the licensing of persons engaged as transport workers, and for regulating or prohibiting the employment of unlicensed persons as transport workers\u201d. An attack on the statute on the ground that it was an impermissible delegation of legislative powers failed, but it was made clear by the Australian High Court that it was not competent for Parliament to \u201cabdicate its powers of legislation\u201d. At page 121, Evatt J stated: \u201cThis is not because Parliament is bound to perform any or all of its legislative powers or functions, for it may elect not to do so; and not because the doctrine of separation 8 Re Gray (1918) 57 S.C.R. 150 at 157, 165, 171, 176. 9 Rajnarainsingh v Chairman Patna Administration Committee, Patna (1955) 1 S.C.R. 290. 10 Rajnarainsingh\u2019s case (supra) at 298-9, referring to the issues dealt with in the case of In re the Delhi Laws Act (1951) S.C.R. 747. 11 46 C.L.R. 73. 84 \fMAHOMED DP of powers prevents Parliament from granting authority to other bodies to make laws or by-laws and thereby exercise legislative power, for it does so in almost every statute; but because each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law-making authority to another body would be bad merely because it would fail to pass the test last mentioned.\u201d At page 120 of the report the learned Judge deals with some of the considerations relevant for the determination of the issue. \u201cThe following matters would appear to be material in examining the question of the validity of an Act of the Parliament of the Commonwealth Parliament which purports to give power to the Executive or some other agency to make regulations or by-laws:- 1. The fact that the grant of power is made to the Executive Government rather than to an authority which is not responsible to Parliament, may be a circumstance which assists the validity of the legislation. The further removed the law-making authority is from continuous contact with Parliament, the less likely is it that the law will be a law with respect to any of the subject matters enumerated in secs. 51 and 52 of the Constitution. The scope and extent of the power of regulation-making conferred will, of course, be very important circumstances. The greater the extent of law- making power conferred, the less likely is it that the enactment will be a law with respect to any subject matter assigned to the Commonwealth Parliament. The fact that Parliament can repeal or amend legislation conferring legislative power will not be a relevant matter because parliamentary power of repeal or amendment applies equally to all enactments. But all other restrictions placed by Parliament upon the exercise of power by the subordinate law-making authority will be important. The circumstances existing at the time when the law conferring power is passed or is intended to operate, may be very relevant upon the question of validity. A law conferring power to regulate, in time of war or national emergency or under circumstances where it is essential to retain in some authority a continuous power of alteration or amendment of regulations, although clearly a law with respect to legislative power, might also be truly described as a law with respect to the subject matter of naval and military defence, or external affairs or another subject matter. The fact that a Commonwealth statute confers power to make regulations merely for the purpose of carrying out a scheme contained in the statute itself, will not prevent the section conferring power to make regulations from being a law with respect to legislative power. But ordinarily it will also retain the character of a law with respect to the subject matter dealt with in the statute. As is assumed in 5, supra, a Commonwealth enactment is valid if it is a law with respect to a granted subject matter, although it is also a law with respect to the exercise of legislative power. The fact that the regulations made by the subordinate authority are themselves laws with respect to a subject matter enumerated in secs. 51 and 52, does not conclude the question whether the statute or enactment of the Commonwealth 85 2. 3. 4. 5. 6. 7. \fMAHOMED DP Parliament conferring power is valid. A regulation will not bind as a Commonwealth law unless both it and the statute conferring power to regulate are laws with respect to a subject matter enumerated in sec. 51 or 52. As a rule, no doubt, the regulation will answer the required description, if the statute conferring power to regulate is valid, and the regulation is not inconsistent with such statute.\u201d [ 136 ] The competence of a democratic Parliament to delegate its law-making function cannot be determined in the abstract. It depends inter-alia on the constitutional instrument in question, the powers of the legislature in terms of that instrument, the nature and ambit of the purported delegation, the subject-matter to which it relates, the degree of delegation, the control and supervision retained or exercisable by the delegator over the delegatee, the circumstances prevailing at the time when the delegation is made and when it is expected to be exercised, the identity of the delegatee and practical necessities generally.12 The issue as to whether section 16A constitutes a permissible delegation of the legislative powers must be examined having regard to such considerations. There are, in the present case, various considerations which are relevant both in expanding and in limiting the parameters of the powers which Parliament can legitimately delegate to the President. 1. The purported delegation is in respect of a very special kind of subject- matter. It is the subject-matter of the transition to local democratic government contained in the Transition Act. It is not a delegation of powers in respect of a very wide subject-matter such as \u201cgood government\u201d or even \u201cefficient local government\u201d. 12 Cf Baxter, Administrative Law (Juta & Co Ltd, 1984) pg 435. 86 \fMAHOMED DP 2. The authority to which the delegation is made is not some impersonal body of faceless persons whose identity and qualifications are not easily ascertainable by Parliament. It is to the President, himself. 3. The delegation is made at a special time in our constitutional evolution when the first democratic local government elections in the country are to be held and an effective transition is to be made on a local level from apartheid to democracy. 4. The circumstances which prevailed at the time when the delegation was made and when it was expected to be exercised are exceptional. There has been no previous precedent in the country for local elections on such a level and for infrastructures suitable and effective to facilitate their objectives. (This kind of factor influenced the enactment of other transition measures (albeit prior to the commencement of the present constitutional regime) such as the Transitional Executive Council Act 151 of 1993 which effectively delegated substantial legislative and executive power to an unelected body to facilitate the transition to democracy.) 5. Practical problems were anticipated pertaining to the administration and execution of the local election process and there might have been legitimate grounds for believing that some of the mechanisms structured by the Transition Act would have to be amended or adapted to accommodate 87 \fsuch problems. MAHOMED DP 6. Parliament itself might not have been in session when one or more of these problems might have required a practical response. 7. The President had no authority to make any proclamation under section 16A unless it \u201cwas approved by the select committees of the National Assembly and the Senate responsible for constitutional affairs.\u201d 8. Parliament had to be informed of such a proclamation within 14 days of its publication. 9. The Proclamation could be invalidated by a Parliamentary resolution of disapproval. 10. The principle that Executive proclamations may amend a Parliamentary law was accepted in section 235 of the Constitution itself. [ 137 ] All the aforegoing considerations would appear to favour the legitimacy of conferring the powers on the President which section 16A purports to do. But they have to be balanced against other considerations which militate against that inference. 1. Section 16A does not purport to limit the Presidential powers of 88 \fMAHOMED DP amendment to those mechanisms which can legitimately be said to be of a nature which might require ad hoc responses while Parliament is not in session. In its terms the section purports to give to the President the power to change even the basic structures in the Transition Act and even at a time when Parliament is in session. 2. Theoretically the section puts the President into a position not only to change structures but even to change the basic policy decisions which Parliament itself had made in regard to the conduct of local elections. 3. The President is not equipped with any directives or decisional criteria within which he or she is required to operate before amending any part of the Act. The presence of such decisional criteria might have been very important in ensuring that the President does not change the basic policy of the Act or the fundamental structures Parliament identified to give effect to that policy. 4. The robust terms of section 16A carry the inherent danger that a President could theoretically make a local government transition Act wholly different in principle, in quality and in structure from the Transition Act which Parliament itself had made. 89 \fMAHOMED DP 5. The wide terms of section 16A might make it possible for the President to make amendments to the Transition Act of a nature which Parliament itself could not have done without complying with the prescribed forms and procedures which are set out in sections 59, 60 and 61 of the Act. 6. The jurisprudential philosophy which informs and underpins the Constitution is based not on the doctrine of parliamentary supremacy but on the doctrine of constitutional supremacy. The Constitution has expressly sought to allocate different functions to Parliament and to the President. The law-making function is entrusted to the former; the executive function to the latter. Although the President is elected by Parliament and the members of his Cabinet are members of Parliament, their functions remain constitutionally distinct. Parliamentary laws which impact on the allocation of these functions carry the inherent danger of subverting the constitutional objective of ensuring that the legislative authority does not effectively surrender its true function to the Executive. Such laws must therefore be approached with great caution in order to examine their justification in the special circumstances of a particular case. [ 138 ] These are indeed formidable considerations against the purported delegation in section 90 \f16A. In addition thereto, it has been suggested that there were two decisive legal arguments against the constitutionality of section 16A. MAHOMED DP [ 139 ] The first legal argument advanced was that a delegation of legislative powers which permitted an amendment to another statute might in certain circumstances be permissible but, that it is constitutionally incompetent for Parliament to delegate to a functionary the power to amend the very Act under which he is given his powers of delegation. I am unable to agree with this argument in that form. There is no logical reason why a distinction should be made between a delegated power to amend a section of the law which is delegated to a delegatee and a delegated power to amend some section of some other law. There is however a logical and relevant distinction between the power to amend the section of the Act which gives to the President his power under the Act and other sections of the same Act. The former is the very source of his authority - his own domestic Constitution; he cannot constitutionally amend it. The latter is not open to that objection but may nevertheless be unconstitutional on the more general ground that it constitutes an impermissibly wide delegation of legislative authority. [ 140 ] The second legal objection is that it is per se unconstitutional to authorize the President to make amendments which Parliament itself would not have been entitled to make without following the forms and procedures prescribed by sections 59, 60 and 61 of the Constitution. It is contended that for this reason it is really irrelevant whether or not the balance of the factors in favour or against the legitimacy of delegating legislative powers indeed favours the conclusion that such delegation should be upheld in a particular case. 91 \fMAHOMED DP I am unable to agree with so rigid an approach to the problem. Much would depend on the subject-matter of the delegation and the relevant circumstances which might be prevailing at the time. The degree to which the balance to which I have referred favours the necessity for such delegation is also relevant. Classically, in a situation such as war or national emergency there may be a necessary implication that the Executive can exercise such delegated powers notwithstanding the forms and procedures prescribed by sections 59, 60 and 61. But this is not because wars and national emergencies constitute, by themselves, legal exceptions to the general policy against the legitimacy of legislative delegation. They are simply examples of situations which might support a more general jurisprudential approach possibly permitting such delegation where the subject-matter of the delegation, the applicable circumstances pertaining at the time, and the degree to which the balance of the relevant factors to which I have referred, favours the legitimacy of such delegation. It is not necessary to decide on the constitutional validity of such an approach and its parameters in the present case. [ 141 ] Returning therefore to the considerations relevant to the determination of the constitutionality of section 16A, there is arguably a case that can be made for the delegation of special legislative powers to the President to make amendments to the Transition Act in the special circumstances of our present constitutional evolution. My real difficulty is that on any approach, the section goes too far and effectively constitutes an abdication of Parliament\u2019s legislative function in terms of section 37 of the Constitution, leaving the President absolutely free to change the entire structure and policy of the Act in his or her absolute discretion as long as the approval of the relevant select committees is 92 \fobtained. Nothing in the jurisprudence of the United States or the more benevolent jurisprudence of parts of the commonwealth or the special terms of our Constitution permits so robust a devolution of legislative power. MAHOMED DP [ 142 ] I am therefore compelled to the conclusion that section 16A in its present form is unconstitutional. This does not mean, however, that any Act of Parliament which purports to delegate to the President the power to make amendments to the Transition Act would always be unconstitutional in the special circumstances pertaining to the conduct of local government elections in our present constitutional history. I leave that issue open. Much might depend on whether the power conferred is limited to what is reasonably necessary and expedient for the efficient conduct and execution of local government in the country and on whether there are suitable directions and controls to ensure that Parliament was not effectively abdicating its law-making function in this area. Section 235(8) [ 143 ] Chaskalson P is clearly correct in his conclusion that Proclamations R58 and R59 cannot properly be authorized by section 235(8) of the Constitution but, in my respectful view, he is incorrect in concluding, as he does, that the power vesting in the President, in terms of that section, includes the power to assign and amend the Transition Act. My reasons for that view are substantially the reasons which Kriegler J has articulated in his judgment and in the circumstances of the present case I do not find it necessary to deal with them in any greater detail. I would, however, mention one additional problem in this regard arising 93 \fMAHOMED DP from the reliance on section 245 by Kriegler J in his judgment. It could be contended that that section must be read together with section 232(2)(a) of the Constitution which provides that any reference in the Constitution to any particular law shall be construed as a reference to that law as it exists from time to time after any amendment or replacement thereof by a competent authority. It was suggested that the effect of section 232(2)(a) was therefore to allow local government to be restructured in terms of the amendments which were made to the Transition Act by Parliament enacting section 16A and by the President making amendments pursuant thereto. If Parliament had itself made the amendments which restructured local government there might have been some substance in this argument, but it did not. It simply enacted a section authorizing the President to do so. That section was section 16A. It is a constitutionally invalid section. The amendments made by the President were therefore not amendments made by \u201ca competent authority\u201d within the meaning of that phrase in section 232(2)(a). Until elections have been held in terms of the Transition Act, local government must in terms of section 245, therefore be restructured in accordance with the Transition Act before its purported amendment by the President. [ 144 ] Because I have concluded that the Transition Act is not an assignable law in terms of section 235(8), it is strictly unnecessary for me to say anything further about the other arguments upon which Chaskalson P relies for his inference that Proclamations R58 and R59 are not authorized by section 235(8). I am nevertheless of the view that his interpretation of the permissible parameters of Presidential authority to act in terms of section 235(8) (if that section was, in fact, applicable), might be too restrictive. In my view there are, in terms of section 235(8)(b)(i), only two limitations on the power of the 94 \fPresident to amend a law which is assigned pursuant to that section: MAHOMED DP (1) he or she must consider such amendment to be necessary for the efficient carrying out of the assignment; (2) the amendment must be made in order to regulate the application or interpretation of such law. [ 145 ] As long as the President bona fide considers the amendment to be \u201cnecessary for the efficient carrying out of the assignment\u201d, the jurisdictional fact entitling him or her to make the amendment, is satisfied. The amendment which he or she then makes cannot be challenged as long as it is rationally capable of facilitating the efficient carrying out of the assignment and rationally capable of regulating the application or interpretation of the law. In my view, the amendments to the Transition Act which the President purported to make in terms of the impugned Proclamations cannot therefore be constitutionally assailed simply on the grounds that:- (a) they were not objectively necessary for the efficient carrying out of the assignment; or (b) although they were rationally capable of regulating the application or interpretation of the law, the objectives of the President could equally or even better have been achieved without any such amendments or by different amendments; or 95 \f(c) the amendments were objectively not necessary to carry out the \u201cfunctional ACKERMANN AND O\u2019REGAN JJ efficiency\u201d of the assignment. Mokgoro J concurred in the judgment of Mahomed DP. [ 146 ] Ackermann and O\u2019Regan JJ: We concur in the judgment of Kriegler J and the order proposed by Chaskalson P. We also concur in the remainder of the judgment given by Chaskalson P, save in the respects hereinafter set forth. Section 16A of the Local Government Transition Act, No. 209 of 1993 [ 147 ] We agree that the provisions of section 16A of the said Act (\"the Transition Act\") are inconsistent with the Constitution and broadly with Chaskalson P's reasons for reaching this conclusion. [ 148 ] We also agree that, as stated in paragraph [51] of his judgment, Parliament has the implicit power to pass legislation delegating legislative functions within the framework of a statute under which the delegation is made and that there is a difference between this situation and \"assigning plenary legislative power to another body, including, as section 16A does, the power to amend the Act under which the assignment is made\". In our view, however, it makes no difference in principle whether, in the latter case, the power to amend includes the power to amend the Act under which the delegation occurs. The great difference lies in the delegation of legislative power which is subordinate to Acts of Parliament as opposed to the delegation of legislative power to amend Acts of Parliament; it being 96 \firrelevant, in our view, whether this power to amend applies to the Act conferring the ACKERMANN AND O\u2019REGAN JJ power or to any other Act of Parliament. [ 149 ] In paragraph [62] Chaskalson P, having referred earlier in his judgment to section 4(1) of the Constitution which contains the phrase \"unless otherwise provided expressly or by necessary implication in this Constitution\", states that - There may be exceptional circumstances such as war and emergencies in which there will be a necessary implication that laws can be made without following the forms and procedures prescribed by sections 59, 60 and 61. In our view it is unnecessary and undesirable even to pose the question in this form. We are quite unsure whether the \"necessary implication\" phrase in section 4(1) applies at all to the manner and form provisions of sections 59, 60 or 61. We should like to leave the matter completely open and be able to consider the question in the future, should it arise, without any impediment as to the nature of argument which might be addressed or the solution which could be adopted. [ 150 ] The provisions of section 34(1) of the Constitution provide for the proclamation of a state of emergency where \"the security of the Republic is threatened by war, invasion, general insurrection or disorder or at a time of national disaster\" and if the declaration of a state of emergency is \"necessary to restore peace or order\". In paragraph [62], Chaskalson P poses the hypothetical possibility that \"circumstances short of war or states of emergency will exist from which a necessary implication can arise that Parliament may authorise urgent action to be taken out of necessity. A national disaster as a result of floods or other forces may call for urgent action to be taken...\" We would, with all due respect, desist 97 \ffrom any comment on such a possibility, particularly in view of the fact that no argument from necessity was addressed to us. The postulation of such a possibility, however qualified, runs the risk of causing uncertainty as to the nature of our present Constitution. There may, after all, be constitutional ways of dealing with such a situation other than implying a power in Parliament to legislate otherwise than in accordance with sections 59, 60 or 61. [ 151 ] Chaskalson P has pointed out in paragraph [61] that the Constitution begins by stating the \"need to create a new order\". It is, we agree, important to stress this feature. It is also necessary to point out that in the same preamble the \"new order\" embodies, amongst other things, a \"constitutional state\". We would, at this very early stage of our constitutional jurisprudence, hold section 16A invalid on the simple basis that it purports to authorise the President to legislate in conflict with Acts of Parliament in a manner clearly inconsistent with the Constitution. To permit Parliament to do this would be to permit the making of laws for the Republic by an actor other than Parliament, in a manner not \"in accordance with this Constitution\" and not \"subject to this Constitution\" and therefore quite contrary to section 37 and the concept of the supremacy of the Constitution as embodied in section 4. The applicability of sections 235(6)(b)(i) and (8) of the Constitution to the Transition Act [ 152 ] We do not, with respect, agree that the Transition Act is a law which falls under subsection 6(b)(i) of section 235. Its administration could not therefore have been assigned by the President under subsection 8(a) to a competent authority within the jurisdiction of the 98 \fACKERMANN AND O\u2019REGAN JJ government of a province and the President could consequently not amend or adapt (by Proclamations R58 and R59) the law in question pursuant to the provisions of subsection 8(b). We agree, however, (for the reasons stated by Chaskalson P) that, even if its administration could be so assigned, the provisions of subsection 8(b) do not authorise the promulgation of Proclamations R58 and R59. [ 153 ] The restructuring of local government in terms of the Transition Act is specifically dealt with in section 245(1) of the Constitution, which provides that until elections have been held in terms of the Transition Act local government shall not be restructured otherwise than in accordance with the Transition Act. It is in this context that the functional area \"Local government subject to the provisions of Chapter 10\" in the list of Legislative Competences of Provinces in Schedule 6 to the Constitution must be construed. Chapter 10 does not deal with transitional arrangements as such, but is concerned with the framework for local government after transition. In other words, Chapter 10 deals with the substantive permanent features and requirements of local government, not with the process of transition towards this constitutional goal. When regard is had to the fact that the Administrator (as defined in the Transition Act) is limited in his or her powers of enactment by the Transition Act, then the legislative competence of a province in the Schedule 6 area referred to above, is in our view something quite different from the area covered by the Transition Act. For this reason alone, it seems to us, the Transition Act cannot be said to fall within any functional area listed in Schedule 6 and thus not under the provisions of section 235(6)(b)(i) of the Constitution. [ 154 ] We are further strengthened in the above conclusion by the fact that were the Transition Act 99 \fACKERMANN AND O\u2019REGAN JJ to fall within the ambit of section 235(6)(b)(i) there would be a conflict between this provision and section 245(1), which imposes a constitutional requirement that local government be restructured in terms of the Transition Act. At the time when the Constitution came into force the (for present purposes) relevant part of section 1(1)(i) of the Transition Act defined Administrator as - the Administrator as defined in section 1 of the Provincial Government Act, 1986 (Act No. 69 of 1986) ... Provided further that at the establishment of a provincial government for the province concerned in terms of the Constitution of the Republic of South Africa, 1993, any reference to the Administrator shall be construed as a reference to the Executive Council of that province ... It is not clear from section 235(6) precisely what \"executive authority\" means. Further uncertainty is caused by the reference in section 235(8) to the \"administration of a law\" and not to \"executive authority\". Having regard to the wide powers conferred on the Administrator in terms of the Transition Act, we are of the view that the effect of the above definition, in the context of the Transition Act, is to delegate executive authority to functionaries in the provinces. [ 155 ] If section 235(6)(b)(i) of the Constitution applied to the Transition Act the transfer of executive authority would take place quite differently. The Transition Act would - be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is ... assigned under sub-section (8) to a competent authority (i.e. in terms of sub-section 6(c)(ii) \"an authority designated by the Premier of the province\") of such province.\" In terms of the Transition Act executive power passes ex lege from the Administrator (as defined) to the Executive Council immediately a provincial government is established. The provisions of section 235(6)(b)(i) therefore conflict in two ways with this provision of the Transition Act. Firstly, the President is not obliged to assign the administration of the Transition Act until requested by a premier to do so (subsection (8)). In terms of the 100 \fACKERMANN AND O\u2019REGAN JJ Transition Act, however, the Executive Council becomes the Administrator immediately a provincial government is established. Second, the President (in terms of section 235(6)(b)(i)) assigns an act to a competent authority designated in terms of section 235(6)(c)(ii) by the Premier of a province. On the other hand, in terms of the Transition Act, the successor to the Administrator is the Executive Council. Preference should be given to a reasonable construction of section 235(6)(b) which avoids such a conflict. Such a construction is the one suggested above, namely, that the Transition Act does not fall within any functional area of Schedule 6. In our view the definition of \"Administrator\" as it existed when the Constitution came into effect was a mechanism to delegate executive authority to the provinces as contemplated by section 144(2). This section provides that provinces may obtain executive authority from three sources: provincial legislation, assignments under section 235(8) and delegation. [ 156 ] The provision in section 245(1) of the Constitution that until elections have been held in terms of the Transition Act local government shall not be restructured otherwise than in accordance with that Act effectively deprives provincial legislatures of the power to legislate on local government until the first elections have been held. It therefore seems plain that the Transition Act is legislation which falls within the purview of section 126(3)(a) in that it is legislation which deals with matters which cannot effectively (or indeed at all) be dealt with by provincial legislatures before the first election for local government has been held. We do not agree with Chaskalson P, who suggests at paragraph", "of his judgment that the wide powers granted to the Administrator by section 10 of the Transition Act, including the power to make enactments amending a law in force in a 101 \fACKERMANN AND O\u2019REGAN JJ particular province (including an Act of Parliament), are an indication that provincial legislatures can legislate on the subject matter of the Transition Act. Section 10(1)(a) expressly provides that such enactments may not be inconsistent with the Transition Act. Accordingly, the Administrator's law-making powers in section 10 may not alter the provisions of the Transition Act itself. This is consistent with section 245(1): the process of local government transition as provided for in the Transition Act is not a provincial legislative matter until the first local government elections have taken place. The regulation of that process, consistent with the Transition Act, may be regulated by Administrators but no provincial variation of the procedures and mechanisms established in the Transition Act are permissible unless provided for in the Transition Act itself. [ 157 ] It has been suggested that if the administration of the Transition Act does not fall to be assigned under section 235(8), its provisions (as they stand) do not apply to the former Transkei, Venda, Boputhatswana or Ciskei. At most this might constitute a legislative lacuna, but could be rectified by a simple amendment of the Transition Act itself. The existence of such a lacuna cannot be relevant to the question of whether section 235(8) is of application to the Transition Act at all. The purpose of section 235(8), as discussed by Chaskalson P in paragraphs [70] to [81] of his judgment, is to redirect executive authority in the light of the significant constitutional changes that were occasioned by the interim Constitution. The fact that legislative lacunae might have been created by the re- incorporation of the formerly independent bantustans is a different mischief. It may be that where section 235(8) is properly relied upon, the State President may use his powers in terms of section 235(8)(b) to regulate the application of a law by extending it to parts of 102 \fthe national territory to which it did not previously apply. It cannot be concluded from this, however, that the existence of a legislative lacuna itself would render section 235(8) ACKERMANN AND O\u2019REGAN JJ applicable. The Order [ 158 ] In paragraphs [106] to [115], Chaskalson P considers the question of whether an order should be made in terms of the proviso to section 98(5) which provides that: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified. In this case, we have found section 16A to be invalid. In terms of section 98(5), therefore, two choices of remedy are available. We can declare section 16A invalid with immediate effect, or we can refer the matter to Parliament to correct the defect and keep section 16A and all proclamations under it, and administrative steps taken in terms of such proclamations, in force as provided for in subsection (5). We do not have the power in terms of section 98(5) to save only some of the proclamations promulgated under section 16A. If we had such a power, we might well have considered that there were cogent reasons to exempt R58 and R59 from an order in terms of the proviso. For the reasons suggested by Chaskalson P we also consider that, on a proper construction, section 98(6) is not applicable to legislative acts, such as the proclamations. Therefore the route of partial invalidation under section 98(6) is also not available for proclamations issued in terms of section 16A. 103 \f[ 159 ] In considering whether we should exercise our powers in terms of section 98(5), we agree ACKERMANN AND O\u2019REGAN JJ with Chaskalson P that the interests of \"good government\" are overwhelmingly in favour of giving Parliament an opportunity to correct the situation, in order to prevent serious and far-reaching disruption to the local government elections. However, we are not as sanguine as he, that the interests of the applicant in obtaining the order that they sought are not considerably impaired by our order. Justice would generally dictate that successful litigants should obtain the relief they seek. The consequence of our order is, however, the fate of every litigant who is successful in having an Act of Parliament, or any part thereof, declared invalid but finds it maintained in force because of an order in terms of the proviso to section 98(5). In Re Dixon and Attorney-General of British Columbia 59 D.L.R. (4th) 247 (1989) (British Columbia Supreme Court), the Court declared invalid certain core provisions of the British Columbia legislation establishing provincial electoral districts on the grounds that the impugned provisions did not establish relative equality of voting guaranteed by section 3 of the Canadian Charter of Rights and Freedoms. In deciding to specify a temporary period during which the existing legislation remained valid the Court motivated its decision to do so as follows per McLachlin C.J.S.C. at 282 - 283: The Supreme Court of Canada faced a similar dilemma in Reference re Language Rights under the Manitoba Act, 1870 (1985), 19 D.L.R. (4th) 1, [1985] 1 S.C.R. 721, [1985] 4 W.W.R. 385. The petitioners there challenged the validity of all of the provincial statutes enacted by the Province of Manitoba in English only, contrary to the provisions contained in s. 23 of the Manitoba Act, 1870. However, after finding this legislation unconstitutional, and therefore invalid and of no force or effect, the court held that it had the jurisdiction to temporarily relieve against this finding on the basis that to render all laws in the province invalid would create a state of emergency. Accordingly, it deemed all acts of the Manitoba Legislature temporarily valid and effective from the date of this judgment to the expiry of the minimum period necessary for translation, re-enactment, printing and publishing in bilingual form. 104 \fKRIEGLER J The absence of the machinery necessary to conduct an election in a system where in theory an election can be required at any time, qualifies as an emergency of the magnitude of suspension of all provincial legislation. In my view, it is open to this court to specify a temporary period during which the existing legislation remains valid and during which the legislation enacts and brings into force an apportionment scheme which complies with the Charter. The situation faced by this Court is an a fortiori one. From the point of view of good government, the government's duty, to all voters in South Africa, to ensure that democratic local elections are held at the appointed time is of the highest and most compelling order. If the position in British Columbia, where no elections had been scheduled, qualified as an emergency of such magnitude as to justify suspending the order of invalidity, it ought to do so in the present case. Literally millions of citizens, previously disenfranchised, have with much anticipation been awaiting the first local government elections. These elections are an indispensable part of the transition to full democracy. They ought not to be delayed. The interest of good government in ensuring this is acute. Under all the circumstances we are therefore of the view that this Court ought to exercise its powers under the proviso to section 98(5) of the Constitution. At the same time we are strongly of the view that the elections ought not to be held under statutory provisions which are (in substance) invalid, although their temporary validity has been secured by an order under the said proviso. For this reason it is essential that the period specified in the order within which the constitutional defect in the law in question is to be corrected, should expire before the date upon which any of the elections is held. [ 160 ] KRIEGLER J: I have had the benefit of studying the judgment of Chaskalson P and respectfully concur in the orders he has formulated. In respect of one aspect of my learned colleague's judgment, however, I prefer to express my views a little more forcefully. I am 105 \freferring to his discussion of the constitutionality of section 16A of the Transition Act.1 On that aspect I agree with the views expressed by Ackermann and O\u2019Regan JJ in their KRIEGLER J judgment. [ 161 ] In respect of another aspect of the judgment of Chaskalson P I beg to differ. The difference of opinion relates to the question whether the Transition Act falls within the scope of the President's powers under section 235(8) of the Constitution. Chaskalson P concludes that it does.2 But he also holds that such power did not encompass the changes to the Act purportedly made by Proclamations R 58 and R 59 of 1995.3 In my view the President was not empowered by section 235 to assign - and hence to amend - any of the provisions of the Transition Act. Our differing views lead to the same conclusion in this case but my line of reasoning is not only significantly different, it also has an important additional implication. I am therefore obliged to set out my conclusion and reasons in some detail. [ 162 ] By way of introduction I sketch the bare bones of my reasoning: a. The President's power to assign executive authority under section 235(8) of the Constitution is expressly confined to the administration of laws referred to in section 235(6)(b). b. The laws referred to in section 235(6)(b) are confined to laws which both fall 1 The Local Government Transitional Act No. 209 of 1993. 2 In paragraphs 83 to 96 of his judgment. 3 In paragraphs 97 and 98 of his judgment. 106 \fKRIEGLER J within the functional areas specified in Schedule 6 and fall outside the purview of paragraphs (a) to (e) of section 126(3). c. The Transition Act is not a law falling within the scope of Schedule 6, nor does it fall outside sections 126(3)(a) and (b). d. That conclusion is indicated by the terms of the Transition Act itself, by its scope and purpose in the overall scheme of the negotiated transition, and by the manner in which it is dealt with in the Constitution. e. The Transition Act was intended and drafted to govern the reconstruction of local government from A to Z. (In many areas of the country \u201creconstruction\u201d was a euphemism for creation.) Its principles and terms were separately negotiated. It was then passed by the \"old\" Parliament as part of the statutory scaffolding agreed upon by the negotiating parties as necessary before, during and after the transition of national and provincial government. f. The Transition Act represents a \"turn-key operation\", commencing with tentative negotiating forums for local councils, continuing with temporary local government structures and carrying on until new structures have been democratically elected and put in place. g. The Transition Act accordingly makes provision within its own four corners for the executive authority needed for its administration at all stages. The definitions of \"Administrator\", \u201cinterim phase\u201d and \"province\" in section 1 of the Act show that the transmission of executive authority v\u00ecs-a-v\u00ecs local government reconstruction from the old regime to the new was pre-ordained. There was no need - and indeed no room - for the assignment of such authority under section 235 107 \fof the Constitution. h. When Schedule 6 speaks of \"local government\", it expressly refers to Chapter 10 which, in turn, clearly contemplates coming into operation at some stage in future in terms of provincial laws yet to be made. That would clearly be after the \"interim phase\" governed by the Transition Act. There is therefore no legislative competence under Schedule 6 until expiry of that \"interim phase\". The administration of local government at provincial level simply continues under the Transition Act. i. Moreover, the Transition Act vests ultimate control of the reconstruction of local government in the national government.4 Because national standards or norms and national control were necessary, section 126(3) of the Constitution comes into play. j. Also, because of the unique and comprehensive purpose and scope of the Transition Act, the Constitution affords it special recognition in section 245. Subsections (1) and (2) of that section make plain that unless and until local government had been established in terms thereof, the Transition Act, and it alone, would govern the reconstruction of local government. k. \u201cReconstructed\u201d local government had not been established when the President purported to assign executive authority under section 235(8)of the Constitution. l. Viewed from any one of a number of angles, therefore, the answer is the same: The President had no power of assignment under section 235(8) of the Constitution. 4 See sections 9(1) and 12 of the Transition Act. 108 \f[ 163 ] The basic argument on behalf of the Respondents was that, irrespective of the validity of section 16A, the Proclamations5 should not be invalidated. There are three pillars to the KRIEGLER J argument: (i) the First Respondent could lawfully have promulgated the Proclamations under section 235(8); (ii) the requisite jurisdictional facts existed at the time for their promulgation under section 235(8); and (iii) therefore it mattered not that the Proclamations cited section 16A as authority for their promulgation instead of section 235(8). [ 164 ] Logic dictates commencing with an examination of the first contention. If it fails the argument fails. Before analysing section 235(8) itself, it would be useful to consider its context and function. Section 235 forms part of Chapter 15 of the Constitution which is headed \"General and Transitional Provisions\u201d. The Constitution as a whole reveals the magnitude of the transition the country undertook; but it is Chapter 15 that most vividly demonstrates the complexity of that undertaking. More specifically the transitional provisions, which make up the bulk of the Chapter, show the myriad of detailed steps that had to be organised. A veritable checkerboard of disparate political entities each with its own paraphernalia of state, its own laws and customs, its own political masters, bureaucracy and policies, its own assets and liabilities, had to be moulded, somehow, into a single state divided into nine provinces, most of whose borders cut across historical 5 Proclamations R 58 and R 59 of 1995, the effect of which is set out in paragraph 13 of the main judgment. 109 \fboundaries. KRIEGLER J [ 165 ] Chapter 15 aims at orderly transition in these difficult circumstances. The starting point was to retain all existing laws until their repeal or amendment (section 229). The staff of existing legislative authorities were kept on pending rationalisation (section 234), as were the staff of all public administrations (sections 236, 237 and 238). The transfer of public assets, liabilities and revenue was organised (sections 239 and 240), as was the transition of the judiciary and other key offices (sections 241, 242, 243 and 244). The two sections of Chapter 15 which are of primary importance in the current discussion are sections 235 and 245, which deal with the transitional arrangements for executive authority and local government respectively. [ 166 ] Section 235 is headed \"Transitional arrangements: Executive authorities\" and comprises nine subsections. The first four deal with the continuation in office of the State President and other persons wielding executive authority until the new President assumes office. Subsection (5) then lays down the principle that upon such assumption of office, national executive authority vests in the President and provincial executive authority in provincial Premiers.6 6 Subsection (5) reads: (5) Upon the assumption of office by the President in terms of this Constitution\u2014 (a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in accordance with this Constitution; and (b) the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9), vest in the Premier of that province acting in accordance with this Constitution, or while the Premier of a province has not yet assumed office, in the President acting in accordance with section 75 until the Premier assumes office. 110 \f[ 167 ] Section 235 is, of course, concerned with executive authority and not with legislative KRIEGLER J competences. But we know that the scheme of the Constitution is to circumscribe executive authority by reference to legislative competence, not only in section 235 itself but elsewhere. In sections 75 and 144(2) the executive authority of the President and a provincial Premier respectively is made dependent upon the legislative competence of Parliament and of a provincial legislature. Section 235(5) makes the allocation of executive authority in accordance with sections 75 and 144. [ 168 ] Conformably, subsection (6) deals with the allocation of executive authority to either the national or the provincial governments and lays down the criteria for the allocation of such power.7 Subsection (7), which is not relevant to this case,8 provides the President the 7 Subsection (6) reads: (6) The power to exercise executive authority in terms of laws which, immediately prior to the commencement of this Constitution, were in force in any area which forms part of the national territory and which in terms of section 229 continue in force after such commencement, shall be allocated as follows: (a) All laws with regard to matters which (i) do not fall within the functional areas specified in Schedule 6; or (ii) do fall within such functional areas but are matters referred to in paragraphs (a) to (e) of section 126(3) (which shall be deemed to include all policing matters until the laws in question have been assigned under subsection (8) and for the purposes of which subsection (8) shall apply mutatis mutandis), shall be administered by a competent authority within the jurisdiction of the national government: Provided that any policing function which but for subparagraph (ii) would have been performed subject to the directions of a member of the Executive Council of a province in terms of section 219(1) shall be performed after consultation with the said member within that province. (b) All laws with regard to matters which fall within the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3) shall (i) if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (1)(a) 111 \fKRIEGLER J power - after consultation with provincial premiers and subject to a parliamentary veto - to make proclamations in order better to achieve the whole of section 235. Subsection (8) provides for the assignment of executive authority to provinces according to those laws identified in subsection (6)(b) and determines when and how such assignment is to take place. And finally subsection (9) provides for the situation where a provincial government is not ready to take assignment within 14 days of its establishment. [ 169 ] We are now in a position to understand section 235(8) better in the light of the scheme of which it is an integral part. It reads as follows: (8)(a) The President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation. (b) When the President so assigns the administration of a law, or at any time thereafter, and to the extent that he or she considers it necessary for the efficient carrying out of the assignment, he or she may (i) amend or adapt such law in order to regulate its application or interpretation; (ii) where the assignment does not relate to the whole of such law, repeal and re-enact, or (b), be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is with regard to any particular province assigned under subsection (8) to a competent authority within the jurisdiction of the government of such province; or (ii) if any such law was immediately before the said commencement administered by or under the authority of a functionary referred to in subsection (1)(c), subject to subsections (8) or (9) be administered by a competent authority within the jurisdiction of the government of the province in which that law applies, to the extent that it so applies: Provided that this subparagraph shall not apply to policing matters, which shall be dealt with as contemplated in paragraph (a). 8 Facts that could possibly trigger that subsection have not been alleged and no-one has sought to rely on the subsection. 112 \fKRIEGLER J whether with or without an amendment or adaptation contemplated in subparagraph (i), those of its provisions to which the assignment relates or to the extent that the assignment relates to them; and (iii) regulate any other matter necessary, in his or her opinion, as a result of the assignment, including matters relating to the transfer or secondment of persons (subject to sections 236 and 237) and relating to the transfer of assets, liabilities, rights and obligations, including funds, to or from the national or a provincial government or any department of state, administration, force or other institution. (c) In regard to any policing power the President may only make that assignment effective upon the rationalisation of the police service as contemplated in section 237: Provided that such assignment to a province may be made where such rationalisation has been completed in such a province. (d) Any reference in a law to the authority administering such law, shall upon the assignment of such law in terms of paragraph (a) be deemed to be a reference mutatis mutandis to the appropriate authority of the province concerned. The primary purpose of the subsection is set out in paragraph (a), namely to specify when and how the executive authority allocated to a province in terms of section 235(6)(b) is to be transferred from the interim administration by the national government to the provincial government. Subsidiarily, paragraph (b) provides authority to the national government to amend or adapt a law, the administration of which has been assigned, to regulate its application. What the drafters of the Constitution had in mind here is that the transition would leave in place the numerous laws of the former legislatures which might be contradictory and would not fit the new provincial functionaries or areas, territorially or substantively. The President was therefore empowered to tailor existing laws to suit the new provincial structures. [ 170 ] The interpretation of paragraph (a) presents a number of difficulties, as does that of paragraph (b). For the purposes of this case, fortunately, it is not necessary to grapple with most of the difficulties because this much is clear: the subsection relates - and can only 113 \frelate - to \"the administration of a law referred to in subsection (6)(b)\". It is therefore necessary to examine subsection 6(b) to see what laws are referred to therein. KRIEGLER J [ 171 ] Section 235(6) specifies the criteria for the allocation of executive authority to the national and provincial governments respectively. The principal distinguishing criterion is the kind of law that has to be administered. Depending upon the nature of the matters dealt with by a law, the executive authority to administer such law falls in the one or the other category. Paragraphs (a) and (b) of section (6) make that allocation on the basis of provincial legislative competence as set out in Schedule 6 but subject to paragraphs (a) to (e) of section 126(3). [ 172 ] Schedule 6, which is introduced by section 126(1) of the Constitution, is headed \"Legislative Competences of Provinces\" and lists 29 functional areas, including \"Local government, subject to the provisions of Chapter 10\". Chapter 10 lays down broad principles which are to apply to local government once it has been established pursuant to elections held under the Transition Act. In terms of section 126(1) provincial legislative competence with regard to matters falling within Schedule 6 is subject, inter alia, to section 126(3). That subsection provides that a provincial law prevails over a national law, except in so far as the national law deals with one or other of a number of matters set out in paragraphs (a) to (e). Paragraph (a) speaks of matters \"that cannot be regulated effectively by provincial legislation\" and paragraph (b) of matters \"that, to be performed effectively [require] to be regulated or co-ordinated by uniform norms or standards that apply generally throughout the Republic\". 114 \fKRIEGLER J [ 173 ] Returning then to section 235(6), it is important to note how the drafters use the assignment criteria. Two points need to be made at the outset of this leg of the enquiry. First, it is important to distinguish between the assignment of executive authority under section 235(8) and delegation thereof in accordance with section 144, the section defining executive power for the provincial governments. Section 144(2) of the Constitution draws a clear distinction between assignment and delegation which should be maintained in construing section 235. Section 235(8) deals with assignment, i.e. the transfer to a province of the executive authority to which it is entitled in terms of the Constitution. It is not concerned with delegation. Delegation postulates revocable transmission of subsidiary authority. The assignment contemplated by section 235 relates to the formal vesting of authority derived from the Constitution. [ 174 ] Second, it is crucial to see that the division in section 235(6) makes the national government the residual repository of the authority to execute pre-Constitution laws. The use of the negative in subparagraphs (i) and (ii) of paragraph (a) has the effect that, unless a law can be identified as dealing with matters within the ambit of Schedule 6 and outside the ambit of paragraphs (a) to (e) of section 126(3), its administration is a national executive responsibility. [ 175 ] Once a law meets that dual qualification it falls into paragraph (b) of section 235(6). The administration of a law that used to fall under an \"old\" South African national or provincial executive functionary (mentioned in sections 235(1)(a) or (b)) falls temporarily to the 115 \fKRIEGLER J national government under subparagraph 235(6)(b)(i). The administration of a law that used to fall under the authority of a black executive functionary (mentioned in section 235(1)(c)) falls to the provincial governments under subparagraph 235(6)(b)(ii), but subject to subsection (8) and (9).9 In both cases the administration is intended to be assigned in due course to the provinces in terms of subsection (8) or (9). Section 235(6)(c) then completes the picture by providing that the President designates the competent authority in relation to a law allocated to the national government while the relevant Premier does so where the task goes to provincial governments. [ 176 ] It would be useful to digress for a moment to observe what happens once the administration of a law has been allocated in terms of section 235(6). Section 236 keeps the whole of the public institutions of the former governments intact until rationalised under section 237. Section 237, in turn, makes provision for the allocation of the requisite human resources to provide effective administration at the national and provincial levels of government to deal with matters within their respective jurisdictions. The logical allocation of executive authority and human resources is then continued in section 239, which allocates material assets \"applied or intended to be applied for or in connection with a matter\" along the same lines as the allocation of authority in section 235(6). The scheme is clear and consistent. You divide laws according to their subject matter; if a law falls within a subject matter which is a competence of provinces in terms of Schedule 6 and does not deal with any of the matters mentioned in subsections (a) to (e) of section 9 It is unclear how category (6)(b)(ii) laws can be assigned in accordance with the provisions of subsections 8 or 9 since the administration of such laws falls already to provincial governments under subsection 6(b)(ii). However, such issue is not of moment in this case. 116 \fKRIEGLER J 126, the power to execute the law together with the requisite human and material resources are allocated to provinces. In that event section 235(6)(b) provides and section 237(2)(b) and section 239(1)(c) expressly envisage that the power (and requisite resources) will be temporarily administered by the national government until their assignment in terms of section 235(8). [ 177 ] Now we are in a position to examine the Transition Act to see if its administration can be assigned in accordance with section 235(8). The first step is to see whether the Transition Act is \"a law\" referred to in subsection 6(b) of section 235. That, we know by now, entails establishing (i) whether it is a law with regard to a matter which falls within the ambit of provincial legislative competence delineated in Schedule 6, and, if so, (ii) whether it is a matter that cannot be regulated effectively by provincial legislation or requires to be regulated by nation-wide norms or standards for its effective performance in terms of subsections (a) to (e) of section 126(3). In order to answer these two questions, one must examine (i) the Transition Act itself, (ii) its place in the legislative pattern of the transition process and also (iii) in the context of the interim Constitution. [ 178 ] The most salient feature of the Transition Act is, of course, that it deals with transition. That is manifest from its very name, its long title and virtually every section thereof. The statute addresses the arduous and delicate process of establishing interim local government structures throughout the country. What the Transition Act governs is a continuing metamorphosis, commencing with a \"pre-interim phase\"10, through the \"interim phase\" and 10 The pre-interim phase began with the commencement of the Transition Act on 2 February 1994 and is to end with the elections to be held in accordance with the Act. 117 \fKRIEGLER J ending with the implementation of final arrangements to be enacted by a legislative authority competent to do so.11 The metamorphosis starts with the formation of local negotiating forums (in terms of part IV of the Transition Act), the first tentative step on the long road from the discriminatory past. The metamorphosis is governed by the Transition Act all the way up to the point where the democratically elected structures have taken over. Thus the Act provides for the establishment of transitional local authorities in successive phases and for them to function as local governments until they are ultimately replaced by bodies elected according to detailed rules contained in or authorised by the Transition Act. [ 179 ] An important feature of the Transition Act is that it vests the Minister (as well as the Administrator) with extensive powers to control and promote the process.12 In terms of sections 10 and 12 both the Administrator in his or her area of jurisdiction and the Minister in the whole country are afforded wide regulatory authority with which to execute the Act. The Minister can \"make regulations concerning any matter referred to in this Act which in his or her opinion are necessary or expedient for the effective carrying out or furtherance of the provisions and objects of this Act.\"13 Local government was to be restructured at the grassroots level by local role-players under the guidance and supervision of the 11 Section 1(1)(iv) of the Transition Act provides: \"interim phase\" means the period commencing on the day after elections are held for transitional councils as contemplated in section 9, and ending with the implementation of final arrangements to be enacted by a competent legislative authority. 12 The definitions of Administrator and Minister were changed by amendment, but such amendment is not important in this context. 13 Section 12 of the Transition Act provides: 12. The Minister may, after consultation with the Administrator, make regulations concerning any matter referred to in this Act which in his or her opinion are necessary or expedient for the effective carrying out or furtherance of the provisions and objects of this Act. 118 \fprovincial Administrators, but the national government, through the Minister, retained control. Furthermore section 9(1) reserved the power to set the date for and call the first local government elections to the Minister. KRIEGLER J [ 180 ] At the time when it was enacted by the then Parliament and until the advent of the Constitution, the Transition Act did not apply in Transkei, Bophuthatswana, Venda and Ciskei. However the definitions of \"Administrator\" and \"province\", by their very wording, and the Transition Act generally anticipated the formation of provincial governments and provided for the automatic transmission of authority from the old regime to the new. From the outset it applied expressly to the Self-governing Territories as explicitly stated in section 2 of the Act (as originally enacted). The original definitions of \u201cAdministrator\u201d and \u201cprovince\u201d, make plain that, once constitutional provincial governments had come into operation, they would administer the Transition Act within the whole of their territories including, of course, the areas of formerly independent states. \u201cAdministrator\u201d is defined in the Transition Act as: \"Administrator\" means the Administrator as defined in section 1 of the Provincial Government Act, 1986 (Act No. 69 of 1986): Provided that where the Administrator is required to exercise any power in respect of any local government body which is situate within that part of the province which forms part of a Self-governing Territory, the Administrator shall act after consultation with the Chief Minister of that Self- governing Territory: Provided further that at the establishment of a provincial government for the province concerned in terms of the Constitution of the Republic of South Africa, 1993, any reference to the Administrator shall be construed as a reference to the Executive Council of that province and any reference to a province shall be construed as a reference to the corresponding province. \u201cProvince\u201d is defined in the Transition Act as: 119 \f\"province\" means any existing province, and from the establishment of a provincial government for the province concerned in terms of the Constitution of the Republic of South Africa, 1993, the corresponding province. KRIEGLER J To all intents and purposes the terms of the Transition Act itself manifest that it was a unique piece of legislation designed to restructure local government throughout the country according to a blueprint governing every step of a \"turn-key operation\". [ 181 ] This impression is materially reinforced if one has regard to the broader context in which the Transition Act came to be adopted. The overall \u201ctransition to democracy\u201d agreements hammered out by the negotiating parties necessitated the formulation of a number of statutory measures and their adoption by the former South African Parliament. The most important, of course, was the interim Constitution which was intended, as the postscript thereto proclaims, to bridge the transition to a final constitutional state. But there were a number of other laws that were also vital to the transition. Some of them, such as the Transitional Executive Council Act, were intended to operate only during the phase leading up to the inauguration of the new government.14 Others, such as the Electoral Act, were intended to serve a specific short-term purpose, i.e. the conduct of the first elections for national and provincial governments.15 The Transition Act, although negotiated in a different forum16, was an important part of the package of negotiated statutory measures for the reconstruction of the country. It was intended to operate in its own field from the date 14 Transitional Executive Council Act No. 151 of 1993. 15 Electoral Act No. 202 of 1993. 16 It is a matter of public record that the negotiation process regarding the transition of power at the national and provincial levels was conducted separately from the negotiations relating to the transformation of government at local level. 120 \fKRIEGLER J of its adoption, months before the first national and provincial elections were held (and the Constitution came into full operation). It was also intended to continue operating during those elections, through the inauguration of the new national and provincial governments, and to continue thereafter until duly reconstructed and elected local government bodies had been put in place. [ 182 ] The third source of information regarding the nature of the Transition Act is the Constitution itself. The Constitution specifically refers to the Transition Act in section 245. That section deals expressly and solely with the transitional arrangements for local government. The section, which is titled \u201cTransitional arrangements: Local government\u201d, reads as follows: 245.(1) Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act. (2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after the elections referred to in subsection (1) have been held, shall be effected in accordance with the principles embodied in Chapter 10 and the Constitution as a whole. (3)(a) For the purposes of the first election of members of a local government after the commencement of this Constitution, the areas of jurisdiction of such local government shall be divided into wards in accordance with the Act referred to in subsection (1). (b) Forty per cent of the members of the local government shall be elected according to the system of proportional representation applicable to an election of the National Assembly and regulated specifically by or under the Act referred to in subsection (1), and sixty per cent of the members shall be elected on the basis that each such member shall represent a ward as contemplated in paragraph (a): Provided that, notwithstanding anything to the contrary contained in this Constitution, where the area of jurisdiction of the local government includes (i) the area of jurisdiction of any institution or body as was referred to in section 84(1)(f) of the Provincial Government Act, 1961 (Act No. 32 of 1961); and 121 \fKRIEGLER J (ii) any other area not falling within the area of jurisdiction of the institution or body referred to in subparagraph (i) no area referred to in subparagraph (i) or (ii) shall be allocated less than half of the total number of wards of the local government concerned: Provided further that an area referred to in subparagraph (i) shall be deemed not to include any area for which a local government body referred to in paragraphs (a), (b) and (c) of the definition of \"local government body\" in section 1(1) of the Act referred to in subsection (1) of this section (as that Act exists at the commencement of this Constitution), has been established.17 The provisions of subsection (1) are quite unequivocal: the restructuring of local government was to be governed exclusively by the Transition Act until elections had been held under its provisions. It is obviously significant that the negotiating parties thought it necessary to elevate the restructuring of local government to a constitutionally protected topic. That does not mean that the Transition Act as it then read was cast in stone. The Constitution does not say the Act cannot be amended and the qualification in brackets at the end of subsection (3) contemplates possible amendment thereof. But what it does mean is that only the Transition Act, amended or not, would govern the restructuring. What that means, in turn, is that the restructuring of local government was constitutionally excluded from the legislative competence of provinces. [ 183 ] That is made even clearer by the provisions of subsection (2). Consistently with the exclusion of provincial legislative competence under subsection (1), subsection (2) dictates that, once the elections under the Transition Act have been held, the Chapter 10 principles will then govern legislation for the restructuring of local government. Chapter 10, comprising sections 174 to 180 of the Constitution, lays down a number of broad 17 Section 245 was amended by the Constitution of the Republic of South Africa Second Amendment Act No. __ of 1995. Such amendment is not, however, relevant here. 122 \fKRIEGLER J principles to be observed by both Parliament and provincial legislatures when making laws for the establishment and conduct of local government. Within the framework of those principles and within the ambit of its legislative competence, a particular province will be at liberty to devise its own local government structures. But the basic reconstruction, up to the first elections, is to be governed by the Transition Act. In respect of local government, provincial legislative competence is clearly excluded during the operation of the Transition Act, and limited by Chapter 10 thereafter.18 [ 184 ] The untenability of Respondents\u2019 reliance on section 235(8) as the lawful source of the authority to promulgate the Proclamations can also be demonstrated by reference to a conundrum to which it gives rise: Postulate that the President is not satisfied under subsection (8)(a) that a particular province has the requisite administrative capacity and declines to assign the administration of the Transition Act to that province. What would then happen to the powers (essential for the continuation of local government) conferred by the Transition Act and contemplated by it to be exercised by the Administrator before, during and after the inauguration of the President? [ 185 ] The Transition Act on its own terms applied throughout the period of transition contemplated in section 235; the executive authority it conferred and the transfer of such authority occurred automatically by virtue of the Act itself. Ultimately there was no administration under the Transition Act which could be assigned under section 235(8) of the Constitution. The Transition Act is not a law contemplated by section 235(6)(b). It 18 Significantly, it is also limited by section 126 thereafter. 123 \fKRIEGLER J is not a law with regard to a matter falling within the functional areas specified in Schedule 6. On the contrary, it is a law which on its own terms and by reason of the suspensive provisions of section 245 of the Constitution falls outside Schedule 6. In any event it is a law with regard to a matter that cannot be regulated effectively by provincial legislation and requires nation-wide regulation and co-ordination according to uniform norms and standards. It deals with a matter covered by paragraphs (a) and (b) of section 126(3). The Act is therefore incapable of assignment under section 235(8) and therefore incapable of amendment thereunder. [ 186 ] The agreement reached with regard to the reconstruction of local government - as embodied in the Transition Act - recognises that during the transition local government restructuring should not be left to political whim at any level of government. The hands-on management of the process requires more localised knowledge and sensitivity than a centralised authority can satisfactorily provide. That is why the Transition Act was designed to be implemented provincially and locally. But at the same time, the reconstruction was manifestly recognised as a matter of such national moment that the basic policy was fixed by a national law to be under the ultimate control of the national government through the then Minister of Local Government. Section 245 of the Constitution makes clear the national import of the reconstruction of local government. The engine provided by the Transition Act would drive the process along the agreed tracks towards a common destination. Keeping the ultimate brake in the hands of the national government19 means that it had the final say in determining the process. That being 19 Significantly, section 9 keeps the power to fix the date for local government elections firmly in the hands of the Minister. 124 \fso, it is unthinkable that the executive authority, or the power to exercise executive authority,20 with regard to the Transition Act could lawfully be assigned to a province. The first pillar of the argument on behalf of the Respondents must therefore fail. KRIEGLER J [ 187 ] The implications of the finding that executive authority with regard to the Transition Act is not assignable under section 235(8) of the Constitution are serious. It means, in the first place, that Proclamations R 58 and R 59 of 1995 cannot be saved. In the second place - and more importantly - the finding inevitably means that the other proclamations purportedly promulgated under section 16A of the Transition Act are also incapable of being saved by section 235 of the Constitution. The successful attack on the validity of Section 16A brought in its train the invalidation of the proclamations promulgated under its putative authority. That being the case, temporary preservation of Section 16A under the powers vested in us by the proviso to section 98(5) of the Constitution, warrants co- extensive validation of such proclamations. There is another proclamation, however, to which that does not apply. I deal with it in the next paragraph. [ 188 ] By far the most important consequence of the finding is that it jeopardizes Proclamation R 129 of 1994. That Proclamation, promulgated on 15 July 1994, in a very real sense has been the basic local government charter for the last fourteen months. It was that Proclamation that ostensibly clothed the provinces with the requisite authority to administer the Transition Act within their respective areas. It was also that Proclamation that ostensibly authorised a number of vital amendments to the Transition Act. One of 20 The wording is taken from Section 235(6) of the Constitution. 125 \fKRIEGLER J those was the amendment of the definition of \"Administrator\" so as to denote \"a competent authority within the jurisdiction of the government of that particular province designated by the Premier ....\" The Third Applicant - and his eight opposite numbers in the other provinces - have been controlling local government reconstruction at the provincial level pursuant to the assignment of executive authority under, and concomitant amendments to, the Transition Act believed to be authorised by section 235(8) of the Constitution. My conclusion that such belief was mistaken has no immediate consequences. The validity of Proclamation R 129 of 1994 has not been challenged in this case; nor is it indirectly impugned, as were the other proclamations dependent on Section 16A for their validity. That means that although Proclamation R 129 of 1994 cannot be struck down under section 98(5) of the Constitution in this case, it can also not be preserved under the proviso to that subsection. [ 189 ] On the face of it the resultant situation is highly undesirable; a vital piece of legislation is rendered vulnerable to attack at any time and from any quarter in the run-up to countrywide elections. I therefore recommend that if steps are taken to correct the defects in Section 16A of the Transition Act and its satellite proclamations, Proclamation 129 of 1994 be rectified as well. In the interim any prospective impugner of that Proclamation should know that it is likely to enjoy the same temporary preservation under the proviso to section 98(5) of the Constitution as is being afforded to the other Proclamations. [ 190 ] LANGA J: I have had the benefit of reading the different judgments of my colleagues and, as I do not deem it necessary to re-discuss the issues which have already been canvassed 126 \fin much detail, I merely record my agreement or otherwise with regard to the major issues LANGA J identified. Judgment and Order [ 191 ] I am in substantial agreement with the judgment of Chaskalson P save in the respects specifically indicated herein. I concur fully in the order proposed by him. Section 16A of the Local Government Transition Act, No 209 of 1993 [ 192 ] I agree with Chaskalson P\u2019s reasoning and, in particular, the conclusion that the provisions of section 16A of the Local Government Transition Act are inconsistent with the Constitution. I agree with the view that the effect of the amendment is to vest the President with extensive legislative powers which enable him to act in a manner which exceeds the competence of Parliament itself, and which circumvents the \u201cmanner and form\u201d provisions as set out in section 61 of the Constitution. What the position might be in different circumstances is a question that does not arise and on which I express no opinion. The Applicability of section 235 of the Constitution [ 193 ] I do not, with respect, agree that the Local Government Transition Act is a law the administration of which was capable of being assigned by the President in terms of section 127 35(8). In that respect I am in full agreement with the reasoning of Kriegler J as stated in paragraphs 161 to 189 of his judgment. It follows therefore that the President could not validly \u201camend or adapt\u201d that law pursuant to section 235(8)(b). LANGA J [ 194 ] Having concluded that the Local Government Transition Act was not assignable, it becomes unnecessary for me to express a view on the further interpretation of 235(8)(b). Whether the view of that taken by Chaskalson P or Mahomed DP is the better one is therefore a question on which I prefer to say nothing. Proclamations R58 and R59 [ 195 ] I am accordingly in respectful agreement with Chaskalson P\u2019s conclusion that Proclamations R58 and R59 could not properly be authorised either on the basis of section 16A of the Local Government Transition Act or section 235(8) of the Constitution. Didcott J concurs in the judgment of Langa J. [ 196 ] SACHS J: The pressure under which we worked, the constant changes of argument and the need to produce a swift result, has made it difficult to subject the important issues before us to the research, debate and reflection they deserve. In expressing my concurrence with the order proposed by Chaskalson P., I do so subject to the comments and reservations which follow. 128 \f[ 197 ] I fully endorse the President\u2019s concern with maintaining constitutionalism, and support the SACHS J overall tenor of his judgment. We have suffered far too much in the past from government by Proclamation not to look with the closest scrutiny at any attempt by Parliament to abdicate its legislative tasks and responsibilities, however well-motivated. I also agree fully with his reasoning and conclusions on the proper interpretation of Principle XXII. In broad terms, I furthermore support his approach and conclusions in relation to the \u2018manner and form\u2019 provisions of Sections 59, 60 and 61. [ 198 ] I have reservations about his interpretation of Section 235(8) and feel that there is considerable merit in the arguments of Madala J. and Ngoepe J. Once an assignment of powers comes into the picture, as I think it should in this case, a literal reading of Section 235(8) would seem to authorise what the President did. A more purposive approach, however, locating the issue in the context of the general transitional arrangements for local government, tips the balance of my thought in favour of an interpretation that would narrow the scope of the President\u2019s discretion in the way mentioned by Chaskalson P. [ 199 ] My major reservations relate to the manner in which Section 16A should be approached. In particular, without far more argument and reflection, I believe it would be dangerous to lay down rigid rules concerning fundamental questions relating to the characterization of the function and powers of Parliament. We unfortunately did not have the benefit of hearing argument from the point of view of Parliament itself, and I regard the matter as largely unexplored. I have had the benefit of reading the judgment of Mahomed DP., which in a manner that is far more elegant and rigorous than the raw notes that follow, 129 \fdeals convincingly with Section 16A. I agree fully with this approach. Since my starting off point is somewhat different from his, however, and because of the importance of the subject, I will attempt to complement his judgment with some views of my own. SACHS J [ 200 ] In my opinion, the new Parliament should be seen as a dynamic and organic part of the new constitutional order. It is not merely the old Parliament \u2018cribbed, cabined and confined\u2019 by the new Constitution; it is a fundamental component of the new democratic dispensation ushered in by the Constitution and given its legitimacy and composition by the elections of April 27, 1994. Like the fundamental rights enshrined in Chapter 3, it is a feature of modern, democratic society, acknowledged, structured and integrated into the new constitutional order. The Constitution no more invents or creates Parliament than it invents or creates the right to life or the right to equality. It entrust the legislative authority to Parliament in an open-ended way, without seeking to define specific terms of competence. The assumption is that Parliament will do what Parliaments do, namely, make laws for the governance of the country, and find the necessary funds for their implementation. [ 201 ] I therefore regard Parliament as an institution with powers, functions and responsibilities established and defined by the interim Constitution, rather than as its \u2018creature\u2019. Parliament can, if it follows certain procedures, amend the Constitution which gave it life; its powers and competence are not expressly defined in the way that the powers of local authorities, regarded as \u2018creatures of statute\u2019, have been. I would therefore consider it as starting the wrong way round to say that Parliament must seek in each and every case to find express or implied textual justification for its capacity to pass laws. It cannot be 130 \fSACHS J equated to a town council writ large, but should rather be regarded as the centrepiece of our constitutional democracy. My understanding of Parliament is therefore that it is a body entrusted with very broad powers and responsibilities which have to be exercised within a framework established by the Constitution. It is this framework, not the powers, that is expressly delineated; in each and every case it is necessary to enquire not whether Parliament had the power to legislate - this is given to it in an unqualified way by Section 37 - but whether it exercised such power \u201cin accordance with the Constitution\u201d, that is within the framework established by the Constitution. [ 202 ] This framework has four express components, all of which, taken together, articulate the transformation from a system based on Parliamentary sovereignty to one founded on Parliamentary democracy in a constitutional state. The first element of the Constitutional framework is provided by Chapter 3, which establishes fundamental rights which cannot be infringed by Parliament; this is a substantive provision which impacts on the reach of legislation. Secondly, the legislative power of Parliament is limited both substantively and procedurally in relation to the power of the provinces (Section 126 read with Schedule 6 defines principles for deciding which law prevails in the case of conflict between national and provincial legislation; Sections 61 and 62(2) impose special \u2018manner and form\u2019 requirements in cases where certain fundamental features of provincial government are affected, or where a national law affects one province only). Thirdly, the powers of Parliament to amend the Constitution are subject to special procedures requiring a high majority. Fourthly, in its capacity as Constitutional Assembly responsible for drafting a new Constitution, Parliament is obliged to comply with the 34 Principles contained in 131 \fSchedule 4. Fourthly, certain procedures affecting the functions of and relationship between the National Assembly and the Senate are laid down by the provisions of Sections 59, 60 and 61. [ 203 ] As I read them, these latter sections are directed towards the manner in which \u2018Bills\u2019 are to be dealt with before they can become Acts of Parliament. I do not see them as purporting to prescribe the only way in which laws can be made. They simply refer to the manner in which legislation before Parliament has to be adopted, and being a constitutional prescription, they cannot be amended by Parliament itself without first amending the Constitution. I see nothing in these sections which deals directly or by necessary implication with the question of delegated legislative powers. The Act which inserted Section 16A into the Transitional Local Government Act (TLGA) was itself passed with due manner and form as an ordinary Bill of Parliament. Mr Seligson contended that because of its effect, it should have been subjected to the manner and form procedures prescribed in Sections 61 and 62(2). I am doubtful whether this proposition is correct. The provisions of Section 235 read with the TLGA relating to the power of the President to issue proclamations, clearly and directly contemplate the restructuring of government in the provinces by direct Presidential action, which as a result would appear to fall outside the matter subject to special procedural protection as envisaged by Sections 61 and 62(2). [ 204 ] The question at issue does not seem to me to be one of the manner and form in which Parliament acted or of the extent of its powers, but rather of its capacity to delegate any authority which it undoubtedly has. The Constitution contains no express limitation on the 132 \fSACHS J power of Parliament to pass a law delegating its legislative authority. If we look at the design and structure of the Constitution as a whole, however, I have no doubt that such a limit must be implied. Indeed it flows from the very majesty of Parliament, not from its impotence. Certain tasks are entrusted to it and to it alone. Parliament has not only extensive powers but heavy responsibilities; under our Constitution, it is the centrepiece of the whole governmental structure. The President is chosen by Parliament from its ranks (Section 77), and Deputy-Presidents are also selected from amongst its members (Section 84). Unlike countries where there is a strict separation of power between the executive and the legislature, members of the cabinet in South Africa are directly accountable to Parliament for the handling of their portfolios (Section 92). Even in time of war and national emergency, the Constitution ensures that Parliament will continue to have a central role (Section 34). I would be inclined to go a step further. There are certain fundamental features of Parliamentary democracy which are not spelt out in the Constitution but which are inherent in its very nature, design and purpose. Thus, the question has arisen in other countries as to whether there are certain features of the constitutional order so fundamental that even if Parliament followed the necessary amendment procedures, it could not change them. I doubt very much if Parliament could abolish itself, even if it followed all the framework principles mentioned above. Nor, to mention another extreme case, could it give itself eternal life - the constant renewal of its membership is fundamental to the whole democratic constitutional order. Similarly, it could neither declare a perpetual holiday, nor, to give a far less extreme example, could it in my view, shuffle off the basic legislative responsibilities entrusted to it by the Constitution. 133 \f[ 205 ] The issue in this case is therefore not whether Parliament can find the authority to do what SACHS J it did, but whether it can give away the authority which the Constitution expected it to exercise. I do not feel that the answer to this question can be found in simply distinguishing in a formal way between an Act of Parliament that extends plenary power to legislate (impermissible) and an Act of Parliament which extends power to make subordinate legislation (permissible). This will frequently be a matter of degree rather than substance. I would prefer to start my enquiry by looking at the fundamental purpose that Parliament was designed to serve. The reason why full legislative authority, within the constitutional framework mentioned above, is entrusted to Parliament and Parliament alone, would seem to be that the procedures for open debate subject to ongoing press and public criticism, the visibility of the decision-making process, the involvement of civil society in relation to committee hearings, and the pluralistic interaction between different viewpoints which Parliamentary procedure promotes, are regarded as essential features of the open and democratic society contemplated by the Constitution. It is Parliament\u2019s function and responsibility to deal with the broad and controversial questions of legislative policy according to these processes. It is not its duty to attend to all the details of implementation. Indeed, if it were to attempt to do so, it would not have the time to serve its primary function. Hence the need for delegated legislation, which has become a feature of Parliamentary democracies throughout the world. The power to delegate should therefore be considered as an integral part of the legislative authority; it simply cannot legislate wisely if it tries to legislate too well. [ 206 ] At the same time, if it is not to fail to discharge the functions entrusted to it by the 134 \fSACHS J Constitution, there must be some limit on the matters which it can delegate. I do not think it would be helpful to attempt to find a single formulation or criterion for deciding when delegation is permissible and when not, I feel that a complex balancing of various relevant factors has to be done, against a background of what Parliament is there for in the first case. There would seem to be a continuum between forms of delegation that are clearly impermissible at the one extreme, and those that are manifestly permissible at the other. To take tragic but telling examples from history, it would obviously be beyond the scope of Parliament to do what the Reichstag did when it entrusted supreme law making powers to Adolph Hitler, or in the manner of a Roman Emperor, to declare itself a god, and its horse a consul. At the other extreme, Parliament can, within the framework of clearly established criteria, delegate to other authorities or persons law-making power to regulate the implementation of its laws. There is however a large amount of delegation in between these two extremes that might or might not be permissible. As I have said, I do not think that any hard and fast rule or simple formula can be used to find a point on the continuum that automatically distinguishes between the two classes of case. To my mind, what would have to be considered in relation to each Act of Parliament purporting to delegate law- making authority, is whether or not it involved a shuffling-off of responsibilities which in the nature of the particular case and its special circumstances, and bearing in mind the specific role, responsibility and function that Parliament has, should not be entrusted to any other agency. This will include an evaluation of factors such as the following: a. The extent to which the discretion of the delegated authority (delegatee) is structured and guided by the enabling Act; b. The public importance and constitutional significance of the measure - the more it 135 \ftouches on questions of broad public importance and controversy, the greater will SACHS J be the need for scrutiny; The shortness of the time period involved; The degree to which Parliament continues to exercise its control as a public forum in which issues can be properly debated and decisions democratically made; c. d. e. The extent to which the subject matter necessitates the use of forms of rapid intervention which the slow procedures of Parliament would inhibit; f. Any indications in the Constitution itself as to whether such delegation was expressly or impliedly contemplated. [ 207 ] These items should in not in my view be regarded as a checklist to be counted off, but as examples of the interactive factors which have to be balanced against each other with a view to determining whether or not delegation in the circumstances was consistent with the responsibilities of Parliament. None of them, it should be emphasized, permit Parliament to infringe fundamental rights, violate protected spheres of provincial autonomy or in any other way deviate from the constitutional framework within which Parliament must function. Delegation takes place within, not outside the constitutional framework, but even within that framework it can be unconstitutional if it fails to satisfy the above criteria. [ 208 ] Applying these criteria to the present case, I would note the following relevant factors: the special circumstances relating to the swift-moving and complex process of restructuring provincial and local government; the shortness of the time period involved, and the fact that Parliament was in recess for much of it; the fact that the delegatee was the President, 136 \fSACHS J who as head of a government of national unity, was required to involve the whole Cabinet including members of the opposition parties, in the process of making his decisions; the provisions of the Constitution itself contained in Section 235, especially sub-section 7, which clearly contemplated that presidential proclamations would be issued without the necessity of following normal Parliamentary procedures; the degree to which Parliament retained control in the sense that the legislative powers to be exercised under Section 16A had to be approved of by the appropriate committees of both the National Assembly and the Senate, and that Parliament as a whole retained the power by simple resolution to nullify them. [ 209 ] On the other hand, there is the glaring fact that Section 16A provides no clear guidelines as to how the President is to exercise his legislative powers. In the circumstance mentioned above, my view is that if Parliament had established clear guidelines structured around and not going beyond the principles contained in Section 235 read with Section 241 of the Constitution, Section 16A would comfortably have passed muster. This would have been so even if such a provision had permitted the President to repeal or alter laws including the LGTA (as Section 235 clearly contemplated) without following the manner and form requirements of a Parliamentary Bill. The exigencies, circumstances and controls would have been such that Parliament would not have been abdicating its responsibilities, but, rather, fulfilling them. The acceptable constitutional balance would have been maintained by ensuring that the extensive powers delegated could only be exercised for a short time and according to criteria laid down by Parliament and subject to Parliamentary control. 137 \fMADALA J, NGOEPE AJ [ 210 ] Before concluding this judgment, I wish to mention a theme I have not been able to deal with, because the need for a rapid answer to the questions raised has outweighed the necessity for completeness. It relates to the topic of \u2018reading down\u2019. For the reasons I have given, I feel that Section 16A could not be read down so as to make it compatible with the defence of provincial autonomy in the manner argued for by Mr Seligson. I feel, however, that we have not done full justice to his arguments in this particular regard. More particularly, I would have wished to explore whether Sections 16A could not have been read down in another way, namely so as to respect the limitations on the powers which Parliament could permissibly delegate. Reading down is not an option; if it is possible, we must do it [Section 232(3)]. Like severance it is an important mechanism of judicial restraint, which permits constitutionality to be upheld at minimum legislative and social cost. The matter was never argued in that way, so I raise the issue without attempting to decide it. I suspect that, like the debate on the powers of Parliament, the full implications of Section 232(2) will have to be considered in many future cases. [ 211 ] Madala J, Ngoepe AJ: Although we agree with some of the conclusions to which Chaskalson P and some of our colleagues subscribe, we cannot agree with the conclusion that, Section 235(8)(b) of the Constitution, could not have provided a source of power for First Respondent to issue Proclamations R58 and R59 of 1995, and we deal with the matter accordingly. We are, with our colleagues, in the situation that we would have 138 \fpreferred to have had more time to develop our ideas on the approach we take in this matter, but accept that time constraints militate against this being done. MADALA J, NGOEPE AJ [ 212 ] We proceed in this judgement on the basis that there has been no answer to the attack by the Applicants on Section 16A of the Local Government Transition Act (\u201cTransition Act\u201d) and that, therefore, the said Section is unconstitutional by reason of its inconsistency with the Constitution. The facts of this case appear more fully in the judgment of Chaskalson P and, consequently, we do not need to repeat them. [ 213 ] At the resumed hearing of this matter on the 30th August, 1995, it became apparent to this Court that although the parties had presented their argument in respect of Section 235(8) and related provisions, certain aspects had not been dealt with satisfactorily either in the written or oral submissions. Counsel were, accordingly, requested to present further argument on the 14th September, 1995 on the following aspects outlined in the Registrar\u2019s directions: \u201cA. Inasmuch as: i) ii) The President\u2019s powers under Section 235(8) of the Constitution are confined to laws referred to in section 235(6)(b); and The laws referred to in the latter Section are confined to laws \u201cwhich fall within the functional areas specified in schedule 6 and which are not matters referred to in paragraphs (a) to (e) of Section 126(3).\u201d Was the first respondent empowered by section 235(8) to do what he purported to do by Proclamation R58 and R59 of 1995? B: In this regard the Court requires argument, in particular, on 139 \fMADALA J, NGOEPE AJ (a) Whether or not in the light of the specific provisions of Section 245 of the Constitution and the scope and provisions of the Local Government Transition Act, which make provision for the administration of that Act both before and after the coming into force of the Constitution, that Act can be said to be a law referred to in Section 235(6)(b)(i) of the Constitution; and (b)(i) Whether or not in the light of the specific provisions of Section 245 of the Constitution and the scope and provisions of the Local Government Transition Act, that Act can be said to deal with a matter which falls within Schedule 6 of the Constitution, and if so Whether or not the matter is one which falls within the purview of sub- paragraphs (a) to (e) of Section 126(3) of the Constitution. (ii) C. If Section 235(8) of the Constitution does not apply to the Local Government Transition Act is invalid, what are the implications of this for other proclamations, including proclamation R129 of 1994, issued by the President in respect of the Local Government Transition Act. What, if any, relevance does this have to the exercise of the powers vested in this Court by Sections 98(5) (6) and (7) of the Constitution ?\u201d (Our underlining.) [ 214 ] It was submitted on behalf of the Applicants that Section 16A was an unconstitutional delegation of the power by Parliament to the First Respondent. In this respect it was argued that as Parliament itself was bound by Sections 61 and 62 of the Constitution (which provisions were themselves entrenched in terms of Section 62(1)), Parliament could not have delegated more authority than Parliament itself had. (See Harris and Others v Minister of the Interior and Another 1952(2) SA 428(A) at 456F and Minister of the Interior v Harris 1952(4) SA 769(A) at 779H - 781H; 784H - 785A; 790B - D; 797D.) It was further contended that because Section 16A of the Transition Act was itself an unconstitutional delegation of power by Parliament to the First Respondent, the Proclamations effected by the First Respondent under Section 16A must, ipso facto, also be unconstitutional and hence invalid. This appears to be the position adopted by the majority of our colleagues. Our view, on the other hand, is that the First Respondent was empowered under Section 235(8) of the 140 \fConstitution to do what he did - promulgate Proclamations R58 and R59 of 1995. We now MADALA J, NGOEPE AJ attempt to develop this view. [ 215 ] Counsel for the Respondents submitted that, although First Respondent, on the face of the Proclamations, purported to have issued them in terms of Section 16A, First Respondent is entitled to rely on Section 235(8), provided the jurisdictional facts required in terms of the latter Section, are established. (See Latib v The Administrator, Transvaal 1969(3) SA 186 at 190F - 191A; Avenue Delicatessen v Natal Technikon 1986(1) SA 853(A) at 870I - J; Klerkdorpse Stadsraad v Renswyk Slaghuis (Edms) Bpk 1988(3) SA 850(A) at 873E - F.) [ 216 ] We deal, herein specifically with the impact of Section 235, and we believe that any unravelling of the problem must be systematically and analytically carried out. Basically, the issue we consider hereunder is whether the Proclamations were validly promulgated under Section 235(8) of the Constitution. [ 217 ] As a starting point in this matter, one needs to have regard to Section 75 of the Constitution, which states that the executive authority of the Republic in respect of all matters falling within the legislative competence of Parliament, shall vest in the President, who must exercise his powers and perform his functions in accordance with the Constitution. On the other hand, the executive authority of a province vests in the Premier of the 141 \fprovince, who, likewise, is expected to exercise his power and perform his duties subject to and in accordance with the Constitution (Section 144(1)). MADALA J, NGOEPE AJ A province exercises its executive authority over: a. b. c. all matters in respect of which it has exercised its legislative competence; matters assigned to it by or under Section 235 or any law; matters delegated to it by or under any law.(Section 144(2)). [ 218 ] The proceedings before this Court were initially aimed at attacking the validity of Proclamations R58 and R59, which were promulgated by the First Respondent attempting to amend Sections 3(5) and 10 of the Transition Act; the attack was not aimed at the validity of Section 16A of the Transition Act. On the proclamations, the Applicants launched a three-pronged attack: a. They contend that the proclamations and the legislative amendments effected in terms of those proclamations give rise to a direct assault on the Western Cape Province\u2019s legitimate provincial autonomy, and thereby violate constitutional principle XX11 in schedule 4 of the Constitution. b. In the alternative, the Applicants contend that the proclamations and the legislative amendments effected thereby constitute an unconstitutional attempt to subvert Sections 61 and 62 of the Constitution. c. In the third alternative, the Applicants contend that Section 16A of the Transition Act must be restrictively interpreted or \u201cread down\u201d in accordance with Section 232(3) of the Constitution. 142 \fIt was only at a late stage in the proceedings that the Applicants sought to launch an attack against the validity of Section 16A of the Transition Act (by way of a small entry in a footnote). It was contended by the Applicants that the proclamations were promulgated in terms of what has been called a \u201cHenry VIII\u201d clause, this being, according to them, a provision in an act of parliament empowering someone to make regulations amending that act or another act. [ 219 ] It was argued on behalf of the Applicants that the effect of Proclamation R58 was to withdraw the power to appoint and to dismiss members of the Provincial Committee - as happened to the Fourth and Fifth Applicants. Proclamation R59 sought to nullify the demarcation that had already been proposed. It was further argued that this had nothing to do with \u201cthe efficient carrying out of the assignment\u201d of the administration of the Transition Act. It was on this basis contended that the President had no power to issue the Proclamations under 235(8). [ 220 ] In considering Section 235, it must be remembered that we are here dealing with a series of transitional measures put in place to ensure that the democratic process takes place, and procedures implemented. Section 235 of the Constitution deals with \u201cTransitional arrangements: Executive authorities\u201d. It seeks to devise a scheme through which executive powers would evolve at the commencement of the Constitution and upon the assumption of office by the President. The scheme is broadly as follows: (a) It starts from Section 229 of the Constitution. The Section reads as follows: \u201cSubject to this Constitution, all laws which immediately before the commencement of this Constitution were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws 143 \fby a competent authority\u201d. (We shall return to the significance of the words we underlined). MADALA J, NGOEPE AJ (b) Next relevant, is section 235(5), which reads as follows : \u201cUpon the assumption of office by the President in terms of this Constitution- (a) the executive authority of the Republic as contemplated in section 75 shall vest in the President acting in accordance with this Constitution; and the executive authority of a province as contemplated in section 144 shall, subject to subsections (8) and (9), vest in the Premier of that province acting in accordance with this Constitution, or while the Premier of a province has not yet assumed office, in the President acting in accordance with section 75 until the premier assumes office.\u201d (b) (c) Next is Section 235(6) in terms of which all laws referred to in Section 235(6)(a) are to be administered by the national government. The laws referred to in Section 235 (6)(b) are further divided, for the purpose of their administration into those falling under Section 235(6)(b)(i) (which are to be administered by the national government even though they are with regard to matters within the functional areas of the provinces), and those falling under Section 235 (6)(b)(ii) which, except policing matters, are to be administered by the provinces. (d) Next relevant, is Section 235 (8)(a): \u201cThe President may, and shall if so requested by the Premier of a province, and provided the province has the administrative capacity to exercise and perform the powers and functions in question, by proclamation in the Gazette assign, within the framework of section 126, the administration of a law referred to in subsection (6)(b) to a competent authority within the jurisdiction of the government of a province, either generally or to the extent specified in the proclamation.\u201d Subsection (8)(b) deals with the measures or steps the President may take during or after the assignment of a law. 144 \fMADALA J, NGOEPE AJ [ 221 ] Section 235(6)(b), on which First Respondent relies, states that all laws with regard to matters falling within the functional areas set out in Schedule 6 and which do not fall under Section 126(3) (a) to (e) shall be administered by a competent authority of the national government until such laws have been assigned to provinces. Section 235(6)(b)(i) reads as follows: \u201cAll laws with regard to matters which fall under the functional areas specified in Schedule 6 and which are not matters referred to in paragraphs (a) to (e) of section 126(3) shall- (i) if any such law was immediately before the commencement of this Constitution administered by or under the authority of a functionary referred to in subsection (1)(a) or (be administered by a competent authority within the jurisdiction of the national government until the administration of any such law is with regard to any particular province assigned under subsection (8) to a competent Authority within the jurisdiction of the government of such province...\u201d [ 222 ] We interpret this Section to mean that all laws which came into operation before the Constitution (the Transition Act included), and which are matters with regard to which both central and provincial government have concurrent powers (local government included), shall vest in the President until he assigns them to the competent authorities in the provinces. For a possible successful reliance on Section 235 and, in particular Section 235 (6)(b)(i), First Respondent must, therefore, first bring the Transition Act within the group of laws referred to in Section 229 of the Constitution. The significance of the words \u201cin any area\u201d, underlined above, is that for a law to be brought within the ambit of the Section, such law need not have been in force in the whole of what is now the national territory; it is sufficient if it was, for example, in force only in an area which constituted the \u201cold\u201d South Africa. The Transition Act was in fact, immediately before the commencement of the Constitution, in force in the \u201cold\u201d South Africa; it therefore falls within the ambit of Section 229 of the Constitution. 145 \fMADALA J, NGOEPE AJ Section 235 (6) of the Constitution is very pertinent. It vests the President with executive power in respect of not only national functional areas [235(6)(a)] but also in respect of laws with regard to matters falling within the functional areas of the provinces [235 (6)(b)]. Such powers would vest in him upon his assumption of office [Section 235(5)]. Sections 235(6)(a) and 235(6)(b) are all inclusive, referring as they both do to \u201call\u201d such laws. In our view, the words \u201call laws\u201d mean exactly that. Executive power in respect of all the laws which, immediately prior to the commencement of the Constitution were in force in any area which forms part of the national territory, were collapsed into Section 235, and made to vest in the President. Therefore, executive powers in respect of the Transition Act did not escape the process, inasmuch as the Act itself must surely be included amongst \u201call laws\u201d. We have already referred to the all-embracing nature of Section 235(6). Even if the Transition Act did contain its own scheme (and surely every act does contain a scheme of some kind) it (the Transition Act) must succumb (like all other acts) to the force of Section 235(6), which is a constitutional provision. It seems as if Section 245(1) is being perceived as elevating the Transition Act to an extraordinary status. In this respect reference was made during argument to facts extraneous of that Act (and of the Section itself), such as that the Transition Act was the product of delicate and protracted negotiations. That kind of exercise can lead to speculation and one would be slow to found important decisions on that. It is one thing to refer to background material to understand an act, but, in our view, quite another thing to 146 \fMADALA J, NGOEPE AJ accord an act an extra-ordinary status on the basis thereof. Section 245(1) is clear and straightforward: all it does is to direct that until elections referred to therein have been held, the restructuring of local government must not be done otherwise than in accordance with the Transition Act. The Transition Act can of course be amended, and Section 245(1) of the Constitution should be understood as directing that the restructuring of local government be in accordance with the Act as (duly) amended from time to time. The Section does not prescribe as to what the contents of the Transition Act should be. The purpose of the Section is therefore simply, to ensure that the restructuring be in accordance with the Transition Act, whatever the contents of the Act may be at any given time or from time to time, as long as properly amended. The fact that the Transition Act is amendable also disposes of any arguments based on possible conflicts between it on the one hand, and the provisions of Section 235 of the Constitution on the other hand, which may result from bringing it within the purview of the said Section; such conflicts will simply be removed. In fact, such conflicts or anomalies should be expected, given the plethora of laws by a number of different legislative bodies, with different constitutional status, that existed in various areas before the commencement of the Constitution. Hence the power of the President to amend, adapt etc. such laws upon assignment. It is, in our view, therefore, irrelevant, in considering whether or not the Transition Act falls under Section 235(6) of the Constitution, to take into account possible conflicts which may result. [ 223 ] It has also been contended that the Transition Act could be some kind of a lex specialis, devising a scheme which should be seen as standing on its own outside of the one contained in Section 235 of the Constitution. Apparently this argument is based on the 147 \fprovisions of Section 245(1) of the Constitution, which reads as follows: \u201c(1) Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise that in accordance with that Act...\u201d MADALA J, NGOEPE AJ We have already addressed this argument in the aforegoing paragraph. [ 224 ] A further consideration is whether the whole Act can be said to be assignable. We do not find it necessary to express our view on this issue, for the present purpose. In our view, there is little doubt that the administration of the Sections sought to be amended by Proclamations R58 and R59, namely, Sections 3(5) and 10 respectively, is assignable. We consider, therefore, that it would be wrong to approach the matter on the basis that a law cannot be partially assignable. A reading of Section 235(8)(b)(ii) clearly contemplates such a possibility. [ 225 ] In the present case, the First Respondent assigned only part of the Transition Act, in accordance with Section 235(8)(a). This is apparent from paragraph (a) of Proclamation R129 of 1994, which reads \u201c ... assign ... excluding Section 9(1) and 12 ...\u201d. The Proclamation, therefore, effects the partial assignment of the administration of the Transition Act. [ 226 ] As Proclamations R58 and R59 themselves reflect, the President did in fact \u201camend or adapt such law in order to regulate its application or interpretation;\u201d, having come to the conclusion, as he says in his affidavit dated 13 August, 1995, that the issuing of the said proclamation was \u201cnecessary for the efficient carrying out of the assignment\u201d of the administration of the Sections which were assigned in terms of Proclamation R129. 148 \fMADALA J, NGOEPE AJ [ 227 ] We differ with the conclusion, reached by Chaskalson P, that Section 235 (8)(b) of the Constitution could not have provided a source of power for the President to issue Proclamations R58 and R59, which were issued respectively on the 7th June, 1995 and the 8th June, 1995. [ 228 ] We find the interpretation by Chaskalson P, of the words \u201cnecessary for the efficient carrying out of the assignment\u201d too restrictive. Firstly, we think that the legislature, in inserting Sections 235 (6), 235 (7) and 235 (8), deliberately took a robust attitude towards the plethora of laws which were to be in force at the commencement of the Constitution; laws which emanated from a variety of legislative authorities with, for that matter, different constitutional status. Thus, Section 235 (8)(b) was intended to deal with problems the exact nature and scope of which could not be foreseen. A narrow interpretation would undermine its efficacy. There is another reason why we would not interpret the Section as aiming at remedying only functional inefficiencies arising out of the assignment. It is because of our reading of the words \u201c(w)hen the President so assigns the administration of a law...\u201d. (Our underlining). We understand these words as conveying that the President can amend or adapt the law concerned already at the time of the assignment, the implication being that the powers to amend are not restricted to dealing with deficiencies arising only from the actual administration of the law concerned. In our view, therefore, the President can deal, by way of amendment, also with deficiencies which were already inherent in the law concerned before the assignment. 149 \f[ 229 ] The reasons for the President\u2019s move appear from his affidavit above - he saw the possibility of a crisis developing in the process of the restructuring of local government. MADALA J, NGOEPE AJ For the purpose of keeping the process on course, the President is given a variety of wide powers, intended to last for the duration of the transitional or interim phase only. In particular, Section 235 is the vehicle for the achievement of this. It must also have been envisaged by the framers of the Constitution that there might arise situations where a provincial government might not be functioning properly or was unable to assume responsibility for organising local government elections. The vesting of these wide-ranging powers to the President is an act sui generis necessitated by the unique circumstances of transition which the country was or is facing and it cannot have been intended that they would be permanent. After all, are we not called upon, in interpreting the Constitution to do so purposively ? [ 230 ] We would, therefore, not be able to strike down the Proclamations on the basis that there could not have been a valid assignment of the administration of the relevant sections of the Transition Act. We would, accordingly, hold that Section 235(8) provided a source of power for the First Respondent to issue Proclamations R58 and R59, of the 7th and 8th June, 1995, respectively. 150 \fIn the circumstances, we agree with paragraphs 1, 2, 6(b) and (c) of the order made by MADALA J, NGOEPE AJ Chaskalson P. 151 \fFor the Applicants M Seligson SC T D Potgieter For the First to Third Respondents J J Gauntlett SC J C Heunis"], "max_length_judgement_paras": 29788}, {"title": "Zantsi v Council of State, Ciskei and Others (CCT24/94) [1995] ZACC 9; 1995 (4) SA 615 (CC); 1995 (10) BCLR 1424 (CC) (22 September 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/9.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-9.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/9.pdf", "file_content": " IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA \n\n Case No. CCT/24/94\nIn the matter between:\n \n\nZANOMZI PETER ZANTSI\n\n Applicant\n\nAnd\n\nTHE COUNCIL OF STATE, First Respondent\n \n\nTHE CHAIRMAN OF THE COUNCIL OF STATE Second Respondent\n\nAnd\n\nTHE MINISTER OF DEFENCE, CISKEI Third Respondent\n\nHeard on: \n\n16 May 1995\n\nDelivered on:\n22 September 1995 \n \n\nJudgment\n\n \n\n[1] Chaskalson P: I agree with the judgment of Trengove AJ and\n\nwill confine my remarks to the application of Section\n\n102(8) of the Constitution. This Section provides:\n\nIf any division of the Supreme Court disposes of a\nmatter in which a constitutional issue has been\nraised and such court is of the opinion that the\nconstitutional issue is of such public importance\nthat a ruling should be given thereon, it may,\nnotwithstanding the fact that the matter has been\ndisposed of, refer such issue to the Constitutional\nCourt for a decision.\n\nBefore an issue can be referred to this Court in terms of\n\nSection 102(8) three requirements must be satisfied.\n\nFirst, a constitutional issue must have been raised in the\n\n1\n\n\fCHASKALSON P\n\nproceedings; secondly, the matter in which such issue was\n\nraised must have been disposed of by the Supreme Court1; and\n\nthirdly, the division of the Supreme Court which disposed\n\nof the matter must be of the opinion that the\n\nconstitutional issue is of sufficient public importance to\n\ncall for a ruling to be made thereon by this Court.\n\n[2] In the United States of America, and as long ago as 1885,\n\nMatthews, J said:\n\n[N]ever... anticipate a question of constitutional\nlaw in advance of the necessity of deciding it; ...\nnever... formulate a rule of constitutional law\nbroader than is required by the precise facts to\nwhich it is to be applied.2 \n\nThis rule, though not absolute, has ordinarily been\n\nfollowed by courts in the United States of America since\n\nthen.3 Although the United States jurisprudence is\n\ninfluenced by the \u201ccase\u201d and \u201ccontroversy\u201d requirement of\n\n1\n\nIt is not clear when and in what circumstances a matter can be\nsaid to have been \u201cdisposed of\u201d within the meaning of section\n102(8), particularly if the possibility exists that an appeal may\nbe noted. We heard no argument on this and it is not necessary to\ndeal with that issue in this judgment\n\n 2\n\n 3\n\nLiverpool, New York and Philadelphia Steamship Co. v\nCommissioners of Emigration 113 US 33, 39 (1885).\n\nBurton v US 196 US 283, 295 (1905); Ashwander v Tennessee Valley\nAuthority 297 US 288, 341 (1936); Joint Anti-Fascist Refugee\nCommittee v McGrath 341 US 123, 154-5 (1951); Kremens Hospital\nDirector v Bartley 431 US 119, 133-4 (1977). \n\n2\n\n\fArticle III of the US Constitution, the rule stated by\n\nMatthews, J is a salutary rule which has been followed in\n\nother countries.4\n\nCHASKALSON P\n\n[3] It is also consistent with the requirements of section 102\n\nof our Constitution and the decision of this Court in S v\n\nMhlungu and Others5 where Kentridge AJ said:\n\nI would lay it down as a general principle that where\nit is possible to decide any case, civil or criminal,\nwithout reaching a constitutional issue, that is the\ncourse which should be followed.6\n\n[4] The same principle underlies the provisions of section\n\n102(5) which require appeals from a provincial or local\n\n4\n\n6\n\n 5\n\nH.M. Seervai, Constitutional Law of India: Vol I 3ed (1983) para.\n11.200 cites Chandrachud CJ in the Rajasthan case (1978) 1\nS.C.R.1, for the proposition that \u201cin the field of constitutional\nadjudication...the court will decide no more than needs to be\ndecided in any particular case.\u201d See also Casey,J:\nConstitutional Law in Ireland, 2ed (1992), 284 where the author\ndiscusses cases in which the Supreme Court adopted the view that\n\u201cConstitutional issues must be reached last\u201d.In Law Society of\nUpper Canada v Skapinker (1984) 8 CRR 193,214 the Supreme Court\nof Canada held that \u201c[t]he development of the Charter as it takes\nits place in our constitutional law must necessarily be a careful\nprocess. Where issues do not compel commentary on these new\nCharter provisions, none should be undertaken.\u201d See also:\nBorowski v Canada 57 DLR (4th) 231,where a similar approach was\nadopted by the Supreme Court of Canada to the related question of\n\u201cmootness\u201d.\n\n1995 (7) BCLR 793 (CC), 821F-G para 59; 1995(3) SA 867 (CC), 894\npara 59; see also S v Vermaas 1995 (7) BCLR 851 (CC), 858F-H para\n13 (CC); 1995 (3) SA 292 (CC). \n\nIbid para 59; see also Prokureursorde van Transvaal v Kleynhans\n1994 (4) BCLR 48 (T), 51C-52C; 1995 (1) SA 839 (T), 849D-850D.\n\n3\n\n\fCHASKALSON P\n\ndivision of the Supreme Court to be dealt with first by the\n\nAppellate Division and, where possible, to be disposed of\n\nby that Court without the constitutional issue having to be\n\naddressed. It is only where it is necessary for the purpose\n\nof disposing of the appeal, or where it is in the interest\n\nof justice to do so, that the constitutional issue should\n\nbe dealt with first by this Court.7 It will only be\n\nnecessary for this to be done where the appeal cannot be\n\ndisposed of without the constitutional issue being decided;\n\nand it will only be in the interest of justice for a\n\nconstitutional issue to be decided first, where there are\n\ncompelling reasons that this should be done.\n\n[5]\n\nThis rule allows the law to develop incrementally. In view\n\nof \n\nthe \n\nfar \n\nreaching \n\nimplications \n\nattaching \n\nto\n\nconstitutional decisions, it is a rule which should\n\nordinarily be adhered to by this and all other South\n\nAfrican courts before whom constitutional issues are\n\nraised. It is within this context that the provisions of\n\nsection 102(8) should be viewed and interpreted.\n\n[6]\n\nSection 102(8) of the Constitution applies only to cases\n\n 7\n\nSection 102(1) of the Constitution and Constitutional Court Rule\n23(3).\n\n4\n\n\fCHASKALSON P\n\nwhich have been disposed of. A referral of the moot issue\n\nin such circumstances is the exception, and it follows that\n\nthe section should be invoked only in exceptional\n\ncircumstances. In other words, there must be a compelling\n\npublic interest that requires the reference to be made.8\n\n[7] It is not ordinarily desirable for a court to give rulings\n\nin the abstract on issues which are not the subject of\n\ncontroversy and are only of academic interest, and section\n\n102(8) should not be invoked in order to refer to this\n\ncourt an issue which was not relevant to the case which had\n\nto be decided.9 In the present case, it is not clear from\n\n8\n\n9\n\nIn Borowski v Canada supra note 3, the Canadian Supreme Court\nheld that although the general policy or practice was that courts\nmay decline to decide cases which merely raise hypothetical or\nabstract questions, they had a discretion to depart from that\ngeneral practice. According to the court, it was undesirable to\nlay down precise criteria for the exercise of such discretion\nexcept to emphasize that the court has to take into account the\nrationale behind the the general policy against deciding moot\nissues. First, in an adversary system, issues are best decided in\nthe context of a live controversy. The second consideration is\nbased on concern for judicial economy and the last is that it is\ngenerally undesirable and possibly an intrusion into the role of\nthe legislature for a court to pronounce judgments on\nconstitutional issues in the absence of a dispute affecting the\nrights of the parties to the litigation. The court ultimately\ndismissed the appeal stating that, \u201c[t]he mere fact, however,\nthat a case raising the same point is likely to recur even\nfrequently should not by itself be a reason for hearing an appeal\nwhich is moot. It is preferable to wait and determine the point\nin a genuine adversarial context unless the circumstances suggest\nthat the dispute will have always disappeared before it is\nultimately resolved.\u201d\n\nCompare in this regard the refusal of the courts to entertain\napplications for a declaration of rights in respect of abstract\nor hypothetical issues in Anglo-Transvaal Collieries v SA Mutual\n\n5\n\n\fTRENGOVE J\n\nthe judgments of the Ciskei Provincial Division whether the\n\nissue concerning the jurisdiction of provincial and local\n\ndivisions of the Supreme Court generally, as distinct from\n\nthe jurisdiction of the Ciskei Provincial Division, was in\n\nfact raised during the proceedings, or whether it was\n\nraised only in the judgments. But even if the issue was\n\nraised during the proceedings, it was not, as appears from\n\nthe judgment of Trengove AJ, relevant to the case which had\n\nto be decided. Section 102(8) should therefore not have\n\nbeen invoked.\n\n[8] The issue has, however, become one of public importance as\n\na result of the judgments given by the Ciskei Supreme\n\nCourt. The judgments held that provincial and local\n\ndivisions of the Supreme Court have jurisdiction to enquire\n\ninto the validity of Acts of Parliament passed prior to the\n\n27th April 1994. For the reasons given by Trengove AJ this\n\nis not correct, and to avoid the uncertainty that might\n\notherwise result from such judgments, it has been necessary\n\nfor this Court to deal with that issue. This Court is not,\n\nhowever, obliged to, and will not ordinarily decide issues,\n\nwhich are not correctly referred to it under Section\n\nLife Assurance Society 1977(3) SA 631 (T),635E-636F confirmed on\nappeal sub nom SA Mutual Life Assurance Society v Anglo-Transvaal\nCollieries 1977 (3) SA 642 (A), 655D and 658H.\n\n6\n\n\f102(8).\n\n[Mahomed DP, Ackerman, Didcott, Kriegler, Langa, Madala, Mokgoro,\n\nO\u2019Regan, Trengove and Sachs JJ concur in the judgment]\n\n[9]\n\nTrengove AJ: In this matter the Ciskei provincial division\n\n(Pickard JP and Heath J) referred the following issue to\n\nthis court for a decision in terms of section 102(8) of\n\nthe Constitution of the Republic of South Africa, 1993\n\n(\u201cthe Constitution\u201d), namely:\n\nWhether or not provincial and local divisions of the Supreme\n\nCourt have jurisdiction to inquire into the constitutionality\n\nof acts of the legislatures of South Africa (as it then was)\n\nand the TBVC States which were passed prior to the\n\ncommencement of the new South African Constitution.\n\n(See: Zantsi v The Chairman of the Council of State and\n\nAnother 1994 (6) BCLR 136 (Ck), 171; 1995 (2) SA 534 (Ck),\n\n569).\n\nMr D P de Villiers, with Mr T Deva Pillay, appeared for\n\nThird Respondent and Mr W H Trengove, with Mr L Mpati and\n\nMr K Mathee, as amici curiae for the Applicant at the\n\nrequest of this court. We are indebted to them for their\n\nassistance.\n\n7\n\n\f[10]\n\nThe factual background of the referral can be summed up as\n\nTRENGOVE J\n\nfollows. The Applicant was dismissed from employment in\n\nthe Ciskei Defence Force on 22 April 1991. He intended\n\ninstituting action against Third Respondent for alleged\n\nwrongful dismissal but was debarred from doing so by\n\nreason of his failure to comply with the provisions of\n\nsection 71 of the Defence Act, 17 of 1986 (Ciskei). In\n\nterms of this section, civil proceedings had to be\n\ninstituted within a period of six months after the cause\n\nof action had arisen.\n\n[11]\n\nApplicant subsequently sought an order in the court a quo\n\ndeclaring section 71 to be unconstitutional on the ground\n\nthat it was in conflict with article 1(2) of the Ciskei\n\nBill of Rights, set out in Schedule 6 to the Republic of\n\nthe Ciskei Constitution Decree, 45 of 1990. The article\n\nprovided that \"all persons shall be equal before the law\".\n\n[12]\n\nThe application proceedings were initiated in June 1993,\n\nbut the matter only came before the court for argument on\n\nsome date (which does not appear from the papers before\n\nus) after 10 June 1994. At that stage the three\n\nRespondents no longer existed. Counsel however agreed that\n\nany order made in favour of Applicant would be regarded as\n\n8\n\n\fan order against appropriate organs of the state under the\n\nTRENGOVE J\n\nConstitution.\n\n[13]\n\nAt the outset of the hearing, Pickard JP, raised the\n\nquestion-\n\n... whether or not this court has now the jurisdiction to\n\ndeclare Act 17 of 1986 (Ciskei) or any portion thereof to be\n\nunlawful, unenforceable or invalid by virtue of its\n\nprovisions being in conflict with fundamental rights\n\nprotected in either the erstwhile Ciskei Constitution Decree\n\nor the South African Constitution. (at 140J; 538I-J)\n\nCounsel stated that they were of the view that the court\n\nhad the necessary jurisdiction to deal with the\n\napplication. Applicant's cause of action had arisen during\n\n1991, proceedings had been initiated, and litis\n\ncontestatio had occurred during 1993, whereupon the court\n\nhad jurisdiction to deal with the dispute, which\n\njurisdiction still endured.\n\n[14]\n\nIn opposing the application on the merits, counsel for\n\nrespondents contended that the decision of the Ciskei\n\nAppeal Court in Chairman of the Council of the State v\n\nQokose 1994 (2) BCLR 1 (Ck AD); 1994 (2) SA 198 (Ck AD),\n\n9\n\n\fTRENGOVE J\n\nhanded down on 10 June 1994, was binding on the court a\n\nquo. In that case the provisions of section 48 of the\n\nPolice Act, 32 of 1983 (Ciskei), which were similar to\n\nthose of section 71, were held to be valid and not\n\nunconstitutional.\n\n[15]\n\nI now refer very briefly to views of the court a quo on\n\nthe issue of jurisdiction raised by the learned Judge\n\nPresident at the beginning of the hearing, and its finding\n\non the merits of the application. Pickard JP was of the\n\nopinion that the question of jurisdiction revolved around\n\nthe interpretation of the expression \"Act of Parliament\"\n\nin sections 101(3)(c) and 98(2)(c) of the Constitution.\n\nBy various processes of reasoning, to which I need not now\n\nrefer, the learned Judge came to the conclusion at 147F\n\n(545G) that- \n\n... the only proper interpretation of the provisions of section\n\n101(3)(c) would then be to interpret the expression \"Parliament\"\n\nto mean \"Parliament as created by this Constitution\u201d. \n\nHe accordingly concluded at 147J to 148A (546A-B) that\u2014\n\n... on a proper interpretation of the provisions of s 101 of\n\nthe Constitution, a provincial or local division of the\n\n10\n\n\fTRENGOVE J\n\nSupreme Court has jurisdiction to adjudicate upon the\n\nconstitutionality of any \u201cAct\u201d passed by any legislative\n\nbody, other than Parliament of the new South Africa as\n\ncreated by Chapter 4 of the new South African Constitution.\n\n[16]\n\nIn a separate judgment, Heath J, agreed with the\n\nconclusion arrived at by Pickard JP and gave fairly\n\nextensive reasons for doing so. In considering the\n\nquestion of jurisdiction, the learned Judge referred in\n\nsome detail to a number of judgments in other divisions\n\nwhich had considered whether provincial or local divisions\n\nhad jurisdiction to grant interim relief pending an\n\napproach to the Constitutional Court to contest the\n\nvalidity of a statutory provision. I do not consider it\n\nnecessary to refer to any of these judgments because none\n\nof them deals with the issue raised in the referral.\n\n[17]\n\nAs to the merits of the application, the court a quo was\n\nof the opinion that Qokose's case was distinguishable as\n\nthe appeal had been heard prior to the commencement of the\n\nConstitution, and had consequently been decided without\n\nreference to, or consideration of, its provisions. The\n\ncourt held that it was therefore not bound by the appeal\n\ncourt's decision in that case. The court found that\n\nsection 71 was unconstitutional for reasons set out in\n\n11\n\n\fMatinkinca and Another v Council of State, Ciskei and\n\nAnother 1994 (1) BCLR 17 (Ck); 1994 (4) SA 472 (Ck) and it\n\nconsequently made an order to that effect.\n\nTRENGOVE J\n\n[18]\n\nAgainst this background, I return to the issue raised in\n\nthe referral which, as I have mentioned, relates to the\n\njurisdiction of a provincial or local division of the\n\nSupreme Court to inquire into the constitutionality of\n\n\u201cacts\u201d of the legislatures of South Africa and the TBVC\n\nstates which were passed before the commencement of the\n\nConstitution.\n\n[19]\n\nA decision on this issue turns ultimately on the proper\n\ninterpretation of sections 101(2) and 101(3)(c) of the\n\nConstitution. However, in view of the jurisdictional\n\nscheme of the Constitution it is necessary to refer first\n\nto the provisions of section 98(2) and (3) which relate to\n\nthe jurisdiction of the Constitutional Court.\n\n[20]\n\nSection 98(2) states that the Constitutional Court\u2014\n\nshall have jurisdiction in the Republic as the court of final\n\ninstance over all matters relating to the interpretation,\n\nprotection and enforcement of the provisions of this\n\nConstitution, including\u2014 \n\n12\n\n\fTRENGOVE J\n\nthe matters particularized in subparagraphs (2)(a) to (g).\n\nThus, throughout the whole of the Republic, as defined in\n\nsection 1, the jurisdiction of the Constitutional Court,\n\nas the court of final instance, in respect of\n\nconstitutional issues is unqualified and all-inclusive.\n\n[21]\n\nSection 98(2)(c) relates to the issue with which we are\n\nconcerned in this case, namely, the power to test laws,\n\nand particularly Acts of Parliament, said to be\n\ninconsistent with the Constitution. In terms of this\n\nsection, the Constitutional Court has jurisdiction over\u2014\n\nany inquiry into the constitutionality of any law, including\n\nan Act of Parliament, irrespective of whether such law was\n\npassed or made before or after the commencement of this\n\nConstitution.\n\n[22]\n\nSection 98(3) is also relevant to this issue. It states\n\nthat-\n\nThe Constitutional Court shall be the only court having\n\njurisdiction over a matter referred to in subsection (2),\n\nsave where otherwise provided in sections 101(3) and (6) and\n\n103(1) and in an Act of Parliament.\n\nIn other words, section 98(3) read with section 98(2)(c)\n\n13\n\n\fTRENGOVE J\n\nstates, in effect, that the Constitutional Court shall be\n\nthe \"only court having jurisdiction\" to inquire into the\n\nvalidity of any law, including an Act of Parliament \"save\n\nwhere otherwise provided in sections 101(3) and (6) and\n\n103(1) and in an Act of Parliament\". The last two\n\nreferences refer to special situations not particularly\n\nrelevant for present proposes.\n\n[23]\n\nI come now to sections 101(2) and 101(3)(c) which read as\n\nfollows-\n\n(2)Subject to this Constitution, the Supreme Court shall have\n\nthe jurisdiction, including the inherent jurisdiction, vested\n\nin the Supreme Court immediately before the commencement of\n\nthis Constitution and any further jurisdiction conferred upon\n\nit by this Constitution or by any law.\n\nand\n\n(3)Subject to this Constitution, a provincial or local\n\ndivision of the Supreme Court shall, within its area of\n\njurisdiction, have jurisdiction in respect of the following\n\nadditional matters, namely\u2014 ...\n\n(c)any inquiry into the constitutionality of any law\n\napplicable within its jurisdiction, other than an Act\n\nof Parliament, irrespective of whether such law was\n\n14\n\n\fpassed or made before or after the commencement of\n\nthe Constitution.\n\nTRENGOVE J\n\n[24]\n\nMr de Villier's argument was based mainly on the\n\nprovisions of sections 98(2)(c), 98(3) and 101(3)(c). He\n\nsubmitted that the question whether a provincial or local\n\ndivision of the Supreme Court had jurisdiction to inquire\n\ninto the constitutionality of a law was not determined by\n\nthe consideration whether such law was passed (or made)\n\nbefore or after the commencement of the Constitution, but\n\nsolely by the question whether it was one which in the\n\ncontemplation of the framers of the Constitution, was an\n\n\"Act of Parliament\". If it was such an Act, the\n\nConstitutional Court would have exclusive jurisdiction by\n\nreason of the provisions of section 98(3) read with\n\nsection 98(2)(c). By the same token, a provincial or local\n\ndivision of the Supreme Court would not have authority to\n\nadjudicate on the matter in terms of the jurisdiction\n\nconferred upon it by section 101(3)(c). Mr de Villiers\n\nfurther contended that although the expression \"Act of\n\nParliament\" was not defined in the Constitution, such\n\nindications as there were, left no doubt that in the\n\ncontemplation of the framers of the Constitution, the\n\nexpression related to Acts passed by Parliament, sitting\n\nin Cape Town, irrespective whether such Acts were passed\n\n15\n\n\fbefore or after the commencement of the Constitution.\n\nTRENGOVE J\n\n[25]\n\nMr Trengove, on the other hand, submitted that in addition\n\nto the jurisdiction conferred upon it by section\n\n101(3)(c), a provincial or local division of the Supreme\n\nCourt was empowered by section 101(2) to inquire into the\n\nconstitutionality of all legislation, including Acts of\n\nParliament, whether passed before or after the\n\ncommencement of the Constitution. Mr Trengove's argument\n\nin support of this submission can be summed up as follows.\n\nSection 101(2) of the Constitution entrenches the\n\n\"inherent jurisdiction\" vested in the Supreme Court\n\nimmediately before the commencement of the Constitution.\n\nThis inherent jurisdiction of the Supreme Court has at all\n\ntimes prior to the commencement of the Constitution\n\nincluded the power of judicial review of Acts of\n\nParliament. This power, so the argument continued, was\n\nrooted in our common law; it has moreover been asserted\n\nand applied by our courts in a number of well-known cases\n\nto which we were referred; it was furthermore confirmed\n\nand reinforced, in effect, by section 19(1)(a) of the\n\nSupreme Court Act, 54 of 1959; and finally, it was\n\nexpressly acknowledged and preserved by section 34(2)(a)\n\nof the Republic of South Africa Constitution, Act 110 of\n\n1983. Mr Trengove also contended that section 101(3)(c),\n\n16\n\n\fTRENGOVE J\n\nread with section 101(2), was open to an interpretation\n\nwhich did not vest the Constitutional Court with exclusive\n\njurisdiction \n\nto \n\nreview \n\n\"Acts \n\nof \n\nParliament\",\n\nalternatively, that if section 101(3)(c) were to be\n\nconstrued as ousting the Supreme Court's jurisdiction to\n\ninquire into the validity of \"Acts of Parliament\", the\n\nouster should be narrowly construed as applying only to\n\nActs of Parliament passed after the commencement of the\n\nConstitution. This was the approach of Heath J who found\n\nsupport for this conclusion, inter alia, from the\n\npresumption against the ousting of the jurisdiction of the\n\nSupreme Court (at page 164B-C; 562F-G), from the principle\n\nthat a constitution should be construed generously so as\n\nto give individuals \"the full measure of the rights and\n\nfreedoms referred to\u201d (at page 162B,163I; 560E,562C) and\n\nconsistently with the \"spirit and purpose of sections 98\n\nand 101\"(at page 164D; 562H).\n\n[26]\n\nI shall first deal with Mr Trengove's submission that, by\n\nreason of the entrenchment in section 101(2) of the\n\ninherent jurisdiction vested in the Supreme Court\n\nimmediately prior to the commencement of the Constitution,\n\na provincial or local division of the Supreme Court has\n\njurisdiction to inquire into the constitutionality of all\n\n17\n\n\fTRENGOVE J\n\nlegislation, including Acts of Parliament, whether passed\n\nbefore or after the commencement of the Constitution. I\n\ndo not consider it necessary to decide whether the\n\ninherent jurisdiction vested in the Supreme Court\n\nimmediately before the commencement of the Constitution\n\nincluded the power to inquire into the validity of Acts\n\nof Parliament. For present purposes, I shall assume that\n\nit did. The crucial question, nevertheless, is whether\n\nthe inherent jurisdiction of the court as entrenched in\n\nsection 101(2), included the power of review of Acts of\n\nParliament. In order to determine this question, it is\n\nnecessary to construe section 101(2) in the context of the\n\nconstitutional scheme of division of powers and functions\n\nwithin the judiciary. In this respect there is, in my\n\nview, a fundamental flaw in Mr Trengove's line of\n\nreasoning - it does not take sufficient account of the\n\nfact that the provisions of section 101(2) must be\n\nregarded as being subordinate to those of section 98(2)\n\nand (3).\n\n[27]\n\nIn this regard, it is important to note, first, that the\n\nprovisions of section 101(2) are governed by the words\n\n\"subject to the Constitution\". As to the meaning and\n\neffect of the phrase \"subject to,\" I respectfully agree\n\nwith, and adopt, what Miller JA said in the following\n\n18\n\n\fpassage in S v Marwane 1982 (3) SA 717 (A), 747H to 748A,\n\nTRENGOVE J\n\nnamely-\n\nThe purpose of the phrase \u2018subject to\u2019 in such a context is\n\nto establish what is dominant and what subordinate or\n\nsubservient; that to which a provision is \u2018subject\u2019 is\n\ndominant - in case of conflict it prevails over that which\n\nis subject to it. Certainly, in the field of legislation, the\n\nphrase has this clear and accepted connotation. When the\n\nlegislator wishes to convey that that which is now being\n\nenacted is not to prevail in circumstances where it\n\nconflicts, or is inconsistent or incompatible, with a\n\nspecified other enactment, it very frequently, it not almost\n\ninvariably, qualifies such enactment by the method of\n\ndeclaring it to be \u2018subject to\u2019 the other specified one.\n\nIn the present instance, section 98(2) and (3) are plainly\n\nthe dominant provisions and would prevail over section\n\n101(2) in the event of conflict.\n\n[28]\n\nAs previously indicated, the exclusivity of jurisdiction\n\nconferred upon the Constitutional Court by section 98(3)\n\nwith reference to the matters as set out in section 98(2),\n\nis subject to modification only as stated in the proviso.\n\nThere is no reference to section 101(2) in the proviso. It\n\nfollows that the provisions of section 101(2) should not\n\nbe construed as constituting a modification of the\n\n19\n\n\fTRENGOVE J\n\nConstitutional Court's exclusive jurisdiction, in terms of\n\nsection 98(3) read with section 98(2)(c), to inquire into\n\nthe constitutionality of Acts of Parliament. However, if\n\nthe expression \"inherent jurisdiction\" were construed - as\n\ncounsel contended it should be - as inclusive of the power\n\nof review of Acts of Parliament, the provisions of section\n\n101(2) would, to that extent, manifestly conflict or be\n\ninconsistent with the provisions of section 98(2)\n\nand(3)(c).\n\n[29]\n\nThe interpretation of section 101(2) advanced by Mr\n\nTrengove also gives rise to other inconsistencies or\n\nanomalies. For example, according to that interpretation,\n\nsection 101(2) confers jurisdiction upon a provincial or\n\nlocal division of the Supreme Court to inquire into the\n\nconstitutionality of any law, applicable within its area\n\nof jurisdiction, including an Act of Parliament, whereas\n\nin section 101(3)(c) the jurisdiction of such a provincial\n\nor local division to inquire into the constitutionality of\n\nlaws, relates to \"any laws applicable within its area of\n\njurisdiction, other than an Act of Parliament.\"\n\n[30]\n\nIn endeavouring to reconcile his interpretation of the\n\nextent of the inherent jurisdiction of the Supreme Court,\n\nentrenched in section 101(2), with the provisions of\n\n20\n\n\fTRENGOVE J\n\nsection 101(3)(c), Mr Trengove was constrained to resort\n\nto a somewhat artificial construction of the latter\n\nsection. He contended that the language of the section did\n\nnot exclude or revoke the Supreme Courts' inherent power\n\nof judicial review of Acts of Parliament - it merely\n\nentrenched the Supreme Court\u2019s jurisdiction to inquire\n\ninto the constitutionality of any law applicable within\n\nits area of jurisdiction, and excluded Acts of Parliament\n\nfrom the general entrenchment. What this argument however\n\noverlooks, is that if the Supreme Court\u2019s inherent\n\njurisdiction immediately prior to the commencement of the\n\nConstitution, in fact included the power of judicial\n\nreview of Acts of Parliament, such power has, as I have\n\nalready mentioned, been excluded or revoked by section\n\n98(3) read with 98(2)(c), and has not been reinstated in\n\nsection 101(3)(c) or in any other section of the\n\nConstitution.\n\n[31]\n\nThere is a further factor militating against the\n\ncorrectness of the interpretation of section 101(2)\n\ncontended for by Mr Trengove. Section 101(4) confers the\n\npowers of the Constitutional Court in terms of section\n\n98(5), (6), (7), (8) and (9) upon a provincial or local\n\ndivision of the Supreme Court \"for the purposes of\n\nexercising its jurisdiction under subsection (3).\" If the\n\n21\n\n\fTRENGOVE J\n\ninherent jurisdiction of the Supreme Court as entrenched\n\nin section 101(2), had included the power of judicial\n\nreview of Acts of Parliament, the Constitution would, no\n\ndoubt, have provided for a similar conferral of powers\n\nupon a provincial or local division for the purposes of\n\nexercising its jurisdiction under section 101(2), but no\n\nsuch provision exists.\n\n[32]\n\nIn the result, I have come to the conclusion that whatever\n\nthe scope of the Supreme Court\u2019s inherent jurisdiction\n\nimmediately before the commencement of the Constitution\n\nmight have been, its inherent jurisdiction as entrenched\n\nin section 101(2) does not include the power of review of\n\nthe constitutionality of Acts of Parliament.\n\n[33]\n\nI now come to the provisions of section 101(3)(c). The\n\nquestion for consideration is whether this section confers\n\njurisdiction upon a provincial or local division of the\n\nSupreme Court to inquire into the constitutionality of an\n\nAct of Parliament passed before the commencement of the\n\nConstitution. The answer to this question depends, as\n\nPickard JP observed, on the proper interpretation of the\n\nexpression \"Act of Parliament\" in the context of sections\n\n101(3)(c) and 98(2)(c). It will be recalled that the\n\n22\n\n\fTRENGOVE J\n\nlearned judges in the court a quo were of the opinion that\n\nthe expression applied only to Acts of Parliament passed\n\nafter the commencement of the Constitution, and not to\n\nActs passed before that date.\n\n[34]\n\nCentral to the reasoning of Pickard JP were two\n\npropositions. First, none of the legislatures of the\n\nRepublic of South Africa or Transkei, Bophuthatswana,\n\nVenda and Ciskei \"were recognised by the vast majority of\n\nthe subjects of the new South Africa as the legitimate\n\nrepresentatives of the people or as the legitimate\n\nlegislatures for them.\" Consequently, in the context of\n\nthe new democratic Constitution, the term \"Parliament,\n\nwhen used in its ordinary sense, does not include... any\n\nof those legislatures.\" Secondly, since none of the\n\nlegislatures of the old Republic of South Africa or the\n\nTBVC states had authority to legislate for the whole of\n\nwhat is now the national territory, none of them can be\n\nsaid to have been a Parliament within the meaning of the\n\n1993 Constitution.\n\n[35]\n\nThe 1993 Constitution is an Act passed by the old South\n\nAfrican Parliament. It does not purport to bring about a\n\nmerger between five \"independent countries\". On the\n\n23\n\n\fTRENGOVE J\n\ncontrary, it recognises only the sovereignty of South\n\nAfrica, and proceeds on the basis that South Africa is\n\nclaiming sovereignty over the TBVC states, repealing the\n\nlegislation by which they were previously established, and\n\nreferring to them in the text as areas \"which form part of\n\nthe national territory.\" It makes provision for\n\nconstitutional continuity, treating the 1983 Constitution\n\nof the Republic of South Africa as the previous\n\nConstitution. Consistently with this, the name of the\n\ncountry remains the Republic of South Africa, the then\n\nSouth African President was empowered to bring the\n\nprovisions of the Constitution into force prior to April\n\n1994 (Section 251), the national revenue fund of the\n\nRepublic of South Africa established under the 1983\n\nConstitution is deemed to be the State Revenue Fund\n\n(Section 240), the elections for the new Parliament were\n\nto be conducted in terms of the South African Electoral\n\nAct 1993 (Section 249), under the supervision of the\n\nIndependent Electoral Commission (Section 250), and local\n\ngovernment elections are to be conducted in terms of the\n\nSouth African Local Government Transition Act 1993\n\n(Section 245). In Section 234 one \"Parliament\" is\n\ncontemplated, and the reference is clearly to the South\n\nAfrican Parliament in Cape Town. In the context of the\n\nConstitution as a whole it is clear that \"Act of\n\n24\n\n\fTRENGOVE J\n\nParliament\" means an Act of the South African Parliament\n\nsitting in Cape Town. (See also Japaco Investments (Pty)\n\nLtd and Others v The Minister of Justice 1995 (1) BCLR\n\n113(C), 116D-F). This has been accepted by almost every\n\ndivision of the Supreme Court both before and since the\n\ndecision of the Ciskei Provincial Division in this case.\n\nIn my view, therefore, the two central propositions on\n\nwhich Pickard JP based his judgment must be rejected.\n\n[36]\n\nThe Constitution does not contain a definition of the\n\nexpression \"Act of Parliament\". However, this expression\n\nhas formed part of the definition of the word \"law\" in our\n\nInterpretation Acts ever since 1910 (see section 3, s.v.\n\n\"law\" in the Interpretation Act, 5 of 1910). In the\n\npresent Act, Interpretation Act, 33 of 1957, the word\n\n\"law\" is defined in section 2 as- \n\n\"any law, proclamation, ordinance, Act of Parliament\n\nor other enactment having the force of law.\" \n\nThe word \"Parliament\" was initially defined in these\n\nInterpretation Acts as meaning \u201cthe Parliament of the\n\nUnion of South Africa\" but since 1961 it has meant \"the\n\nParliament of the Republic of South Africa.\" Thus, since\n\n25\n\n\fTRENGOVE J\n\nthe establishment of the Union of South Africa in 1910,\n\nthe expression \"Act of Parliament\" has consistently been\n\nused in our statute law with reference to legislation\n\npassed by the South African Parliament - by the Parliament\n\nof the Union of South Africa during the period 1910 -\n\n1961, and from then onwards, by the Parliament of the\n\nRepublic of South Africa. The expression has never been\n\nused in our statute law with reference to any laws passed\n\nor made by the Parliaments or legislatures of any of the\n\nformer TBVC States. The question whether, in the context\n\nof the Constitution, the expression \"Act of Parliament\"\n\nrefers to an Act passed either before or after the\n\ncommencement of the Constitution, or to an Act regardless\n\nof when it was passed, must of course be determined with\n\nreference to the context in which it occurs.\n\n[37]\n\nI return to the provisions of sections 98(2)(c) and\n\n101(3)(c) to consider whether in the context of these\n\nsections the expression \"Act of Parliament\" includes acts\n\npassed before the commencement of the Constitution. In\n\nview of the effect of provisions of section 98(3), I shall\n\nfirst deal with the meaning of the words \"Act of\n\nParliament\" in section 98(2)(c). Having regard to the all-\n\ninclusive nature of the jurisdiction conferred upon the\n\nConstitutional Court by section 98(2) and the ordinary\n\n26\n\n\fTRENGOVE J\n\nmeaning of the language of section 98(2)(c), I have no\n\ndoubt that in this section the expression \"Act of\n\nParliament\" refers to any such Act irrespective of whether\n\nit was passed before or after the commencement of the\n\nConstitution. This becomes very clear if the section is\n\nconstrued, as it should be, with due regard to the meaning\n\nassigned to the word \"law\" in the Interpretation Act. In\n\nthe context of section 98(2)(c) the words \"any law,\n\nincluding an Act of Parliament\u201d and \u201dsuch \u201claw\u201d, clearly\n\nmean \"any law, proclamation, ordinance, Act of Parliament\n\nor other enactment having the force of law.\" (my\n\nemphasis). So construed, section 98(2)(c), in effect,\n\nconfers jurisdiction upon the Constitutional Court over\n\nany inquiry into the constitutionality of \"any law,\n\nproclamation, ordinance, Act of Parliament, or other\n\nenactment having the force of law\", irrespective of\n\nwhether \"such law, proclamation, ordinance, Act of\n\nParliament, or other enactment having the force of law\"\n\nwas passed or made before or after the commencement of the\n\nConstitution.\n\n[38]\n\nIt is now necessary to consider the meaning of the\n\nexpression \u201cAct of Parliament\" in the context of section\n\n101(3)(c). In this regard, it is important to bear in mind\n\nthat the jurisdiction conferred upon a provincial or local\n\n27\n\n\fTRENGOVE J\n\ndivision of the Supreme Court by this section is\n\nconcurrent jurisdiction and that it, in effect, modifies\n\nthe exclusivity of the jurisdiction conferred upon the\n\nConstitutional Court by section 98(3) with reference to\n\nthe subject matter of section 98(3)(c). The essential\n\ndifference between the scope of the jurisdiction conferred\n\nby sections 98(2)(c) and 101(3)(c) upon the respective\n\ncourts, is that section 98(2)(c) confers jurisdiction upon\n\nthe Constitutional Court over \"any inquiry into the\n\nconstitutionality of any law, including an Act of\n\nParliament\" (my emphasis), whereas section 101(3)(c)\n\nconfers jurisdiction upon a provincial or local division\n\nof the Supreme Court in respect of \"any inquiry into the\n\nconstitutionality of any law ... other than an Act of\n\nParliament.\" (my emphasis) This comparison of the wording\n\nof the two clauses shows quite clearly that the\n\njurisdiction conferred by section 101(3)(c) does not\n\ninclude the power to inquire into the constitutionality of\n\nActs of Parliament, nor does it modify or affect the\n\nexclusivity of the Constitutional Court's jurisdiction to\n\ndo so, in any manner. Thus, the question whether a\n\nprovincial or local division of the Supreme Court has\n\njurisdiction in terms of section 101(3)(c), to inquire\n\ninto the constitutionality of any law depends entirely\n\nupon whether that law is an Act of Parliament, or not. If\n\n28\n\n\fTRENGOVE J\n\nit is, a provincial or local division would have no\n\njurisdiction in the matter for it would fall within the\n\nexclusive jurisdiction conferred upon the Constitutional\n\nCourt by section 98(3) read with section 98(2)(c) in\n\nrespect of any inquiry into the constitutionality of an\n\nAct of Parliament. This in my view follows clearly from\n\nthe structure and provisions of the Constitution dealing\n\nwith the judicial authority and the jurisdiction of the\n\nCourts in respect of constitutional issues, and cannot be\n\navoided, as Heath J sought to do, by a resort to\n\npresumptions and to a \"generous\" and \"purposive\"\n\ninterpretation. In fact, in the present case, the\n\nadoption of a purposive interpretation does not support\n\nthe conclusion reached by Heath J. In my view the clear\n\npurpose of the relevant provisions was to ensure that the\n\nConstitutional Court would be the only Court with\n\njurisdiction to set aside an Act of Parliament. What other\n\npurpose could there have been for the provisions of\n\nsection 98(3) and the deliberate distinction drawn in\n\nsections 98(2) and 102(3) between the jurisdiction of the\n\nConstitutional Court and the jurisdiction of the Supreme\n\nCourt? In this respect, and without seeking to express\n\nany opinion in regard to the conflicting decisions on the\n\njurisdiction of the Supreme Court to grant interim relief\n\nin disputes in which the validity of an Act of Parliament\n\n29\n\n\fTRENGOVE J\n\nis in issue (a matter which has now been resolved by the\n\nprovisions of section 16 of the Constitutional Court\n\nComplementary Act, 13 of 1995), I agree with the comments\n\nof Didcott J in Bux v The Officer Commanding the\n\nPietermaritzburg Prison and Others 1994 (4) BCLR 10 (N)\n\n14J to 15F; 1994 (4) SA 562 (N), 566D-J. \n\n[39]\n\nI do not consider it necessary to deal with Mr Trengove's\n\nalternative submission in respect of section 101(3)(c)\n\nbecause it does not take account of the effect of section\n\n98(3) and is founded on a premise which I have already\n\nrejected as unsound, namely that section 101(2) entrenches\n\nthe inherent jurisdiction of the Supreme Court to inquire\n\ninto the constitutionality of an Act of Parliament.\n\n[40]\n\nFinally, as to laws passed or made by the legislatures of\n\nthe former TBVC States prior to the commencement of the\n\nConstitution, I have already indicated that, in my\n\nopinion, those laws do not fall within the definition of\n\nan Act of Parliament. It follows that a provincial or\n\nlocal division of the Supreme Court would have\n\njurisdiction, under section 101(3)(c), to inquire into the\n\nconstitutionality of any such law, applicable within its\n\narea of jurisdiction.\n\n30\n\n\fTRENGOVE J\n\n[41]\n\nIn the result, I have come to the conclusion that the\n\nissue referred to this Court by the Ciskei Provincial\n\nDivision in terms of section 102(8) of the Constitution\n\nshould be decided as follows\u2014\n\n1. A provincial or local division has no jurisdiction to\n\ninquire into the constitutionality of an Act of\n\nParliament passed by the South African Parliament,\n\nirrespective of whether such Act was passed before or\n\nafter the commencement of the Constitution.\n\n2. As to a law passed or made by any of the legislatures\n\nof the former TBVC States, a provincial or local\n\ndivision of the Supreme Court has jurisdiction, in\n\nterms of section 101(3)(c), to inquire into the\n\nconstitutionality of any such law applicable within\n\nits jurisdiction.\n\n \n\nJ. TRENGOVE\n\nACTING JUDGE OF THE CONSTITUTIONAL COURT\n\n[Chaskalson P, Mahomed DP, Ackerman, Didcott, Kriegler, Langa,\n\nMadala, Mokgoro, O\u2019Regan, Sachs JJ concur in the judgment]\n\n31\n\n\fCOUNSEL FOR APPLICANTS\n\nW TRENGOVE S.C \n\nASSISTED BY\n\n(amicus curiae)\n\nL.MPATI & K. MATHEE\n\nTRENGOVE J\n\nIstructed by\n\nConstitutional Litigation Unit\n\nLegal Resources Centre (JHB)\n\nCOUNSEL FOR RESPONDENTS\n\nD. P. de VILLEIRS Q.C\n\nT. DEVA PILLAY\n\nInstructed by\n\nSmith Tabata Van Heerden &\n\nSiwisa\n\n32\n\n\f"}, "id": "00a11ab8-3e4f-4f64-98dd-e3dc7d49b418", "update_date": "2021-03-15 17:08:56.815576", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF THE REPUBLIC OF SOUTH AFRICA Case No. CCT/24/94 In the matter between: ZANOMZI PETER ZANTSI Applicant And THE COUNCIL OF STATE, First Respondent THE CHAIRMAN OF THE COUNCIL OF STATE Second Respondent And THE MINISTER OF DEFENCE, CISKEI Third Respondent Heard on: 16 May 1995 Delivered on: 22 September 1995 Judgment", "Chaskalson P: I agree with the judgment of Trengove AJ and will confine my remarks to the application of Section 102(8) of the Constitution. This Section provides: If any division of the Supreme Court disposes of a matter in which a constitutional issue has been raised and such court is of the opinion that the constitutional issue is of such public importance that a ruling should be given thereon, it may, notwithstanding the fact that the matter has been disposed of, refer such issue to the Constitutional Court for a decision. Before an issue can be referred to this Court in terms of Section 102(8) three requirements must be satisfied. First, a constitutional issue must have been raised in the 1 \fCHASKALSON P proceedings; secondly, the matter in which such issue was raised must have been disposed of by the Supreme Court1; and thirdly, the division of the Supreme Court which disposed of the matter must be of the opinion that the constitutional issue is of sufficient public importance to call for a ruling to be made thereon by this Court.", "In the United States of America, and as long ago as 1885, Matthews, J said: [N]ever... anticipate a question of constitutional law in advance of the necessity of deciding it; ... never... formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.2 This rule, though not absolute, has ordinarily been followed by courts in the United States of America since then.3 Although the United States jurisprudence is influenced by the \u201ccase\u201d and \u201ccontroversy\u201d requirement of 1 It is not clear when and in what circumstances a matter can be said to have been \u201cdisposed of\u201d within the meaning of section 102(8), particularly if the possibility exists that an appeal may be noted. We heard no argument on this and it is not necessary to deal with that issue in this judgment 2 3 Liverpool, New York and Philadelphia Steamship Co. v Commissioners of Emigration 113 US 33, 39 (1885). Burton v US 196 US 283, 295 (1905); Ashwander v Tennessee Valley Authority 297 US 288, 341 (1936); Joint Anti-Fascist Refugee Committee v McGrath 341 US 123, 154-5 (1951); Kremens Hospital Director v Bartley 431 US 119, 133-4 (1977). 2 \fArticle III of the US Constitution, the rule stated by Matthews, J is a salutary rule which has been followed in other countries.4 CHASKALSON P", "It is also consistent with the requirements of section 102 of our Constitution and the decision of this Court in S v Mhlungu and Others5 where Kentridge AJ said: I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.6", "The same principle underlies the provisions of section 102(5) which require appeals from a provincial or local 4 6 5 H.M. Seervai, Constitutional Law of India: Vol I 3ed (1983) para. 11.200 cites Chandrachud CJ in the Rajasthan case (1978) 1 S.C.R.1, for the proposition that \u201cin the field of constitutional adjudication...the court will decide no more than needs to be decided in any particular case.\u201d See also Casey,J: Constitutional Law in Ireland, 2ed (1992), 284 where the author discusses cases in which the Supreme Court adopted the view that \u201cConstitutional issues must be reached last\u201d.In Law Society of Upper Canada v Skapinker (1984) 8 CRR 193,214 the Supreme Court of Canada held that \u201c[t]he development of the Charter as it takes its place in our constitutional law must necessarily be a careful process. Where issues do not compel commentary on these new Charter provisions, none should be undertaken.\u201d See also: Borowski v Canada 57 DLR (4th) 231,where a similar approach was adopted by the Supreme Court of Canada to the related question of \u201cmootness\u201d. 1995 (7) BCLR 793 (CC), 821F-G para 59; 1995(3) SA 867 (CC), 894 para 59; see also S v Vermaas 1995 (7) BCLR 851 (CC), 858F-H para 13 (CC); 1995 (3) SA 292 (CC). Ibid para 59; see also Prokureursorde van Transvaal v Kleynhans 1994 (4) BCLR 48 (T), 51C-52C; 1995 (1) SA 839 (T), 849D-850D. 3 \fCHASKALSON P division of the Supreme Court to be dealt with first by the Appellate Division and, where possible, to be disposed of by that Court without the constitutional issue having to be addressed. It is only where it is necessary for the purpose of disposing of the appeal, or where it is in the interest of justice to do so, that the constitutional issue should be dealt with first by this Court.7 It will only be necessary for this to be done where the appeal cannot be disposed of without the constitutional issue being decided; and it will only be in the interest of justice for a constitutional issue to be decided first, where there are compelling reasons that this should be done.", "This rule allows the law to develop incrementally. In view of the far reaching implications attaching to constitutional decisions, it is a rule which should ordinarily be adhered to by this and all other South African courts before whom constitutional issues are raised. It is within this context that the provisions of section 102(8) should be viewed and interpreted.", "Section 102(8) of the Constitution applies only to cases 7 Section 102(1) of the Constitution and Constitutional Court Rule 23(3). 4 \fCHASKALSON P which have been disposed of. A referral of the moot issue in such circumstances is the exception, and it follows that the section should be invoked only in exceptional circumstances. In other words, there must be a compelling public interest that requires the reference to be made.8", "It is not ordinarily desirable for a court to give rulings in the abstract on issues which are not the subject of controversy and are only of academic interest, and section 102(8) should not be invoked in order to refer to this court an issue which was not relevant to the case which had to be decided.9 In the present case, it is not clear from 8 9 In Borowski v Canada supra note 3, the Canadian Supreme Court held that although the general policy or practice was that courts may decline to decide cases which merely raise hypothetical or abstract questions, they had a discretion to depart from that general practice. According to the court, it was undesirable to lay down precise criteria for the exercise of such discretion except to emphasize that the court has to take into account the rationale behind the the general policy against deciding moot issues. First, in an adversary system, issues are best decided in the context of a live controversy. The second consideration is based on concern for judicial economy and the last is that it is generally undesirable and possibly an intrusion into the role of the legislature for a court to pronounce judgments on constitutional issues in the absence of a dispute affecting the rights of the parties to the litigation. The court ultimately dismissed the appeal stating that, \u201c[t]he mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.\u201d Compare in this regard the refusal of the courts to entertain applications for a declaration of rights in respect of abstract or hypothetical issues in Anglo-Transvaal Collieries v SA Mutual 5 \fTRENGOVE J the judgments of the Ciskei Provincial Division whether the issue concerning the jurisdiction of provincial and local divisions of the Supreme Court generally, as distinct from the jurisdiction of the Ciskei Provincial Division, was in fact raised during the proceedings, or whether it was raised only in the judgments. But even if the issue was raised during the proceedings, it was not, as appears from the judgment of Trengove AJ, relevant to the case which had to be decided. Section 102(8) should therefore not have been invoked.", "The issue has, however, become one of public importance as a result of the judgments given by the Ciskei Supreme Court. The judgments held that provincial and local divisions of the Supreme Court have jurisdiction to enquire into the validity of Acts of Parliament passed prior to the 27th April 1994. For the reasons given by Trengove AJ this is not correct, and to avoid the uncertainty that might otherwise result from such judgments, it has been necessary for this Court to deal with that issue. This Court is not, however, obliged to, and will not ordinarily decide issues, which are not correctly referred to it under Section Life Assurance Society 1977(3) SA 631 (T),635E-636F confirmed on appeal sub nom SA Mutual Life Assurance Society v Anglo-Transvaal Collieries 1977 (3) SA 642 (A), 655D and 658H. 6 \f102(8). [Mahomed DP, Ackerman, Didcott, Kriegler, Langa, Madala, Mokgoro, O\u2019Regan, Trengove and Sachs JJ concur in the judgment]", "Trengove AJ: In this matter the Ciskei provincial division (Pickard JP and Heath J) referred the following issue to this court for a decision in terms of section 102(8) of the Constitution of the Republic of South Africa, 1993 (\u201cthe Constitution\u201d), namely: Whether or not provincial and local divisions of the Supreme Court have jurisdiction to inquire into the constitutionality of acts of the legislatures of South Africa (as it then was) and the TBVC States which were passed prior to the commencement of the new South African Constitution. (See: Zantsi v The Chairman of the Council of State and Another 1994 (6) BCLR 136 (Ck), 171; 1995 (2) SA 534 (Ck), 569). Mr D P de Villiers, with Mr T Deva Pillay, appeared for Third Respondent and Mr W H Trengove, with Mr L Mpati and Mr K Mathee, as amici curiae for the Applicant at the request of this court. We are indebted to them for their assistance. 7 \f[10] The factual background of the referral can be summed up as TRENGOVE J follows. The Applicant was dismissed from employment in the Ciskei Defence Force on 22 April 1991. He intended instituting action against Third Respondent for alleged wrongful dismissal but was debarred from doing so by reason of his failure to comply with the provisions of section 71 of the Defence Act, 17 of 1986 (Ciskei). In terms of this section, civil proceedings had to be instituted within a period of six months after the cause of action had arisen.", "Applicant subsequently sought an order in the court a quo declaring section 71 to be unconstitutional on the ground that it was in conflict with article 1(2) of the Ciskei Bill of Rights, set out in Schedule 6 to the Republic of the Ciskei Constitution Decree, 45 of 1990. The article provided that \"all persons shall be equal before the law\".", "The application proceedings were initiated in June 1993, but the matter only came before the court for argument on some date (which does not appear from the papers before us) after 10 June 1994. At that stage the three Respondents no longer existed. Counsel however agreed that any order made in favour of Applicant would be regarded as 8 \fan order against appropriate organs of the state under the TRENGOVE J Constitution.", "At the outset of the hearing, Pickard JP, raised the question- ... whether or not this court has now the jurisdiction to declare Act 17 of 1986 (Ciskei) or any portion thereof to be unlawful, unenforceable or invalid by virtue of its provisions being in conflict with fundamental rights protected in either the erstwhile Ciskei Constitution Decree or the South African Constitution. (at 140J; 538I-J) Counsel stated that they were of the view that the court had the necessary jurisdiction to deal with the application. Applicant's cause of action had arisen during 1991, proceedings had been initiated, and litis contestatio had occurred during 1993, whereupon the court had jurisdiction to deal with the dispute, which jurisdiction still endured.", "In opposing the application on the merits, counsel for respondents contended that the decision of the Ciskei Appeal Court in Chairman of the Council of the State v Qokose 1994 (2) BCLR 1 (Ck AD); 1994 (2) SA 198 (Ck AD), 9 \fTRENGOVE J handed down on 10 June 1994, was binding on the court a quo. In that case the provisions of section 48 of the Police Act, 32 of 1983 (Ciskei), which were similar to those of section 71, were held to be valid and not unconstitutional.", "I now refer very briefly to views of the court a quo on the issue of jurisdiction raised by the learned Judge President at the beginning of the hearing, and its finding on the merits of the application. Pickard JP was of the opinion that the question of jurisdiction revolved around the interpretation of the expression \"Act of Parliament\" in sections 101(3)(c) and 98(2)(c) of the Constitution. By various processes of reasoning, to which I need not now refer, the learned Judge came to the conclusion at 147F (545G) that- ... the only proper interpretation of the provisions of section 101(3)(c) would then be to interpret the expression \"Parliament\" to mean \"Parliament as created by this Constitution\u201d. He accordingly concluded at 147J to 148A (546A-B) that\u2014 ... on a proper interpretation of the provisions of s 101 of the Constitution, a provincial or local division of the 10 \fTRENGOVE J Supreme Court has jurisdiction to adjudicate upon the constitutionality of any \u201cAct\u201d passed by any legislative body, other than Parliament of the new South Africa as created by Chapter 4 of the new South African Constitution.", "In a separate judgment, Heath J, agreed with the conclusion arrived at by Pickard JP and gave fairly extensive reasons for doing so. In considering the question of jurisdiction, the learned Judge referred in some detail to a number of judgments in other divisions which had considered whether provincial or local divisions had jurisdiction to grant interim relief pending an approach to the Constitutional Court to contest the validity of a statutory provision. I do not consider it necessary to refer to any of these judgments because none of them deals with the issue raised in the referral.", "As to the merits of the application, the court a quo was of the opinion that Qokose's case was distinguishable as the appeal had been heard prior to the commencement of the Constitution, and had consequently been decided without reference to, or consideration of, its provisions. The court held that it was therefore not bound by the appeal court's decision in that case. The court found that section 71 was unconstitutional for reasons set out in 11 \fMatinkinca and Another v Council of State, Ciskei and Another 1994 (1) BCLR 17 (Ck); 1994 (4) SA 472 (Ck) and it consequently made an order to that effect. TRENGOVE J", "Against this background, I return to the issue raised in the referral which, as I have mentioned, relates to the jurisdiction of a provincial or local division of the Supreme Court to inquire into the constitutionality of \u201cacts\u201d of the legislatures of South Africa and the TBVC states which were passed before the commencement of the Constitution.", "A decision on this issue turns ultimately on the proper interpretation of sections 101(2) and 101(3)(c) of the Constitution. However, in view of the jurisdictional scheme of the Constitution it is necessary to refer first to the provisions of section 98(2) and (3) which relate to the jurisdiction of the Constitutional Court.", "Section 98(2) states that the Constitutional Court\u2014 shall have jurisdiction in the Republic as the court of final instance over all matters relating to the interpretation, protection and enforcement of the provisions of this Constitution, including\u2014 12 \fTRENGOVE J the matters particularized in subparagraphs (2)(a) to (g). Thus, throughout the whole of the Republic, as defined in section 1, the jurisdiction of the Constitutional Court, as the court of final instance, in respect of constitutional issues is unqualified and all-inclusive.", "Section 98(2)(c) relates to the issue with which we are concerned in this case, namely, the power to test laws, and particularly Acts of Parliament, said to be inconsistent with the Constitution. In terms of this section, the Constitutional Court has jurisdiction over\u2014 any inquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution.", "Section 98(3) is also relevant to this issue. It states that- The Constitutional Court shall be the only court having jurisdiction over a matter referred to in subsection (2), save where otherwise provided in sections 101(3) and (6) and 103(1) and in an Act of Parliament. In other words, section 98(3) read with section 98(2)(c) 13 \fTRENGOVE J states, in effect, that the Constitutional Court shall be the \"only court having jurisdiction\" to inquire into the validity of any law, including an Act of Parliament \"save where otherwise provided in sections 101(3) and (6) and 103(1) and in an Act of Parliament\". The last two references refer to special situations not particularly relevant for present proposes.", "I come now to sections 101(2) and 101(3)(c) which read as follows- (2)Subject to this Constitution, the Supreme Court shall have the jurisdiction, including the inherent jurisdiction, vested in the Supreme Court immediately before the commencement of this Constitution and any further jurisdiction conferred upon it by this Constitution or by any law. and (3)Subject to this Constitution, a provincial or local division of the Supreme Court shall, within its area of jurisdiction, have jurisdiction in respect of the following additional matters, namely\u2014 ... (c)any inquiry into the constitutionality of any law applicable within its jurisdiction, other than an Act of Parliament, irrespective of whether such law was 14 \fpassed or made before or after the commencement of the Constitution. TRENGOVE J", "Mr de Villier's argument was based mainly on the provisions of sections 98(2)(c), 98(3) and 101(3)(c). He submitted that the question whether a provincial or local division of the Supreme Court had jurisdiction to inquire into the constitutionality of a law was not determined by the consideration whether such law was passed (or made) before or after the commencement of the Constitution, but solely by the question whether it was one which in the contemplation of the framers of the Constitution, was an \"Act of Parliament\". If it was such an Act, the Constitutional Court would have exclusive jurisdiction by reason of the provisions of section 98(3) read with section 98(2)(c). By the same token, a provincial or local division of the Supreme Court would not have authority to adjudicate on the matter in terms of the jurisdiction conferred upon it by section 101(3)(c). Mr de Villiers further contended that although the expression \"Act of Parliament\" was not defined in the Constitution, such indications as there were, left no doubt that in the contemplation of the framers of the Constitution, the expression related to Acts passed by Parliament, sitting in Cape Town, irrespective whether such Acts were passed 15 \fbefore or after the commencement of the Constitution. TRENGOVE J", "Mr Trengove, on the other hand, submitted that in addition to the jurisdiction conferred upon it by section 101(3)(c), a provincial or local division of the Supreme Court was empowered by section 101(2) to inquire into the constitutionality of all legislation, including Acts of Parliament, whether passed before or after the commencement of the Constitution. Mr Trengove's argument in support of this submission can be summed up as follows. Section 101(2) of the Constitution entrenches the \"inherent jurisdiction\" vested in the Supreme Court immediately before the commencement of the Constitution. This inherent jurisdiction of the Supreme Court has at all times prior to the commencement of the Constitution included the power of judicial review of Acts of Parliament. This power, so the argument continued, was rooted in our common law; it has moreover been asserted and applied by our courts in a number of well-known cases to which we were referred; it was furthermore confirmed and reinforced, in effect, by section 19(1)(a) of the Supreme Court Act, 54 of 1959; and finally, it was expressly acknowledged and preserved by section 34(2)(a) of the Republic of South Africa Constitution, Act 110 of 1983. Mr Trengove also contended that section 101(3)(c), 16 \fTRENGOVE J read with section 101(2), was open to an interpretation which did not vest the Constitutional Court with exclusive jurisdiction to review \"Acts of Parliament\", alternatively, that if section 101(3)(c) were to be construed as ousting the Supreme Court's jurisdiction to inquire into the validity of \"Acts of Parliament\", the ouster should be narrowly construed as applying only to Acts of Parliament passed after the commencement of the Constitution. This was the approach of Heath J who found support for this conclusion, inter alia, from the presumption against the ousting of the jurisdiction of the Supreme Court (at page 164B-C; 562F-G), from the principle that a constitution should be construed generously so as to give individuals \"the full measure of the rights and freedoms referred to\u201d (at page 162B,163I; 560E,562C) and consistently with the \"spirit and purpose of sections 98 and 101\"(at page 164D; 562H).", "I shall first deal with Mr Trengove's submission that, by reason of the entrenchment in section 101(2) of the inherent jurisdiction vested in the Supreme Court immediately prior to the commencement of the Constitution, a provincial or local division of the Supreme Court has jurisdiction to inquire into the constitutionality of all 17 \fTRENGOVE J legislation, including Acts of Parliament, whether passed before or after the commencement of the Constitution. I do not consider it necessary to decide whether the inherent jurisdiction vested in the Supreme Court immediately before the commencement of the Constitution included the power to inquire into the validity of Acts of Parliament. For present purposes, I shall assume that it did. The crucial question, nevertheless, is whether the inherent jurisdiction of the court as entrenched in section 101(2), included the power of review of Acts of Parliament. In order to determine this question, it is necessary to construe section 101(2) in the context of the constitutional scheme of division of powers and functions within the judiciary. In this respect there is, in my view, a fundamental flaw in Mr Trengove's line of reasoning - it does not take sufficient account of the fact that the provisions of section 101(2) must be regarded as being subordinate to those of section 98(2) and (3).", "In this regard, it is important to note, first, that the provisions of section 101(2) are governed by the words \"subject to the Constitution\". As to the meaning and effect of the phrase \"subject to,\" I respectfully agree with, and adopt, what Miller JA said in the following 18 \fpassage in S v Marwane 1982 (3) SA 717 (A), 747H to 748A, TRENGOVE J namely- The purpose of the phrase \u2018subject to\u2019 in such a context is to establish what is dominant and what subordinate or subservient; that to which a provision is \u2018subject\u2019 is dominant - in case of conflict it prevails over that which is subject to it. Certainly, in the field of legislation, the phrase has this clear and accepted connotation. When the legislator wishes to convey that that which is now being enacted is not to prevail in circumstances where it conflicts, or is inconsistent or incompatible, with a specified other enactment, it very frequently, it not almost invariably, qualifies such enactment by the method of declaring it to be \u2018subject to\u2019 the other specified one. In the present instance, section 98(2) and (3) are plainly the dominant provisions and would prevail over section 101(2) in the event of conflict.", "As previously indicated, the exclusivity of jurisdiction conferred upon the Constitutional Court by section 98(3) with reference to the matters as set out in section 98(2), is subject to modification only as stated in the proviso. There is no reference to section 101(2) in the proviso. It follows that the provisions of section 101(2) should not be construed as constituting a modification of the 19 \fTRENGOVE J Constitutional Court's exclusive jurisdiction, in terms of section 98(3) read with section 98(2)(c), to inquire into the constitutionality of Acts of Parliament. However, if the expression \"inherent jurisdiction\" were construed - as counsel contended it should be - as inclusive of the power of review of Acts of Parliament, the provisions of section 101(2) would, to that extent, manifestly conflict or be inconsistent with the provisions of section 98(2) and(3)(c).", "The interpretation of section 101(2) advanced by Mr Trengove also gives rise to other inconsistencies or anomalies. For example, according to that interpretation, section 101(2) confers jurisdiction upon a provincial or local division of the Supreme Court to inquire into the constitutionality of any law, applicable within its area of jurisdiction, including an Act of Parliament, whereas in section 101(3)(c) the jurisdiction of such a provincial or local division to inquire into the constitutionality of laws, relates to \"any laws applicable within its area of jurisdiction, other than an Act of Parliament.\"", "In endeavouring to reconcile his interpretation of the extent of the inherent jurisdiction of the Supreme Court, entrenched in section 101(2), with the provisions of 20 \fTRENGOVE J section 101(3)(c), Mr Trengove was constrained to resort to a somewhat artificial construction of the latter section. He contended that the language of the section did not exclude or revoke the Supreme Courts' inherent power of judicial review of Acts of Parliament - it merely entrenched the Supreme Court\u2019s jurisdiction to inquire into the constitutionality of any law applicable within its area of jurisdiction, and excluded Acts of Parliament from the general entrenchment. What this argument however overlooks, is that if the Supreme Court\u2019s inherent jurisdiction immediately prior to the commencement of the Constitution, in fact included the power of judicial review of Acts of Parliament, such power has, as I have already mentioned, been excluded or revoked by section 98(3) read with 98(2)(c), and has not been reinstated in section 101(3)(c) or in any other section of the Constitution.", "There is a further factor militating against the correctness of the interpretation of section 101(2) contended for by Mr Trengove. Section 101(4) confers the powers of the Constitutional Court in terms of section 98(5), (6), (7), (8) and (9) upon a provincial or local division of the Supreme Court \"for the purposes of exercising its jurisdiction under subsection (3).\" If the 21 \fTRENGOVE J inherent jurisdiction of the Supreme Court as entrenched in section 101(2), had included the power of judicial review of Acts of Parliament, the Constitution would, no doubt, have provided for a similar conferral of powers upon a provincial or local division for the purposes of exercising its jurisdiction under section 101(2), but no such provision exists.", "In the result, I have come to the conclusion that whatever the scope of the Supreme Court\u2019s inherent jurisdiction immediately before the commencement of the Constitution might have been, its inherent jurisdiction as entrenched in section 101(2) does not include the power of review of the constitutionality of Acts of Parliament.", "I now come to the provisions of section 101(3)(c). The question for consideration is whether this section confers jurisdiction upon a provincial or local division of the Supreme Court to inquire into the constitutionality of an Act of Parliament passed before the commencement of the Constitution. The answer to this question depends, as Pickard JP observed, on the proper interpretation of the expression \"Act of Parliament\" in the context of sections 101(3)(c) and 98(2)(c). It will be recalled that the 22 \fTRENGOVE J learned judges in the court a quo were of the opinion that the expression applied only to Acts of Parliament passed after the commencement of the Constitution, and not to Acts passed before that date.", "Central to the reasoning of Pickard JP were two propositions. First, none of the legislatures of the Republic of South Africa or Transkei, Bophuthatswana, Venda and Ciskei \"were recognised by the vast majority of the subjects of the new South Africa as the legitimate representatives of the people or as the legitimate legislatures for them.\" Consequently, in the context of the new democratic Constitution, the term \"Parliament, when used in its ordinary sense, does not include... any of those legislatures.\" Secondly, since none of the legislatures of the old Republic of South Africa or the TBVC states had authority to legislate for the whole of what is now the national territory, none of them can be said to have been a Parliament within the meaning of the 1993 Constitution.", "The 1993 Constitution is an Act passed by the old South African Parliament. It does not purport to bring about a merger between five \"independent countries\". On the 23 \fTRENGOVE J contrary, it recognises only the sovereignty of South Africa, and proceeds on the basis that South Africa is claiming sovereignty over the TBVC states, repealing the legislation by which they were previously established, and referring to them in the text as areas \"which form part of the national territory.\" It makes provision for constitutional continuity, treating the 1983 Constitution of the Republic of South Africa as the previous Constitution. Consistently with this, the name of the country remains the Republic of South Africa, the then South African President was empowered to bring the provisions of the Constitution into force prior to April 1994 (Section 251), the national revenue fund of the Republic of South Africa established under the 1983 Constitution is deemed to be the State Revenue Fund (Section 240), the elections for the new Parliament were to be conducted in terms of the South African Electoral Act 1993 (Section 249), under the supervision of the Independent Electoral Commission (Section 250), and local government elections are to be conducted in terms of the South African Local Government Transition Act 1993 (Section 245). In Section 234 one \"Parliament\" is contemplated, and the reference is clearly to the South African Parliament in Cape Town. In the context of the Constitution as a whole it is clear that \"Act of 24 \fTRENGOVE J Parliament\" means an Act of the South African Parliament sitting in Cape Town. (See also Japaco Investments (Pty) Ltd and Others v The Minister of Justice 1995 (1) BCLR 113(C), 116D-F). This has been accepted by almost every division of the Supreme Court both before and since the decision of the Ciskei Provincial Division in this case. In my view, therefore, the two central propositions on which Pickard JP based his judgment must be rejected.", "The Constitution does not contain a definition of the expression \"Act of Parliament\". However, this expression has formed part of the definition of the word \"law\" in our Interpretation Acts ever since 1910 (see section 3, s.v. \"law\" in the Interpretation Act, 5 of 1910). In the present Act, Interpretation Act, 33 of 1957, the word \"law\" is defined in section 2 as- \"any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law.\" The word \"Parliament\" was initially defined in these Interpretation Acts as meaning \u201cthe Parliament of the Union of South Africa\" but since 1961 it has meant \"the Parliament of the Republic of South Africa.\" Thus, since 25 \fTRENGOVE J the establishment of the Union of South Africa in 1910, the expression \"Act of Parliament\" has consistently been used in our statute law with reference to legislation passed by the South African Parliament - by the Parliament of the Union of South Africa during the period 1910 - 1961, and from then onwards, by the Parliament of the Republic of South Africa. The expression has never been used in our statute law with reference to any laws passed or made by the Parliaments or legislatures of any of the former TBVC States. The question whether, in the context of the Constitution, the expression \"Act of Parliament\" refers to an Act passed either before or after the commencement of the Constitution, or to an Act regardless of when it was passed, must of course be determined with reference to the context in which it occurs.", "I return to the provisions of sections 98(2)(c) and 101(3)(c) to consider whether in the context of these sections the expression \"Act of Parliament\" includes acts passed before the commencement of the Constitution. In view of the effect of provisions of section 98(3), I shall first deal with the meaning of the words \"Act of Parliament\" in section 98(2)(c). Having regard to the all- inclusive nature of the jurisdiction conferred upon the Constitutional Court by section 98(2) and the ordinary 26 \fTRENGOVE J meaning of the language of section 98(2)(c), I have no doubt that in this section the expression \"Act of Parliament\" refers to any such Act irrespective of whether it was passed before or after the commencement of the Constitution. This becomes very clear if the section is construed, as it should be, with due regard to the meaning assigned to the word \"law\" in the Interpretation Act. In the context of section 98(2)(c) the words \"any law, including an Act of Parliament\u201d and \u201dsuch \u201claw\u201d, clearly mean \"any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law.\" (my emphasis). So construed, section 98(2)(c), in effect, confers jurisdiction upon the Constitutional Court over any inquiry into the constitutionality of \"any law, proclamation, ordinance, Act of Parliament, or other enactment having the force of law\", irrespective of whether \"such law, proclamation, ordinance, Act of Parliament, or other enactment having the force of law\" was passed or made before or after the commencement of the Constitution.", "It is now necessary to consider the meaning of the expression \u201cAct of Parliament\" in the context of section 101(3)(c). In this regard, it is important to bear in mind that the jurisdiction conferred upon a provincial or local 27 \fTRENGOVE J division of the Supreme Court by this section is concurrent jurisdiction and that it, in effect, modifies the exclusivity of the jurisdiction conferred upon the Constitutional Court by section 98(3) with reference to the subject matter of section 98(3)(c). The essential difference between the scope of the jurisdiction conferred by sections 98(2)(c) and 101(3)(c) upon the respective courts, is that section 98(2)(c) confers jurisdiction upon the Constitutional Court over \"any inquiry into the constitutionality of any law, including an Act of Parliament\" (my emphasis), whereas section 101(3)(c) confers jurisdiction upon a provincial or local division of the Supreme Court in respect of \"any inquiry into the constitutionality of any law ... other than an Act of Parliament.\" (my emphasis) This comparison of the wording of the two clauses shows quite clearly that the jurisdiction conferred by section 101(3)(c) does not include the power to inquire into the constitutionality of Acts of Parliament, nor does it modify or affect the exclusivity of the Constitutional Court's jurisdiction to do so, in any manner. Thus, the question whether a provincial or local division of the Supreme Court has jurisdiction in terms of section 101(3)(c), to inquire into the constitutionality of any law depends entirely upon whether that law is an Act of Parliament, or not. If 28 \fTRENGOVE J it is, a provincial or local division would have no jurisdiction in the matter for it would fall within the exclusive jurisdiction conferred upon the Constitutional Court by section 98(3) read with section 98(2)(c) in respect of any inquiry into the constitutionality of an Act of Parliament. This in my view follows clearly from the structure and provisions of the Constitution dealing with the judicial authority and the jurisdiction of the Courts in respect of constitutional issues, and cannot be avoided, as Heath J sought to do, by a resort to presumptions and to a \"generous\" and \"purposive\" interpretation. In fact, in the present case, the adoption of a purposive interpretation does not support the conclusion reached by Heath J. In my view the clear purpose of the relevant provisions was to ensure that the Constitutional Court would be the only Court with jurisdiction to set aside an Act of Parliament. What other purpose could there have been for the provisions of section 98(3) and the deliberate distinction drawn in sections 98(2) and 102(3) between the jurisdiction of the Constitutional Court and the jurisdiction of the Supreme Court? In this respect, and without seeking to express any opinion in regard to the conflicting decisions on the jurisdiction of the Supreme Court to grant interim relief in disputes in which the validity of an Act of Parliament 29 \fTRENGOVE J is in issue (a matter which has now been resolved by the provisions of section 16 of the Constitutional Court Complementary Act, 13 of 1995), I agree with the comments of Didcott J in Bux v The Officer Commanding the Pietermaritzburg Prison and Others 1994 (4) BCLR 10 (N) 14J to 15F; 1994 (4) SA 562 (N), 566D-J.", "I do not consider it necessary to deal with Mr Trengove's alternative submission in respect of section 101(3)(c) because it does not take account of the effect of section 98(3) and is founded on a premise which I have already rejected as unsound, namely that section 101(2) entrenches the inherent jurisdiction of the Supreme Court to inquire into the constitutionality of an Act of Parliament.", "Finally, as to laws passed or made by the legislatures of the former TBVC States prior to the commencement of the Constitution, I have already indicated that, in my opinion, those laws do not fall within the definition of an Act of Parliament. It follows that a provincial or local division of the Supreme Court would have jurisdiction, under section 101(3)(c), to inquire into the constitutionality of any such law, applicable within its area of jurisdiction. 30 \fTRENGOVE J", "In the result, I have come to the conclusion that the issue referred to this Court by the Ciskei Provincial Division in terms of section 102(8) of the Constitution should be decided as follows\u2014 1. A provincial or local division has no jurisdiction to inquire into the constitutionality of an Act of Parliament passed by the South African Parliament, irrespective of whether such Act was passed before or after the commencement of the Constitution. 2. As to a law passed or made by any of the legislatures of the former TBVC States, a provincial or local division of the Supreme Court has jurisdiction, in terms of section 101(3)(c), to inquire into the constitutionality of any such law applicable within its jurisdiction. J. TRENGOVE ACTING JUDGE OF THE CONSTITUTIONAL COURT [Chaskalson P, Mahomed DP, Ackerman, Didcott, Kriegler, Langa, Madala, Mokgoro, O\u2019Regan, Sachs JJ concur in the judgment] 31 \fCOUNSEL FOR APPLICANTS W TRENGOVE S.C ASSISTED BY (amicus curiae) L.MPATI & K. MATHEE TRENGOVE J Istructed by Constitutional Litigation Unit Legal Resources Centre (JHB) COUNSEL FOR RESPONDENTS D. P. de VILLEIRS Q.C T. DEVA PILLAY Instructed by Smith Tabata Van Heerden & Siwisa 32"], "max_length_judgement_paras": 545}, {"title": "Premier of Kwazulu-Natal and Others v President of the Republic of South Africa and Others (CCT36/95) [1995] ZACC 10; 1995 (12) BCLR 1561; 1996 (1) SA 769 (29 November 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/10.html", "summary_document": {"filename": "summary-for-case-10.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/10media.pdf", "file_content": " \n\n \n\nPremier of KwaZulu-Natal and others v President of the Republic of South \n\nAfrica and others \n\n Case CCT 36/95 \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nAn application was made for direct access to the Court to obtain an order declaring \nunconstitutional amendments to ss 149(10), 182, 184(5) and 245 of the Constitution by the \nConstitution of the Republic of South Africa Second Amendment Act 44 of 1995. The \napplication for direct access was granted. \n\nThe amendment to s 149(10) permits the President, rather than the relevant provincial \nlegislature, to determine the remuneration of the Premiers and members of the Executive \nCouncils of provincial governments. The principal attack on the validity of the amendment \nwas that the proviso to s 62(2) of the Constitution read with s 144 required the consent of a \nprovince when the legislative or executive competence of that province was amended by \nParliamentary legislation. The consent of the KwaZulu-Natal legislature was not obtained to \nthe amendment to s 149(10). The Court held that the proviso to s 62(2) contemplates \nlegislation targeted at one or some but not all of the provinces. The impugned amendment to \ns 149(10) applied equally to all the provinces and therefore fell outside the proviso to s 62(2). \n\nThe amendment to s 182 of the Constitution provided that the President could determine \nguidelines for the identification of traditional leaders who would ex officio become members \nof a local government within their area of jurisdiction. Prior to the amendment no such \nguidelines were required. It was again contended that the amendment was required, and \nfailed, to comply with the proviso to s 62(2). The Court held that s 182 had been correctly \namended in accordance with s 62(1) and that it was not required that the amendment comply \nwith the proviso s 62(2) for the same reasons as set out above in relation to s 149(10). \n\nThe amendment to s 184(5) of the Constitution altered the procedure for the referral to \ntraditional leaders of legislation dealing with traditional leaders and indigenous law. \nPreviously, such legislation was required to be referred to the Council of Traditional Leaders. \nHowever no such Council had been established. The amendment required legislation to be \nreferred to such Provincial Houses of Traditional Leaders as had been established and were \nfunctioning at the time of introduction of the legislation. It was argued that the amendment \ndid not comply with the requirements of the unamended s 184(5) in that the Bill amending \nthe section was not referred to the Council of Traditional Leaders. The Court rejected this \nargument, holding that the provisions of s 184(5) need only be complied with when ordinary \nlegislation relating to traditional authorities or indigenous law is passed, but that amendments \nto s 184(5) of the Constitution need not comply with s 184(5). Section 62(1) was the only \nsection that had to be complied with and it had been. It was held that the fact that the effect of \nthe amendment was to validate retrospectively a Bill which had been passed by Parliament \nbut which had not been referred to the Council of Traditional Leaders as required by s 184(5) \n\n1 \n\n\f \n\n(the Remuneration of Traditional Leaders Bill 1995) was irrelevant to the validity of a \nconstitutional amendment to s 184(5). \n\nThe amendment to s 245 provided that until 31 March 1996 local government could not be \nrestructured otherwise than in accordance with the Local Government Transition Act, even if \nlocal government elections were held prior to that date. Previously, s 245 provided that local \ngovernment could be restructured by a 'competent authority' after elections had taken place. It \nwas contended that the amendment impermissibly extended national legislation within the \nfield of provincial legislative competence. The Court held that both Parliament and the \nprovinces were competent authorities to legislate in this field. The Court was of the opinion \nthat a Parliamentary law in this regard would arguably have prevailed over provincial \nlegislation as the law had become necessary because of the postponement of local \ngovernment elections in certain areas. The amendment had not amended s 144 or s 126 and \ntherefore s 62(2) was not engaged. Despite the fact that the amendment had complied with \nthe procedural requirements of the Constitution, the Court nevertheless stated that a purported \namendment to the Constitution, following the correct procedures, but radically and \nfundamentally restructuring and reorganising the fundamental premises of the Constitution \nmight not qualify as an amendment at all and may therefore may be constitutionally \nimpermissible. However, none of the amendments in question fell within that category. \n\nThe application was therefore dismissed. \n\nThe judgment of the Court was delivered by Mahomed DP and was concurred in by all the \nother members of the Court. \n\n \n\n2 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-10.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/10.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nIn the matter between:\n\nTHE PREMIER OF KWAZULU-NATAL\n\nFIRST APPLICANT\n\nCASE NO. CCT 36/95\n\nTHE MEMBER OF THE EXECUTIVE COUNCIL\nFOR FINANCE, AUXILIARY SERVICES \nAND PUBLIC WORKS (KWAZULU-NATAL)\n\nTHE MEMBER OF THE EXECUTIVE COUNCIL \nFOR TRADITIONAL AND ENVIRONMENTAL \nAFFAIRS (KWAZULU-NATAL)\n\nTHE MEMBER OF THE EXECUTIVE COUNCIL\nFOR LOCAL GOVERNMENT AND HOUSING\n(KWAZULU-NATAL)\n\nTHE EXECUTIVE COUNCIL OF THE \nPROVINCE OF KWAZULU-NATAL\n\nand\n\nTHE PRESIDENT OF THE REPUBLIC OF\nSOUTH AFRICA\n\nTHE GOVERNMENT OF THE REPUBLIC\nOF SOUTH AFRICA\n\nTHE MINISTER FOR PROVINCIAL AFFAIRS\nAND CONSTITUTIONAL DEVELOPMENT\n\nSECOND APPLICANT\n\nTHIRD APPLICANT\n\nFOURTH APPLICANT\n\nFIFTH APPLICANT\n\nFIRST RESPONDENT\n\nSECOND RESPONDENT\n\nTHIRD RESPONDENT\n\nHEARD ON: \nDELIVERED ON:\n \n\n15 November 1995\n29 November 1995\n\n \n\nJUDGMENT\n\n[1] MAHOMED DP. The First Applicant, who is the Premier of KwaZulu-Natal, seeks an\n\norder declaring unconstitutional various amendments to the Constitution of the Republic\n\nof South Africa, Act No. 200 of 1993 (\u201cthe Constitution\u201d) which were purportedly effected\n\nby the Constitution of the Republic of South Africa Second Amendment Act, No. 44 of\n\n\f1995 (\u201cthe 1995 Constitutional Amendment\u201d). The First Applicant is supported in this\n\nattack by the remaining Applicants.\n\nMAHOMED DP\n\n[2]\n\nThis matter was initiated by way of an application for direct access to the Constitutional\n\nCourt in terms of rule 17 of the Rules of the Court, read with section 100(2) of the\n\nConstitution. The application for direct access was granted.\n\n[3]\n\nThe provisions of the Constitution which it is claimed were invalidly amended by the 1995\n\nConstitutional Amendment are sections 149(10); 182; 184 and 245. Certain amendments\n\nto the Local Government Transition Act 209 of 1993 (\u201c the Transition Act\u201d) were also\n\nattacked, but these attacks were abandoned in the course of oral argument on behalf of the\n\nApplicants. I propose to deal seriatim with each of the attacks made on the amendments\n\nto the Constitution.\n\nSection 149(10)\n\n[4]\n\nPrior to its amendment in terms of the 1995 Constitutional Amendment section 149(10)\n\nread as follows:\n\n\u201cThere shall, subject to Section 207(2), be paid out of and as a charge on the Provincial\nRevenue Fund of a province to the Premier and to a member of an Executive Council\nof such province such remuneration and allowances as may be prescribed by or\ndetermined under a law of the provincial legislature.\u201d\n\n[5]\n\nAfter the purported amendment, this section reads as follows:\n\n\u201cThere shall, subject to Section 207(2), be paid out of and as a charge on the Provincial\nRevenue Fund of a province to the Premier and to a member of an Executive Council\nof such province such remuneration and allowances as may be determined by the\nPresident.\u201d\n\n2\n\n\fMAHOMED DP\n\n[6]\n\nSection 207(2) of the Constitution was not amended and reads as follows:\n\n\u201c (2) The Commission shall make recommendations to Parliament, the\nprovincial legislatures and local governments regarding the nature, extent and\nconditions of the remuneration and allowances of the members of all elected\nlegislative bodies of the national government and of provincial and local\ngovernments, including members of the Provincial Houses of Traditional\nLeaders and the Council of Traditional Leaders.\u201d\n\nThe Commission referred to in this section is the Commission on Remuneration of\n\nRepresentatives to be established by an Act of Parliament pursuant to section 207(1) of the\n\nConstitution.\n\n[7]\n\nIn the heads of argument of the Applicants it was submitted that the purported amendment\n\nto section 149(10), sought to be effected by the 1995 Constitutional Amendment, is in\n\nconflict with section 135(4) of the Constitution, which provides that:\n\n \u201c (4) There shall, subject to section 207(2), be paid out of and as a charge on\nthe Provincial Revenue Fund of a province to a member of the legislature of\nthat province such remuneration and allowances as may be prescribed by or\ndetermined under a law of the provincial legislature.\u201d \n\n[8]\n\nMr Gordon SC, who appeared for the Applicants (together with Mr Dickson SC), wisely\n\nabandoned this ground of attack during his oral argument before us. The attack was clearly\n\nuntenable because even if section 135(4) of the Constitution was to be read as if it was in\n\nconflict with section 149(10) (I doubt very much that it was), an amendment to the\n\nConstitution in conflict with another part of the Constitution would simply have the effect\n\nof a pro tanto amendment or repeal, by implication, of the earlier provision as long as the\n\namendment was adopted in compliance with the forms and procedures prescribed by the\n\n3\n\n\fConstitution.1 The same considerations apply to the suggestion in the heads of argument\n\nof the Applicants that the amendment to section 149(10) was in conflict with section 155\n\nof the Constitution and section 207(2) of the Constitution.\n\nMAHOMED DP\n\n[9]\n\nAn attack was also made in the Applicants\u2019 heads of argument on the amendment to section\n\n149(10) effected by the 1995 Constitutional Amendment, on the ground that the amendment\n\n\u201coffends Constitutional Principle XVIII(2)\u201d contained in the fourth schedule to the\n\nConstitution.\n\n[10]\n\nThis ground of attack was not pressed by Mr Gordon in oral argument, but he did not\n\nexpressly abandon it.\n\n[11]\n\nThe relevant Constitutional Principle provides that:\n\n\u201cThe powers and functions of the provinces defined in the Constitution,\nincluding the competence of a provincial legislature to adopt a Constitution\nfor its province, shall not be substantially less than or substantially inferior to\nthose provided for in this Constitution.\u201d\n\n[12]\n\nThe reliance on Constitutional Principle XVIII(2) appears to me to have been\n\nmisconceived. Constitutional Principle XVIII(2) deals with a future Constitution which\n\nmust conform to the Constitutional Principles contained in Schedule 4. It does not deal\n\nwith amendments to the present Constitution at all. This is perfectly clear from the status\n\nand purposes of Schedule 4, articulated in section 71 of the Constitution.2 The makers of\n\n1 Freeman v Union Government 1926 TPD 638 at 651; The Executive Council of the Western Cape\nLegislature and Others v The President of the Republic of South Africa and Others, 1995(10) BCLR 1289 (CC)\nat paragraph 58.\n\n2 supra n.1, at paragraphs 40 and 41.\n\n4\n\n\fMAHOMED DP\n\nthe Constitution expressly applied their minds to what part of the Constitution could be\n\namended and what could not3 and what procedures had to be followed 4 when the\n\nConstitution was amended. It refrained from protecting section 149(10) from amendment\n\nor from prescribing any special procedures before that section could be amended.\n\nIt therefore follows that the impugned amendment to section 149(10) cannot successfully\n\nbe attacked simply on the ground that it \u201coffends Constitutional Principle XVIII(2)\u201d. It is,\n\nfor the purposes of this case, unnecessary to decide whether a constitutional amendment\n\nwhich has substantially the effect of destroying or abrogating the very essentials upon\n\nwhich the Constitutional Principles are premised, would be constitutionally permissible\n\nmerely because the procedures prescribed by section 62 were followed. The impugned\n\namendment to section 149(10) does not fall within such a category. Indeed, the amendment\n\nto section 149(10) cannot even be said to reduce the powers and functions of the provinces\n\nin respects which make them \u201csubstantially less\u201d or \u201csubstantially inferior\u201d, nor can it be\n\nsaid that the impugned amendment is by necessary implication excluded by any other\n\nConstitutional Principle. \n\n[13]\n\nThe main thrust of the attack on the purported amendment to section 149(10) which counsel\n\non behalf of the Applicants advanced at the hearing of this matter was that it was not\n\ncompetent without following the special procedures prescribed by section 62(2) of the\n\nConstitution. It was argued that the effect of the amendment was to amend the legislative\n\n3 Section 71.\n\n4 Section 62.\n\n5\n\n\fMAHOMED DP\n\ncompetence of a province to pay to its Premier and to members of its Executive Council\n\nsuch remuneration and allowances as were prescribed and determined under a law of a\n\nprovincial legislature. The KwaZulu-Natal provincial legislature, we were reminded, had\n\nindeed passed an Act called the KwaZulu-Natal Legislature Remuneration Act No 2 of\n\n1994 providing inter alia for the salaries and allowances to be paid to the Premier and\n\nmembers of the Executive Council of the KwaZulu-Natal province and this Act had pre-\n\ndated the impugned amendment to section 149(10).\n\n[14]\n\nSection 62 of the Constitution reads as follows:\n\n\u201cBills amending Constitution\n\n 62. (1) Subject to subsection (2) and section 74, a Bill amending this\nConstitution shall, for its passing by Parliament, be required to be adopted at\na joint sitting of the National Assembly and the Senate by a majority of at least\ntwo-thirds of the total number of members of both Houses.\n (2) No amendment of sections 126 and 144 shall be of any force and\neffect unless passed separately by both Houses by a majority of at least two-\nthirds of all the members in each house: Provided that the boundaries and\nlegislative and executive competences of a province shall not be amended\nwithout the consent of a relevant provincial legislature.\u201d\n\n[15]\n\nIt was common cause that the amendment to section 149(10) was passed at a joint sitting\n\nof the National Assembly and the Senate by a majority of at least two-thirds of the total\n\nnumber of both Houses. It was also common cause that if the procedures prescribed by\n\nsection 62(2) of the Constitution were indeed applicable, they had not been followed. It\n\nwas contended on behalf of the Applicants that this was incorrect. The procedures\n\nprescribed by section 62(2), it was argued, should have been followed.\n\n6\n\n\f[16]\n\nThe crucial issue which therefore needs to be determined is whether section 62(2) was\n\napplicable when the purported amendment to section 149(10) of the Constitution was\n\nMAHOMED DP\n\npassed.\n\n[17] Counsel for the Applicants contended that what the amendment to section 149(10) was\n\ndoing was indeed to amend the legislative and executive competence of a province and that\n\nit could not do so without the consent of the relevant provincial legislature because of the\n\nproviso to section 62(2) of the Constitution. Since the amendment to section 149(10) does\n\nnot amend sections 126 or 144, the argument of Mr Gordon must be premised on the\n\nproposition that the proviso to section 62(2) is an independent and substantive impediment\n\nto the powers of Parliament and it therefore needs to be complied with in all cases where\n\nthe legislative and executive competence of a province is sought to be amended. Mr\n\nGauntlett SC, who appeared for the Respondent (together with Mr Moerane SC and Mr\n\nHeunis), disputed this premise. He argued that what the proviso to section 62(2) seeks\n\nto achieve is a qualification to the substantive part of section 62(2). The substantive part\n\nof section 62(2), he submitted, is limited to amendments to sections 126 and 144 only.\n\nSuch amendments, he contended, need to be passed separately by both Houses of\n\nParliament by a majority of at least two-thirds of all the members in each House. The\n\nproviso, he argued, therefore simply meant that where sections 126 or 144 are amended\n\nby an amendment to the boundaries of a province or the legislative or executive\n\ncompetence of a province, the consent of the relevant provincial legislature is an\n\nadditional requirement. \n\n7\n\n\f[18]\n\nIn support of the submission that this is what a proviso to a substantive provision means,\n\nMAHOMED DP\n\ncounsel for the Respondents relied on the case of R v Dibdin,5 the judgments of this Court\n\nin the case of S v Mhlungu and others6 and the Western Cape Legislature case. 7\n\nParagraph 32 of the report of the judgment in Mhlungu\u2019s case states that \u201ca proviso\n\nqualifies the substantive part\u201d. This was also the reasoning of Fletcher Moulton LJ in the\n\ncase of R v Dibdin8, in which the learned Judge stated that:\n\n\u201cThe fallacy of the purported method of interpretation is not far to seek. It sins against\nthe fundamental rule of construction that a proviso must be considered with relation\nto the principal matter to which its stands as a proviso. It treats it as if it were an\nindependent enacting clause instead of being dependent on the main enactment.\u201d9\n\n[19]\n\nIn the Western Cape Legislature case Chaskalson P, in considering the submissions that\n\nProclamations R58 and R59 of 1995 were inconsistent with the proviso to section 62(2),\n\nstated that-\n\n\u201cSection 62(2) is a clause dealing with Constitutional Amendments and the\nproviso must be read as qualifying the substantive part of the clause and not\nas an independent constitutional requirement applicable to any legislation\ndealing with provincial powers and functions.\u201d10\n\n5 (1910) P. 57 at 125.\n\n6 1995 (7) BCLR 793 (CC); 1995(3) SA 867 (CC).\n\n7 supra n.1, at para. 49.\n\n8 supra n.5.\n\n9 Followed in Government of the Republic of Namibia v Cultura 2000 1994(1) SA 407 (NmSC) at\nSee also Ex parte Parington (1844) 6 QBD 649 at 653; Re Brocklbank (1889) 23 QBD 461;\n\n417I-418A. \nHill v East and West India Dock Company (1884) 9 App.Cas 448.\n\n10 supra n 1. at para 49. In that case it was pointed out that section 62 dealt with constitutional\namendments and that the proviso to section 62(2) could not be relied on to extend the scope of this provision to\none which dealt with ordinary legislation.\n\n8\n\n\f[20] Mr Gordon countered the Respondents\u2019 argument by pointing out that the observation made\n\nMAHOMED DP\n\nby Chaskalson P in the Western Cape Legislature case, which I have quoted11, was made\n\nin the context of an attack on certain Proclamations which, unlike the present matter, did\n\nnot involve an amendment to the Constitution and that the mind of the Court was not\n\ndirected to the meaning of the proviso in the present context. He correctly contended that\n\nthe ordinary rule pertaining to the interpretation of a proviso to a substantive section,\n\nwhich is set out in Dibdin\u2019s case,12 is not an invariable rule, and that the context and object\n\nof such a proviso in a particular statute might justify giving to a particular proviso the\n\nmeaning of an independent and substantive content. There is clear support for that\n\napproach in the authorities.\n\n\u201cA proviso is usually enacted in order to qualify something contained in the\npreceding enactment. But it does not necessarily follow that they were\nenacted solely for those purposes. Halsbury Laws of England 3rd ed vol 35\npara 604 says: \n\n\u201cThe danger of construing a proviso, which is merely a limitation on the\nenactment to which it is attached, as if it were a general limitation extending\nto other enactments or were itself a positive enactment, has often been\npointed out. The substance, and not the form must, however, be looked at, and\nthat which is in form a proviso may in substance be a fresh enactment, adding\nto and not merely qualifying that which goes before it\u201d\n\nMaxwell on Interpretation of Statutes 12th ed at 190 says:\n\n\u201cIf, however, the language of the proviso makes it plain that\nit was intended to have an operation more extensive than\nthat of the provision which it immediately follows, it must\nbe given such wider effect.\u201d\n\nSee too Craies on Statute Law 7th ed at 219.\u201d13\n\n[21]\n\nFollowing on this approach, Mr Gordon referred to the fact that the proviso to section\n\n62(2) referred also to the \u201cboundaries\u201d of the province which could not be amended\n\n11 supra n. 10.\n\n12 supra n. 5.\n\n13 S v Rosenthal 1980 (1) 65 (A) at 81E-H; S.A. Textile and Allied Workers Union v Skipper\nInternational 1990(4) SA 842 (A) at 847; Strydom v Die Land- en Landboubank van S.A. 1972(1) SA 801 (A).\n\n9\n\n\fMAHOMED DP\n\nwithout the consent of a relevant provincial legislature. He argued that since there was no\n\nreference to the amendment of boundaries in the substantive part of section 62(2), it could\n\nnot be said that the object of the proviso was to qualify or limit something that was being\n\nregulated by the substantive part and that the proviso should therefore be interpreted as an\n\nindependent and substantive enactment. There is obvious substance in this argument. The\n\nauthorities which hold that a proviso to an enactment must ordinarily be interpreted so as\n\nto qualify the substantive part of the enactment, do not deal with a proviso which is prima\n\nfacie capable of extending the subject matter of the substantive part of such and\n\nenactment.14 \n\n[22]\n\nThere are, however, \n\nformidable considerations which suggest a different\n\ninterpretation.What the substantive part of section 62(2) seeks to regulate are amendments\n\nto sections 126 and 144 of the Constitution. These sections refer to the legislative\n\ncompetence and the executive authority of provinces. The competence of a province to\n\nlegislate in respect of a particular province must necessarily be affected if the boundaries\n\nof that province are amended and it is this necessary relationship between the boundaries\n\nof a province and its legislative competence which the makers of the Constitution might\n\nhave had in mind in referring to \u201cboundaries\u201d in the proviso to section 62(2). The\n\nreference to \u201cboundaries\u201d in this context might arguably have been made ex abundante\n\ncautela.15\n\n14 supra, n. 13.\n\n15 R v Abel 1948 (1) SA 654 (A) at 662; Minister of Finance and Another v Law Society, Transvaal\n1991 (4) SA 544 (A) at 557E-G; C. Ltd. v The Commisioner of Taxes 1962 (1) SA 45 (S.R.) At 46G-H; Maphosa\nv Wilke en Andere 1990 (3) SA 789 (T) at 799A-C.\n\n10\n\n\fMAHOMED DP\n\nIf the proviso to section 62(2) was intended as a substantive and independent provision\n\ndivorced from the substantive part of section 62(2), it is difficult to appreciate why it was\n\nput in the form of a proviso to section 62(2) and why nothing was said about whether the\n\nuni-cameral requirement of section 62(1) or the bi-cameral requirement of section 62(2)\n\nwould apply in the circumstances which operated when the proviso became applicable as\n\nan independent provision.\n\n[23]\n\nIt is in my view, however, unnecessary to decide whether Mr Gordon\u2019s interpretation of\n\nthe meaning of the proviso to section 62(2) is correct, or whether the proviso should be\n\nread as a qualification to the substantive part to section 62(2). There is force in both\n\narguments, but even assuming in favour of the Applicants that the proviso to section 62(2)\n\nbears the meaning contended for by Mr Gordon, it does not seem to me to be of assistance\n\nto him unless the amendment to section 149(10) by the 1995 Constitutional Amendment can\n\nbe said to offend a condition contained in the proviso. What the proviso says is that-\n\n\u201c... the boundaries and the legislative and executive competences of a province\nshall not be amended without the consent of a relevant provincial legislature.\u201d\n\n(My underlining)\n\nWhat is contemplated by the proviso is legislation which is targeted at one or more\n\nprovinces but not one which is of equal application to all provinces. In order to be hit by\n\nthe proviso, the purported amendment need not necessarily diminish \u201cthe legislative and\n\nexecutive competences of a province.\u201d It is equally effective against laws which might\n\nincrease or qualify such competences. But, what is crucial is that if the law applies to all\n\nprovinces, it is outside the proviso. This is my difficulty with the reliance which Mr\n\n11\n\n\fMAHOMED DP\n\nGordon places on the proviso to section 62(2). In its terms, the impugned amendment to\n\nsection 149(10) does not, and does not purport to, target any particular province or\n\nprovinces. It is of equal application to all the provinces. It therefore does not require the\n\nconsent of the KwaZulu-Natal provincial legislature or any other provincial legislature.\n\nThis removes the basis for the only complaint in terms of section 62(2) made by Mr\n\nGordon against the enactment of the amendment to section 149(10). That complaint was\n\nsimply that the consent of the KwaZulu-Natal provincial legislature was not obtained for\n\nthe amendment. \n\nSection 182 of the Constitution\n\n[24]\n\nSection 182 of the Constitution after its amendment in 1995 reads as follows:\n\n\u201cTraditional authorities and local government\n\n 182. The traditional leader of a community observing a system of indigenous\nlaw and residing on land within the area of jurisdiction of an elected local\ngovernment referred to in Chapter 10, shall ex officio be entitled to be a\nmember of that local government, provided that he or she has been identified\nin a manner and according to guidelines prescribed by the President by\nproclamation in the Gazette after consultation with the Council of Traditional\nLeaders, if then in existence, or if not, with the Houses of Traditional Leaders\nwhich have been established, and shall be eligible to be elected to any office\nof such local government.\u201d\n\n(The words underlined above were introduced by the 1995 Constitutional Amendment.)\n\n[25]\n\nIt was contended in the Applicants\u2019 heads of argument that \n\n\u201cthe amendment offends the division of powers identified in Section 126 as\nread with Schedule 6 of the Constitution in the functional areas of local\ngovernment and traditional authorities both on a legislative and executive\nlevel\u201d.\n\nThis submission was also, wisely, not pressed in argument. It appears to assume that\n\nsection 126, read with Schedule 6 of the Constitution, gives to a province the exclusive\n\n12\n\n\fMAHOMED DP\n\nlegislative competence to deal with matters which fall within the functional areas specified\n\nin Schedule 6. This is a plainly incorrect assumption. Section 126(1) (read with Schedule\n\n6) does give to a provincial legislature the jurisdiction to make laws dealing, inter alia,\n\nwith indigenous law, customary law and local government. But it is made expressly clear\n\nby section 126(2A) that Parliament also has that power. There can therefore be no\n\nobjection per se to the fact that the amendment to section 182 deals with matters in respect\n\nof which a provincial legislature also has power to make laws. (The problem of any\n\nconflict between laws of a provincial legislature and Parliament is dealt with separately\n\nin section 126(3)).\n\n[26]\n\nIn the Applicants\u2019 heads of argument it was also submitted that the amendment \u201cinterfered\u201d\n\nwith the assignment of the administration of the KwaZulu Amakhosi and Iziphakanyiswa\n\nAct No. 9 of 1990 by the First Respondent to a competent authority designated by the First\n\nApplicant.\n\n[27]\n\nThe amendment to section 182 of the Constitution does not appear to me to constitute any\n\n\u201cinterference\u201d with the legislative or executive competence of the provincial government\n\nin terms of sections 126 or 144. But even if it did, this does not constitute by itself a\n\nreason why the amendment to section 182 should be declared unconstitutional. The mere\n\nfact that the administration of a particular Act has previously been assigned by the First\n\nRespondent to an authority designated by the First Applicant does not preclude Parliament\n\nfrom making a law dealing with the manner in which traditional leaders who are to be ex\n\nofficio members of the local government, are to be identified. This was eventually\n\n13\n\n\fMAHOMED DP\n\nconceded in argument by Mr Dickson on behalf of the Applicants. In my view, even if a\n\nParliamentary amendment impacts upon the terms of such an assignment of the\n\nadministration of an Act, the real issue is whether or not the amendment to section 182\n\nconstitutes also an amendment to sections 126 or 144.\n\n[28]\n\nThe amendment to section 182 does not in any way purport to be an amendment to sections\n\n126 or 144. It is therefore a constitutional amendment which does not require compliance\n\nwith section 62(2) at all. The procedure which is prescribed, and which was in fact\n\nfollowed, is the procedure set out in section 62(1). The attack must therefore fail.\n\n[29]\n\nThis analysis makes it irrelevant to consider whether or not the Act of Parliament\n\namending section 182 would not in any event prevail over any relevant legislation of the\n\nKwaZulu-Natal Provincial Assembly in terms of section 126(3), but there is nevertheless\n\na very formidable argument in support of the conclusion that the need for objective\n\nguidelines for the identification of traditional leaders falls within the terms of section\n\n126(3)(b) of the Constitution.\n\n[30]\n\nFaced with these difficulties, Mr Gordon was again driven to rely on his interpretation of\n\nsection 62(2) and his submission that the proviso to section 62(2) was an independent\n\nenactment which operated whenever there was to be a constitutional amendment and even\n\nin those cases where such an amendment did not amend sections 126 or 144. I have\n\nalready dealt with this argument. It does not help the Applicants\u2019 case because the proviso\n\nis not of any application where a particular province or provinces are not targetted. The\n\n14\n\n\fimpugned amendment to section 182 is an amendment to the Constitution which applies to\n\nall provinces and not to a particular province or provinces.\n\nMAHOMED DP\n\nSection 184(5) of the Constitution\n\n[31]\n\nPrior to the 1995 Constitutional Amendment section 184(5) read as follows::\n\n\u201c5(a) Any parliamentary Bill pertaining to traditional authorities, indigenous\nlaw or the traditions and customs of traditional communities or any other\nmatters having a bearing thereon, shall after having been passed by the House\nin which it was introduced but before it is passed by the other House, be\nreferred by the Secretary to Parliament to the Council for its comments;\n\n (b) The Council shall within thirty days as from the date of such referral,\nindicate by written notification to the Secretary to Parliament its support for\nor opposition to the Bill together with any comments it wishes to make;\n\n (c) If the Council indicates in terms of paragraph (b) its opposition to the\nBill, the other House shall not pass the Bill before a period of thirty days as\nfrom the date of receipt by the said Secretary of such written notification has\nlapsed;\n\n (d) If the Council fails to indicate within the period prescribed by paragraph\n(b) whether it supports or opposes the Bill, Parliament may proceed with the\nBill.\u201d\n\n(The Council referred to in this section is the Council of Traditional Leaders contemplated\nby section 184(1) of the Constitution.)\n\n[32] After the 1995 Constitutional Amendment it takes the following form:\n\n\u201c(a) Any Parliamentary Bill pertaining to traditional authorities, indigenous\nlaw or the traditions and customs of traditional communities or any other\nmatters having a bearing thereon, shall if it is passed by the House in which it\nwas introduced after the Chairperson and members of the Council have been\nelected and the Council has commenced its functions, and if the Council is\nthen able to function, before it is passed by the other House, be referred by\nthe Secretary to Parliament to the Council for its comments.\n\n(aA) If the Council is not in existence by the 28th February 1996 any\nparliamentary Bill referred to in paragraph (a) shall after having been passed\nby the House in which it was introduced but before it is passed by the other\nHouse, be referred to those Houses contemplated in Section 183 which have\nthen been established, and the further provisions of this sub-section shall then\nmutatis mutandis apply.\u201d\n\n15\n\n\fMAHOMED DP\n\n[33]\n\nThe first attack on the amendment to section 184(5) made in the Applicants\u2019 heads of\n\nargument is the same attack as that which was made on the amendment to section 182(2).\n\nIt is substantially based on the premise that an amendment to a Constitution cannot validly\n\nbe made if it is in conflict with some section of the Constitution. It was correctly\n\nabandoned in argument.\n\n[34]\n\nThe second attack made on section 184(5) is based on the argument that when section\n\n184(5) was sought to be amended, the Bill providing for that amendment did not comply\n\nwith the procedural requirements of section 184(5), in its unamended form, and more\n\nparticularly, that this Bill was not referred to the Council of Traditional Leaders. Counsel\n\nfor the Applicants submitted that-\n\n\u201c the amendment provides for the retrospective recognition of a bill, which\nwhen passed, did not comply with the formal preconditions to its validity\nprovided for by Section 184(5) and in this sense is unconstitutional\u201d\n\n[35]\n\nIn my view this attack on the amendment to section 184(5) is unsound. Section 184(5)\n\ndoes provide for a Parliamentary Bill (pertaining to Traditional Authorities, indigenous\n\nlaw or the traditions and customs of Traditional Authorities) to be referred to the Council\n\nof Traditional Leaders, but such Bills would simply constitute ordinary legislation and not\n\na constitutional amendment. Section 184(5)(a) can competently be amended either\n\nexpressly or by implication without requiring any special procedures authorizing its own\n\namendment or repeal. Like all amendments to the Constitution such an amendment must of\n\ncourse comply with the procedures prescribed by section 62(1), but the attack on the\n\namendment to section 184(5)(a) on this ground is not based on section 62(1) of the\n\n16\n\n\fConstitution at all. Section 184(5) is, however, not a self-entrenching section. If it was,\n\nquite different considerations might have perhaps applied.16\n\nMAHOMED DP\n\n[36]\n\nI have given some thought to the suggestion made in the Applicants\u2019 affidavits that the real\n\nobjection to the amendment to section 184(5) is that it \u201cprovides for the retrospective\n\nrecognition of a Bill\u201d. It is perfectly true that, in terms of section 15 of the 1995\n\nConstitutional Amendment, the amendment to section 184(5) is deemed to come into\n\noperation on 1 May 1994. In that sense it can be said to be retrospective because the\n\namendment itself was signed by the First Respondent on 20 September 1995. Mr Dickson,\n\nwho led the attack of the Applicants on this ground, was, however, unable to advance any\n\nauthority for the proposition that no retrospective constitutional amendment was competent.\n\nThere is nothing in the Constitution which precludes such a amendment and I do not know\n\nof any principle on which such a restriction on Parliament\u2019s power of Constitutional\n\nAmendment can properly be based. \n\n[37]\n\nThe suggestion in the affidavit of the Applicant is that the purpose of the impugned\n\namendment is to validate another bill called \u201cthe Remuneration of Traditional Leaders\n\nBill\u201d which has been passed by both Houses of Parliament but has not yet been assented\n\nto by the President. Even if this suggestion be correct, it is irrelevant to the constitutional\n\nattack made on the amendment to section 184(5). The suggestion might conceivably justify\n\nan attack on the \u201cRemuneration of Traditional Leaders Bill\u201d if, and when, it is ever\n\n16 Western Cape Legislature case, supra n.1., at para 58; Collins v Minister of the Interior and Another\n1957 (1) SA 552 (A); Mpangeli and Another v Botha and Others (1) 1982 (3) SA 633 (C); Mpangeli and\nAnother v Botha and Others (2) 1982 (3) SA 638 (C).\n\n17\n\n\fassented to by the President, but it can have no bearing on the constitutionality of the\n\namendment to section 184(5) effected by the 1995 Constitutional Amendment.\n\nMAHOMED DP\n\nSections 245(1) and (2) of the Constitution\n\n[38]\n\nThere was an attack on behalf of the Applicants on the amendments to sections 245(1) and\n\n(2) which were said to be \u201cof minor substance but ... the principle is of vital importance.\u201d\n\n[39]\n\nSections 245(1) and (2) in their unamended forms, read as follows:\n\n\u201cTransitional arrangements: Local government\n\n 245. (1) Until elections have been held in terms of the Local Government\nTransition Act, 1993, local government shall not be restructured otherwise\nthan in accordance with that Act.\n (2) Restructuring of local government which takes place as a result of\nlegislation enacted by a competent authority after the elections referred to in\nsubsection (1) have been held, shall be effected in accordance with the\nprinciples embodied in Chapter 10 and the Constitution as a whole.\u201d\n\n[40] By virtue of the amendment to these sections by the 1995 Constitutional Amendment, these\n\nsections now read as follows: \n\n\u201cTransitional arrangements: Local government\n\n245. (1) Until 31 March 1996, local government shall not be restructured\notherwise than in accordance with the Local Government Transition Act, 1993\n(Act no. 209 of 1993).\n (2) Restructuring of local government which takes place as a result of\nlegislation enacted by a competent authority after 31 March 1996 shall be\neffected in accordance with the principles embodied in Chapter 10 and the\nConstitution as a whole.\u201d\n\n[41] Before the impugned amendment, section 245(1) had ensured that once elections had been\n\nheld in terms of the Transition Act, local government could be restructured otherwise than\n\nin accordance with the Transition Act. Such restructuring outside the terms of the\n\n18\n\n\fMAHOMED DP\n\nTransition Act could, in terms of section 245(2) of the Constitution, take place in terms of\n\nlaws enacted by \u201ca competent authority\u201d (which would include a provincial legislature),\n\nbut that could not be done before the local government elections were held. The effect of\n\nthe amendment to sections 245(1) and (2) was to make it incompetent for any such\n\ncompetent authority to undertake any such restructuring until 31 March 1996, even if\n\nelections had been held earlier. For this reason it was contended that the result of the\n\namendment to sections 245(1) and (2) was to \u201cinterfere with a power which the KwaZulu-\n\nNatal legislature had in terms of section 126, read with Schedule 6\". The conclusion\n\nwhich counsel for the Applicants sought to draw from these submissions was set out in\n\ncounsel\u2019s heads of argument in the following terms:\n\n\u201cThere has accordingly occurred an extension of national legislation within\nthe field of competence of the provincial legislatures without fulfilment of\nthe conditions referred to in Section 126(3) of the Constitution.\u201d\n\n[42]\n\nI have difficulty with the argument in this form. The need for national legislation to\n\nregulate the conduct of the first local government elections in South Africa seems to me to\n\nbe capable of falling within the terms of section 126(3)(b). Indeed, it is common cause\n\nthat some national legislation was necessary to avoid the proviso to section 179(1) of the\n\nConstitution which required that local government elections had to take place on the same\n\nday throughout the country. (In KwaZulu-Natal, and in parts of the Western Cape it was\n\nnot possible to hold elections on the same day as the rest of the country which held its\n\nelections on 1 November 1995.) \n\n[43] What counsel for the Applicants was again driven to rely on was section 62(2). He\n\nsuggested that the requirements of the proviso to section 62(2) were not complied with.\n\n19\n\n\fMAHOMED DP\n\nI have considerable difficulties with such a suggestion. In order to have any relevance, the\n\nApplicants had to establish that the amendment to section 245 constitutes an amendment\n\nto section 126 and that if it does, the procedures prescribed by section 62(2) were not\n\ncomplied with. The first problem is that the amendment to section 245 in no way purports\n\nto amend section 126. A provincial legislature still has the legislative competence to make\n\nlaws for the province with regard to the matters specified in Schedule 6. That competence,\n\narticulated in section 126(1), is not amended by the amendment to section 245. Nor is\n\nSchedule 6 amended. The provincial legislature continues to have legislative competence\n\nwith regard to such matters as indigenous law, customary law and local government. All\n\nthat the amendment to section 245 does is to provide a cut-off date for the continued\n\nrestructuring of local government in terms of the Transition Act. Previously there was no\n\nsuch date. Indeed, the cut-off date was determined by the date of the elections which could\n\nhave been determined to be a date far beyond 31 March 1996. \n\n[44]\n\nI also have considerable reservations about the assumption that an amendment to section\n\n245, which undoubtedly complies with the Constitution\u2019s own procedures for the\n\namendment of that section, must be held to be invalid simply because the amendment might\n\nhave some indirect consequence for the date from which a provincial legislature might\n\neffect amendments to structures of local government in its own area. There is nothing in\n\nsection 245 or 126 which supports any such suggestion. The makers of the Constitution\n\nexpressly applied their minds to those provisions of the Constitution which could not be\n\namended at all. This was set out clearly in section 74(1). Similarly, when they wanted\n\na special procedure to be followed in the amendment of a specific section, they said this\n\n20\n\n\fMAHOMED DP\n\nclearly, in section 62(2) and expressly stated in section 74 that any other amendments to\n\nChapter 5 of the Constitution had to comply with the provisions of section 74(2). They\n\ntherefore deliberately refrained from making section 245 immune from any amendment or\n\nsubjecting any such amendment to the special procedures prescribed by section 62(2).\n\n[45] During the course of argument, counsel for the Applicants acknowledged that elections in\n\nthe province of KwaZulu-Natal were scheduled to be held on 27 March 1996 and the effect\n\nof the impugned amendment to section 245 was therefore only to delay by four days the\n\nright of the provincial legislature of that province to restructure local government\n\notherwise than in terms of the Transition Act. He argued, however, that the competence\n\nof the amendment to the Transition Act was nevertheless a matter involving an important\n\nprinciple because if section 245 could be amended so as to delay this power of the\n\nprovincial legislature for three days, it could also be delayed for ten years. Developing\n\nthis argument, counsel contended that amendments to the Constitution had to be made\n\nwithin the \u201cspirit\u201d of the Constitution.\n\n[46]\n\nI have difficulty in appreciating how this \u201cspirit\u201d of the Constitution is violated in the\n\ninstant case. What section 245 of the Constitution originally contemplated was that\n\nprovincial legislatures would be free to restructure local government otherwise than in\n\naccordance with the Transition Act, immediately after the elections which were to be\n\nsimultaneously held throughout the country. When that was delayed in certain of the\n\nprovinces the date upon which the provincial legislatures could restructure local\n\n21\n\n\fgovernment there was similarly extended to approximately the date when such elections\n\nwould be completed and new local governments were properly in place.\n\nMAHOMED DP\n\n[47]\n\nThe reliance upon the \u201cspirit\u201d of the Constitution is, in my view, misconceived. There is\n\na procedure which is prescribed for amendments to the Constitution and this procedure has\n\nto be followed. If that is properly done, the amendment is constitutionally unassailable.\n\nIt may perhaps be that a purported amendment to the Constitution, following the formal\n\nprocedures prescribed by the Constitution, but radically and fundamentally restructuring\n\nand re-organizing the fundamental premises of the Constitution, might not qualify as an\n\n\u201camendment\u201d at all. That problem has engaged the Indian Supreme Court for some years17\n\nand it has been held that the power of amendment of the Constitution, vested in the\n\nLegislature, could not be employed-\n\n\u201cto the extent of destroying the basic features and structure of the\n\nConstitution.\u201d18\n\nAs said by Chandrachud J in the Raj Narain case,19 in dealing with the effect of a previous\n\njudgment,-\n\n\u201c[The Constitution] did not confer power to amend the Constitution so as to\ndamage or destroy the essential elements or basic features of the\nConstitution... The power to amend did not include the power to abrogate the\nConstitution... The word \u2018amendment\u2019 postulates that the old Constitution\nmust survive without loss of identity, ... the old Constitution must accordingly\nbe retained though in the amended form, and therefore the power of\n\n17 I.C. Golak Nath v Punjab (1967) 2 SCR 762; Kesavananda v The State of Kerala (1973) SC 1461;\nMinerva Mills Ltd v The Union of India (1980) SC 1789; Indira Nehru Gandhi v Raj Narain (1975) SC 2299.\n\n18 Seervai, Constitutional Law of India (3rd ed) page 2665, para 30.46 and page 2697, para 30.82; Basu,\n\nShorter Constitution of India (10th ed) pages 1033, 1035 and 1036.\n\n19 supra n.17.\n\n22\n\n\famendment does not include the power to destroy or abrogate the basic\nstructure or framework of the Constitution.\u201d20\n\nMAHOMED DP\n\n[48]\n\nPursuant to this approach the Indian Supreme Court has held, inter alia, that the supremacy\n\nof the Constitution itself 21, the rule of law,22 the principle of equality,23 the independence\n\nof the judiciary24 and judicial review25 are all basic features of the Indian Constitution\n\nwhich cannot be so \u201camended\u201d.\n\n[49]\n\nIt is unnecessary to pursue this line of authorities. Even if there is this kind of implied\n\nlimitation to what can properly be the subject matter of an amendment to our Constitution,\n\nneither the impugned amendment to section 245 nor any of the other amendments to the\n\nConstitution placed in issue by the Applicants in the present case can conceivably fall\n\nwithin this category of amendments so basic to the Constitution as effectively to abrogate\n\nor destroy it. \n\n[50]\n\nIn the result, although the Applicants have succeeded in prayer 1 of their notice of motion\n\ngranting them direct access to this court, the remaining prayers contained in paragraphs 2,\n\n3, 4, 5 and 6 should be, and are, dismissed.\n\n20 Raj Narain\u2019s case, supra n. 17, at 2461.\n\n21 State of Rajasthan v The Union of India, (1977) SC 1361, para\u2019s 35 and 44.\n\n22 Raj Narain\u2019s case, supra n.17, at 2369-2371.\n\n23 Raj Narain\u2019s case, supra n.17, para\u2019s 680, 682.\n\n24 Gupta v Union of India (1982) SC 149.\n\n25 Kesavanada\u2019s case, supra n. 17, at 1565, 1609, 1648, 1860.\n\n23\n\n\fChaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J,\n\nO\u2019Regan J and Sachs J concur in the judgment of Mahomed DP.\n\nCounsel for the Applicants:\n\nInstructed by:\n\nDA Gordon SC\nAJ Dickson SC\n\nAusten Smith\n\n24\n\n\fCounsel for the Respondents:\n\nJJ Gauntlett SC\nMTK Moerane SC\nJC Heunis\n\nInstructed by:\n\nThe State Attorney, Cape Town\n\n25\n\n\f"}, "id": "2c682309-3929-47cb-b8af-79fc42b442d3", "update_date": "2021-03-15 17:08:56.815598", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: THE PREMIER OF KWAZULU-NATAL FIRST APPLICANT CASE NO. CCT 36/95 THE MEMBER OF THE EXECUTIVE COUNCIL FOR FINANCE, AUXILIARY SERVICES AND PUBLIC WORKS (KWAZULU-NATAL) THE MEMBER OF THE EXECUTIVE COUNCIL FOR TRADITIONAL AND ENVIRONMENTAL AFFAIRS (KWAZULU-NATAL) THE MEMBER OF THE EXECUTIVE COUNCIL FOR LOCAL GOVERNMENT AND HOUSING (KWAZULU-NATAL) THE EXECUTIVE COUNCIL OF THE PROVINCE OF KWAZULU-NATAL and THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA THE MINISTER FOR PROVINCIAL AFFAIRS AND CONSTITUTIONAL DEVELOPMENT SECOND APPLICANT THIRD APPLICANT FOURTH APPLICANT FIFTH APPLICANT FIRST RESPONDENT SECOND RESPONDENT THIRD RESPONDENT HEARD ON: DELIVERED ON: 15 November 1995 29 November 1995 JUDGMENT", "MAHOMED DP. The First Applicant, who is the Premier of KwaZulu-Natal, seeks an order declaring unconstitutional various amendments to the Constitution of the Republic of South Africa, Act No. 200 of 1993 (\u201cthe Constitution\u201d) which were purportedly effected by the Constitution of the Republic of South Africa Second Amendment Act, No. 44 of \f1995 (\u201cthe 1995 Constitutional Amendment\u201d). The First Applicant is supported in this attack by the remaining Applicants. MAHOMED DP", "This matter was initiated by way of an application for direct access to the Constitutional Court in terms of rule 17 of the Rules of the Court, read with section 100(2) of the Constitution. The application for direct access was granted.", "The provisions of the Constitution which it is claimed were invalidly amended by the 1995 Constitutional Amendment are sections 149(10); 182; 184 and 245. Certain amendments to the Local Government Transition Act 209 of 1993 (\u201c the Transition Act\u201d) were also attacked, but these attacks were abandoned in the course of oral argument on behalf of the Applicants. I propose to deal seriatim with each of the attacks made on the amendments to the Constitution. Section 149(10)", "Prior to its amendment in terms of the 1995 Constitutional Amendment section 149(10) read as follows: \u201cThere shall, subject to Section 207(2), be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier and to a member of an Executive Council of such province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature.\u201d", "After the purported amendment, this section reads as follows: \u201cThere shall, subject to Section 207(2), be paid out of and as a charge on the Provincial Revenue Fund of a province to the Premier and to a member of an Executive Council of such province such remuneration and allowances as may be determined by the President.\u201d 2 \fMAHOMED DP", "Section 207(2) of the Constitution was not amended and reads as follows: \u201c (2) The Commission shall make recommendations to Parliament, the provincial legislatures and local governments regarding the nature, extent and conditions of the remuneration and allowances of the members of all elected legislative bodies of the national government and of provincial and local governments, including members of the Provincial Houses of Traditional Leaders and the Council of Traditional Leaders.\u201d The Commission referred to in this section is the Commission on Remuneration of Representatives to be established by an Act of Parliament pursuant to section 207(1) of the Constitution.", "In the heads of argument of the Applicants it was submitted that the purported amendment to section 149(10), sought to be effected by the 1995 Constitutional Amendment, is in conflict with section 135(4) of the Constitution, which provides that: \u201c (4) There shall, subject to section 207(2), be paid out of and as a charge on the Provincial Revenue Fund of a province to a member of the legislature of that province such remuneration and allowances as may be prescribed by or determined under a law of the provincial legislature.\u201d", "Mr Gordon SC, who appeared for the Applicants (together with Mr Dickson SC), wisely abandoned this ground of attack during his oral argument before us. The attack was clearly untenable because even if section 135(4) of the Constitution was to be read as if it was in conflict with section 149(10) (I doubt very much that it was), an amendment to the Constitution in conflict with another part of the Constitution would simply have the effect of a pro tanto amendment or repeal, by implication, of the earlier provision as long as the amendment was adopted in compliance with the forms and procedures prescribed by the 3 \fConstitution.1 The same considerations apply to the suggestion in the heads of argument of the Applicants that the amendment to section 149(10) was in conflict with section 155 of the Constitution and section 207(2) of the Constitution. MAHOMED DP", "An attack was also made in the Applicants\u2019 heads of argument on the amendment to section 149(10) effected by the 1995 Constitutional Amendment, on the ground that the amendment \u201coffends Constitutional Principle XVIII(2)\u201d contained in the fourth schedule to the Constitution.", "This ground of attack was not pressed by Mr Gordon in oral argument, but he did not expressly abandon it.", "The relevant Constitutional Principle provides that: \u201cThe powers and functions of the provinces defined in the Constitution, including the competence of a provincial legislature to adopt a Constitution for its province, shall not be substantially less than or substantially inferior to those provided for in this Constitution.\u201d", "The reliance on Constitutional Principle XVIII(2) appears to me to have been misconceived. Constitutional Principle XVIII(2) deals with a future Constitution which must conform to the Constitutional Principles contained in Schedule 4. It does not deal with amendments to the present Constitution at all. This is perfectly clear from the status and purposes of Schedule 4, articulated in section 71 of the Constitution.2 The makers of 1 Freeman v Union Government 1926 TPD 638 at 651; The Executive Council of the Western Cape Legislature and Others v The President of the Republic of South Africa and Others, 1995(10) BCLR 1289 (CC) at paragraph 58. 2 supra n.1, at paragraphs 40 and 41. 4 \fMAHOMED DP the Constitution expressly applied their minds to what part of the Constitution could be amended and what could not3 and what procedures had to be followed 4 when the Constitution was amended. It refrained from protecting section 149(10) from amendment or from prescribing any special procedures before that section could be amended. It therefore follows that the impugned amendment to section 149(10) cannot successfully be attacked simply on the ground that it \u201coffends Constitutional Principle XVIII(2)\u201d. It is, for the purposes of this case, unnecessary to decide whether a constitutional amendment which has substantially the effect of destroying or abrogating the very essentials upon which the Constitutional Principles are premised, would be constitutionally permissible merely because the procedures prescribed by section 62 were followed. The impugned amendment to section 149(10) does not fall within such a category. Indeed, the amendment to section 149(10) cannot even be said to reduce the powers and functions of the provinces in respects which make them \u201csubstantially less\u201d or \u201csubstantially inferior\u201d, nor can it be said that the impugned amendment is by necessary implication excluded by any other Constitutional Principle.", "The main thrust of the attack on the purported amendment to section 149(10) which counsel on behalf of the Applicants advanced at the hearing of this matter was that it was not competent without following the special procedures prescribed by section 62(2) of the Constitution. It was argued that the effect of the amendment was to amend the legislative 3 Section 71. 4 Section 62. 5 \fMAHOMED DP competence of a province to pay to its Premier and to members of its Executive Council such remuneration and allowances as were prescribed and determined under a law of a provincial legislature. The KwaZulu-Natal provincial legislature, we were reminded, had indeed passed an Act called the KwaZulu-Natal Legislature Remuneration Act No 2 of 1994 providing inter alia for the salaries and allowances to be paid to the Premier and members of the Executive Council of the KwaZulu-Natal province and this Act had pre- dated the impugned amendment to section 149(10).", "Section 62 of the Constitution reads as follows: \u201cBills amending Constitution 62. (1) Subject to subsection (2) and section 74, a Bill amending this Constitution shall, for its passing by Parliament, be required to be adopted at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of members of both Houses. (2) No amendment of sections 126 and 144 shall be of any force and effect unless passed separately by both Houses by a majority of at least two- thirds of all the members in each house: Provided that the boundaries and legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature.\u201d", "It was common cause that the amendment to section 149(10) was passed at a joint sitting of the National Assembly and the Senate by a majority of at least two-thirds of the total number of both Houses. It was also common cause that if the procedures prescribed by section 62(2) of the Constitution were indeed applicable, they had not been followed. It was contended on behalf of the Applicants that this was incorrect. The procedures prescribed by section 62(2), it was argued, should have been followed. 6 \f[16] The crucial issue which therefore needs to be determined is whether section 62(2) was applicable when the purported amendment to section 149(10) of the Constitution was MAHOMED DP passed.", "Counsel for the Applicants contended that what the amendment to section 149(10) was doing was indeed to amend the legislative and executive competence of a province and that it could not do so without the consent of the relevant provincial legislature because of the proviso to section 62(2) of the Constitution. Since the amendment to section 149(10) does not amend sections 126 or 144, the argument of Mr Gordon must be premised on the proposition that the proviso to section 62(2) is an independent and substantive impediment to the powers of Parliament and it therefore needs to be complied with in all cases where the legislative and executive competence of a province is sought to be amended. Mr Gauntlett SC, who appeared for the Respondent (together with Mr Moerane SC and Mr Heunis), disputed this premise. He argued that what the proviso to section 62(2) seeks to achieve is a qualification to the substantive part of section 62(2). The substantive part of section 62(2), he submitted, is limited to amendments to sections 126 and 144 only. Such amendments, he contended, need to be passed separately by both Houses of Parliament by a majority of at least two-thirds of all the members in each House. The proviso, he argued, therefore simply meant that where sections 126 or 144 are amended by an amendment to the boundaries of a province or the legislative or executive competence of a province, the consent of the relevant provincial legislature is an additional requirement. 7 \f[18] In support of the submission that this is what a proviso to a substantive provision means, MAHOMED DP counsel for the Respondents relied on the case of R v Dibdin,5 the judgments of this Court in the case of S v Mhlungu and others6 and the Western Cape Legislature case. 7 Paragraph 32 of the report of the judgment in Mhlungu\u2019s case states that \u201ca proviso qualifies the substantive part\u201d. This was also the reasoning of Fletcher Moulton LJ in the case of R v Dibdin8, in which the learned Judge stated that: \u201cThe fallacy of the purported method of interpretation is not far to seek. It sins against the fundamental rule of construction that a proviso must be considered with relation to the principal matter to which its stands as a proviso. It treats it as if it were an independent enacting clause instead of being dependent on the main enactment.\u201d9", "In the Western Cape Legislature case Chaskalson P, in considering the submissions that Proclamations R58 and R59 of 1995 were inconsistent with the proviso to section 62(2), stated that- \u201cSection 62(2) is a clause dealing with Constitutional Amendments and the proviso must be read as qualifying the substantive part of the clause and not as an independent constitutional requirement applicable to any legislation dealing with provincial powers and functions.\u201d10 5 (1910) P. 57 at 125. 6 1995 (7) BCLR 793 (CC); 1995(3) SA 867 (CC). 7 supra n.1, at para. 49. 8 supra n.5. 9 Followed in Government of the Republic of Namibia v Cultura 2000 1994(1) SA 407 (NmSC) at See also Ex parte Parington (1844) 6 QBD 649 at 653; Re Brocklbank (1889) 23 QBD 461; 417I-418A. Hill v East and West India Dock Company (1884) 9 App.Cas 448. 10 supra n 1. at para 49. In that case it was pointed out that section 62 dealt with constitutional amendments and that the proviso to section 62(2) could not be relied on to extend the scope of this provision to one which dealt with ordinary legislation. 8 \f[20] Mr Gordon countered the Respondents\u2019 argument by pointing out that the observation made MAHOMED DP by Chaskalson P in the Western Cape Legislature case, which I have quoted11, was made in the context of an attack on certain Proclamations which, unlike the present matter, did not involve an amendment to the Constitution and that the mind of the Court was not directed to the meaning of the proviso in the present context. He correctly contended that the ordinary rule pertaining to the interpretation of a proviso to a substantive section, which is set out in Dibdin\u2019s case,12 is not an invariable rule, and that the context and object of such a proviso in a particular statute might justify giving to a particular proviso the meaning of an independent and substantive content. There is clear support for that approach in the authorities. \u201cA proviso is usually enacted in order to qualify something contained in the preceding enactment. But it does not necessarily follow that they were enacted solely for those purposes. Halsbury Laws of England 3rd ed vol 35 para 604 says: \u201cThe danger of construing a proviso, which is merely a limitation on the enactment to which it is attached, as if it were a general limitation extending to other enactments or were itself a positive enactment, has often been pointed out. The substance, and not the form must, however, be looked at, and that which is in form a proviso may in substance be a fresh enactment, adding to and not merely qualifying that which goes before it\u201d Maxwell on Interpretation of Statutes 12th ed at 190 says: \u201cIf, however, the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such wider effect.\u201d See too Craies on Statute Law 7th ed at 219.\u201d13", "Following on this approach, Mr Gordon referred to the fact that the proviso to section 62(2) referred also to the \u201cboundaries\u201d of the province which could not be amended 11 supra n. 10. 12 supra n. 5. 13 S v Rosenthal 1980 (1) 65 (A) at 81E-H; S.A. Textile and Allied Workers Union v Skipper International 1990(4) SA 842 (A) at 847; Strydom v Die Land- en Landboubank van S.A. 1972(1) SA 801 (A). 9 \fMAHOMED DP without the consent of a relevant provincial legislature. He argued that since there was no reference to the amendment of boundaries in the substantive part of section 62(2), it could not be said that the object of the proviso was to qualify or limit something that was being regulated by the substantive part and that the proviso should therefore be interpreted as an independent and substantive enactment. There is obvious substance in this argument. The authorities which hold that a proviso to an enactment must ordinarily be interpreted so as to qualify the substantive part of the enactment, do not deal with a proviso which is prima facie capable of extending the subject matter of the substantive part of such and enactment.14", "There are, however, formidable considerations which suggest a different interpretation.What the substantive part of section 62(2) seeks to regulate are amendments to sections 126 and 144 of the Constitution. These sections refer to the legislative competence and the executive authority of provinces. The competence of a province to legislate in respect of a particular province must necessarily be affected if the boundaries of that province are amended and it is this necessary relationship between the boundaries of a province and its legislative competence which the makers of the Constitution might have had in mind in referring to \u201cboundaries\u201d in the proviso to section 62(2). The reference to \u201cboundaries\u201d in this context might arguably have been made ex abundante cautela.15 14 supra, n. 13. 15 R v Abel 1948 (1) SA 654 (A) at 662; Minister of Finance and Another v Law Society, Transvaal 1991 (4) SA 544 (A) at 557E-G; C. Ltd. v The Commisioner of Taxes 1962 (1) SA 45 (S.R.) At 46G-H; Maphosa v Wilke en Andere 1990 (3) SA 789 (T) at 799A-C. 10 \fMAHOMED DP If the proviso to section 62(2) was intended as a substantive and independent provision divorced from the substantive part of section 62(2), it is difficult to appreciate why it was put in the form of a proviso to section 62(2) and why nothing was said about whether the uni-cameral requirement of section 62(1) or the bi-cameral requirement of section 62(2) would apply in the circumstances which operated when the proviso became applicable as an independent provision.", "It is in my view, however, unnecessary to decide whether Mr Gordon\u2019s interpretation of the meaning of the proviso to section 62(2) is correct, or whether the proviso should be read as a qualification to the substantive part to section 62(2). There is force in both arguments, but even assuming in favour of the Applicants that the proviso to section 62(2) bears the meaning contended for by Mr Gordon, it does not seem to me to be of assistance to him unless the amendment to section 149(10) by the 1995 Constitutional Amendment can be said to offend a condition contained in the proviso. What the proviso says is that- \u201c... the boundaries and the legislative and executive competences of a province shall not be amended without the consent of a relevant provincial legislature.\u201d (My underlining) What is contemplated by the proviso is legislation which is targeted at one or more provinces but not one which is of equal application to all provinces. In order to be hit by the proviso, the purported amendment need not necessarily diminish \u201cthe legislative and executive competences of a province.\u201d It is equally effective against laws which might increase or qualify such competences. But, what is crucial is that if the law applies to all provinces, it is outside the proviso. This is my difficulty with the reliance which Mr 11 \fMAHOMED DP Gordon places on the proviso to section 62(2). In its terms, the impugned amendment to section 149(10) does not, and does not purport to, target any particular province or provinces. It is of equal application to all the provinces. It therefore does not require the consent of the KwaZulu-Natal provincial legislature or any other provincial legislature. This removes the basis for the only complaint in terms of section 62(2) made by Mr Gordon against the enactment of the amendment to section 149(10). That complaint was simply that the consent of the KwaZulu-Natal provincial legislature was not obtained for the amendment. Section 182 of the Constitution", "Section 182 of the Constitution after its amendment in 1995 reads as follows: \u201cTraditional authorities and local government 182. The traditional leader of a community observing a system of indigenous law and residing on land within the area of jurisdiction of an elected local government referred to in Chapter 10, shall ex officio be entitled to be a member of that local government, provided that he or she has been identified in a manner and according to guidelines prescribed by the President by proclamation in the Gazette after consultation with the Council of Traditional Leaders, if then in existence, or if not, with the Houses of Traditional Leaders which have been established, and shall be eligible to be elected to any office of such local government.\u201d (The words underlined above were introduced by the 1995 Constitutional Amendment.)", "It was contended in the Applicants\u2019 heads of argument that \u201cthe amendment offends the division of powers identified in Section 126 as read with Schedule 6 of the Constitution in the functional areas of local government and traditional authorities both on a legislative and executive level\u201d. This submission was also, wisely, not pressed in argument. It appears to assume that section 126, read with Schedule 6 of the Constitution, gives to a province the exclusive 12 \fMAHOMED DP legislative competence to deal with matters which fall within the functional areas specified in Schedule 6. This is a plainly incorrect assumption. Section 126(1) (read with Schedule 6) does give to a provincial legislature the jurisdiction to make laws dealing, inter alia, with indigenous law, customary law and local government. But it is made expressly clear by section 126(2A) that Parliament also has that power. There can therefore be no objection per se to the fact that the amendment to section 182 deals with matters in respect of which a provincial legislature also has power to make laws. (The problem of any conflict between laws of a provincial legislature and Parliament is dealt with separately in section 126(3)).", "In the Applicants\u2019 heads of argument it was also submitted that the amendment \u201cinterfered\u201d with the assignment of the administration of the KwaZulu Amakhosi and Iziphakanyiswa Act No. 9 of 1990 by the First Respondent to a competent authority designated by the First Applicant.", "The amendment to section 182 of the Constitution does not appear to me to constitute any \u201cinterference\u201d with the legislative or executive competence of the provincial government in terms of sections 126 or 144. But even if it did, this does not constitute by itself a reason why the amendment to section 182 should be declared unconstitutional. The mere fact that the administration of a particular Act has previously been assigned by the First Respondent to an authority designated by the First Applicant does not preclude Parliament from making a law dealing with the manner in which traditional leaders who are to be ex officio members of the local government, are to be identified. This was eventually 13 \fMAHOMED DP conceded in argument by Mr Dickson on behalf of the Applicants. In my view, even if a Parliamentary amendment impacts upon the terms of such an assignment of the administration of an Act, the real issue is whether or not the amendment to section 182 constitutes also an amendment to sections 126 or 144.", "The amendment to section 182 does not in any way purport to be an amendment to sections 126 or 144. It is therefore a constitutional amendment which does not require compliance with section 62(2) at all. The procedure which is prescribed, and which was in fact followed, is the procedure set out in section 62(1). The attack must therefore fail.", "This analysis makes it irrelevant to consider whether or not the Act of Parliament amending section 182 would not in any event prevail over any relevant legislation of the KwaZulu-Natal Provincial Assembly in terms of section 126(3), but there is nevertheless a very formidable argument in support of the conclusion that the need for objective guidelines for the identification of traditional leaders falls within the terms of section 126(3)(b) of the Constitution.", "Faced with these difficulties, Mr Gordon was again driven to rely on his interpretation of section 62(2) and his submission that the proviso to section 62(2) was an independent enactment which operated whenever there was to be a constitutional amendment and even in those cases where such an amendment did not amend sections 126 or 144. I have already dealt with this argument. It does not help the Applicants\u2019 case because the proviso is not of any application where a particular province or provinces are not targetted. The 14 \fimpugned amendment to section 182 is an amendment to the Constitution which applies to all provinces and not to a particular province or provinces. MAHOMED DP Section 184(5) of the Constitution", "Prior to the 1995 Constitutional Amendment section 184(5) read as follows:: \u201c5(a) Any parliamentary Bill pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities or any other matters having a bearing thereon, shall after having been passed by the House in which it was introduced but before it is passed by the other House, be referred by the Secretary to Parliament to the Council for its comments; (b) The Council shall within thirty days as from the date of such referral, indicate by written notification to the Secretary to Parliament its support for or opposition to the Bill together with any comments it wishes to make; (c) If the Council indicates in terms of paragraph (b) its opposition to the Bill, the other House shall not pass the Bill before a period of thirty days as from the date of receipt by the said Secretary of such written notification has lapsed; (d) If the Council fails to indicate within the period prescribed by paragraph (b) whether it supports or opposes the Bill, Parliament may proceed with the Bill.\u201d (The Council referred to in this section is the Council of Traditional Leaders contemplated by section 184(1) of the Constitution.)", "After the 1995 Constitutional Amendment it takes the following form: \u201c(a) Any Parliamentary Bill pertaining to traditional authorities, indigenous law or the traditions and customs of traditional communities or any other matters having a bearing thereon, shall if it is passed by the House in which it was introduced after the Chairperson and members of the Council have been elected and the Council has commenced its functions, and if the Council is then able to function, before it is passed by the other House, be referred by the Secretary to Parliament to the Council for its comments. (aA) If the Council is not in existence by the 28th February 1996 any parliamentary Bill referred to in paragraph (a) shall after having been passed by the House in which it was introduced but before it is passed by the other House, be referred to those Houses contemplated in Section 183 which have then been established, and the further provisions of this sub-section shall then mutatis mutandis apply.\u201d 15 \fMAHOMED DP", "The first attack on the amendment to section 184(5) made in the Applicants\u2019 heads of argument is the same attack as that which was made on the amendment to section 182(2). It is substantially based on the premise that an amendment to a Constitution cannot validly be made if it is in conflict with some section of the Constitution. It was correctly abandoned in argument.", "The second attack made on section 184(5) is based on the argument that when section 184(5) was sought to be amended, the Bill providing for that amendment did not comply with the procedural requirements of section 184(5), in its unamended form, and more particularly, that this Bill was not referred to the Council of Traditional Leaders. Counsel for the Applicants submitted that- \u201c the amendment provides for the retrospective recognition of a bill, which when passed, did not comply with the formal preconditions to its validity provided for by Section 184(5) and in this sense is unconstitutional\u201d", "In my view this attack on the amendment to section 184(5) is unsound. Section 184(5) does provide for a Parliamentary Bill (pertaining to Traditional Authorities, indigenous law or the traditions and customs of Traditional Authorities) to be referred to the Council of Traditional Leaders, but such Bills would simply constitute ordinary legislation and not a constitutional amendment. Section 184(5)(a) can competently be amended either expressly or by implication without requiring any special procedures authorizing its own amendment or repeal. Like all amendments to the Constitution such an amendment must of course comply with the procedures prescribed by section 62(1), but the attack on the amendment to section 184(5)(a) on this ground is not based on section 62(1) of the 16 \fConstitution at all. Section 184(5) is, however, not a self-entrenching section. If it was, quite different considerations might have perhaps applied.16 MAHOMED DP", "I have given some thought to the suggestion made in the Applicants\u2019 affidavits that the real objection to the amendment to section 184(5) is that it \u201cprovides for the retrospective recognition of a Bill\u201d. It is perfectly true that, in terms of section 15 of the 1995 Constitutional Amendment, the amendment to section 184(5) is deemed to come into operation on 1 May 1994. In that sense it can be said to be retrospective because the amendment itself was signed by the First Respondent on 20 September 1995. Mr Dickson, who led the attack of the Applicants on this ground, was, however, unable to advance any authority for the proposition that no retrospective constitutional amendment was competent. There is nothing in the Constitution which precludes such a amendment and I do not know of any principle on which such a restriction on Parliament\u2019s power of Constitutional Amendment can properly be based.", "The suggestion in the affidavit of the Applicant is that the purpose of the impugned amendment is to validate another bill called \u201cthe Remuneration of Traditional Leaders Bill\u201d which has been passed by both Houses of Parliament but has not yet been assented to by the President. Even if this suggestion be correct, it is irrelevant to the constitutional attack made on the amendment to section 184(5). The suggestion might conceivably justify an attack on the \u201cRemuneration of Traditional Leaders Bill\u201d if, and when, it is ever 16 Western Cape Legislature case, supra n.1., at para 58; Collins v Minister of the Interior and Another 1957 (1) SA 552 (A); Mpangeli and Another v Botha and Others (1) 1982 (3) SA 633 (C); Mpangeli and Another v Botha and Others (2) 1982 (3) SA 638 (C). 17 \fassented to by the President, but it can have no bearing on the constitutionality of the amendment to section 184(5) effected by the 1995 Constitutional Amendment. MAHOMED DP Sections 245(1) and (2) of the Constitution", "There was an attack on behalf of the Applicants on the amendments to sections 245(1) and (2) which were said to be \u201cof minor substance but ... the principle is of vital importance.\u201d", "Sections 245(1) and (2) in their unamended forms, read as follows: \u201cTransitional arrangements: Local government 245. (1) Until elections have been held in terms of the Local Government Transition Act, 1993, local government shall not be restructured otherwise than in accordance with that Act. (2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after the elections referred to in subsection (1) have been held, shall be effected in accordance with the principles embodied in Chapter 10 and the Constitution as a whole.\u201d", "By virtue of the amendment to these sections by the 1995 Constitutional Amendment, these sections now read as follows: \u201cTransitional arrangements: Local government 245. (1) Until 31 March 1996, local government shall not be restructured otherwise than in accordance with the Local Government Transition Act, 1993 (Act no. 209 of 1993). (2) Restructuring of local government which takes place as a result of legislation enacted by a competent authority after 31 March 1996 shall be effected in accordance with the principles embodied in Chapter 10 and the Constitution as a whole.\u201d", "Before the impugned amendment, section 245(1) had ensured that once elections had been held in terms of the Transition Act, local government could be restructured otherwise than in accordance with the Transition Act. Such restructuring outside the terms of the 18 \fMAHOMED DP Transition Act could, in terms of section 245(2) of the Constitution, take place in terms of laws enacted by \u201ca competent authority\u201d (which would include a provincial legislature), but that could not be done before the local government elections were held. The effect of the amendment to sections 245(1) and (2) was to make it incompetent for any such competent authority to undertake any such restructuring until 31 March 1996, even if elections had been held earlier. For this reason it was contended that the result of the amendment to sections 245(1) and (2) was to \u201cinterfere with a power which the KwaZulu- Natal legislature had in terms of section 126, read with Schedule 6\". The conclusion which counsel for the Applicants sought to draw from these submissions was set out in counsel\u2019s heads of argument in the following terms: \u201cThere has accordingly occurred an extension of national legislation within the field of competence of the provincial legislatures without fulfilment of the conditions referred to in Section 126(3) of the Constitution.\u201d", "I have difficulty with the argument in this form. The need for national legislation to regulate the conduct of the first local government elections in South Africa seems to me to be capable of falling within the terms of section 126(3)(b). Indeed, it is common cause that some national legislation was necessary to avoid the proviso to section 179(1) of the Constitution which required that local government elections had to take place on the same day throughout the country. (In KwaZulu-Natal, and in parts of the Western Cape it was not possible to hold elections on the same day as the rest of the country which held its elections on 1 November 1995.)", "What counsel for the Applicants was again driven to rely on was section 62(2). He suggested that the requirements of the proviso to section 62(2) were not complied with. 19 \fMAHOMED DP I have considerable difficulties with such a suggestion. In order to have any relevance, the Applicants had to establish that the amendment to section 245 constitutes an amendment to section 126 and that if it does, the procedures prescribed by section 62(2) were not complied with. The first problem is that the amendment to section 245 in no way purports to amend section 126. A provincial legislature still has the legislative competence to make laws for the province with regard to the matters specified in Schedule 6. That competence, articulated in section 126(1), is not amended by the amendment to section 245. Nor is Schedule 6 amended. The provincial legislature continues to have legislative competence with regard to such matters as indigenous law, customary law and local government. All that the amendment to section 245 does is to provide a cut-off date for the continued restructuring of local government in terms of the Transition Act. Previously there was no such date. Indeed, the cut-off date was determined by the date of the elections which could have been determined to be a date far beyond 31 March 1996.", "I also have considerable reservations about the assumption that an amendment to section 245, which undoubtedly complies with the Constitution\u2019s own procedures for the amendment of that section, must be held to be invalid simply because the amendment might have some indirect consequence for the date from which a provincial legislature might effect amendments to structures of local government in its own area. There is nothing in section 245 or 126 which supports any such suggestion. The makers of the Constitution expressly applied their minds to those provisions of the Constitution which could not be amended at all. This was set out clearly in section 74(1). Similarly, when they wanted a special procedure to be followed in the amendment of a specific section, they said this 20 \fMAHOMED DP clearly, in section 62(2) and expressly stated in section 74 that any other amendments to Chapter 5 of the Constitution had to comply with the provisions of section 74(2). They therefore deliberately refrained from making section 245 immune from any amendment or subjecting any such amendment to the special procedures prescribed by section 62(2).", "During the course of argument, counsel for the Applicants acknowledged that elections in the province of KwaZulu-Natal were scheduled to be held on 27 March 1996 and the effect of the impugned amendment to section 245 was therefore only to delay by four days the right of the provincial legislature of that province to restructure local government otherwise than in terms of the Transition Act. He argued, however, that the competence of the amendment to the Transition Act was nevertheless a matter involving an important principle because if section 245 could be amended so as to delay this power of the provincial legislature for three days, it could also be delayed for ten years. Developing this argument, counsel contended that amendments to the Constitution had to be made within the \u201cspirit\u201d of the Constitution.", "I have difficulty in appreciating how this \u201cspirit\u201d of the Constitution is violated in the instant case. What section 245 of the Constitution originally contemplated was that provincial legislatures would be free to restructure local government otherwise than in accordance with the Transition Act, immediately after the elections which were to be simultaneously held throughout the country. When that was delayed in certain of the provinces the date upon which the provincial legislatures could restructure local 21 \fgovernment there was similarly extended to approximately the date when such elections would be completed and new local governments were properly in place. MAHOMED DP", "The reliance upon the \u201cspirit\u201d of the Constitution is, in my view, misconceived. There is a procedure which is prescribed for amendments to the Constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable. It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an \u201camendment\u201d at all. That problem has engaged the Indian Supreme Court for some years17 and it has been held that the power of amendment of the Constitution, vested in the Legislature, could not be employed- \u201cto the extent of destroying the basic features and structure of the Constitution.\u201d18 As said by Chandrachud J in the Raj Narain case,19 in dealing with the effect of a previous judgment,- \u201c[The Constitution] did not confer power to amend the Constitution so as to damage or destroy the essential elements or basic features of the Constitution... The power to amend did not include the power to abrogate the Constitution... The word \u2018amendment\u2019 postulates that the old Constitution must survive without loss of identity, ... the old Constitution must accordingly be retained though in the amended form, and therefore the power of 17 I.C. Golak Nath v Punjab (1967) 2 SCR 762; Kesavananda v The State of Kerala (1973) SC 1461; Minerva Mills Ltd v The Union of India (1980) SC 1789; Indira Nehru Gandhi v Raj Narain (1975) SC 2299. 18 Seervai, Constitutional Law of India (3rd ed) page 2665, para 30.46 and page 2697, para 30.82; Basu, Shorter Constitution of India (10th ed) pages 1033, 1035 and 1036. 19 supra n.17. 22 \famendment does not include the power to destroy or abrogate the basic structure or framework of the Constitution.\u201d20 MAHOMED DP", "Pursuant to this approach the Indian Supreme Court has held, inter alia, that the supremacy of the Constitution itself 21, the rule of law,22 the principle of equality,23 the independence of the judiciary24 and judicial review25 are all basic features of the Indian Constitution which cannot be so \u201camended\u201d.", "It is unnecessary to pursue this line of authorities. Even if there is this kind of implied limitation to what can properly be the subject matter of an amendment to our Constitution, neither the impugned amendment to section 245 nor any of the other amendments to the Constitution placed in issue by the Applicants in the present case can conceivably fall within this category of amendments so basic to the Constitution as effectively to abrogate or destroy it.", "In the result, although the Applicants have succeeded in prayer 1 of their notice of motion granting them direct access to this court, the remaining prayers contained in paragraphs 2, 3, 4, 5 and 6 should be, and are, dismissed. 20 Raj Narain\u2019s case, supra n. 17, at 2461. 21 State of Rajasthan v The Union of India, (1977) SC 1361, para\u2019s 35 and 44. 22 Raj Narain\u2019s case, supra n.17, at 2369-2371. 23 Raj Narain\u2019s case, supra n.17, para\u2019s 680, 682. 24 Gupta v Union of India (1982) SC 149. 25 Kesavanada\u2019s case, supra n. 17, at 1565, 1609, 1648, 1860. 23 \fChaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O\u2019Regan J and Sachs J concur in the judgment of Mahomed DP. Counsel for the Applicants: Instructed by: DA Gordon SC AJ Dickson SC Austen Smith 24 \fCounsel for the Respondents: JJ Gauntlett SC MTK Moerane SC JC Heunis Instructed by: The State Attorney, Cape Town 25"], "max_length_judgement_paras": 505}, {"title": "S v Bhulwana, S v Gwadiso (CCT12/95, CCT11/95) [1995] ZACC 11; 1996 (1) SA 388; 1995 (12) BCLR 1579 (29 November 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/11.html", "summary_document": {"filename": "summary-for-case-11.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/11media.pdf", "file_content": "S v Bhulwana\n\n Case CCT 12/95\n\nExplanatory Note \n\nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court.\n\nSection 21 (1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 provides that if an \naccused has been found in possession of more than 115 grams of dagga, he or she will be \npresumed to have been dealing in dagga and will be convicted of the offence of dealing (as \nopposed to the lesser offence of possession) unless that person proves that he or she has not \nbeen dealing in dagga. \n\nConsidering a reference of the issue of the validity of the section from the Supreme Court, the \nConstitutional Court held the section to be unconstitutional with effect from the date of the \njudgment. The Court considered the section to be an infringement of the right of an accused \nperson to be presumed innocent in s 25(3)(c) of the Constitution. The Court found that the \nsection was not justifiable in terms of s 33(1) of the Constitution, holding that the State had \nfailed to prove that the presumption substantially furthered the aim of combatting the \ntrafficking of illegal drugs. \n\nThe Cout ordered that the declaration of invalidity should invalidate the use of the \npresumption in any criminal trial in which the verdict was given after the Constitution came \ninto operation and in which, at the time of the judgment, either an appeal or review is pending \nor the time for noting an appeal has not yet expired. \n\nThe judgment of the Court was delivered by O'Regan J and was concurred in by all the other \nmembers of the Court.\n\n1\n\n\f"}, "judgement_document": {"filename": "judgement-for-case-11.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/11.pdf", "file_content": "CASE NO: CCT12/95\n\nCASE NO: CCT 11/95\n\nIN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nIn the matter between:\n\nTHE STATE\n\nand\n\nBHULWANA\n\nAnd in the matter between:\n\nTHE STATE\n\nand\n\nGWADISO\n\nHeard on: 12 September 1995\n\nDelivered on: 29 November 1995\n\nJUDGMENT\n\n\f2\n\n[1]\n\nO'REGAN J: The question referred to this court in both these cases was whether the provisions\n\nof section 21(1)(a)(i) of the Drugs and Drug Trafficking Act, 140 of 1992 ('the Act') are in\n\nconflict with the provisions of the Republic of South Africa Constitution Act, 200 of 1993 ('the\n\nConstitution'). Section 21(1)(a)(i) of the Act provides that\n\n'If in the prosecution of any person for an offence referred to -\n\n(a) in section 13(f) it is proved that the accused -\n\n(i) was found in possession of dagga exceeding 115 grams;\n\n...\n\nit shall be presumed, until the contrary is proved, that the accused dealt in such\n\ndagga or substance;'\n\nSection 13(f) refers to offences mentioned in section 5(b), which, in turn, relates to the offence\n\nof dealing in certain substances, including dagga.\n\n[2]\n\nThe basis of the attack on section 21(1)(a)(i) of the Act is that the section imposes a burden of\n\nproof on the accused, a so-called 'reverse onus'\n\nprovision, which is contrary to the provisions of\n\nsection 25(3) of the Constitution. Section 25(3)\n\nprovides that:\n\n'Every accused person shall have the right to a fair trial, which shall include the right -\n\n...\n\n(c) to be presumed innocent and to remain silent during plea proceedings or\n\ntrial and not to testify during a trial;'\n\n\f[3]\n\nMr Bhulwana was found in possession of 850g of dagga (cannabis) near Kleinmond on 20 May\n\n3\n\n1994. He was convicted of dealing in dagga on 8 September 1994 and was fined R500,00 with\n\nthe alternative of six months' imprisonment and, in addition, a twelve month prison sentence\n\nwas suspended for a period of five years on condition that he was not found guilty of dealing in\n\ndrugs during that period. The matter then came before the Cape Provincial Division of the\n\nSupreme Court on automatic review. Marais J (in whose judgment Brand J concurred) held that\n\nthe evidence before the magistrate's court would not have been sufficient to convict Mr\n\nBhulwana of dealing in dagga, absent a reliance on the presumption contained in section\n\n21(1)(a)(i) of the Act. Accordingly, the correctness of the conviction depended on the\n\nconstitutionality of the presumption. Marais J was of the view that there were good grounds for\n\nconcluding that the presumption was not constitutional. In terms of section 102(1) of the\n\nConstitution, therefore, the court referred the question of the constitutionality of the\n\npresumption contained in section 21(1)(a)(i) of the Act to this court for determination and\n\nsuspended the review proceedings before it.\n\n[4]\n\nIn the other case before us, the accused, Mr Gwadiso, was found in possession of 444,7g of\n\ndagga on Main Street, Grabouw on 26 August 1994. In convicting him of dealing in dagga, the\n\nmagistrate in the Caledon Magistrates' Court expressly relied upon the presumption contained in\n\nsection 21(1)(a)(i) of the Act. Mr Gwadiso was fined R600,00 with the alternative of a six\n\nmonth prison sentence and in addition a further twelve month prison sentence was suspended\n\nfor four years on condition that he not be found guilty of dealing in drugs during that period.\n\nThe matter came before the Cape Provincial Division of the Supreme Court on automatic\n\nreview. Traverso J (in whose judgment Conradie J concurred) held that it was clear that Mr\n\nGwadiso's conviction for dealing could not have been sustained but for the existence of the\n\npresumption. She agreed with Marais J's conclusion in S v Bhulwana that the presumption was\n\nprima \n\nfacie unconstitutional. The court accordingly also referred \n\nthe \n\nissue of \n\nthe\n\nconstitutionality of the presumption to this court.\n\n\f4\n\n[5]\n\nAt the request of this court, the Cape Bar Council requested Mr Josman SC and Mr Butler to\n\nprepare heads of argument on behalf of Mr Bhulwana and Mr Gwadiso. Mr Josman was not\n\navailable for the hearing and the Cape Bar Council arranged for its chairman, Mr Blignault SC\n\nand Mr Butler to appear on their behalf at the hearing. Mr Slabbert of the office of the Western\n\nCape Attorney-General argued on behalf of the State. The court wishes to express its\n\nappreciation to the Cape Bar Council and to these counsel for their assistance.\n\n[6]\n\nSection 21(1)(a)(i) is a provision which has existed in our law since 1954. It was first introduced\n\nas section 90bis of the Medical Dental and Pharmacy Act, 13 of 1928 by section 31 of Act 29\n\nof 1954. As both possession of dagga and dealing in dagga are offences in our law, the effect of\n\nthe presumption is that, once the offence of possession has been proved, and the amount of\n\ndagga in question is shown to have exceeded 115g, the offence of dealing is presumed to have\n\nbeen committed. The Act provides for more substantial penalties for the offence of dealing than\n\nit does for the offence of possession and there is no doubt that a conviction for dealing is\n\naltogether a graver matter than a conviction for possession.\n\n[7]\n\nMr Slabbert submitted that section 21(1)(a)(i) was not a true reverse onus provision, in that it\n\nimposed on the accused not a legal burden, but merely an evidential burden. An evidential\n\nburden would require the accused, once possession in excess of 115g dagga has been shown, to\n\nadduce evidence which raises a reasonable doubt as to whether he or she was guilty of dealing\n\nin order to be acquitted of the offence of dealing. A legal burden, on the other hand, would\n\nrequire the accused to demonstrate on a balance of probabilities that he or she was not guilty of\n\ndealing in order to be acquitted of that offence. It cannot be accepted that the subsection\n\nimposes an evidential, not a legal, burden. Section 21(1)(a)(i) provides that, where an accused is\n\nfound in possession of a quantity of dagga in excess of 115g, it shall be presumed, until the\n\ncontrary is proved, that the accused was guilty of dealing in dagga. The clear language of the\n\ntext suggests that the presumption will stand unless proof to the contrary is produced.\n\n\f5\n\nPresumptions phrased in such a way have consistently been held to give rise to a legal burden\n\nsince the judgment of the Appellate Division in Ex parte Minister of Justice: in re R v\n\nJacobson and Levy 1931 AD 466. On several occasions the Appellate Division has held that\n\nprovisions in the legislation antecedent to this Act which gave rise to the presumption of facts\n\n'unless the contrary is proved' imposed a legal burden upon accused persons. (See S v Guess\n\n1976 (4) SA 715 (A) at 719 B - C; S v Radloff 1978 (4) SA 66 (A) at 71H.) There is no\n\nsignificant difference between the formulation of the earlier presumptions considered in these\n\ncases and section 21(1)(a)(i), although the formulation in the earlier legislation was 'unless'\n\nrather than 'until' the contrary is proved. In the court a quo in Bhulwana's case Marais J was of\n\nthe view that section 21(1)(a)(i) plainly gave rise to a legal burden. (See S v Bhulwana 1995\n\n(1) SA 509 (C) at 510 I - J; 1995 (5) BCLR 566 (C) at 567 H - I.) I agree that there can be no\n\ndoubt that section 21(1)(a)(i) is a reverse onus provision which imposes a burden of proof on\n\nthe accused.\n\n[8]\n\nThe effect of the provision is that, once the state has proved that the accused was found in\n\npossession of an amount of dagga in excess of 115g, the accused will, on a balance of\n\nprobabilities, have to show that such possession did not constitute dealing as defined in the Act.\n\nEven if the accused raises a reasonable doubt as to whether he or she was dealing in the drug,\n\nbut fails to show it on a balance of probabilities, he or she must nevertheless be convicted. The\n\neffect of imposing the legal burden on the accused may therefore result in a conviction for\n\ndealing despite the existence of a reasonable doubt as to his or her guilt.\n\n[9]\n\nIs the imposition of this burden a breach of the presumption of innocence as enshrined in\n\nsection 25(3)(c)? As this court held in S v Zuma 1995(2) SA 642 (CC); 1995(4) BCLR 401\n\n(CC) at para 33, the presumption of innocence is not new to our legal system. As early as\n\n1883, in R v Benjamin 3 EDC 337 at 338, Buchanan J noted that:\n\n\f6\n\n'But in a criminal trial there is a presumption of innocence in favour of the accused,\n\nwhich must be rebutted. Therefore there should not be a conviction unless the crime\n\ncharged has been clearly proved to have been committed by the accused. Where the\n\nevidence is not reasonably inconsistent with the prisoner's innocence, or where a\n\nreasonable doubt as to his guilt exists, there should be an acquittal.'\n\n[10]\n\nAuthoritative support for the rule as a fundamental principle of our law was given by the\n\nAppellate Division in R v Ndhlovu 1945 AD 369. Davis AJA held that the presumption of\n\ninnocence which had been endorsed by the House of Lords in Woolmington v DPP [1935] AC\n\n462 (HL) was not inconsistent with Roman-Dutch law, but was indeed a fundamental principle\n\nof our law. He held accordingly that:\n\n'In all criminal cases it is for the Crown to establish the guilt of the accused, not for the\n\naccused to establish his innocence. The onus is on the Crown to prove all averments\n\nnecessary to establish his guilt.' (At 386)\n\nIn Ndhlovu, the court went on to hold that the only common law exception to this principle is \n\nthat where an accused raises a defence of insanity, he or she bears the burden of proving\n\ninsanity. A similar exception had been upheld in Woolmington's case.\n\n[11]\n\nIn S v Zuma, supra, this court was concerned with the constitutionality of section 217(1)(b)(ii)\n\nof the Criminal Procedure Act, 51 of 1977 which also contained a reverse onus provision. In\n\ninterpreting section 25(3)(c) of the Constitution, Kentridge AJ, speaking for the court,\n\nconsidered the history of the presumption of innocence, as well as the approach adopted by\n\ncourts in other jurisdictions to the presumption of innocence and to reverse onus provisions.\n\n[12]\n\nKentridge AJ found the Canadian cases to be of particular assistance since the Canadian Charter\n\nof Rights and Freedoms is similarly structured to chapter 3 of our Constitution.(At paragraphs\n\n21 - 25) Both require, as a general rule, a preliminary or threshold enquiry into whether a\n\n\fbreach of a constitutional right has occurred and thereafter a consideration of whether that\n\nbreach may nevertheless be justifiable in terms of a limitations clause.\n\n7\n\n[13]\n\nSection 11(d) of the Canadian Charter of Rights and Freedoms provides that an accused person\n\nhas the right\n\n'to be presumed innocent until proven guilty according to law in a fair and public\n\nhearing by an independent and impartial tribunal;'.\n\n \n\nThe Canadian Supreme Court has on numerous occasions held that section 11(d) will be\n\nbreached where a presumption has the effect that an accused person may be convicted while a\n\nreasonable doubt exists as to his or her guilt. (See, for example, R v Oakes 26 DLR (4th) 200\n\n(1986) at 222; R v Vaillancourt 47 DLR (4th) 399 (1988) at 417; R v Whyte 51 DLR (4th) 481\n\n(1989) at 493; R v Keegstra (1989) 39 CRR 5 at 13; Downey v The Queen 90 DLR (4th) 449\n\n(1992) at 461; R v Laba 120 DLR (4th) 175 (1995) at 201.)\n\n[14]\n\nAccording to the Canadian jurisprudence, once it is shown that a statutory presumption is in\n\nbreach of section 11(d), the court must consider whether the presumption is nevertheless\n\njustifiable in terms of section 1 of the Charter, which provides that the rights are 'subject only to\n\nsuch reasonable limits prescribed by law as can be demonstrably justified in a free and\n\ndemocratic society'. The Canadian Supreme Court has held that, in particular cases, reverse\n\nonus provisions may be justifiable in terms of section 1. (See, for example, Downey v The\n\nQueen, supra; R v Whyte 51 DLR (4th) 481 (1988); R v Chaulk (1990) 1 CRR (2d) 1.)\n\n[15]\n\nAs was held in Zuma's case, supra, at para 33, the presumption of innocence is an established\n\nprinciple of South African law which places the burden of proof squarely on the prosecution. \n\nThe entrenchment of the presumption of innocence in section 25(3)(c) must be interpreted in\n\nthis context. It requires that the prosecution bear the burden of proving all the elements of a\n\ncriminal charge. A presumption which relieves the prosecution of part of that burden could\n\n\f8\n\nresult in the conviction of an accused person despite the existence of a reasonable doubt as to\n\nhis or her guilt. Such a presumption is in breach of the presumption of innocence and therefore\n\noffends section 25(3)(c). Section 21(1)(a)(i) is such a presumption. The answer to the threshold\n\nenquiry is therefore that section 21(1)(a)(i) clearly gives rise to a breach of section 25(3)(c) of\n\nthe Constitution.\n\n[16]\n\nUnder the old constitutional order, it was clear that the legislature could depart from the\n\nprinciple of the presumption of innocence and impose on an accused the burden of proving the\n\nabsence of some element of an offence. (See, for example, R v Ndhlovu, supra, at 386 - 7; R v\n\nBritz 1949 (3) SA 293 (A) at 302.) Statutes contain many examples of such reverse onus\n\nprovisions. Under the new constitutional order, the effect of the entrenchment of the\n\npresumption of innocence is to require that, where a presumption may give rise to the\n\nconviction of an accused despite the existence of a reasonable doubt as to his or her guilt, it\n\nmust be justified in terms of section 33.\n\n[17]\n\nSection 33(1) provides that:\n\n'The rights entrenched in this Chapter may be limited by law of general application,\n\nprovided that such limitation -\n\n(a) shall be permissible only to the extent that it is -\n\n(i) reasonable; and\n\n(ii) justifiable in an open and democratic society based on freedom and\n\nequality; and\n\n(b) shall not negate the essential content of the right in question,\n\nand provided further that any limitation to -\n\n(aa) a right entrenched in section ... 25 ...\n\nshall, in addition to being reasonable as required in paragraph (a)(i), also be\n\nnecessary.'\n\n\f9\n\nSection 33 (1) requires us to consider whether section 21(1)(a)(i) is a reasonable, necessary and\n\njustifiable limitation in an open and democratic society based on freedom and equality. If it is\n\nheld to be so, then section 33 requires us to consider whether the limitation of the right\n\noccasioned by section 21(1)(a)(i) negates the essential content of that right. In S v Makwanyane\n\n1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paragraph 104, Chaskalson P held that\n\nsection 33 required a proportionality assessment:\n\n`In the balancing process, the relevant considerations will include the nature of the right\n\nthat is limited, and its importance to an open and democratic society based on freedom\n\nand equality; the purpose for which the right is limited and the importance of that\n\npurpose to such society; the extent of the limitation, its efficacy, and particularly where\n\nthe limitation has to be necessary, whether the desired ends could reasonably be\n\nachieved through other means less damaging to the right in question.' (see also S v\n\nWilliams 1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC) at paragraphs 58 - 60).\n\n[18]\n\nIn sum, therefore, the court places the purpose, effects and importance of the infringing\n\nlegislation on one side of the scales and the nature and effect of the infringement caused by the\n\nlegislation on the other. The more substantial the inroad into fundamental rights, the more\n\npersuasive the grounds of justification must be.\n\n[19]\n\nIn this case, the infringement of the presumption of innocence may result in an accused person\n\nbeing convicted of the offence of dealing in dagga despite a reasonable doubt as to whether he\n\nor she was in fact dealing. It may be that the infringement is less invasive because the\n\npresumption only comes into operation when a person has already been shown prima facie to\n\nhave committed an offence: in effect, it only serves to aggravate the offence. Nevertheless, the\n\noffence of dealing in dagga carries heavier penalties than the offence of possession; and the\n\noffence of dealing is viewed with much greater censure by society at large. To be convicted of\n\n\fdealing where a doubt exists as to guilt of that offence is therefore no less an infringement of the\n\npresumption of innocence.\n\n10\n\n[20] Mr Slabbert argued that the purpose of the presumption was to assist in controlling the illegal\n\ndrug trade. It assisted in that it ensured that heavier sentences could be imposed upon drug\n\noffenders, and offenders would be convicted who would otherwise not be convicted. There can\n\nbe little doubt that the effective prohibition of the abuse of illegal drugs, particularly those which\n\nresult in severe damage to the user, is a pressing social purpose. There is also little doubt that it\n\nis important for the government to take active steps to suppress trafficking in illicit drugs. It is\n\nnot clear, however, that either of these purposes is substantially furthered by the presumption\n\nprovided for in section 21(1)(a)(i).\n\n[21]\n\nIt cannot be said that the greater sentencing discretion provided to the court in respect of dealing\n\nis necessary to further the identified legislative objective. In terms of section 17(d) of the Act,\n\nwhere a court finds a person guilty of possession, the court may impose any fine it deems fit\n\nand alternatively, or in addition, it may impose a prison sentence not exceeding 15 years. \n\nSection 17(e) provides that where a person is convicted of dealing in dagga, a prison sentence\n\nnot exceeding 25 years may be imposed and the court may, in the alternative or in addition,\n\nimpose any fine it considers appropriate. Although the sentencing discretion granted to a court\n\nwhere a person has been convicted of dealing in dagga is greater than that for offences of\n\npossession, the possible penalties for possession are extremely severe. In both cases before this\n\ncourt, for example, in which the accused persons were convicted of dealing, the magistrates\n\nimposed far less stringent penalties than they were empowered to do even in respect of the\n\noffence of possession. It is unlikely that sentences in excess of fifteen years' imprisonment (the\n\nlimit for possession) would ever be imposed in cases where the presumption would be a\n\nmaterial factor in finding guilt. If an accused is found to have been in possession of a large\n\nquantity of dagga, it might, depending on all the circumstances and in the absence of an\n\n\f11\n\nexplanation giving rise to a reasonable doubt, be sufficient circumstantial evidence of dealing\n\nand a justification for the imposition of a higher penalty (see S v Sixaxeni 1994(3) SA 733 (C)).\n\nI am not persuaded therefore that the presumption is needed to ensure adequate sentencing\n\ndiscretion. Even apart from that, it is not clear to me that the need for greater sentencing\n\ndiscretion would be sufficient to meet the requirements of reasonableness, necessity and\n\njustifiability stipulated in section 33. If there is indeed doubt that the accused is a dealer, he or\n\nshe is entitled, according to our law, to the benefit of that doubt.\n\n[22]\n\nNor can it be said that the presumption facilitates the prosecution and conviction of drug\n\noffenders who would otherwise not be convicted. The presumption only arises once a person\n\nhas in fact been proved to have committed the offence contained in subsection 4(b) of the Act,\n\nthe possession of dagga. The presumption cannot operate where the possession is itself\n\npresumed; the possession must, in fact, have been proved. (See S v Majola 1975 (2) SA 727\n\n(A ) at 735A - B.) A person to whom the presumption applies will therefore be convicted of and\n\nsentenced for possession, even if the presumption is not relied upon. There can be no question\n\ntherefore that the presumption is necessary to convict offenders. It may be necessary to secure\n\na conviction for the more serious offence of dealing, but that is not sufficient to justify the\n\ninfringement of section 25.\n\n[23]\n\nIt does not appear to be logical to presume that a person found in possession of 115g of dagga\n\nis more likely than not to have been dealing in dagga. From the evidence placed before us, it\n\nappears that 115g of dagga is equal to between 50 and 100 cigarettes. Mr Slabbert conceded\n\nthat it would not be unreasonable for a regular user of dagga to possess that quantity of dagga.\n\nIndeed, the criminalisation of dagga possession may make it more likely that ordinary users will\n\npurchase large quantities because of the risks associated with purchase. The quantity stipulated\n\nin the legislation (115g) has remained constant since the presumption was first introduced in\n\n1954, when it was expressed as 4 ounces. No explanation was proffered by the State as to why\n\n\fthis particular quantity was selected. It appears to be an arbitrary figure, nowadays, whatever\n\nsense, if any, it may have made in the socio-economic environment that prevailed when it was\n\noriginally introduced.\n\n12\n\n[24]\n\nIn my view, section 21(1)(a)(i) of the Act cannot be justified in terms of section 33(1) of the\n\nConstitution. Although the need to suppress illicit drug trafficking is an urgent and pressing one,\n\n it is not clear how, if at all, the presumption furthers such an objective. In addition, there\n\nappears to be no logical connection between the fact proved (possession of 115g) and the fact\n\npresumed (dealing). On the other hand, the presumption gives rise to an infringement of the\n\nright entrenched in section 25(3)(c), which is a pillar of our system of criminal justice. Section\n\n21(1)(a)(i) of the Act is an unconstitutional infringement of the right entrenched in section\n\n25(3)(c) which is not reasonable, justifiable or necessary as contemplated by section 33.\n\n[25] Mr Slabbert argued that, if this court found section 21(1)(a)(i) to be unconstitutional, the court\n\nshould 'read down' the section and rule that it should be interpreted as imposing not a legal\n\nburden but an evidential one. He relied for support upon the Canadian case of R v Ellis-Don\n\nLtd 76 DLR(4th) 347 (Ont CA) (1990) where the Ontario Court of Appeal read an industrial\n\nsafety statute that imposed a burden of proof on the accused to show due diligence as imposing\n\nonly an evidential burden.\n\n[26]\n\nThe Canadian courts' remedial powers are not directly comparable to ours. The key provisions\n\nin our Constitution dealing with reading down are sections 35(2) and 232(3) which are similarly\n\nphrased. The key provisions regarding the court's remedial powers with relation to\n\nunconstitutional legislative provisions are sections 98(5) and (6). In determining whether it is\n\nappropriate to read down a particular legislative provision, the court must primarily be guided by\n\nthose provisions and not by the approach in a foreign jurisdiction.\n\n\f[27]\n\nSection 35(2) of the constitution provides that:\n\n13\n\n'No law which limits any of the rights entrenched in this Chapter, shall be\n\nconstitutionally invalid solely by reason of the fact that the wording used prima facie\n\nexceeds the limits imposed in this Chapter, provided such a law is reasonably capable of\n\na more restricted interpretation which does not exceed such limits, in which event such\n\nlaw shall be construed as having a meaning in accordance with the said more restricted\n\ninterpretation.'\n\nSections 98(5) and (6) of the Constitution provide as follows:\n\n'(5)In the event of the Constitutional Court finding that any law or any provision\n\nthereof is inconsistent with this Constitution, it shall declare such law or provision\n\ninvalid to the extent of its inconsistency: Provided that the Constitutional Court may, in\n\nthe interests of justice and good government, require Parliament or any other\n\ncompetent authority, within a period specified by the Court, to correct the defect in the\n\nlaw or provision, which shall then remain in force pending correction or the expiry of\n\nthe period so specified.\n\n(6) Unless the Constitutional Court in the interests of justice and good government\n\norders otherwise, and save to the extent that it so orders, the declaration of invalidity of\n\na law or a provision thereof\n\n(a) existing at the commencement of this Constitution, shall not invalidate\n\nanything done or permitted in terms thereof before the coming into effect of\n\nsuch declaration of invalidity; or\n\n(b) passed after such commencement, shall invalidate everything done or\n\npermitted in terms thereof.'\n\n[28]\n\nIt is clear from sections 35(2) and 232(3) that the court must read down a provision which is \n\n'reasonably capable' of a more restricted and constitutional interpretation. If the provision is\n\n'reasonably capable' of being read down in a way which would be consistent with the\n\n\f14\n\nConstitution, the Constitution requires that it shall be read in such a way. If the provision is not\n\nreasonably capable of such an interpretation, then section 98(5) requires the court to hold the\n\nprovision invalid. Thereafter the court may exercise the discretion conferred upon it by the\n\nproviso to section 98(5) or the discretion conferred by section 98(6). (For a discussion of these\n\npowers, see Executive Council of the Western Cape and others v The President of the\n\nRepublic of South Africa and others CCT 27/95 unreported judgment of the Constitutional\n\nCourt delivered on 22 September 1995, at paragraphs 102 - 108.)\n\n[29]\n\nTo read section 21(1)(a)(i) as imposing an evidential burden upon the accused rather than a\n\nlegal burden would require reading the words in section 21(1)(a)(i) 'until the contrary is proved'\n\nas meaning 'unless the evidence raises a reasonable doubt'. I do not think that these words are\n\nreasonably capable of such an interpretation, both in the light of the unambiguous language of\n\nthe phrase 'until the contrary is proved' and the considerable and consistent judicial dicta\n\ninterpreting that phrase. Accordingly, the submission that section 21(1)(a)(i) be read down to\n\ngive rise to an evidential and not a legal burden cannot be accepted. This suggestion was\n\npremised upon the proposition that imposing an evidential burden upon the accused would give\n\nrise to no constitutional complaint. In the light of our rejection of the suggestion, it is not\n\nnecessary for the purposes of this case to decide on the constitutional validity of the premise.\n\n[30]\n\nIn the alternative, the State also argued that this court should exercise its power under the\n\nproviso to section 98(5), in the interests of justice and good government, to suspend the effect\n\nof the order of invalidity and require Parliament to remedy the defect in the legislation.\n\nHowever, Mr Slabbert could identify no compelling interest of good government which would\n\nrequire that the presumption remain in force pending parliamentary attention. He conceded that\n\nit was not necessary for the conviction of offenders, or for the furthering of the objects of the\n\nlegislation. On the other hand, it is clear that, while the presumption exists, there is a risk that a\n\nperson may be convicted of dealing in dagga despite the existence of a reasonable doubt as to\n\n\fhis or her guilt. In the absence of persuasive reasons to exercise our power in terms of section\n\n98(5), the effect of our finding, that section 21(1)(a)(i) is inconsistent with the Constitution,\n\nmust be the invalidity of that section.\n\n15\n\n[31]\n\nThe effect of an order declaring invalid a legislative provision, such as section 21(1)(a)(i) of the\n\nAct, which existed when the Constitution came into force shall not, according to section\n\n98(6)(a), invalidate anything done or permitted in terms of that provision unless the court, in\n\nthe interests of justice and good government, orders otherwise. In both the cases before us, the\n\nconviction of the accused persons arose from a reliance on the presumption contained in section\n\n21(1)(a)(i) of the Act. As the convictions took place before this court made its order of\n\ninvalidity, the effect of the declaration of invalidity will not apply to it unless this court orders\n\notherwise. In S v Zuma, supra, the provision under challenge had been referred to this court by\n\nthe trial court before the trial had been completed. We ordered that the effect of invalidity\n\nshould extend only to cases in which a verdict had not yet been reached. Such an order in this\n\nmatter would not assist the applicants. In S v Mhlungu 1995 (3) SA 867 (CC); 1995 (7) BCLR\n\n793 (CC), we extended the effect of the order of invalidity made in Zuma's case to cases in\n\nwhich a verdict had been reached after the 27 April 1994. In the judgment of the majority,\n\nMahomed DP held that:\n\n'Appeals arising from proceedings which were commenced and concluded after the\n\nConstitution came into operation should, in principle, be determined in the ordinary\n\ncourse on the basis that Chapter 3 of the Constitution was clearly of application and if\n\nthe protection of that chapter had wrongly been denied to the appellant, the Court on\n\nappeal would then take that into account in making its order.' (At para 41.)\n\n[32]\n\nCentral to a consideration of the interests of justice in a particular case is that successful litigants\n\nshould obtain the relief they seek. It is only when the interests of good government outweigh the\n\ninterests of the individual litigants that the court will not grant relief to successful litigants. In\n\n\f16\n\nprinciple too, the litigants before the court should not be singled out for the grant of relief, but\n\nrelief should be afforded to all people who are in the same situation as the litigants (see US v\n\nJohnson 457 US 537 (1982); Teague v Lane 489 US 288 (1989)). On the other hand, as we\n\nstated in S v Zuma (at para 43), we should be circumspect in exercising our powers under\n\nsection 98(6)(a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice\n\nprocess. As Harlan J stated in Mackey v US 401 US 667 (1971) at 691:\n\n'No one, not criminal defendants, not the judicial system, not society as a whole is\n\nbenefited by a judgment providing a man shall tentatively go to jail today, but tomorrow\n\nand every day thereafter his continued incarceration shall be subject to fresh litigation\n\non issues already resolved.'\n\nAs a general principle, therefore, an order of invalidity should have no effect on cases which\n\nhave been finalised prior to the date of the order of invalidity.\n\n[33]\n\nIn the light of all these considerations, it is my view that the proper order to be made in terms of\n\nsection 98(6)(a) is that the order invalidating section 21(1)(a)(i) shall also invalidate any\n\napplication of the presumption contained in the section in any criminal trial in which an appeal\n\nor review is pending as at the date of this judgment, or in which an appeal may yet be timeously\n\nnoted. \n\n [34]\n\nThe following order is accordingly made:\n\n1. The following provisions of the Drugs and Drug Trafficking Act, 140 of 1992 are declared to\n\nbe inconsistent with the Republic of South Africa Constitution Act 200 of 1993 and are, with\n\neffect from the date of this judgment, declared to be invalid and of no force and effect:\n\n(a) section 21(1)(a)(i);\n\n(b) the words 'dagga or' in section 21(1)(a).\n\n\f17\n\n2. In terms of section 98(6) of the Constitution, it is ordered that the declaration of invalidity in\n\nparagraph 1 shall invalidate any application of section 21(1)(a)(i) of the Drugs and Drug\n\nTrafficking Act, 140 of 1992 in any criminal trial in which the verdict of the trial court was\n\nentered after the Constitution came into force, and in which, as at the date of this judgment,\n\neither an appeal or review is pending or the time for the noting of an appeal has not yet expired.\n\n3. The matters of S v Bhulwana and S v Gwadiso are referred back to the Cape Provincial\n\nDivision to be dealt with in accordance with this judgment.\n\nC.M.E. O'REGAN\n\nJudge of the Constitutional Court\n\n(Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J,Madala J, Mokgoro J, Ngoepe J and Sachs\n\nJ concur in the judgment of O'Regan J)\n\nCASE NUMBERS: CCT 11/95\n\n CCT 12/95\n\nPRO AMICO COUNSEL ON BEHALF OF ACCUSED: \n\n(PREPARATION OF HEADS) G JOSMAN SC\n\n J BUTLER\n\n(APPEARANCE IN COURT) A BLIGNAULT SC\n\n J BUTLER\n\nCOUNSEL FOF THE STATE: J SLABBERT\n\nDATE OF HEARING: 12 SEPTEMBER 1995\n\n\fDATE OF JUDGMENT: 29 NOVEMBER 1995\n\n18\n\n\f"}, "id": "7107f1c0-21b2-4ab0-9659-22a14c450206", "update_date": "2021-03-15 17:08:56.815623", "year": "1995", "judgement_paragraphs": ["CASE NO: CCT12/95 CASE NO: CCT 11/95 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: THE STATE and BHULWANA And in the matter between: THE STATE and GWADISO Heard on: 12 September 1995 Delivered on: 29 November 1995 JUDGMENT ", "O'REGAN J: The question referred to this court in both these cases was whether the provisions of section 21(1)(a)(i) of the Drugs and Drug Trafficking Act, 140 of 1992 ('the Act') are in conflict with the provisions of the Republic of South Africa Constitution Act, 200 of 1993 ('the Constitution'). Section 21(1)(a)(i) of the Act provides that 'If in the prosecution of any person for an offence referred to - (a) in section 13(f) it is proved that the accused - (i) was found in possession of dagga exceeding 115 grams; ... it shall be presumed, until the contrary is proved, that the accused dealt in such dagga or substance;' Section 13(f) refers to offences mentioned in section 5(b), which, in turn, relates to the offence of dealing in certain substances, including dagga.", "The basis of the attack on section 21(1)(a)(i) of the Act is that the section imposes a burden of proof on the accused, a so-called 'reverse onus' provision, which is contrary to the provisions of section 25(3) of the Constitution. Section 25(3) provides that: 'Every accused person shall have the right to a fair trial, which shall include the right - ... (c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during a trial;' \f[3] Mr Bhulwana was found in possession of 850g of dagga (cannabis) near Kleinmond on 20 May 3 1994. He was convicted of dealing in dagga on 8 September 1994 and was fined R500,00 with the alternative of six months' imprisonment and, in addition, a twelve month prison sentence was suspended for a period of five years on condition that he was not found guilty of dealing in drugs during that period. The matter then came before the Cape Provincial Division of the Supreme Court on automatic review. Marais J (in whose judgment Brand J concurred) held that the evidence before the magistrate's court would not have been sufficient to convict Mr Bhulwana of dealing in dagga, absent a reliance on the presumption contained in section 21(1)(a)(i) of the Act. Accordingly, the correctness of the conviction depended on the constitutionality of the presumption. Marais J was of the view that there were good grounds for concluding that the presumption was not constitutional. In terms of section 102(1) of the Constitution, therefore, the court referred the question of the constitutionality of the presumption contained in section 21(1)(a)(i) of the Act to this court for determination and suspended the review proceedings before it.", "In the other case before us, the accused, Mr Gwadiso, was found in possession of 444,7g of dagga on Main Street, Grabouw on 26 August 1994. In convicting him of dealing in dagga, the magistrate in the Caledon Magistrates' Court expressly relied upon the presumption contained in section 21(1)(a)(i) of the Act. Mr Gwadiso was fined R600,00 with the alternative of a six month prison sentence and in addition a further twelve month prison sentence was suspended for four years on condition that he not be found guilty of dealing in drugs during that period. The matter came before the Cape Provincial Division of the Supreme Court on automatic review. Traverso J (in whose judgment Conradie J concurred) held that it was clear that Mr Gwadiso's conviction for dealing could not have been sustained but for the existence of the presumption. She agreed with Marais J's conclusion in S v Bhulwana that the presumption was prima facie unconstitutional. The court accordingly also referred the issue of the constitutionality of the presumption to this court. \f4", "At the request of this court, the Cape Bar Council requested Mr Josman SC and Mr Butler to prepare heads of argument on behalf of Mr Bhulwana and Mr Gwadiso. Mr Josman was not available for the hearing and the Cape Bar Council arranged for its chairman, Mr Blignault SC and Mr Butler to appear on their behalf at the hearing. Mr Slabbert of the office of the Western Cape Attorney-General argued on behalf of the State. The court wishes to express its appreciation to the Cape Bar Council and to these counsel for their assistance.", "Section 21(1)(a)(i) is a provision which has existed in our law since 1954. It was first introduced as section 90bis of the Medical Dental and Pharmacy Act, 13 of 1928 by section 31 of Act 29 of 1954. As both possession of dagga and dealing in dagga are offences in our law, the effect of the presumption is that, once the offence of possession has been proved, and the amount of dagga in question is shown to have exceeded 115g, the offence of dealing is presumed to have been committed. The Act provides for more substantial penalties for the offence of dealing than it does for the offence of possession and there is no doubt that a conviction for dealing is altogether a graver matter than a conviction for possession.", "Mr Slabbert submitted that section 21(1)(a)(i) was not a true reverse onus provision, in that it imposed on the accused not a legal burden, but merely an evidential burden. An evidential burden would require the accused, once possession in excess of 115g dagga has been shown, to adduce evidence which raises a reasonable doubt as to whether he or she was guilty of dealing in order to be acquitted of the offence of dealing. A legal burden, on the other hand, would require the accused to demonstrate on a balance of probabilities that he or she was not guilty of dealing in order to be acquitted of that offence. It cannot be accepted that the subsection imposes an evidential, not a legal, burden. Section 21(1)(a)(i) provides that, where an accused is found in possession of a quantity of dagga in excess of 115g, it shall be presumed, until the contrary is proved, that the accused was guilty of dealing in dagga. The clear language of the text suggests that the presumption will stand unless proof to the contrary is produced. \f5 Presumptions phrased in such a way have consistently been held to give rise to a legal burden since the judgment of the Appellate Division in Ex parte Minister of Justice: in re R v Jacobson and Levy 1931 AD 466. On several occasions the Appellate Division has held that provisions in the legislation antecedent to this Act which gave rise to the presumption of facts 'unless the contrary is proved' imposed a legal burden upon accused persons. (See S v Guess 1976 (4) SA 715 (A) at 719 B - C; S v Radloff 1978 (4) SA 66 (A) at 71H.) There is no significant difference between the formulation of the earlier presumptions considered in these cases and section 21(1)(a)(i), although the formulation in the earlier legislation was 'unless' rather than 'until' the contrary is proved. In the court a quo in Bhulwana's case Marais J was of the view that section 21(1)(a)(i) plainly gave rise to a legal burden. (See S v Bhulwana 1995 (1) SA 509 (C) at 510 I - J; 1995 (5) BCLR 566 (C) at 567 H - I.) I agree that there can be no doubt that section 21(1)(a)(i) is a reverse onus provision which imposes a burden of proof on the accused.", "The effect of the provision is that, once the state has proved that the accused was found in possession of an amount of dagga in excess of 115g, the accused will, on a balance of probabilities, have to show that such possession did not constitute dealing as defined in the Act. Even if the accused raises a reasonable doubt as to whether he or she was dealing in the drug, but fails to show it on a balance of probabilities, he or she must nevertheless be convicted. The effect of imposing the legal burden on the accused may therefore result in a conviction for dealing despite the existence of a reasonable doubt as to his or her guilt.", "Is the imposition of this burden a breach of the presumption of innocence as enshrined in section 25(3)(c)? As this court held in S v Zuma 1995(2) SA 642 (CC); 1995(4) BCLR 401 (CC) at para 33, the presumption of innocence is not new to our legal system. As early as 1883, in R v Benjamin 3 EDC 337 at 338, Buchanan J noted that: \f6 'But in a criminal trial there is a presumption of innocence in favour of the accused, which must be rebutted. Therefore there should not be a conviction unless the crime charged has been clearly proved to have been committed by the accused. Where the evidence is not reasonably inconsistent with the prisoner's innocence, or where a reasonable doubt as to his guilt exists, there should be an acquittal.'", "Authoritative support for the rule as a fundamental principle of our law was given by the Appellate Division in R v Ndhlovu 1945 AD 369. Davis AJA held that the presumption of innocence which had been endorsed by the House of Lords in Woolmington v DPP [1935] AC 462 (HL) was not inconsistent with Roman-Dutch law, but was indeed a fundamental principle of our law. He held accordingly that: 'In all criminal cases it is for the Crown to establish the guilt of the accused, not for the accused to establish his innocence. The onus is on the Crown to prove all averments necessary to establish his guilt.' (At 386) In Ndhlovu, the court went on to hold that the only common law exception to this principle is that where an accused raises a defence of insanity, he or she bears the burden of proving insanity. A similar exception had been upheld in Woolmington's case.", "In S v Zuma, supra, this court was concerned with the constitutionality of section 217(1)(b)(ii) of the Criminal Procedure Act, 51 of 1977 which also contained a reverse onus provision. In interpreting section 25(3)(c) of the Constitution, Kentridge AJ, speaking for the court, considered the history of the presumption of innocence, as well as the approach adopted by courts in other jurisdictions to the presumption of innocence and to reverse onus provisions.", "Kentridge AJ found the Canadian cases to be of particular assistance since the Canadian Charter of Rights and Freedoms is similarly structured to chapter 3 of our Constitution.(At paragraphs 21 - 25) Both require, as a general rule, a preliminary or threshold enquiry into whether a \fbreach of a constitutional right has occurred and thereafter a consideration of whether that breach may nevertheless be justifiable in terms of a limitations clause. 7", "Section 11(d) of the Canadian Charter of Rights and Freedoms provides that an accused person has the right 'to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;'. The Canadian Supreme Court has on numerous occasions held that section 11(d) will be breached where a presumption has the effect that an accused person may be convicted while a reasonable doubt exists as to his or her guilt. (See, for example, R v Oakes 26 DLR (4th) 200 (1986) at 222; R v Vaillancourt 47 DLR (4th) 399 (1988) at 417; R v Whyte 51 DLR (4th) 481 (1989) at 493; R v Keegstra (1989) 39 CRR 5 at 13; Downey v The Queen 90 DLR (4th) 449 (1992) at 461; R v Laba 120 DLR (4th) 175 (1995) at 201.)", "According to the Canadian jurisprudence, once it is shown that a statutory presumption is in breach of section 11(d), the court must consider whether the presumption is nevertheless justifiable in terms of section 1 of the Charter, which provides that the rights are 'subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. The Canadian Supreme Court has held that, in particular cases, reverse onus provisions may be justifiable in terms of section 1. (See, for example, Downey v The Queen, supra; R v Whyte 51 DLR (4th) 481 (1988); R v Chaulk (1990) 1 CRR (2d) 1.)", "As was held in Zuma's case, supra, at para 33, the presumption of innocence is an established principle of South African law which places the burden of proof squarely on the prosecution. The entrenchment of the presumption of innocence in section 25(3)(c) must be interpreted in this context. It requires that the prosecution bear the burden of proving all the elements of a criminal charge. A presumption which relieves the prosecution of part of that burden could \f8 result in the conviction of an accused person despite the existence of a reasonable doubt as to his or her guilt. Such a presumption is in breach of the presumption of innocence and therefore offends section 25(3)(c). Section 21(1)(a)(i) is such a presumption. The answer to the threshold enquiry is therefore that section 21(1)(a)(i) clearly gives rise to a breach of section 25(3)(c) of the Constitution.", "Under the old constitutional order, it was clear that the legislature could depart from the principle of the presumption of innocence and impose on an accused the burden of proving the absence of some element of an offence. (See, for example, R v Ndhlovu, supra, at 386 - 7; R v Britz 1949 (3) SA 293 (A) at 302.) Statutes contain many examples of such reverse onus provisions. Under the new constitutional order, the effect of the entrenchment of the presumption of innocence is to require that, where a presumption may give rise to the conviction of an accused despite the existence of a reasonable doubt as to his or her guilt, it must be justified in terms of section 33.", "Section 33(1) provides that: 'The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation - (a) shall be permissible only to the extent that it is - (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and provided further that any limitation to - (aa) a right entrenched in section ... 25 ... shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary.' \f9 Section 33 (1) requires us to consider whether section 21(1)(a)(i) is a reasonable, necessary and justifiable limitation in an open and democratic society based on freedom and equality. If it is held to be so, then section 33 requires us to consider whether the limitation of the right occasioned by section 21(1)(a)(i) negates the essential content of that right. In S v Makwanyane 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paragraph 104, Chaskalson P held that section 33 required a proportionality assessment: `In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question.' (see also S v Williams 1995 (3) SA 632 (CC); 1995 (7) BCLR 861 (CC) at paragraphs 58 - 60).", "In sum, therefore, the court places the purpose, effects and importance of the infringing legislation on one side of the scales and the nature and effect of the infringement caused by the legislation on the other. The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.", "In this case, the infringement of the presumption of innocence may result in an accused person being convicted of the offence of dealing in dagga despite a reasonable doubt as to whether he or she was in fact dealing. It may be that the infringement is less invasive because the presumption only comes into operation when a person has already been shown prima facie to have committed an offence: in effect, it only serves to aggravate the offence. Nevertheless, the offence of dealing in dagga carries heavier penalties than the offence of possession; and the offence of dealing is viewed with much greater censure by society at large. To be convicted of \fdealing where a doubt exists as to guilt of that offence is therefore no less an infringement of the presumption of innocence. 10", "Mr Slabbert argued that the purpose of the presumption was to assist in controlling the illegal drug trade. It assisted in that it ensured that heavier sentences could be imposed upon drug offenders, and offenders would be convicted who would otherwise not be convicted. There can be little doubt that the effective prohibition of the abuse of illegal drugs, particularly those which result in severe damage to the user, is a pressing social purpose. There is also little doubt that it is important for the government to take active steps to suppress trafficking in illicit drugs. It is not clear, however, that either of these purposes is substantially furthered by the presumption provided for in section 21(1)(a)(i).", "It cannot be said that the greater sentencing discretion provided to the court in respect of dealing is necessary to further the identified legislative objective. In terms of section 17(d) of the Act, where a court finds a person guilty of possession, the court may impose any fine it deems fit and alternatively, or in addition, it may impose a prison sentence not exceeding 15 years. Section 17(e) provides that where a person is convicted of dealing in dagga, a prison sentence not exceeding 25 years may be imposed and the court may, in the alternative or in addition, impose any fine it considers appropriate. Although the sentencing discretion granted to a court where a person has been convicted of dealing in dagga is greater than that for offences of possession, the possible penalties for possession are extremely severe. In both cases before this court, for example, in which the accused persons were convicted of dealing, the magistrates imposed far less stringent penalties than they were empowered to do even in respect of the offence of possession. It is unlikely that sentences in excess of fifteen years' imprisonment (the limit for possession) would ever be imposed in cases where the presumption would be a material factor in finding guilt. If an accused is found to have been in possession of a large quantity of dagga, it might, depending on all the circumstances and in the absence of an \f11 explanation giving rise to a reasonable doubt, be sufficient circumstantial evidence of dealing and a justification for the imposition of a higher penalty (see S v Sixaxeni 1994(3) SA 733 (C)). I am not persuaded therefore that the presumption is needed to ensure adequate sentencing discretion. Even apart from that, it is not clear to me that the need for greater sentencing discretion would be sufficient to meet the requirements of reasonableness, necessity and justifiability stipulated in section 33. If there is indeed doubt that the accused is a dealer, he or she is entitled, according to our law, to the benefit of that doubt.", "Nor can it be said that the presumption facilitates the prosecution and conviction of drug offenders who would otherwise not be convicted. The presumption only arises once a person has in fact been proved to have committed the offence contained in subsection 4(b) of the Act, the possession of dagga. The presumption cannot operate where the possession is itself presumed; the possession must, in fact, have been proved. (See S v Majola 1975 (2) SA 727 (A ) at 735A - B.) A person to whom the presumption applies will therefore be convicted of and sentenced for possession, even if the presumption is not relied upon. There can be no question therefore that the presumption is necessary to convict offenders. It may be necessary to secure a conviction for the more serious offence of dealing, but that is not sufficient to justify the infringement of section 25.", "It does not appear to be logical to presume that a person found in possession of 115g of dagga is more likely than not to have been dealing in dagga. From the evidence placed before us, it appears that 115g of dagga is equal to between 50 and 100 cigarettes. Mr Slabbert conceded that it would not be unreasonable for a regular user of dagga to possess that quantity of dagga. Indeed, the criminalisation of dagga possession may make it more likely that ordinary users will purchase large quantities because of the risks associated with purchase. The quantity stipulated in the legislation (115g) has remained constant since the presumption was first introduced in 1954, when it was expressed as 4 ounces. No explanation was proffered by the State as to why \fthis particular quantity was selected. It appears to be an arbitrary figure, nowadays, whatever sense, if any, it may have made in the socio-economic environment that prevailed when it was originally introduced. 12", "In my view, section 21(1)(a)(i) of the Act cannot be justified in terms of section 33(1) of the Constitution. Although the need to suppress illicit drug trafficking is an urgent and pressing one, it is not clear how, if at all, the presumption furthers such an objective. In addition, there appears to be no logical connection between the fact proved (possession of 115g) and the fact presumed (dealing). On the other hand, the presumption gives rise to an infringement of the right entrenched in section 25(3)(c), which is a pillar of our system of criminal justice. Section 21(1)(a)(i) of the Act is an unconstitutional infringement of the right entrenched in section 25(3)(c) which is not reasonable, justifiable or necessary as contemplated by section 33.", "Mr Slabbert argued that, if this court found section 21(1)(a)(i) to be unconstitutional, the court should 'read down' the section and rule that it should be interpreted as imposing not a legal burden but an evidential one. He relied for support upon the Canadian case of R v Ellis-Don Ltd 76 DLR(4th) 347 (Ont CA) (1990) where the Ontario Court of Appeal read an industrial safety statute that imposed a burden of proof on the accused to show due diligence as imposing only an evidential burden.", "The Canadian courts' remedial powers are not directly comparable to ours. The key provisions in our Constitution dealing with reading down are sections 35(2) and 232(3) which are similarly phrased. The key provisions regarding the court's remedial powers with relation to unconstitutional legislative provisions are sections 98(5) and (6). In determining whether it is appropriate to read down a particular legislative provision, the court must primarily be guided by those provisions and not by the approach in a foreign jurisdiction. \f[27] Section 35(2) of the constitution provides that: 13 'No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation.' Sections 98(5) and (6) of the Constitution provide as follows: '(5)In the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified. (6) Unless the Constitutional Court in the interests of justice and good government orders otherwise, and save to the extent that it so orders, the declaration of invalidity of a law or a provision thereof (a) existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity; or (b) passed after such commencement, shall invalidate everything done or permitted in terms thereof.'", "It is clear from sections 35(2) and 232(3) that the court must read down a provision which is 'reasonably capable' of a more restricted and constitutional interpretation. If the provision is 'reasonably capable' of being read down in a way which would be consistent with the \f14 Constitution, the Constitution requires that it shall be read in such a way. If the provision is not reasonably capable of such an interpretation, then section 98(5) requires the court to hold the provision invalid. Thereafter the court may exercise the discretion conferred upon it by the proviso to section 98(5) or the discretion conferred by section 98(6). (For a discussion of these powers, see Executive Council of the Western Cape and others v The President of the Republic of South Africa and others CCT 27/95 unreported judgment of the Constitutional Court delivered on 22 September 1995, at paragraphs 102 - 108.)", "To read section 21(1)(a)(i) as imposing an evidential burden upon the accused rather than a legal burden would require reading the words in section 21(1)(a)(i) 'until the contrary is proved' as meaning 'unless the evidence raises a reasonable doubt'. I do not think that these words are reasonably capable of such an interpretation, both in the light of the unambiguous language of the phrase 'until the contrary is proved' and the considerable and consistent judicial dicta interpreting that phrase. Accordingly, the submission that section 21(1)(a)(i) be read down to give rise to an evidential and not a legal burden cannot be accepted. This suggestion was premised upon the proposition that imposing an evidential burden upon the accused would give rise to no constitutional complaint. In the light of our rejection of the suggestion, it is not necessary for the purposes of this case to decide on the constitutional validity of the premise.", "In the alternative, the State also argued that this court should exercise its power under the proviso to section 98(5), in the interests of justice and good government, to suspend the effect of the order of invalidity and require Parliament to remedy the defect in the legislation. However, Mr Slabbert could identify no compelling interest of good government which would require that the presumption remain in force pending parliamentary attention. He conceded that it was not necessary for the conviction of offenders, or for the furthering of the objects of the legislation. On the other hand, it is clear that, while the presumption exists, there is a risk that a person may be convicted of dealing in dagga despite the existence of a reasonable doubt as to \fhis or her guilt. In the absence of persuasive reasons to exercise our power in terms of section 98(5), the effect of our finding, that section 21(1)(a)(i) is inconsistent with the Constitution, must be the invalidity of that section. 15", "The effect of an order declaring invalid a legislative provision, such as section 21(1)(a)(i) of the Act, which existed when the Constitution came into force shall not, according to section 98(6)(a), invalidate anything done or permitted in terms of that provision unless the court, in the interests of justice and good government, orders otherwise. In both the cases before us, the conviction of the accused persons arose from a reliance on the presumption contained in section 21(1)(a)(i) of the Act. As the convictions took place before this court made its order of invalidity, the effect of the declaration of invalidity will not apply to it unless this court orders otherwise. In S v Zuma, supra, the provision under challenge had been referred to this court by the trial court before the trial had been completed. We ordered that the effect of invalidity should extend only to cases in which a verdict had not yet been reached. Such an order in this matter would not assist the applicants. In S v Mhlungu 1995 (3) SA 867 (CC); 1995 (7) BCLR 793 (CC), we extended the effect of the order of invalidity made in Zuma's case to cases in which a verdict had been reached after the 27 April 1994. In the judgment of the majority, Mahomed DP held that: 'Appeals arising from proceedings which were commenced and concluded after the Constitution came into operation should, in principle, be determined in the ordinary course on the basis that Chapter 3 of the Constitution was clearly of application and if the protection of that chapter had wrongly been denied to the appellant, the Court on appeal would then take that into account in making its order.' (At para 41.)", "Central to a consideration of the interests of justice in a particular case is that successful litigants should obtain the relief they seek. It is only when the interests of good government outweigh the interests of the individual litigants that the court will not grant relief to successful litigants. In \f16 principle too, the litigants before the court should not be singled out for the grant of relief, but relief should be afforded to all people who are in the same situation as the litigants (see US v Johnson 457 US 537 (1982); Teague v Lane 489 US 288 (1989)). On the other hand, as we stated in S v Zuma (at para 43), we should be circumspect in exercising our powers under section 98(6)(a) so as to avoid unnecessary dislocation and uncertainty in the criminal justice process. As Harlan J stated in Mackey v US 401 US 667 (1971) at 691: 'No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.' As a general principle, therefore, an order of invalidity should have no effect on cases which have been finalised prior to the date of the order of invalidity.", "In the light of all these considerations, it is my view that the proper order to be made in terms of section 98(6)(a) is that the order invalidating section 21(1)(a)(i) shall also invalidate any application of the presumption contained in the section in any criminal trial in which an appeal or review is pending as at the date of this judgment, or in which an appeal may yet be timeously noted. [34] The following order is accordingly made: 1. The following provisions of the Drugs and Drug Trafficking Act, 140 of 1992 are declared to be inconsistent with the Republic of South Africa Constitution Act 200 of 1993 and are, with effect from the date of this judgment, declared to be invalid and of no force and effect: (a) section 21(1)(a)(i); (b) the words 'dagga or' in section 21(1)(a). \f17 2. In terms of section 98(6) of the Constitution, it is ordered that the declaration of invalidity in paragraph 1 shall invalidate any application of section 21(1)(a)(i) of the Drugs and Drug Trafficking Act, 140 of 1992 in any criminal trial in which the verdict of the trial court was entered after the Constitution came into force, and in which, as at the date of this judgment, either an appeal or review is pending or the time for the noting of an appeal has not yet expired. 3. The matters of S v Bhulwana and S v Gwadiso are referred back to the Cape Provincial Division to be dealt with in accordance with this judgment. C.M.E. O'REGAN Judge of the Constitutional Court (Chaskalson P, Ackermann J, Didcott J, Kriegler J, Langa J,Madala J, Mokgoro J, Ngoepe J and Sachs J concur in the judgment of O'Regan J) CASE NUMBERS: CCT 11/95 CCT 12/95 PRO AMICO COUNSEL ON BEHALF OF ACCUSED: (PREPARATION OF HEADS) G JOSMAN SC J BUTLER (APPEARANCE IN COURT) A BLIGNAULT SC J BUTLER COUNSEL FOF THE STATE: J SLABBERT DATE OF HEARING: 12 SEPTEMBER 1995 \fDATE OF JUDGMENT: 29 NOVEMBER 1995 18"], "max_length_judgement_paras": 390}, {"title": "Shabalala and Others v Attorney-General of the Transvaal and Another (CCT23/94) [1995] ZACC 12; 1995 (12) BCLR 1593; 1996 (1) SA 725 (29 November 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/12.html", "summary_document": {"filename": "summary-for-case-12.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/12media.pdf", "file_content": " \n\n \n\nShabalala and others v Attorney-General of the Transvaal and another \n\n Case CCT 23/94 \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nThe common law rules of privilege precluded an accused person from having access to the \ncontents of a police docket in all circumstances. An accused person was in addition precluded \nby a common law rule of practice from consulting State witnesses without first obtaining the \nconsent of the prosecution which was entitled to refuse consent in its sole and absolute \ndiscretion. The issue of the constitutionality of these rules was referred to the Constitutional \nCourt from the Supreme Court. \n\nThe Court held that both rules are inconsistent with the right of an accused person to a fair \ntrial in terms of s 25(3) of the Constitution because they preclude an accused from exercising \nhis or her right to a fair trial in all cases and regardless of the circumstances. \n\nIn the opinion of the Court, an accused person should ordinarily be entitled to have access to \nthose parts of a police docket that are relevant for him or her to exercise the right to a fair \ntrial. The prosecution may resist a claim to access where it has reason to believe that access to \nthe docket may lead to the disclosure of the identity of an informer, reveal State secrets, lead \nto the intimidation of witnesses, or otherwise impede the proper ends of justice. It is for the \ntrial court in each case to decide what is required for the purposes of a fair trial in a particular \ncase rather than simply denying an accused person access to the docket in every case. \n\nAn accused person should ordinarily be entitled to consult with state witnesses where his or \nher right to a fair trial would be impaired by being refused the opportunity to consult. A \nmember of the office of the Attorney-General should be approached for consent to a \nconsultation, and should be entitled to be present at the consultation. If consent is refused, the \naccused should be entitled to approach a court to obtain permission. No witness may be \ncompelled to consult with an accused and the prosecution may resist the claim of an accused \nif it is able to show that it has reasonable grounds to believe that the consultation may lead to \nthe intimidation of the witness, tampering with evidence, the disclosure of State secrets or the \nindentity of informers, or that it might otherwise impede the proper ends of justice. \n\nThe judgment of the Court was delivered by Mahomed DP and was concurred in by all the \nother members of the Court. \n\n \n\n1 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-12.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/12.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nIn the matter between\n\nCase No : CCT/23/94\n\nShabalala and Five Others\n\nApplicants/ Accused\n\nand\n\nThe Attorney-General of the Transvaal\n\nFirst Respondent\n\nThe Commissioner of South African Police\n\nSecond Respondent\n\nHeard on :\n\nDelivered on :\n\n10 March 1995\n\n29 November 1995\n\n________________________________________________________________\n\n_______________________________________________________________\n\nJUDGMENT\n\n[1] MAHOMED DP. Mr Shabalala and five others (\u201cthe accused\u201d)\n\nwere charged with the crime of murder before Cloete J in\n\nthe Transvaal Provincial Division of the Supreme Court.\n\nBefore any evidence was led, various applications were made\n\nto the trial Court on behalf of the accused. These\n\nincluded applications for copies of the relevant police\n\n\fdockets, including witnesses\u2019 statements and lists of\n\nexhibits in the possession of the State.\n\nMAHOMED DP\n\n[2] These applications were all opposed by both the Attorney-\n\nGeneral of the Transvaal and the Commissioner of the South\n\nAfrican Police, who were cited as respondents. They were\n\nrefused by Cloete J substantially on the grounds that the\n\naccused had not satisfied the Court that the relevant\n\ndocuments in the possession of the State, were \u201crequired\u201d\n\nby them (within the meaning of section 23 of the\n\nConstitution of the Republic of South Africa, 1993 (\u201cthe\n\nConstitution\u201d)) \u201cfor the exercise of any of their rights to\n\na fair trial\u201d.1\n\n \n\n[3]\n\nA related application to the Court a quo for an order\n\ndirecting the State to make State witnesses available to\n\nthe legal representatives of the defence, for the purposes\n\nof consultation, was also refused on the ground that the\n\nCourt was unable \u201cto conclude that the applicants will not\n\nbe given a fair trial\u201d unless the Court departed from the\n\n\u201cpractice whereby an accused or his legal representative\n\n1 Shabalala and Others v The Attorney General of Transvaal and Others 1994 (6) BCLR 85\n\n(T) at 120B-C; 1995 (1) SA 608 (T) at 643F-G.\n\n2\n\n\fmay only consult with a State witness with the consent of\n\nthe prosecutor.\u201d2\n\nMAHOMED DP\n\n[4] Notwithstanding these conclusions, Cloete J was of the view\n\nthat, because of their public importance, a ruling should\n\nbe given by the Constitutional Court on a number of\n\nconstitutional questions raised by the applications made on\n\nbehalf of the accused. Relying on section 102(8) of the\n\nConstitution, he accordingly, made an order referring the\n\nfollowing questions for decision by this Court -\n\n\"1.\n\nWhether a Court interpreting the Constitution is bound by\nthe principles of stare decisis to follow the decision of\na superior Court; or whether such a Court may hold that a\ndecision of such superior Court (other than the\nConstitutional Court) is per incuriam because it\nincorrectly interprets the Constitution.\n\n2.\n\nWhether section 23 of the Constitution can be utilised by\nan accused in the exercise of the rights contained in\nsection 25(3) of the Constitution; and if so\n\n2.1\n\n2.2\n\nWhether the accused should have access to the police\ndossier; and if so,\n\nTo what extent, under what circumstances and subject\nto what conditions (if any) such access should be\nexercised.\n\n3.\n\nWhether any provision in the Constitution permits an\naccused to consult with prospective witnesses who have\ngiven statements to the police; and if so, under what\ncircumstances and subject to what conditions (if any) such\nconsultations should be exercised.\"3 \n\nThe competence and terms of the referral\n\n2 Shabalala\u2019s case, supra n.1, BCLR at 121B-C; SA at 644F-H.\n\n3 Shabalala\u2019s case, supra n.1, BCLR at 121E-H; SA 644I - 645C.\n\n3\n\n\fMAHOMED DP\n\n[5] It was held by this Court, in the case of Zantsi v The\n\nCouncil of State and Others,4 that three requirements had to\n\nbe satisfied before a Supreme Court was entitled to refer\n\na matter to the Constitutional Court in terms of section\n\n102(8):\n\n\u201cFirst, a Constitutional issue must have been raised\nin the proceedings;\nSecondly, the matter in which such issue was raised\nmust have been disposed of by the Supreme Court; and\nThirdly, the division of the Supreme Court which\ndisposed of the matter must be of the opinion that\nthe Constitutional issue is of sufficient public\nimportance to call for a ruling to be made thereon by\nthis Court.\u201d5\n\n[6] I have some difficulty with the form and content of the\n\nquestions referred by the Court a quo.\n\n[7] Paragraph 1 of the referral does not raise a constitutional\n\nissue at all. In the proceedings before Cloete J, there\n\nwas a dispute as to whether or not Chapter 3 of the\n\nConstitution and, more particularly sections 23 and 25\n\nthereof, were of application to proceedings which were\n\npending before the commencement of the Constitution. There\n\nwere a number of conflicting decisions before the decision\n\n4 1995(10) BCLR 1424 (CC); 1995(4) SA 615 (CC).\n\n5 supra n.4,per Chaskalson P, para 1.\n\n4\n\n\fMAHOMED DP\n\nof this Court in S v Mhlungu and Others6 on the proper\n\ninterpretation of section 241(8)of the Constitution, which\n\nwas the section relevant for the determination of that\n\nissue. In some of the cases on this issue decided in the\n\nWitwatersrand Local Division and the Transvaal Provincial\n\nDivision of the Supreme Court, it was held that section\n\n241(8) operated to bar an accused person from relying on\n\nthe provisions of Chapter 3 in proceedings which were\n\npending immediately before the commencement of the\n\nConstitution. Cloete J (who was seized with the matter\n\nbefore the judgment of this Court in Mhlungu\u2019s case7 was\n\ngiven) held that the principles of stare decisis did not\n\npreclude him from coming to a different conclusion. \n\n[8] What the correct application of the stare decisis principle\n\nshould have been in the proceedings before Cloete J in the\n\ninstant case is, however, not a \"constitutional issue\"\n\nwhich falls within the jurisdiction of this Court, in terms\n\nof the Constitution.8 The Supreme Court had jurisdiction to\n\ndetermine that question. It is simply the proper\n\ninterpretation of a common law principle. It is not an\n\n6 1995 (7) BCLR 793 (CC); 1995 (3) SA 867 (CC).\n\n7 supra n.6.\n\n8 See section 98(2).\n\n5\n\n\fMAHOMED DP\n\nissue which can properly be referred to this Court in terms\n\nof section 102(8). In my view, this Court should\n\naccordingly decline to express its views on the issue\n\nraised by paragraph 1 of the order made by the Court a quo.\n\n[9] Paragraphs 2 and 3 of the referral are also much too widely\n\nphrased. The question as to whether the common law of\n\nprivilege articulated in the case of R v Steyn9 (as it\n\nexisted before the Constitution came into force) is in\n\nconflict with the Constitution, is indeed a constitutional\n\nissue which should properly be determined by this Court.\n\nThis Court is therefore entitled to decide whether that\n\nrule of the common law is consistent with the Constitution.\n\nHowever, it is for the Supreme Court in the first instance\n\nto determine what the content of the common law should be\n\nhaving \u201cregard to the spirit, purport and objects\u201d10 of the\n\nrelevant provisions of the Constitution and to develop the\n\ncommon law. The manner in which the questions have been\n\nformulated by the Court a quo does not distinguish\n\nsufficiently between these two issues and I therefore\n\npropose to confine myself substantially to two issues only\n\nand to deal with other factors only to the extent to which\n\n9 1954(1) SA 324 (A).\n\n10 Section 35(3) of the Constitution.\n\n6\n\n\fthey impact, directly or indirectly, on the resolution of\n\nthese two issues. The two issues are:\n\nMAHOMED DP\n\n(A)\n\nWhether or not the common law privilege pertaining to\n\nthe contents of police dossiers, defined in Steyn\u2019s\n\ncase,11 is consistent with the Constitution.\n\n(B)\n\nWhether the common law rule of practice which\n\nprohibits an accused person or his or her legal\n\nrepresentative from consulting with a State witness\n\nwithout the permission of the prosecuting authority,\n\nin all cases and regardless of the circumstances, is\n\nconsistent with the Constitution.\n\nAccess to police dockets.\n\n[10] According to the evidence in the Court a quo, the police\n\ndocket normally consists of three sections: section A -\n\nwitnesses\u2019 statements taken by an investigating officer;\n\nexpert reports and documentary exhibits; section B -\n\ninternal reports and memoranda; and section C - the\n\ninvestigation diary. The claim of the accused in terms of\n\nthe notice of motion to this kind of information in the\n\npossession of the State rested on the submission that\n\n11 supra n.9\n\n7\n\n\fMAHOMED DP\n\nsection 23, as read with section 25(3) and section 35 of\n\nthe Constitution, entitled them to access to such\n\ninformation as of right. The applications were opposed by\n\nthe respondents inter alia on the grounds that section 23\n\nwas not applicable to an accused; that section 25(3) was\n\nexhaustive of an accused's rights; that the provisions of\n\nthe Criminal Procedure Act 51 of 1977 (\"the Criminal\n\nProcedure Act\") provided an accused with all necessary\n\ninformation for a fair trial and hence that an accused was\n\nnot entitled to access to the police docket as of right or\n\nat all. It was contended on behalf of the respondents\n\nthat, in terms of the decision in R v Steyn12, there was a\n\n\"blanket docket privilege\" which protected the contents of\n\na police docket from disclosure without the consent of the\n\nState and that nothing in the Constitution impacted upon\n\nthat privilege.\n\n[11] Cloete J held that section 23 could competently be invoked\n\nby an accused person in a criminal trial but that-\n\n\"Section 23 does not mean that an accused is entitled, as\nof right and without more, to access to the whole or part\nof a dossier; although an accused would be entitled to\naccess to the whole or part of a dossier if he could show\n...... that he \"required\" this information to exercise or\nprotect any of his rights in terms of Section 25(3) of the\nConstitution.\" 13\n\n12 supra n.9.\n\n13 Shabalala's case, supra n.1, BCLR at 119 G-H; SA at 643C.\n\n8\n\n\fMAHOMED DP\n\n[12] In order to decide whether or not an accused person is\n\nentitled to claim access to any of the contents of a\n\n\"police docket\" and if so, to what extent and in what\n\ncircumstances such a claim can successfully be made, it is\n\nnecessary to consider what the state of the law in this\n\nregard was prior to the Constitution and what impact, if\n\nany, the Constitution has had on such law.\n\n[13] In the case of R v H14 a full bench of the Transvaal\n\nProvincial Division of the Supreme Court upheld an appeal\n\nagainst a conviction on the ground that the Magistrate in\n\nthe Court a quo had erred in refusing an application on\n\nbehalf of the accused that a police witness who was giving\n\nevidence for the prosecution should produce the statements\n\nwhich he had taken from some of the witnesses.\n\n[14] The Appellate Division of the Supreme Court held in Steyn's\n\ncase15, however, that R v H16 was wrongly decided and that\n\n\"when statements are procured from witnesses for the\npurpose that what they say shall be given in a lawsuit that\nis contemplated, these statements are protected against\ndisclosure until at least the conclusion of the\n\n14 1952 (4) SA 344 (T).\n\n15 supra n.9.\n\n16 supra n.14.\n\n9\n\n\fproceedings, which would include any appeal after the\ndecision of the Court of first instance.\"17 \n\nMAHOMED DP\n\n[15] The privilege upheld in Steyn's case18 was subsequently\n\nextended to the notes made by a State witness19; statements\n\ntaken by the police in contemplation of prosecution even if\n\nsuch witnesses were not being used by the prosecution and\n\nwere in fact made available to the accused20 and even though\n\nthe relevant witness had refreshed his memory outside of\n\nthe Court proceedings21; notes made by the investigating\n\nofficer and the advice and instructions of a \"checking\n\nofficer\"22; in some circumstances the pocket book of police\n\nofficers23; and all accompanying communications and notes\n\nfor the purpose of litigation as being \u201cpart of the\n\nlitigation brief\u201d24. All such privileged statements were\n\n17 supra n.9, at 335 A-B.\n\n18 supra n.9.\n\n19 S v Alexander and Others (1) 1965 (2) SA 796 (A) at 812G-H.\n\n20 S v B and Another 1980 (2) SA 947 (A) at 952F-H.\n\n21 Van der Berg en \u2018n Ander v Streeklanddros, Vanderbijlpark en Andere\n1985 (3) SA 960 (T); Ex parte Minister van Justisie: In re S v Wagner 1965\n(4) SA 507 (A) at 514B-D.\n\n22 S v Mavela 1990 (1) SACR 582 (A) at 590G-J.\n\n23 S v Mayo and Another 1990 (1) SACR 659 (E) at 662G; S v Majikela and\n\nOthers 1991 (1) SACR 509 (E) at 518F-G.\n\n24 S v Yengeni and Others (1) 1990 (1) SA 639 (C) at 642B-I; S v\n\nSchreuder en \u2018n Ander 1958 (1) SA 48 (SWA) at 54A-D.\n\n10\n\n\fprotected forever on the basis of the principle \"once\n\nprivileged always privileged.\"25 \n\nMAHOMED DP\n\n[16] An accused person indicted in the Supreme Court, during the\n\nperiod when Steyn\u2019s case26 was decided, was not precluded by\n\nthat decision from effectively preparing his or her defence\n\nwith relatively full knowledge concerning the identity of\n\nState witnesses who were likely to be called at the trial\n\nand the details pertaining to what they were likely to\n\ndepose to. This advantage followed from the procedure of\n\npreparatory examinations which invariably preceded the\n\ntrial. In practice, every material witness who was to be\n\ncalled at the trial gave evidence at the preparatory\n\nexamination and was available for cross-examination during\n\nthose proceedings. \n\n[17] Preparatory examinations were a central feature of the\n\ncriminal justice system in the Republic both before and\n\nafter the commencement of the Criminal Procedure Act No 31\n\nof 1917. They were a feature of criminal procedure in\n\n25 See, for example, S v Patrick Mabuya Baleka and 21 Others\n(unreported judgment, TPD case No. CC482/85 dated 4/8/87); Zweni v Minister\nof Law and Order (1) 1991 (4) SA 166 (W) at 169B-F; Jonas v Minister of Law\nand Order 1993 (2) SACR 692 (E) at 694A-696i; Euroshipping Corporation of\nMonrovia v Minister of Agricultural Economics and Marketing 1979 (1) SA 637\n(C) at 642A-644G; Khala v The Minister of Safety and Security 1994 (2) BCLR\n89 (W) at 99G-100E; 1994 (4) SA 218 (W) at 228I-230H.\n\n26 supra n.9.\n\n11\n\n\fMAHOMED DP\n\nterms of Ordinance 40 of 1828 in the Cape and continued\n\nafter Union in 1910. They were entrenched in the 1917 Act\n\nby section 92 and perpetuated in the Criminal Procedure Act\n\n56 of 1955 by section 54.27 \n\n[18] The first indirect erosion into this advantage occurred in\n\n1952 with the establishment of Regional Court jurisdiction\n\nin criminal cases which previously fell within the\n\njurisdiction of the Supreme Court. No preparatory\n\nexaminations were necessary in such cases. The impact on\n\naccused persons was quite far-reaching because more and\n\nmore cases came to be heard in the Regional Courts. The\n\nnext erosion took place in 1963 when section 54 of the 1955\n\nAct was amended to authorise summary trials in Superior\n\nCourts without a preceding preparatory examination whenever\n\nthe relevant Attorney-General was of the opinion that there\n\nwas \"any danger of interference with or intimidation of\n\nwitnesses or wherever he deemed it to be in the interest of\n\nthe safety of the State or in the public interest.\" The\n\nmost radical inroad into the procedure of preparatory\n\nexaminations was however introduced into the criminal\n\njustice system by the Criminal Procedure Act in consequence\n\nof the recommendations of the report of the Botha\n\n27 See Dugard, South African Criminal Law Procedure, Vol IV, pages 21,\n\n25, 33 to 35.\n\n12\n\n\fMAHOMED DP\n\nCommission.28 Paragraph 3.24 of that report recommended\n\nthat preparatory examinations should not be essential and\n\nthat \"a summary of the substantial facts as they appear\n\nfrom the statements of the witnesses, which are alleged\n\nagainst the accused\" should be provided instead. This\n\nproposal found expression in the Criminal Procedure Act and\n\npreparatory examinations have now become very rare. During\n\nthe whole calendar year from 1 July 1980 to 30 June 1981,\n\nfor example, only 22 preparatory examinations were held in\n\nthe whole of South Africa.29 During the year ending on 30\n\nJune 1991 there were only 6 such preparatory examinations\n\nwhich were held in the whole country30 and in the subsequent\n\nyears preparatory examinations disappeared altogether.\n\nCertainly there were no preparatory examinations held\n\nduring the period 1 July 1992 to 30 June 1994.31 Jones J\n\nsummarises the effect of these developments in S v Fani and\n\nOthers32, as follows:\n\n28 \u201cReport of the Commission of Inquiry into Criminal Procedure and\n\nEvidence\u201d, RP 78/1971.\n\n29 See paragraph 1.1 at page 72 of the Annual Report of the Department\n\nof Justice for the period 1 July 1980 to 30 June 1981.\n\n30 Hiemstra: Suid Afrikaanse Strafproses (5th ed) by J Kriegler, page\n\n342.\n\n31 Annual Reports of the Department of Justice for the periods 1 July\n\n1992 to 30 June 1993, pg. 121; 1 July 1993 to 30 June 1994, pg. 104.\n\n32 1994 (1) BCLR 43 (E) at 46B-H; 1994 (3) SA 619 (E) at 621J-622H.\n\n13\n\n\fMAHOMED DP\n\n\"Under the now repealed Criminal Procedure Act 56 of 1955\nthe general practice was to hold a preparatory examination\nbefore a magistrate before a criminal trial was held in the\nSupreme Court. At such an examination the prosecution\nwould lead its evidence, or at least sufficient evidence,\nto have the accused committed for trial in the Supreme\nCourt. The accused had the right to be represented and to\nchallenge the evidence led if he so wished, either in\ncross-examination, or by giving evidence himself if so\nadvised, or by calling the evidence of witnesses. A copy\nof the proceedings at the preparatory examination would be\nmade available to an accused if he was committed for trial,\nso that he could prepare properly for trial. A copy was\nalso made available to the trial judge. Preparatory\nexaminations are still part of the procedure laid down in\nthe present Criminal Procedure Act 51 of 1977. But they\nare virtually never held. The result has been an erosion\nof the principle of full disclosure. The present practice\nis invariably to hold a summary trial in the Supreme Court\nwithout any preliminary hearing. There is no procedure\nlaid down for the disclosure of information which\ncharacterises civil litigation and which was almost\nuniversal practice when preparatory examinations were held\nas a matter of course. Instead of a preliminary hearing,\nthe prosecution now attaches a summary of material facts to\na criminal indictment in the Supreme Court. In practice,\nthis has not always in my opinion measured up to the\nrequirement of sufficient information to prepare properly\nfor trial, and hence it does not necessarily facilitate a\nfair trial within the meaning of the new Constitution Act.\nIt often says little more than the indictment itself. I\nhave the impression that the information contained in this\ndocument has become less and less informative as the years\ngo by. Indeed, I recently read such a document, which was\nannexed to an indictment on a charge of murder, which ran\nto no more than three paragraphs. It was eight lines in\nlength. In recent years the practice has grown up of the\nprosecution refusing to furnish an accused with documents\nsuch as medical reports until just before the medical\nwitness enters the witness box. This has elicited\nunfavourable comments from the bench in the past. Only\nrecently have I detected a more open approach to\nprosecutions in this division.\"33\n\n[19] In terms of the Criminal Procedure Act (interpreted without\n\nany reference to the Constitution), therefore, in cases\n\nbeing heard in the Supreme Court, accused persons no longer\n\nenjoy the right to a preparatory examination effectively\n\n33 See also Shabalala\u2019s case, supra n.1, BCLR at 97G-J and S v Sefadi\n\n1994 (2) BCLR 23(D) at 36C-G; 1995 (1) SA 433 (D) at 445F-J.\n\n14\n\n\fMAHOMED DP\n\ncontaining the substance of the evidence of State witnesses\n\nto be called at a trial in the Supreme Court. That right\n\nis substituted with a summary of substantial facts of the\n\ncase which \"in the opinion of the Attorney-General are\n\nnecessary to inform the accused of the allegations against\n\nhim and that will not be prejudicial to the administration\n\nof justice and the security of the State, as well as a list\n\nof names and addresses of the witnesses the Attorney-\n\nGeneral intends calling at the summary trial\"34. The\n\ncontents of the summary do not bind the State and the\n\nAttorney-General is entitled to withhold the name and\n\naddress of a witness if he or she is of the opinion that\n\nthe witness may be tampered with or be intimidated or that\n\nit would be in the interest of the security of the State\n\nthat the name and address of such witness be withheld35.\n\nThe omission of the name or address of a witness from the\n\nlist in no way affects the validity of the trial36.\n\n[20] Apart from this summary, the accused in such proceedings is\n\nentitled to be furnished with further particulars of any\n\n34 Section 144(3)(a) of the Criminal Procedure Act.\n\n35 Sections 144(3)(a)(i) and (ii) of the Criminal Procedure Act.\n\n36 Section 144(3)(a)(iii) of the Criminal Procedure Act.\n\n15\n\n\fMAHOMED DP\n\nmatter alleged in the charge37. If the prosecution does not\n\nsupply the particulars requested, the Court may order it to\n\ndo so, if it is satisfied that they are necessary for the\n\nproper preparation of the defence of the accused38. The\n\nparticulars directed must be \"particulars of any matter\n\nalleged in that charge\" in terms of section 87 and the\n\nCourt is entitled to have regard to the summary of\n\nsubstantial facts in determining whether they are necessary\n\nfor the preparation of the defence of the accused39.\n\n[21] Although an accused indicted in the Supreme Court is\n\nentitled to the summary of substantial facts in terms of\n\nsection 144, other accused are not. Very many serious and\n\ncomplicated criminal cases are heard in the Regional Courts\n\nand sometimes in the District Courts. In terms of the\n\nCriminal Procedure Act, the accused in such cases does not\n\nenjoy the advantage of either a preparatory examination or\n\n\"a summary of the substantial facts of the case\". The\n\nparticularity to which the accused is entitled must either\n\nbe contained in the charge sheet itself or in any further\n\nparticulars granted or directed in terms of section 87.\n\n37 Section 87 of the Criminal Procedure Act.\n\n38 S v Cooper and Others 1976(2) SA 875 (T) at 885H; R v Moyage and\n\nOthers 1958(2) SA 400 (A) at 413B.\n\n39 S v Mpetha and Others (1) 1981 (3) SA 803 (C) at 809F.\n\n16\n\n\fMAHOMED DP\n\n[22] In all proceedings, in superior or in inferior Courts,\n\nevidence of State secrets, the identity of informers and\n\ncommunications between a legal advisor and a client have at\n\nall relevant times before the enactment of the Constitution\n\nbeen protected from disclosure by the rules of privilege\n\nset out in Steyn\u2019s case.40\n\n[23] It is necessary to examine the provisions of the\n\nConstitution in the light of the law pertaining to the\n\nright of an accused person to access to any of the contents\n\nof police dockets, to which I have referred. Three\n\nconstitutional provisions are clearly relevant in this\n\nregard. They are sections 23, 25(3) and 33. Section 23\n\nprovides :\n\n\"23. Every person shall have the right of access to all\ninformation held by the state or any of its organs at any\nlevel of government in so far as such information is\nrequired for the exercise or protection of any of his or\nher rights.\"\n\nSection 25(3) provides : \n\n\"(3) Every accused person shall have the right to a fair trial,\nwhich shall include the right -\n\n(a)\n(b)\n\n(c)\n\n.. ....\nto be informed with sufficient particularity of the\ncharge;\nto be presumed innocent and to remain silent during\nplea proceedings or trial and not to testify during\nthe trial;\n\n40 Supra n.9, at 330D-E; Khala v Minister of Safety and Security, supra\nn.25, BCLR at 98H; SA at 228I-J; Du Toit: Commentary on the Criminal Procedure\nAct, at 23-42E.\n\n17\n\n\f(d) \n\nto adduce and challenge evidence, and not to be a\ncompellable witness against himself or herself;\n...\"\n\nMAHOMED DP\n\nThese sections must be read with section 33 which reads as\n\nfollows:\n\n\"33(1)\n\nThe rights entrenched in this\nChapter may be limited by law of\ngeneral application, provided that\nsuch limitation -\n(a)\n\n(b)\n\nshall be permissible only to the extent\nthat it is -\n(i) reasonable; and\n(ii) justifiable in an open and\ndemocratic society based on freedom and\nequality; and\nshall not negate the essential content\nof the right in question, and provided\nfurther that any limitation to - \n(aa)\n\na right entrenched in section\n....25; or\na right entrenched in section\n....23, in so far as such right\nrelates to free and fair political\nactivity,\n\n(bb)\n\nshall, in addition to being reasonable as\nrequired in paragraph (a)(I), also be\nnecessary.\"\n\n\"Law of general application\u201d within the meaning of section\n\n33(1) would ordinarily include a rule of the common law41.\n\n[24] In the interpretation of these three sections of the\n\nConstitution it is relevant also to have regard to the\n\nprovisions of section 35 which read as follows:\n\n\"35.(1) In interpreting the provisions of this Chapter a\nCourt of law shall promote the values which underlie an\nopen and democratic society based on freedom and equality\nand shall, where applicable, have regard to public\ninternational law applicable to the protection of the\nrights entrenched in this Chapter, and may have regard to\ncomparable foreign case law.\n\n41 Section 33(2) of the Constitution.\n\n18\n\n\fMAHOMED DP\n\n(2) No law which limits any of the rights entrenched in\nthis Chapter, shall be constitutionally invalid solely by\nreason of the fact that the wording used prima facie\nexceeds the limits imposed in this Chapter, provided such\na law is reasonably capable of a more restricted\ninterpretation which does not exceed such limits, in which\nevent such law shall be construed as having a meaning in\naccordance with the said more restricted interpretation.\n\n(3) In the interpretation of any law and the application\nand development of the common law and customary law, a\nCourt shall have due regard to the spirit, purport and\nobjects of this Chapter.\"\n\n[25] Section 35 articulates also the dominant theme of the\n\nConstitution, expressed both in the preamble and in the\n\npostscript, which is to emphasize the \"historic bridge\"\n\nwhich the Constitution provides between a past based on\n\n\"conflict, untold suffering and injustice\" and a future\n\nwhich is stated to be founded on the recognition of human\n\nrights.\n\n[26] What is perfectly clear from these provisions of the\n\nConstitution and the tenor and spirit of the Constitution\n\nviewed historically and teleologically, is that the\n\nConstitution is not simply some kind of statutory\n\ncodification of an acceptable or legitimate past. It\n\nretains from the past only what is defensible and\n\nrepresents a radical and decisive break from that part of\n\nthe past which is unacceptable. It constitutes a decisive\n\nbreak from a culture of Apartheid and racism to a\n\nconstitutionally protected culture of openness and\n\n19\n\n\fMAHOMED DP\n\ndemocracy and universal human rights for South Africans of\n\nall ages, classes and colours. There is a stark and\n\ndramatic contrast between the past in which South Africans\n\nwere trapped and the future on which the Constitution is\n\npremised.42 The past was pervaded by inequality,\n\nauthoritarianism and repression. The aspiration of the\n\nfuture is based on what is \u201cjustifiable in an open and\n\ndemocratic society based on freedom and equality\u201d. It is\n\npremised on a legal culture of accountability and\n\ntransparency.43 The relevant provisions of the Constitution\n\nmust therefore be interpreted so as to give effect to the\n\npurposes sought to be advanced by their enactment.\n\n[27] This approach has been consistently followed in Southern\n\nAfrica.44 Even in jurisdictions without our peculiar\n\nhistory, national Constitutions, and Bills of Rights in\n\n42 S v Makwanyane and Another 1995 (6) BCLR 665 (CC), para 262; 1995\n\n(3) SA 391 (CC),para 262.\n\n43 See sections 8; 10; 11; 13; 15; 21; 22; 23; 25; 33 and 35 of the\n\nConstitution.\n\n44 S v Zuma and Others 1995 (4) BCLR 401 (CC); 1995(2) SA 642 (CC) at\npara\u2019s 15 - 18; S v Makwanyane and Another, supra n.42, para\u2019s 9, 262, 302,\n323, 362 and 373; Mwandinghi v The Minister of Defence, Namibia 1991 (1) SA\n851 (Nm) at 857G-858E; Minister of Defence, Namibia v Mwandinghi; 1992 (2) SA\n355 (Nm) at 362G-363B; S v Marwane 1982 (3) SA 717 (A)at 748-9.\n\n20\n\n\fparticular, are interpreted purposively to avoid the\n\n\u201causterity of tabulated legalism\u201d.45\n\nMAHOMED DP\n\n[28] The fact that the Constitution contains, in material\n\nrespects, a new and fundamental commitment to human rights\n\nand is not merely a contemporization and incremental\n\narticulation of previously accepted and entrenched values\n\nshared in our society, is illustrated by the approach of\n\nthe Appellate Division in the cases of S v Rudman and\n\nanother; S v Mthwana.46 Nicholas AJA, giving the judgment\n\nof the Court, rejected the suggestion that recourse could\n\nbe had to the principle of a \u201cfair trial\u201d to justify the\n\nfinding that an indigent accused person who did not have\n\nthe means to pay for his or her own defence was entitled to\n\nbe provided with legal representation, if necessary, at the\n\nexpense of the State.47 He stated that none of the\n\nauthorities relied on in the case of S v Davids48 -\n\n\"when viewed in their contextual setting, afford any\nsupport for the learned Judge's basic premise that the\n\n45 Minister of Home Affairs (Bermuda) v Fisher 1980 AC 319 (PC) at\n328- 329; Attorney-General of the Gambia v Momodou Jobe (1984) AC 689 at 700;\nR v Big M Drug Mart Ltd (1985) 18 DLR (4ed) 321 (SCC) at 395; Boyd v United\nStates 116 US 616 at 635; Attorney General v Moagi 1982(2) Botswana LR 124 at\n184. \n\n46 1992 (1) SA 343(A).\n\n47 See S v Davids; S v Dladla 1989 (4) SA 172 (N) at 178C-E.\n\n48 supra n.47.\n\n21\n\n\fMAHOMED DP\n\ntouchstone in a procedural appeal is whether the trial was\nunfair ....... The Court of Appeal does not enquire whether\nthe trial was fair in accordance with \"notions of basic\nfairness and justice\", or with \"the ideas underlying ...\nthe concept of justice which are the basis of all civilized\nsystems of criminal administration\". The enquiry is\nwhether there has been an irregularity or an illegality,\nthat is a departure from the formalities, rules and\nprinciples of procedure according to which our law\nrequired a criminal trial to be initiated or\nconducted....\"49\n\n[29] The basic distinction made by Nicholas AJA is between an\n\nattack made on behalf of an accused person on the general\n\nground that his or her \u201cright to a fair trial\u201d was breached\n\nand an attack on the narrow ground that certain specific\n\nrules and formalities which were entrenched in the law were\n\nnot satisfied. The latter attack was held to be competent.\n\nThe former was not. It is precisely this distinction which\n\nis affected by section 25(3) of the Constitution, which\n\nexpressly guarantees to every accused person the right to\n\na fair trial.50 If such a fair trial is denied to an\n\naccused it can found a competent attack on any ensuing\n\nconviction. The accused is not limited to an attack on any\n\nspecific rules and formalities entrenched in the Criminal\n\nProcedure Act. The Constitution imports a radical movement\n\naway from the previous state of the law.\n\n49 Rudman's case, supra n.46, at 376J - 377C.\n\n50 Zuma\u2019s case, supra n.44, para 16.\n\n22\n\n\fMAHOMED DP\n\n[30] The crucial issue which needs to be determined is whether\n\nthe \"blanket docket privilege\" from the pre-constitutional\n\nera can survive the application of Chapter 3 of the\n\nConstitution. The determination of that issue requires a\n\nconsideration of the various factors impacting on the\n\nconsequences of any departure from the rule in Steyn's\n\ncase.51 \n\n[31] There has been considerable debate in the different\n\ndivisions of the Supreme Court on the issue as to whether\n\nor not section 23 of the Constitution is of application\n\nwhen an accused person seeks access to the contents of a\n\npolice docket in order to advance his or her defence. Some\n\nCourts have held that it did; others that it was\n\n51 supra n.9.\n\n23\n\n\funcertain.52 In some cases it was positively argued that\n\nMAHOMED DP\n\nsection 23 has no application.53 \n\n \n\n[32] In support of the contention that section 23 is of\n\napplication to such proceedings, reliance is substantially\n\nplaced on the unqualified language of section 23 and the\n\nescalating human rights jurisprudence pertaining to the\n\nright to official information.54 \n\n52 The cases that held that section 23 was of application include: S\nv Majavu 1994 (2) BCLR 56 (CkGD) at 76D-77E; 1994 (4) SA 268 (Ck)at 309D; S\nv Sefadi, supra n.33, BCLR at 28F-I and 36I; SA at 438B-E; S v Botha en\nAndere 1994 (3) BCLR 93 (W) at 121I-124H; 1994 (4) SA 799 (W) at 831G and\n834F; Phato v Attorney-General, Eastern Cape and Another; Commissioner of the\nSouth African Police Services v Attorney-General, Eastern Cape, and Others\n1994 (5) BCLR 99 (E) at 112E-114B; 1995 (1) SA 799 (E) at 814D-816B; Khala\nv The Minister of Safety and Security, supra n.25, BCLR at 96F-G; SA at 226G-\nH; 97A and 107G; Qozoleni v Minister of Law and Order and Another 1994 (1)\nBCLR 75 (E) at 89C-E; 1994 (3) SA 625(E) at 642G-H; S v Smith and Another 1994\n(1) BCLR 63 (SE) at 70J-71B; 1994 (3) SA 887 (SE) at 895G-H; Nortje and\nAnother v The Attorney-General of the Cape and Another 1995 (2)BCLR 236 (C)at\n249J-250E; 1995(2) SA 460 (C) at 473H - 474D; S v Fani, supra n.32, BCLR at\n45D-G; SA at 621B-E; S v de Kock 1995 (3) BCLR 385 (T) at 391H and 392I-393A;\nS v Mtyuda 1995(5) BCLR 646 (E) at 648B-649D; S v Khoza en Andere 1994 (2)\nSASV 611 (W) at 617F; Shabalala\u2019s case, supra n.1 BCLR at 119F-H; SA at 643A-\nC.\n\nThe cases that held that it was uncertain whether or not section 23 was of\napplication include: S v James 1994 (1) BCLR 57 (E)at 61C-I; 1994 (3)SA 881\n(E) at 885C-I; S v Dontas and Another 1995(3) BCLR 292 (T) at 300D.\n\n53 See for example, Nortje and Another v Attorney-General of the Cape\nand Another, supra n. 52, BCLR at 249J-250B; SA at 473H-J; Shabalala\u2019s case,\nsupra n.1, BCLR at 97D-G; SA at 620F-I.\n\n54 See for example, Khala v The Minister of Law and Order and Another,\nsupra n.25, BCLR at 95 and 96; SA at 225 and 226; S v Majavu, supra n.52, BCLR\nat 76J-77H; SA at 308H-309F; Phato\u2019s case, supra n.52, BCLR at 112E-114C; SA\nat 814D-816D; S v Botha, supra n.52, BCLR at 121; SA at 830I-831G.\n\n24\n\n\f[33] The opposing contention is substantially founded on the\n\nMAHOMED DP\n\nmaxim generalia specialibus non derogant, the contention\n\nbeing that rights of an accused person in a trial are\n\nregulated by the specific provisions of section 25(3) and\n\nnot by the general provisions of section 23. It is also\n\ncontended that section 23 was not intended to be a\n\n\u201cdiscovery\u201d mechanism in criminal trials, but a right\n\nconferred on citizens to compel disclosure of information\n\nin the public interest.55\n\n[34] The application for the production of documents in the\n\npresent case was made during the course of a criminal\n\nprosecution of the accused. In that context, not only is\n\nsection 25(3) of the Constitution of direct application in\n\nconsidering the merits of that application, but it is\n\ndifficult to see how section 23 can take the matter any\n\nfurther. If the accused are entitled to the documents\n\nsought in terms of section 25(3), nothing in section 23 can\n\noperate to deny that right and conversely, if the accused\n\ncannot legitimately contend that they are entitled to such\n\ndocumentation in terms of section 25(3) it is difficult to\n\nunderstand how they could, in such circumstances, succeed\n\n55 See, for example, Botha\u2019s case, supra n.52, BCLR at 120H-I; SA at\n830E-G; Nortje\u2019s case, supra n. 52, BCLR at 249J-250A; SA at 473H; S v James,\nsupra n.52, BCLR at 61C-61J; SA at 885C-J; Shabalala\u2019s case, supra n.1 at 97D;\nSA at 620F-H.\n\n25\n\n\fMAHOMED DP\n\nin an application based on section 23. The real enquiry\n\ntherefore is whether or not the accused were entitled to\n\nsucceed in their application on the basis of a right to a\n\nfair trial asserted in terms of section 25(3).56 \n\n[35] Section 25(3) must, of course, not be read in isolation but\n\ntogether with Section 23 and in the broad context of a\n\nlegal culture of accountability and transparency manifested\n\nboth by the preamble to the Constitution and the detailed\n\nprovisions of Chapter 3.57 \n\n \n\n[36] The basic test in the present matter must be whether the\n\nright to a fair trial in terms of section 25(3) includes\n\nthe right to have access to a police docket or the relevant\n\npart thereof. This is not a question which can be answered\n\nin the abstract. It is essentially a question to be\n\nanswered having regard to the particular circumstances of\n\neach case. \n\n \n\n56 Many cases illustrate the application of the right to a fair trial.\nSee for example, Stinchcombe v The Queen 18 C.R.R (2d) 210; Regina v Egger 103\nDLR (4th) 678; R v Leyland Magistrates, ex parte Hawthorn [1979] 1 All ER 209\nQ.B.; R v Maguire and Others [1992] 2 All ER 433 C.A.; Regina v Ward [1993]\n1 WLR 619 C.A.; Regina v Brown (Winston) [1994] 1 WLR 1599 C.A.; S v Nassar\n1994 (5) BCLR 60 (Nm); Bendenoun v France 18 EHRR 54; Hentrich v France,\nEuropean Court of Human Rights, case No 23/1993/418/497, judgment dated 22\nSeptember 1994.\n\n57 S v Makwanyane, supra n.42, para 10.\n\n26\n\n\f[37] Ordinarily, an accused person should be entitled to have\n\nMAHOMED DP\n\naccess at least to the statements of prosecution witnesses\n\nbut the prosecution may, in a particular case, be able to\n\njustify the denial of such access on the grounds that it is\n\nnot justified for the purposes of a fair trial. What a\n\nfair trial might require in a particular case depends on\n\nthe circumstances. The simplicity of the case, either on\n\nthe law or on the facts or both; the degree of\n\nparticularity furnished in the indictment or the summary of\n\nsubstantial facts in terms of section 144 of the Criminal\n\nProcedure Act; the particulars furnished pursuant to\n\nsection 87 of the Criminal Procedure Act;58 the details of\n\nthe charge read with such particulars in the Regional and\n\nDistrict Courts, might be such as to justify the denial of\n\nsuch access. The accused may, however, be entitled to have\n\naccess to the relevant parts of the police docket even in\n\ncases where the particularity furnished might be\n\nsufficient to enable the accused to understand the charge\n\nagainst him or her but, in the special circumstances of a\n\nparticular case, it might not enable the defence to prepare\n\nits own case sufficiently, or to properly exercise its\n\n58 The application of the law pertaining to the adequacy of the\nparticulars furnished might have to be re-examined having regard to the\n\u201cspirit, purport and objects\u201d of the Constitution.\n\n27\n\n\fMAHOMED DP\n\nright \u201cto adduce and challenge evidence\u201d;59 or to identify\n\nwitnesses able to contradict the assertions made by the\n\nState witnesses; or to obtain evidence which might\n\nsufficiently impact upon the credibility and motives of the\n\nState witnesses during cross-examination; or to properly\n\ninstruct expert witnesses to adduce evidence which might\n\nsimilarly detract from the probability and the veracity of\n\nthe version to be deposed to by the State witnesses; or to\n\nfocus properly on significant matters omitted by the State\n\nwitnesses in their depositions; or to properly deal with\n\nthe significance of matters deposed to by such witnesses in\n\none statement and not in another or deposed to in a\n\nstatement and not repeated in evidence; or to hesitations,\n\ncontradictions and uncertainties manifest in a police\n\nstatement but overtaken by confidence and dogmatism in viva\n\nvoce testimony. \n\n[38] In other cases, which might include a substantial number of\n\nroutine prosecutions in the inferior Courts, there might be\n\nscant justification for allowing such access to police\n\ndockets in order to ensure a fair trial for the accused.\n\nThis would be the case where there is a simple charge in\n\nrespect of a minor offence involving no complexities of\n\n59 section 25(3)(d).\n\n28\n\n\fMAHOMED DP\n\nfact or law, in which there is no reasonable prospect of\n\nimprisonment,60 and in which the accused can easily adduce\n\nand challenge the evidence which the State might lead\n\nagainst him or her, through an analysis of the charge-sheet\n\nand any particulars furnished in respect thereof. Hundreds\n\nof routine prosecutions in respect of such minor offences\n\ntake place every day in the Magistrates\u2019 Court following\n\nupon some kind of acrimony or brawl during a weekend, in\n\nwhich an accused might have become involved. There would\n\nordinarily be little sense in requiring copies of the whole\n\ndocket to be prepared and made available to the accused in\n\norder to dispose of such prosecutions. In such cases where\n\naccess to witnesses\u2019 statements is nevertheless justified\n\nit does not follow that copies of witnesses\u2019 statements\n\nhave to be furnished. It might be sufficient to give the\n\ndefence an opportunity of looking at such statements. No\n\nrigid rules are desirable. It is for the trial Court to\n\nexercise a proper discretion having regard to the\n\ncircumstances of each case. \n\n[39] Even in prosecutions in the Supreme Court, the State might\n\nsuccessfully contend that, having regard to the particulars\n\nin the indictment, read with the summary of substantial\n\n60 Leach v The Ministry of Transport (1993) 1 NZLR 106.\n\n29\n\n\fMAHOMED DP\n\nfacts and any particulars obtained under section 87 of the\n\nCriminal Procedure Act, access to the contents of the\n\npolice docket itself is not justified by the need to ensure\n\na fair trial. The Court would have to have regard to all\n\nthe relevant circumstances in identifying whether the right\n\nto a fair trial in a particular case should include the\n\nright of access to the police docket. If the answer is in\n\nthe negative, the application for such access must fail. If\n\nthe answer is in the affirmative, the Court would\n\nordinarily direct that access by the accused to the\n\nrelevant parts of the police docket be allowed unless the\n\nrule in Steyn\u2019s case61 is held to be consistent with the\n\nConstitution. It accordingly becomes necessary to examine\n\nthe constitutionality of the rule in Steyn\u2019s case.62\n\n[40] The approach to the constitutionality of the rule in\n\nSteyn's case,63 insofar as it pertains to witnesses\u2019\n\nstatements, involves an analysis of what that rule seeks to\n\nprotect. It seems to me that the following is included in\n\nthe protection -\n\n61 supra n.9. \n\n62 supra n.9.\n\n63 supra n.9.\n\n30\n\n\fMAHOMED DP\n\n1\n\nthe statements of witnesses which need no protection\n\non the grounds that they deal with State secrets,\n\nmethods of police investigation, the identity of\n\ninformers, and communications between a legal advisor\n\nand his client;\n\n2\n\nthe statements of witnesses in circumstances where\n\nthere is no reasonable risk that such disclosure might\n\nlead to the intimidation of such witnesses or\n\notherwise impede the proper ends of justice;\n\n3\n\nthe statements of witnesses made in circumstances\n\nwhere there is a reasonable risk that their disclosure\n\nmight constitute a breach of the interests sought to\n\nbe protected in paragraph 1; and\n\n4\n\nthe statements of witnesses made in circumstances\n\nwhere their disclosure would constitute a reasonable\n\nrisk of the nature referred to in paragraph 2.\n\n[41] The blanket rule in Steyn\u2019s case64 denies an accused person\n\naccess to the statements of State witnesses in all cases\n\nfalling within all four categories referred to in paragraph\n\n40, regardless of the circumstances. The first question\n\nwhich needs to be considered is whether such a \u201cblanket\u201d\n\n64 supra n.9.\n\n31\n\n\frule of exclusion is constitutional; and secondly, what the\n\nconsequences are if it is not?\n\nMAHOMED DP\n\n[42] In the determination of those issues it is important to\n\nhave regard to all the factors which impact on the\n\nreasonableness of, and the justifiability and the necessity\n\nfor, the limitation and on whether or not the limitation\n\nnegates the essential content of the right. There are\n\nfactors which support the limitation and others which do\n\nnot. All these factors must be balanced against each\n\nother, regard being had to the purposes sought to be\n\nattained both by the right which is protected and the\n\nlimitation which is claimed to be authorized. What are\n\nthese factors?\n\n[43] The dominant argument advanced on behalf of the accused to\n\nsupport the attack on the limitations introduced by the\n\nrule in Steyn's case65, is that it potentially enables the\n\nState to invade their right to a fair trial in terms of\n\nsection 25(3). It is contended that this is not reasonable\n\nor justifiable or necessary. If an accused requires the\n\ndocuments protected by the rule in Steyn's case66 in order\n\n65 supra n.9.\n\n66 supra n.9.\n\n32\n\n\fMAHOMED DP\n\nto have a fair trial, it is argued that both justice and\n\nthe public interest require that these documents should not\n\nbe denied to the defence. There would otherwise be the\n\ndanger of a conviction following upon a trial which is ex\n\nhypothesi not fair within the meaning of section 25(3).\n\nThis is obviously a formidable argument. The interests of\n\nthe accused must, however, be balanced against other\n\nlegitimate considerations.\n\n[44] A number of general objections have been articulated in\n\nsupport of the privilege against the disclosure of all the\n\nstatements described in the categories referred to in items\n\n1 to 4 in paragraph 40 above. It is necessary to examine\n\nmore carefully these objections, which are common to all\n\nthese categories. \n\n[45] It was contended in the first place on behalf of the State\n\nthat the written statements of witnesses made to the police\n\nare very frequently inaccurate because of administrative\n\nand language difficulties and because they have to be\n\nobtained under pressure during the initial stage of\n\ninvestigations. It was suggested that disclosure of such\n\nstatements might lead to cross-examination which might, in\n\nthe circumstances, unfairly impact on the credibility of\n\n33\n\n\fMAHOMED DP\n\nthe relevant witnesses who might be deposing to fuller and\n\nmore carefully considered evidence in Court.67 Balanced\n\nagainst the dominant interest of the accused to a fair\n\ntrial, this objection loses much of its impact particularly\n\nwhen regard is had to the fact that the Court must be\n\ncredited with the capacity of making proper allowances in\n\nits judgment for the circumstance that the statement might\n\nhave been compiled hastily by police officers with\n\nadministrative, linguistic and logistical problems. The\n\npossibility that such statements may be disclosed might\n\nalso serve as an incentive to investigating officers to\n\ncompile statements as accurately and as carefully as the\n\ncircumstances permit.\n\n[46] A recurrent theme which asserts itself in some of the cases\n\nis that the disclosure of witnesses\u2019 statements might\n\nenable an accused person to \u201ctailor\u201d evidence and to give\n\nperjured testimony because he or she becomes alive to the\n\nfact that the falseness of such evidence may not be\n\ndetected by the prosecution on the information available to\n\n67 See for example, Steyn\u2019s case, supra n.9, at 35G-H, S v Jija and\nothers 1991 (2) 52(E) at 64D-F; S v Botha and Others, supra n.52, BCLR at 98\nG-J; SA at 807H-808B; Shabalala\u2019s case, supra n.1, BCLR at 102I-J; SA at 626B-\nD; S v Majavu, supra n.52, BCLR at 79C; SA at 310J-311B; S v Dontas and\nAnother, supra n.52, BCLR at 301H-302B; S v Nassar, supra n.52, at 84 B-D;\nPhato\u2019s case, supra n.52, BCLR at 124D-E; SA at 826G-I.\n\n34\n\n\fMAHOMED DP\n\nit from the State witnesses.68 This objection is\n\nconjectural and it must be balanced against other factors\n\nwhich have to be weighed in dealing with an accused\u2019s\n\ninsistence that he or she has a right to a fair trial. An\n\nalert prosecutor and a competent Court would be able to\n\nmake adequate allowance for the fact that in the assertion\n\nof his or her defence the accused has had the benefit of\n\naccess to the statement of the State witness and any\n\nfalsity in the evidence of the accused may be capable of\n\nbeing exposed by establishing other relevant issues. Many\n\nenquiries are obvious. When was the defence raised for the\n\nfirst time? What previous opportunities were there to do\n\nso? Is the defence consistent not only with the statements\n\nof the State witness but with other objective evidence and\n\nthe probabilities? Is the accused person consistent and\n\ncredible when the defence is tested? It is also dangerous\n\nto assume that every accused person seeking a disclosure of\n\nthe statements of State witnesses is in fact guilty and is\n\nmerely seeking an opportunity to fabricate perjured\n\nevidence. The presumption of innocence, fundamental to the\n\n68 Steyn\u2019s case, supra n.9, at 333F-H; Knapp v Harvey 1911(2) KB 725\nat 730-731; Shabalala\u2019s case, supra n.1, BCLR at 103B-E; SA at 626D-G; S v\nTune 98 Atlantic Reporter 2d series, 881 at 884 to 886; S v Majavu supra,\nn.52, BCLR at 81B; SA at 312I-313B; S v Dontas and Another, supra n.52, BCLR\nat 301H-302D; Stinchcombe v The Queen, supra n.56, at 216; Nortje and Another\nv The Attorney-General of the Cape and Another, supra n.52, BCLR at 255H-256A;\nSA at 479G-480A; S v Sefadi, supra n.33, BCLR at 38B-F; SA at 447E-I; S v\nNassar, supra n.56, at 75E-F.\n\n35\n\n\fMAHOMED DP\n\ncriminal law, does not support such an approach. In many\n\ncases disclosure would be sought by innocent persons who\n\nare assisted by such disclosure in seeking corroborative\n\nevidence and probabilities which might establish their\n\ninnocence.69 Even in the case of a guilty person the\n\ndisclosure might sometimes have the opposite effect to the\n\ndanger suggested. A guilty accused might often genuinely\n\nbelieve that the State would not succeed in proving its\n\ncase beyond a reasonable doubt, but an examination of the\n\nstatements of State witnesses might induce the accused to\n\nplead guilty and abandon his or her previous plan\n\nstrenuously and vigorously to contest the State\u2019s case.70\n\nUndoubtedly there are cases in which the disclosure of the\n\nstatements might remove the tactical advantage of surprise\n\nwith which the prosecution might successfully have\n\nconfronted the accused in an ambush. But this does not\n\nappear to me to be a sufficiently decisive and pervading\n\nconsideration to justify denying to an accused person in\n\nall cases a right, which he or she has otherwise\n\ndemonstrated, to the disclosure of the statements for the\n\npurposes of a fair trial. Generally,\n\n69 See for example, R v Maguire and Others, supra n.56 and Regina v\n\nWard, supra n.56.\n\n70 See Stinchcombe v The Queen, supra n.56, at 215-216.\n\n36\n\n\f\u201cthe search for truth is advanced rather than retarded by\ndisclosure of all relevant material.\u201d71 \n\nMAHOMED DP\n\n[47] It has also been suggested that any obligation on the State\n\nto disclose witnesses\u2019 statements will place an onerous\n\nburden on the prosecution and may lead to delays in\n\nbringing an accused to trial.72 In my view this is not an\n\nobjection of any great weight. Witnesses\u2019 statements have\n\nto be prepared in any event in many cases before a charge\n\nis proffered and in almost all cases before the trial\n\ncommences. As I have previously said, such disclosure will\n\nnot be necessary in a large number of cases because the\n\nState may be able successfully to contend that, regard\n\nbeing had to the relative triviality of the charge or its\n\ninherently simple content or the particularity already\n\nfurnished to the accused or from such other circumstances,\n\nno access to the police docket is justified for the\n\npurposes of ensuring a fair trial for the accused.\n\nHowever, even in cases where the State does not establish\n\nsuch justification, it would not lead to substantial delays\n\n71 Stinchcombe\u2019s case, supra n.56, at 216; See also, S v Nasser, supra\nn.56, at 75E-F; Khala\u2019s case, supra n.25, BCLR at 111E-J; SA 242E-J; S v\nSefadi, supra n.33, BCLR at 38C; SA at 447F; S v Botha and Others, supra n.52,\nBCLR at 114C; SA at 823I; Phato\u2019s case, supra n.52, BCLR at 125D-I; SA at\n827H-828D; S v Fani, supra n.32, BCLR at 46B; SA at 621I; International\nTobacco Company v The United Tobacco Companies Ltd (2) 1953 (3) SA 879 (W) at\n883D; S v Mayo supra n. 23 at 661 (G); S v Jija, supra n.67, at 60H-618B.\n\n72 R v Steyn, supra n.9, at 334H; Stinchcombe v The Queen, supra n.56,\nat 215; S v Nasser, supra n.56, BCLR at 74J; S v Sefadi, supra n.33, BCLR at\n25H-I; SA at 435E; Phato\u2019s case, supra n.52, BCLR at 123I-J; SA at 826C.\n\n37\n\n\fMAHOMED DP\n\nor burdens upon the State, because the statements will in\n\nany event have had to be prepared for the prosecution to\n\ncommence. Indeed, in many cases the prior production of\n\nwitnesses\u2019 statements might even shorten the kind of delays\n\nwhich sometimes occur during the trial when the defence\n\nasks for opportunities to \u201cobtain instructions\u201d for cross-\n\nexamination. As I previously remarked, the disclosure\n\nmight in many instances lead to guilty pleas and shorten\n\ndelays which would otherwise result.73 \n\n[48] A related objection is that the trial might become side-\n\ntracked into \u201cextraneous issues\u201d as to what a witness might\n\nor might not have said on a previous occasion.74 Such\n\nissues may not always be so extraneous. They might be\n\ncrucial to determine the guilt or innocence of the accused.\n\nIn cases where they might be of peripheral relevance and of\n\nno effective assistance to the Court, the presiding officer\n\nhas the authority and the experience to control the\n\nresultant debate and not to accord to it a weight\n\ndisproportionate to its importance. \n\n73 Stinchcombe\u2019s case, supra n.56, at pages 215-216. \n\n74 R v Steyn, supra n.9, at 335A; S v Majavu, supra n.52, BCLR at 80D-\n\nE; SA at 312C-D; S v Sefadi, supra n.33, BCLR at 25H-I; SA at 435E-F.\n\n38\n\n\f[49] It is also contended that the disclosure of statements\n\nMAHOMED DP\n\nmight lead to intimidation of witnesses and be prejudicial\n\nto the ends of justice or to State interests.75 It is\n\ndifficult to see the force of this argument with respect to\n\nstatements falling within the categories referred to in\n\nitems 1 and 2 of paragraph 40 above. Any interests of the\n\nState in the non-disclosure of such statements must\n\nsubstantially be outweighed by the right of the accused\n\nperson to obtain access to such statements for the purposes\n\nof a fair trial. \n\n[50] If the conflicting considerations are weighed, there\n\nappears to be an overwhelming balance in favour of an\n\naccused person\u2019s right to disclosure in those circumstances\n\nwhere there is no reasonable risk that such disclosure\n\nmight lead to the disclosure of the identity of informers\n\nor State secrets or to intimidation or obstruction of the\n\nproper ends of justice. The \u201cblanket docket privilege\u201d\n\nwhich effectively protects even such statements from\n\ndisclosure therefore appears to be unreasonable,\n\nunjustifiable in an open and democratic society and is\n\ncertainly not necessary.\n\n75 S v Botha and Others, supra n.52, BCLR at 98E-H; SA at 807E-I; Khala\nv The Minister of Safety and Security, supra n.25, BCLR at 101B-J; SA at 231E-\n232D; S v Majavu, supra n.52, BCLR at 79J-80J; SA at 311B-I; Stinchcombe v The\nQueen, supra n.56 at 216-217.\n\n39\n\n\f \n\n[51] What about statements falling within items 3 and 4 of\n\nMAHOMED DP\n\nparagraph 40? The claim of the accused to the statements\n\nreferred to in these categories, however justifiable on its\n\nown for the purposes of a fair trial, must be weighed\n\nagainst conflicting interests of real substance. The\n\nresult of affording access to such statements to the\n\naccused in these circumstances may indeed impede the proper\n\nends of justice and lead to the intimidation of witnesses.\n\nAn open and democratic society based on freedom and\n\nequality is perfectly entitled to protect itself against\n\nsuch consequences.76 These dangers clearly exist during the\n\ntrials of members of crime syndicates who sometimes use\n\norganised tactics of terror to prevent witnesses coming\n\nforward to give evidence.\n\n[52] In such circumstances it might be proper to protect the\n\ndisclosure of witnesses\u2019 statements and the State might\n\nsucceed in establishing that such a restriction is\n\nreasonable, justifiable in an open and democratic society\n\nbased on freedom and equality and that it is necessary and\n\ndoes not negate the essential content of a right to a fair\n\n76 see, for example, Stinchcombe v The Queen, supra n.56, at 217;\n\nCommissioner of Police v Ombudsman (1988) 1 NZLR 385 at 395.\n\n40\n\n\fMAHOMED DP\n\ntrial.77 Even in such cases, however, it does not follow\n\nthat the disclosure of the statements concerned must always\n\nbe withheld if there is a risk that the accused would not\n\nenjoy a fair trial. The fair trial requirement is\n\nfundamental. The court in each case would have to exercise\n\na proper discretion balancing the accused\u2019s need for a fair\n\ntrial against the legitimate interests of the State in\n\nenhancing and protecting the ends of justice.\n\n \n\n[53] The real problems arise, however, not with this principle\n\nbut with its application. Who determines whether there is\n\na reasonable risk that the disclosure of such statements\n\nmight reasonably lead to the intimidation of witnesses or\n\nthe disclosure of State secrets or the identity of\n\ninformers or otherwise impede the proper ends of justice\n\nand how is that to be decided? And how is that to be\n\nbalanced against the right of the accused to a fair trial\n\nin a particular case? The rule in Steyn\u2019s case78 would\n\nprotect these statements from disclosure on the sole\n\njurisdictional ground that they are contained within the\n\npolice docket without any need for the prosecution to show\n\n77 Section 33 of the Constitution; Khala v The Minister of Safety and\nSecurity, supra n.25, BCLR at 98E-F; SA at 228F-H; Qozoleni v The Minister of\nLaw and Order and Others, supra n.52 BCLR at 87B-F; SA at 640F-J; S v\nMakwanyane and Others, supra n.42, para\u2019s 102, 217, 297.\n\n78 supra n.9.\n\n41\n\n\fMAHOMED DP\n\nthat the disclosure of the relevant statement would involve\n\na breach of the nature referred to in item 3 of paragraph\n\n40 above or the risk referred to in item 4. That, appears\n\nto me, to be unacceptable. If there is no obligation on\n\nthe part of the prosecution to justify its claim, injustice\n\ntowards the accused might be a real and indefensible risk.\n\nThe alternative is therefore to entrust the Court with the\n\ntask of enquiring whether the disclosure of the relevant\n\ndocuments fall within the categories referred to in items\n\n3 or 4 of paragraph 40 above, because it would then be able\n\nto exercise a proper discretion on the facts of a\n\nparticular case in order to decide whether the State should\n\nor should not be compelled to make the statement available\n\nto the defence. It is not, however, a course unattended by\n\nsome difficulties. In order to exercise a proper\n\ndiscretion the Court would have to be equipped with the\n\ncontents of the relevant statements so as to decide on the\n\nweight to be attached to the objection proffered on behalf\n\nof the State to their disclosure. Ordinarily the Court\n\nwould want to hear the input of the accused in that regard\n\nbut, if the accused had access to the very documents sought\n\nto be protected in order to make a proper input, the whole\n\nobject of the protection might be defeated. Conceivably,\n\neven disclosure of peripheral information, not directly\n\nleading to the disclosure of the statements sought to be\n\n42\n\n\fMAHOMED DP\n\nprotected, might prejudice the State\u2019s interest. In the\n\nresult, the State might be compelled either to disclose a\n\nstatement in circumstances where the proper ends of justice\n\nare impeded or to abandon, perhaps, what might be a\n\nprosecution of substantial merit. \n\n[54] These arguments are clearly not without merit, but they\n\nmust be weighed against the compelling objection that, if\n\nthe claims of the State in justification of non-disclosure\n\nare not subject to judicial adjudication, an accused person\n\nmight wrongly be refused access to statements and documents\n\nwhich the accused legitimately needs for his or her\n\ndefence. There is therefore the danger of an unfair trial.\n\n[55] How are these conflicting considerations to be resolved?\n\nThis is an issue largely to be determined by the Supreme\n\nCourt, regard being had to the following:\n\na)\n\nIt is difficult to conceive of any circumstances in\n\nwhich the prosecution can justify withholding from the\n\naccused access to any statement or document in the\n\n43\n\n\fpolice docket which favours the accused or is\n\nMAHOMED DP\n\nexculpatory.79\n\nb)\n\nThe unilateral claim of the prosecution in its\n\njustification of a refusal to allow access on the\n\ngrounds that such access might defeat the objects of\n\nthe protection in items 3 and 4 of paragraph 40 above\n\ncannot be sufficient in itself.\n\nc)\n\nSufficient evidence or circumstances ought to be\n\nplaced before the judicial officer to enable the Court\n\nto apply its own mind in assessing the legitimacy of\n\nthe claim. It is for the Court to decide what\n\nevidence would be sufficient in a particular case and\n\nwhat weight must be attached thereto.\n\nd)\n\nInherently there might be some element of uncertainty\n\nas to whether the disclosure of the relevant documents\n\nmight or might not lead to the identification of\n\ninformers or to the intimidation of witnesses or the\n\nimpediment of the proper ends of justice. The\n\njudgment of the prosecuting and investigating\n\nauthorities in regard to the assessment of such risks\n\nmight be a very potent factor in the adjudication\n\nprocess. Police officers with long experience and\n\n79 Regina v Keane, [1994] 2 ALL ER 478; R v Leyland Magistrates, ex\nparte Hawthorn, supra n.56; R v Ward, supra n.56; R v Brown (Winston), supra\nn. 56; Stinchcombe v The Queen, supra n.56.\n\n44\n\n\fMAHOMED DP\n\nacquired skills and with access to sources which can\n\nsometimes not be disclosed, quantified and identified,\n\nhave an advantage which the Court does not always\n\nhave. What the prosecution must therefore be obliged\n\nto do (by a proper disclosure of as much of the\n\nevidence and material as it is able) is to establish\n\nthat it has reasonable grounds for its belief that the\n\ndisclosure of the information sought carries with it\n\na reasonable risk that it might lead to the identity\n\nof informers or the intimidation of witnesses or the\n\nimpediment of the proper ends of justice. It is an\n\nobjective test. It is not sufficient to demonstrate\n\nthat the belief is held bona fide. It must be shown\n\nthat a reasonable person in the position of the\n\nprosecution would be entitled to hold such a belief.\n\ne)\n\nIf the State is unable to justify its opposition to\n\nthe disclosure of the relevant information on these\n\ngrounds, its claim that a refusal of access to the\n\nrelevant documents is justified, should fail.\n\nf)\n\nIf, in the special circumstances of a particular case,\n\nthe Court needs access to disputed documents concerned\n\nin order to make a proper assessment of the legitimacy\n\nof the prosecution\u2019s claim and any insight in that\n\ndocument might reasonably defeat the object of the\n\n45\n\n\fMAHOMED DP\n\nprotection which the prosecution is anxious to assert,\n\nthe Court would be entitled to examine such a document\n\nfor this purpose without affording to the accused a\n\nopportunity of any knowledge of its contents but\n\nmaking proper allowance for that factor in the\n\nultimate act of adjudication.80\n\ng)\n\nEven where the State has satisfied the Court that\n\nthere is a reasonable risk that the disclosure of the\n\nstatements or documents sought might impair the\n\nprotection and the concerns referred to in items 1 or\n\n2 of paragraph 40 above or in any way impede the\n\nproper ends of justice, it does not follow that access\n\nto such statements in such circumstances must\n\nnecessarily be denied to the accused. The Court\n\nstill retains a discretion. There may be\n\ncircumstances where the non-disclosure of such\n\nstatements might carry a reasonable risk that the\n\naccused may not receive a fair trial and might even\n\nwrongly be convicted. The Court should exercise a\n\nproper discretion in such cases by balancing the\n\ndegree of risk involved in attracting the consequences\n\nsought to be avoided by the prosecution (if access is\n\n80 see, for example, Regina v Davis, [1993] 1 W.L.R. 613; Regina v\nWard, supra n.56; Regina v Keane supra n.79; Regina v Brown (Winston), supra\nn.56; Stinchcombe v The Queen, supra n.56 at 219.\n\n46\n\n\fMAHOMED DP\n\npermitted) against the degree of the risk that a fair\n\ntrial might not ensue (if such access is denied).\n\nWhat is essentially involved is a judicial assessment\n\nof the balance of risk not wholly unanalogous to the\n\nfunction which a judicial officer performs in weighing\n\nthe balance of convenience in cases pertaining to\n\ninterdicts pendente lite.\n\nh)\n\nIt clearly follows from these conclusions that the\n\nblanket rule of privilege articulated in Steyn\u2019s case81\n\ncannot survive the discipline of the Constitution.\n\n[56] In making the aforegoing analysis I have addressed only the\n\nissue as to whether and in what circumstances the contents\n\nof witnesses\u2019 statements should or should not be disclosed\n\nto an accused person for the purposes of the proper conduct\n\nof the defence. The next issue which arises is when such\n\ndisclosure must be made if the State fails to justify a\n\nrefusal to allow the accused access to such material. In\n\nmany cases such disclosure would be made at the time when\n\nthe accused is acquainted with the charge or the indictment\n\nor immediately thereafter.82 But if the prosecution\n\nsucceeds in justifying its assertion that there is a\n\n81 supra n.9.\n\n82 cf S v Khoza, supra n.52 at 617.\n\n47\n\n\fMAHOMED DP\n\nreasonable risk that the disclosure of such material at\n\nthat stage might impede the proper ends of justice and the\n\nCourt does not exercise its discretion in favour of the\n\naccused at that time, it does not follow that the relevant\n\nstatements or documents will necessarily remain forever\n\nprotected during the course of the prosecution. There is\n\na need to assess the extent of the risk at all relevant\n\ntimes during the prosecution. It may be possible to\n\ndisclose certain parts and not others or some parts earlier\n\nthan others. There may, for example, be adequate and\n\ndemonstrable justification for the apprehension that, if\n\nthe statement of a particular witness is disclosed, there\n\nis a reasonable risk that such a witness would be\n\nintimidated and would thereafter refuse to testify if his\n\nor her identity became known. That objection would,\n\nhowever, not necessarily apply once the witness has given\n\nevidence in chief because by that time his or her identity\n\nwill obviously be known in any event. There might in such\n\ncircumstances be no justification for refusing to allow the\n\ndefence to have access to the statement of the witness for\n\nthe purpose of enabling it to test the consistency of that\n\nstatement with his or her evidence in chief or any other\n\nassertions the witness might make during cross-examination.\n\nThe crucial determinant is what is fair in the\n\ncircumstances, regard being had to what might be\n\n48\n\n\fMAHOMED DP\n\nconflicting but legitimate considerations. \u201cWhat the\n\ncharter guarantees is a fair trial, not the most\n\nfavourable procedure imaginable and the fairness involves\n\nthe weighing of the public interests in the equation.\u201d83\n\nAgain, it follows from this that the rule in Steyn\u2019s case84\n\nis clearly unsustainable in its present form.\n\n[57] In making this analysis I have substantially confined\n\nmyself to the problem of access to witnesses\u2019 statements\n\nincluded in the police docket. There might be other\n\ndocuments in the docket such as expert and technical\n\nreports, for example, which might also be important for an\n\naccused to properly \u201cadduce and challenge evidence\u201d,85 and\n\ntherefore for the purposes of ensuring a fair trial. Such\n\ndocuments would seem to fall within the same principles\n\nwhich I have discussed in dealing with witnesses\u2019\n\nstatements.\n\n[58] The details as to how the Court should exercise its\n\ndiscretion in all these matters must be developed by the\n\nSupreme Court from case to case but always subject to the\n\n83 Per La Forest, Thompson Newspapers Limited and Others v Directer of\n\nInvestigation and Research and Others 67 DLR 161 at 260.\n\n84 supra n.9.\n\n85 Section 25(3)(d) of the Constitution.\n\n49\n\n\fright of an accused person to contend that the decision\n\nmade by the Court is not consistent with the Constitution.\n\nMAHOMED DP\n\nConsultations with State Witnesses\n\n[59] The Court a quo refused the applications of the accused to\n\nconsult with the witnesses for the State on the ground that\n\nit could not conclude that the accused would not be given\n\na fair trial without that relief. Cloete J stated,\n\nhowever, that-\n\n\u201cthe Courts have repeatedly given effect to the practice\nwhereby an accused or his legal representative may only\nconsult with a State witness with the consent of the\nprosecutor.\u201d86\n\n[60] The practice to which Cloete J refers does indeed appear\n\nfrom the authorities which he quotes.87 The origins of this\n\npractice do not appear to rest on any specific provision of\n\nthe common law or any relevant statutory provision. It\n\nseems clearly to be founded on ethical rules of\n\nprofessional practice both in South Africa and abroad. The\n\nSouth African rule is Rule 4.3.2 of the Uniform Rules of\n\nProfessional Ethics of the various Societies of Advocates.\n\nIt reads as follows:\n\n\"4.3.2\n\nCriminal Proceedings\n\n86 Shabalala\u2019s case, supra n.1, BCLR at 121B-C; SA at 644G. \n\n87 S v Hassim and Others 1972 (1) SA 200 (N); S v Mangcola and Others\n1987(1) SA 507 (C); S v Tjiho 1992(1) SACR 639 (Nm); S v Gquma and Others (3)\n1994(2) SACR 187 (C).\n\n50\n\n\fMAHOMED DP\n\n(a)\n\n(b)\n\nUnless they have obtained the permission of\nthe attorney-general or of the prosecutor to\ndo so, and unless they comply with any\nconditions which either of the latter may have\nimposed when granting such permission, the\nlegal representatives of an accused person may\nnot, at any time after the accused person has\nbeen arrested or charged and before he has\nbeen convicted or acquitted in respect of the\ncharge against him, interview any other person\nin connection with such charge or the evidence\nrelating thereto whom they know to be a\nwitness for the prosecution in relation to\nsuch charge.\n\nIt is the duty of the legal representatives of\nan accused person, when they do not know\nwhether or not any other person is a witness\nfor the prosecution in relation to the charge\nagainst the accused person but when the\ncircumstances are such that it is reasonable\nto suppose that such other person may be, to\nascertain either from such other person or\nfrom the prosecutor or the police, before\nendeavouring to interview such other person in\ncircumstances in which to do so is prohibited\nin terms of paragraph (a) above, whether or\nnot such other person is in fact a witness for\nthe prosecution in relation to such charge.\n\n(c)\n\nFor the above purpose of paragraphs (a) and\n(b) above, a witness for the prosecution in\nrelation to a charge against an accused\nperson:\n\n \n\n(i)\n\nis someone from whom at any time, whether\nbefore or after the accused person was\narrested or charged, the prosecutor has or the\npolice have obtained a statement in connection\nwith such charge or the events from which it\nhas ensued;\n\n \n\n(ii)\n\nis also someone who, having been called by the\nprosecutor to do so, has testified during the\ntrial resulting from such charge;\n\n(iii) is, notwithstanding that the prosecutor has,\nor the police have, obtained a statement from\nhim in connection with such charge or the\nevents from which it has ensued, not someone\nwhom the prosecutor has decided not to call to\ntestify during the trial resulting from such\ncharge.\n\n(d)\n\nIt is the duty of every prosecutor:\n\n(i)\n\nwhen he has decided that any person from whom\nhe has or the police have obtained a statement\nin connection with the charge against an\n\n51\n\n\fMAHOMED DP\n\naccused person or the events from which it has\nensued will not be called to testify during\nthe trial resulting from such charge,\nforthwith to notify the defence of that\ndecision, to supply it with all the statements\nof such persons which are in his possession,\nexcept for any parts thereof protected from\ndisclosure by reason of some lawful privilege,\nand to inform it of any other statements of\nsuch person previously in his possession and\nof the reason for their having ceased to be;\n\nwhen any person from whom he has or the police\nhave obtained a statement in connection with\nthe charge against an accused person or the\nevents from which it has ensued has been\ncalled to testify during the trial resulting\nfrom such charge, and when while doing so such\nperson has contradicted or materially deviated\nfrom the contents of such statement,\nimmediately to notify the defence of that\ncircumstance and to supply it with such\nstatement.\n\n(ii)\n\n(e)\n\n(i)\n\nFor the purposes of paragraph (d) above, the\ndefence is;\n\nany legal representative of the accused person\nin a case in which he is legally represented;\n\n(ii)\n\nthe accused person in a case in which he is\nnot legally represented.\"\n\n[61] There were previous ethical rules accepting substantially\n\nthe same practice.88\n\n[62] Whatever be the origin of the rule that an accused person\n\nmay not consult State witnesses save with the permission of\n\nthe Attorney-General or the prosecutor, it subsequently\n\nbecame entrenched in practice and now forms such a basic\n\npart of our system of criminal justice as to make it\n\neffectively impossible for an accused person to get his or\n\n88 See S v Hassim and Others, supra n.87, at 201 A-C.\n\n52\n\n\fMAHOMED DP\n\nher legal representative to consult with such witnesses\n\nwithout the permission of the prosecuting authority. Any\n\nlegal practitioner who does so would be guilty of\n\nunprofessional and unethical practice.89 Moreover, a breach\n\nof an ethical rule has been held to be capable of\n\nconstituting an irregularity in the trial.90\n\n[63] The question which arises is whether such a practice can\n\nconstitute a denial of the right to a fair trial to an\n\naccused person in terms of section 25(3) of the\n\nConstitution. In many cases it would not because the\n\naccused or his or her legal representative would have a\n\nfull opportunity of canvassing with the witness during\n\ncross-examination relevant material which he or she would\n\notherwise have wanted to canvass in consultation. But\n\nthere may be circumstances where the right to a fair trial\n\nmight justify a prior consultation with a State witness.\n\nAn accused might wish to canvass with the witness the\n\nidentity or whereabouts of some person vital to his or her\n\nalibi and there may be a real risk that the evidence would\n\nbe lost if the witness is not immediately traced. In a\n\nprosecution for culpable homicide there may be an urgent\n\n89 S v Hassim and Others, supra n.87.\n\n90 S v Mangcola and Others, supra n.87, at 509-510.\n\n53\n\n\fMAHOMED DP\n\nneed to trace the whereabouts of a particular motor car in\n\norder to identify the nature of the damage sustained by it\n\nduring a collision and there may again be a real danger\n\nthat, if the witness was not consulted, such evidence might\n\nbe lost, obscured or distorted by the subsequent use of the\n\nvehicle. Many other such examples are conceivable.\n\n[64] The relevant issue is not whether or not such consultations\n\nwould ordinarily be justified in order to ensure a fair\n\ntrial but whether it could legitimately be said that such\n\nconsultations can never be justified. If it cannot be said\n\nthat such consultations are never justified, the blanket\n\nprohibition against the right of an accused to consult\n\nState witnesses (without the consent of the prosecution),\n\nregardless of the circumstances or the conditions, might\n\nindeed bear unfairly on the accused. \n\n[65] This consideration is, however, not in itself decisive in\n\ndetermining whether the rule is indeed unconstitutional\n\nbecause the prejudicial effects of the application of the\n\nrule must be weighed against other factors which also bear\n\nupon the problem.\n\n[66] The first such factor is that a State witness might be\n\nintimidated during such a consultation and might even be\n\n54\n\n\fMAHOMED DP\n\ndiscouraged from making a statement in the first place if\n\nthe witness is aware of the risk that he or she might have\n\nto consult with the accused or his or her legal\n\nrepresentative. This is a legitimate consideration but its\n\nimpact is substantially deflected by the consideration that\n\nno witness can be obliged to attend such a consultation.\n\nThe witness can be informed of this right and he or she\n\ncould simply exercise that right by declining the\n\nopportunity to consult with the defence.91 \n\n[67] There is a second and related consideration. If such a\n\nwitness does attend a consultation with the defence,\n\narguments might subsequently develop at the trial as to\n\nwhat he or she did or did not say on such an occasion.\n\nThis is undoubtedly an undesirable risk but, if the\n\nconsultation is always subject to the condition that it\n\nmust be held in the presence of the Attorney-General or a\n\nprosecutor or official nominated by them and the interview\n\nis recorded, the risk which I have mentioned would\n\nsubstantially be attenuated.92 It is perfectly true that\n\nthis would impose some strain on the State to make\n\npersonnel and facilities available, but it must be\n\n91 S v Botha and Others, supra n.52, BCLR at 124B; SA at 833I; c/f S\n\nv Le Roux and Others, unreported judgment, WLD, Case No 64/94 at 13.\n\n92 S v Botha and Others, supra n.52, BCLR at 124B-C; SA at 834A.\n\n55\n\n\fMAHOMED DP\n\nremembered that there may not be many cases in which such\n\nconsultations can be justified on the ground that a fair\n\ntrial will be impaired if such prior consultation is not\n\nallowed and on the ground that the opportunities\n\nsubsequently offered to the accused in cross-examination of\n\nthe witness to canvass the relevant issues, will not\n\nsufficiently compensate the accused for the disadvantage.\n\n[68] My real difficulty with the present rule is its blanket\n\nprohibition against all consultations regardless of the\n\ncircumstances unless the consent of the prosecuting\n\nauthority is obtained. To that extent, it is unjustified,\n\nbecause it might in some cases impair the right of the\n\naccused to a fair trial. Moreover, such a blanket rule of\n\nexclusion cannot be justified under Section 33 of the\n\nConstitution. It is unreasonable, unjustifiable in an open\n\nand democratic society based on freedom and equality and\n\nunnecessary. Whatever be its motivation, it must in part\n\nat least be based on two untenable propositions. The first\n\nis that there can be no circumstances in which the right to\n\na fair trial would justify a consultation with a State\n\nwitness at the instance of an accused. For the reasons I\n\nhave already discussed that proposition must be incorrect.\n\nThe second proposition is that, because the prosecution\n\ninterviewed a relevant witness first, it had some kind of\n\n56\n\n\fMAHOMED DP\n\nright to preclude an accused person from seeing the same\n\nwitness because he or she was late in the queue or because\n\nthe State acquired some kind of \"property\" in the witness.\n\nThat is manifestly incorrect.93\n\n[69] It follows from these conclusions that the blanket rule\n\nwhich prohibits an accused person from consulting with a\n\nState witness without the permission of the prosecuting\n\nauthority in all cases and regardless of the circumstances\n\nis too wide and is not protected by section 33 of the\n\nConstitution. However, the claim to consult State witnesses\n\nwithout the prior permission of the prosecuting authority\n\ncan only be justified in circumstances where the right of\n\nthe accused to a fair trial would in the special\n\ncircumstances of the case be impaired if the defence is\n\ndenied the opportunity to have such consultations. \n\n[70] If such consultation is denied to the accused in these\n\ncircumstances the Court must have the right, in an\n\nappropriate case, to test the legitimacy of any such denial\n\nand to direct access to a witness for the purpose of such\n\nconsultation, if such a course is justified for the purpose\n\nof ensuring a fair trial.\n\n93 see Harmony Shipping Co SA v Davis and others [1979] 3 All ER 177\n\nC.A.\n\n57\n\n\fMAHOMED DP\n\n[71] Even in cases where the Court takes the view that the\n\nrequirements of a fair trial indeed justify such\n\nconsultations with State witnesses in a particular case, it\n\ndoes not necessarily follow that it is obliged to direct\n\naccess by the accused to the witnesses for such\n\nconsultation purposes. The Court has a discretion to\n\nrefuse such a direction if the prosecution is able to\n\nestablish through the relevant evidence and circumstances,\n\nthat there is a reasonable risk that such access might lead\n\nto the intimidation of the witness or otherwise prejudice\n\nthe proper ends of justice. It would not be sufficient,\n\nhowever, for the State merely to establish that that is its\n\nbona fide belief. It must show that a reasonable person in\n\nthe position of the prosecution would hold such a belief\n\nand, even in such a case, the Court would be entitled to\n\nexercise its discretion against the prosecution by\n\nbalancing the interests of the accused against the\n\ninterests of the State.\n\nOrder\n\n[72] In the result I would make an order declaring that -\n\nA.\n\n1.\n\nThe \"blanket docket privilege\" expressed by the\nrule in R v Steyn 1954 (1) SA 324 (A) is\n\n58\n\n\fMAHOMED DP\n\ninconsistent with the Constitution to the extent\nto which it protects from disclosure all the\ndocuments in a police docket, in all\ncircumstances, regardless as to whether or not\nsuch disclosure is justified for the purposes of\nenabling the accused properly to exercise his or\nher right to a fair trial in terms of section\n25(3).\n\n2.\n\nThe claim of the accused for access to documents\nin the police docket cannot be defeated merely on\nthe grounds that such contents are protected by\n\na blanket privilege in terms of the decision in\nSteyn\u2019s case. \n\n3.\n\nOrdinarily an accused person should be entitled\n\nto have access to documents in the police docket\nwhich are exculpatory (or which are prima facie\n\nlikely to be helpful to the defence) unless, in\n\nvery rare cases, the State is able to justify the\n\nrefusal of such access on the grounds that it is\n\nnot justified for the purposes of a fair trial.\n\n4.\n\nOrdinarily the right to a fair trial would\n\ninclude access to the statements of witnesses\n\n(whether or not the State intends to call such\n\nwitnesses) and such of the contents of a police\n\ndocket as are relevant in order to enable an\n\naccused person properly to exercise that right,\n\nbut the prosecution may, in a particular case, be\n\nable to justify the denial of such access on the\n\ngrounds that it is not justified for the purposes\n\n59\n\n\fof a fair trial. This would depend on the\ncircumstances of each case.\n\nMAHOMED DP\n\n5.\n\nThe State is entitled to resist a claim by the\naccused for access to any particular document in\nthe police docket on the grounds that such access\nis not justified for the purposes of enabling the\naccused properly to exercise his or her right to\na fair trial or on the ground that it has reason\nto believe that there is a reasonable risk that\naccess to the relevant document would lead to the\ndisclosure of the identity of an informer or\n\nState secrets or on the grounds that there was a\n\nreasonable risk that such disclosure might lead\n\nto the intimidation of witnesses or otherwise\n\nprejudice the proper ends of justice.\n\n6.\n\nEven where the State has satisfied the Court that\n\nthe denial of access to the relevant documents\n\nis justified on the grounds set out in paragraph\n\n5 hereof, it does not follow that access to such\n\nstatements, either then or subsequently must\n\nnecessarily be denied to the accused. The Court\n\nstill retains a discretion. It should balance\n\nthe degree of risk involved in attracting the\n\npotential prejudicial consequences for the proper\n\nends of justice referred to in paragraph 5 (if\n\nsuch access is permitted) against the degree of\n\nthe risk that a fair trial may not enure for the\n\naccused (if such access is denied). A ruling by\n\nthe Court pursuant to this paragraph shall be an\n\nfurther\ninterlocutory \namendment, review or recall in the light of\n\nsubject \n\nruling \n\nto \n\n60\n\n\fcircumstances disclosed by the further course of\nthe trial.\n\nMAHOMED DP\n\nB.\n\n1.\n\nInsofar and to the extent that the rule of\n\npractice pertaining to the right of an accused or\nhis legal representative to consult with\nwitnesses for the State prohibits such\nconsultation without the permission of the\nprosecuting authority, in all cases and\nregardless of the circumstances, it is not\nconsistent with the Constitution.\n\n2.\n\nAn accused person has a right to consult a State\n\nwitness without prior permission of the\n\nprosecuting authority in circumstances where his\n\nor her right to a fair trial would be impaired,\n\nif, on the special facts of a particular case,\n\nthe accused cannot properly obtain a fair trial\n\nwithout such consultation. \n\n3.\n\nThe accused or his or her legal representative\n\nshould in such circumstances approach the\n\nAttorney-General or an official authorized by the\n\nAttorney-General for consent to hold such\n\nconsultation. If such consent is granted the\n\nAttorney-General or such official shall be\n\nentitled to be present at such consultation and\n\nto \n\nrecord \n\nwhat \n\ntranspires \n\nduring \n\nthe\n\nconsultation. If the consent of the Attorney-\n\nGeneral is refused the accused shall be entitled\n\nto approach the Court for such permission to\n\nconsult the relevant witness.\n\n61\n\n\f4.\n\nThe right referred to in paragraph 2 does not\nentitle an accused person to compel such\nconsultation with a State witness:-\n\nMAHOMED DP\n\n(a)\n\nif such State witness declines to be so\nconsulted; or\n\n(b)\n\nif it is established on behalf of the State\nthat it has reasonable grounds to believe\nsuch consultation might lead to the\nintimidation of the witness or a tampering\nwith his or her evidence or that it might\n\nlead to the disclosure of State secrets or\n\nthe identity of informers or that it might\n\notherwise prejudice the proper ends of\n\n \n\njustice.\n\n5.\n\nEven in the circumstances referred to in\n\nparagraph 4(b), the Court may, in the\n\ncircumstances of a particular case, exercise a\n\ndiscretion to permit such consultation in the\n\ninterest of justice subject to suitable\n\nsafeguards.\n\nChaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J,\n\nLanga J, Madala J, Mokgoro J, O\u2019Regan J and Sachs J concur in\n\nthe judgment of Mahomed DP.\n\n62\n\n\fCounsel for the\nApplicants/Accused:\n\nRKR Zeiss SC\nSJJ Van Rensburg\n\nInstructed By:\n\nThe Minister of Justice\n\nCounsel for the\nFirst Respondent:\n\nJA Van S D\u2019Oliveira SC\nHM Meintjies\nE Leonard\n\nInstructed by:\n\nThe Attorney-General, Transvaal\n\n63\n\n\fCounsel for the\nSecond Respondent:\n\nE Bertelsmann SC\nJG Cilliers\n\nInstructed by:\n\nThe State Attorney, Pretoria\n\n64\n\n\f"}, "id": "b261f031-9b55-4b3c-82af-692dbe5b2d20", "update_date": "2021-03-15 17:08:56.815645", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between Case No : CCT/23/94 Shabalala and Five Others Applicants/ Accused and The Attorney-General of the Transvaal First Respondent The Commissioner of South African Police Second Respondent Heard on : Delivered on : 10 March 1995 29 November 1995 ________________________________________________________________ _______________________________________________________________ JUDGMENT", "MAHOMED DP. Mr Shabalala and five others (\u201cthe accused\u201d) were charged with the crime of murder before Cloete J in the Transvaal Provincial Division of the Supreme Court. Before any evidence was led, various applications were made to the trial Court on behalf of the accused. These included applications for copies of the relevant police \fdockets, including witnesses\u2019 statements and lists of exhibits in the possession of the State. MAHOMED DP", "These applications were all opposed by both the Attorney- General of the Transvaal and the Commissioner of the South African Police, who were cited as respondents. They were refused by Cloete J substantially on the grounds that the accused had not satisfied the Court that the relevant documents in the possession of the State, were \u201crequired\u201d by them (within the meaning of section 23 of the Constitution of the Republic of South Africa, 1993 (\u201cthe Constitution\u201d)) \u201cfor the exercise of any of their rights to a fair trial\u201d.1", "A related application to the Court a quo for an order directing the State to make State witnesses available to the legal representatives of the defence, for the purposes of consultation, was also refused on the ground that the Court was unable \u201cto conclude that the applicants will not be given a fair trial\u201d unless the Court departed from the \u201cpractice whereby an accused or his legal representative 1 Shabalala and Others v The Attorney General of Transvaal and Others 1994 (6) BCLR 85 (T) at 120B-C; 1995 (1) SA 608 (T) at 643F-G. 2 \fmay only consult with a State witness with the consent of the prosecutor.\u201d2 MAHOMED DP", "Notwithstanding these conclusions, Cloete J was of the view that, because of their public importance, a ruling should be given by the Constitutional Court on a number of constitutional questions raised by the applications made on behalf of the accused. Relying on section 102(8) of the Constitution, he accordingly, made an order referring the following questions for decision by this Court - \"1. Whether a Court interpreting the Constitution is bound by the principles of stare decisis to follow the decision of a superior Court; or whether such a Court may hold that a decision of such superior Court (other than the Constitutional Court) is per incuriam because it incorrectly interprets the Constitution. 2. Whether section 23 of the Constitution can be utilised by an accused in the exercise of the rights contained in section 25(3) of the Constitution; and if so 2.1 2.2 Whether the accused should have access to the police dossier; and if so, To what extent, under what circumstances and subject to what conditions (if any) such access should be exercised. 3. Whether any provision in the Constitution permits an accused to consult with prospective witnesses who have given statements to the police; and if so, under what circumstances and subject to what conditions (if any) such consultations should be exercised.\"3 The competence and terms of the referral 2 Shabalala\u2019s case, supra n.1, BCLR at 121B-C; SA at 644F-H. 3 Shabalala\u2019s case, supra n.1, BCLR at 121E-H; SA 644I - 645C. 3 \fMAHOMED DP", "It was held by this Court, in the case of Zantsi v The Council of State and Others,4 that three requirements had to be satisfied before a Supreme Court was entitled to refer a matter to the Constitutional Court in terms of section 102(8): \u201cFirst, a Constitutional issue must have been raised in the proceedings; Secondly, the matter in which such issue was raised must have been disposed of by the Supreme Court; and Thirdly, the division of the Supreme Court which disposed of the matter must be of the opinion that the Constitutional issue is of sufficient public importance to call for a ruling to be made thereon by this Court.\u201d5", "I have some difficulty with the form and content of the questions referred by the Court a quo.", "Paragraph 1 of the referral does not raise a constitutional issue at all. In the proceedings before Cloete J, there was a dispute as to whether or not Chapter 3 of the Constitution and, more particularly sections 23 and 25 thereof, were of application to proceedings which were pending before the commencement of the Constitution. There were a number of conflicting decisions before the decision 4 1995(10) BCLR 1424 (CC); 1995(4) SA 615 (CC). 5 supra n.4,per Chaskalson P, para 1. 4 \fMAHOMED DP of this Court in S v Mhlungu and Others6 on the proper interpretation of section 241(8)of the Constitution, which was the section relevant for the determination of that issue. In some of the cases on this issue decided in the Witwatersrand Local Division and the Transvaal Provincial Division of the Supreme Court, it was held that section 241(8) operated to bar an accused person from relying on the provisions of Chapter 3 in proceedings which were pending immediately before the commencement of the Constitution. Cloete J (who was seized with the matter before the judgment of this Court in Mhlungu\u2019s case7 was given) held that the principles of stare decisis did not preclude him from coming to a different conclusion.", "What the correct application of the stare decisis principle should have been in the proceedings before Cloete J in the instant case is, however, not a \"constitutional issue\" which falls within the jurisdiction of this Court, in terms of the Constitution.8 The Supreme Court had jurisdiction to determine that question. It is simply the proper interpretation of a common law principle. It is not an 6 1995 (7) BCLR 793 (CC); 1995 (3) SA 867 (CC). 7 supra n.6. 8 See section 98(2). 5 \fMAHOMED DP issue which can properly be referred to this Court in terms of section 102(8). In my view, this Court should accordingly decline to express its views on the issue raised by paragraph 1 of the order made by the Court a quo.", "Paragraphs 2 and 3 of the referral are also much too widely phrased. The question as to whether the common law of privilege articulated in the case of R v Steyn9 (as it existed before the Constitution came into force) is in conflict with the Constitution, is indeed a constitutional issue which should properly be determined by this Court. This Court is therefore entitled to decide whether that rule of the common law is consistent with the Constitution. However, it is for the Supreme Court in the first instance to determine what the content of the common law should be having \u201cregard to the spirit, purport and objects\u201d10 of the relevant provisions of the Constitution and to develop the common law. The manner in which the questions have been formulated by the Court a quo does not distinguish sufficiently between these two issues and I therefore propose to confine myself substantially to two issues only and to deal with other factors only to the extent to which 9 1954(1) SA 324 (A). 10 Section 35(3) of the Constitution. 6 \fthey impact, directly or indirectly, on the resolution of these two issues. The two issues are: MAHOMED DP (A) Whether or not the common law privilege pertaining to the contents of police dossiers, defined in Steyn\u2019s case,11 is consistent with the Constitution. (B) Whether the common law rule of practice which prohibits an accused person or his or her legal representative from consulting with a State witness without the permission of the prosecuting authority, in all cases and regardless of the circumstances, is consistent with the Constitution. Access to police dockets.", "According to the evidence in the Court a quo, the police docket normally consists of three sections: section A - witnesses\u2019 statements taken by an investigating officer; expert reports and documentary exhibits; section B - internal reports and memoranda; and section C - the investigation diary. The claim of the accused in terms of the notice of motion to this kind of information in the possession of the State rested on the submission that 11 supra n.9 7 \fMAHOMED DP section 23, as read with section 25(3) and section 35 of the Constitution, entitled them to access to such information as of right. The applications were opposed by the respondents inter alia on the grounds that section 23 was not applicable to an accused; that section 25(3) was exhaustive of an accused's rights; that the provisions of the Criminal Procedure Act 51 of 1977 (\"the Criminal Procedure Act\") provided an accused with all necessary information for a fair trial and hence that an accused was not entitled to access to the police docket as of right or at all. It was contended on behalf of the respondents that, in terms of the decision in R v Steyn12, there was a \"blanket docket privilege\" which protected the contents of a police docket from disclosure without the consent of the State and that nothing in the Constitution impacted upon that privilege.", "Cloete J held that section 23 could competently be invoked by an accused person in a criminal trial but that- \"Section 23 does not mean that an accused is entitled, as of right and without more, to access to the whole or part of a dossier; although an accused would be entitled to access to the whole or part of a dossier if he could show ...... that he \"required\" this information to exercise or protect any of his rights in terms of Section 25(3) of the Constitution.\" 13 12 supra n.9. 13 Shabalala's case, supra n.1, BCLR at 119 G-H; SA at 643C. 8 \fMAHOMED DP", "In order to decide whether or not an accused person is entitled to claim access to any of the contents of a \"police docket\" and if so, to what extent and in what circumstances such a claim can successfully be made, it is necessary to consider what the state of the law in this regard was prior to the Constitution and what impact, if any, the Constitution has had on such law.", "In the case of R v H14 a full bench of the Transvaal Provincial Division of the Supreme Court upheld an appeal against a conviction on the ground that the Magistrate in the Court a quo had erred in refusing an application on behalf of the accused that a police witness who was giving evidence for the prosecution should produce the statements which he had taken from some of the witnesses.", "The Appellate Division of the Supreme Court held in Steyn's case15, however, that R v H16 was wrongly decided and that \"when statements are procured from witnesses for the purpose that what they say shall be given in a lawsuit that is contemplated, these statements are protected against disclosure until at least the conclusion of the 14 1952 (4) SA 344 (T). 15 supra n.9. 16 supra n.14. 9 \fproceedings, which would include any appeal after the decision of the Court of first instance.\"17 MAHOMED DP", "The privilege upheld in Steyn's case18 was subsequently extended to the notes made by a State witness19; statements taken by the police in contemplation of prosecution even if such witnesses were not being used by the prosecution and were in fact made available to the accused20 and even though the relevant witness had refreshed his memory outside of the Court proceedings21; notes made by the investigating officer and the advice and instructions of a \"checking officer\"22; in some circumstances the pocket book of police officers23; and all accompanying communications and notes for the purpose of litigation as being \u201cpart of the litigation brief\u201d24. All such privileged statements were 17 supra n.9, at 335 A-B. 18 supra n.9. 19 S v Alexander and Others (1) 1965 (2) SA 796 (A) at 812G-H. 20 S v B and Another 1980 (2) SA 947 (A) at 952F-H. 21 Van der Berg en \u2018n Ander v Streeklanddros, Vanderbijlpark en Andere 1985 (3) SA 960 (T); Ex parte Minister van Justisie: In re S v Wagner 1965 (4) SA 507 (A) at 514B-D. 22 S v Mavela 1990 (1) SACR 582 (A) at 590G-J. 23 S v Mayo and Another 1990 (1) SACR 659 (E) at 662G; S v Majikela and Others 1991 (1) SACR 509 (E) at 518F-G. 24 S v Yengeni and Others (1) 1990 (1) SA 639 (C) at 642B-I; S v Schreuder en \u2018n Ander 1958 (1) SA 48 (SWA) at 54A-D. 10 \fprotected forever on the basis of the principle \"once privileged always privileged.\"25 MAHOMED DP", "An accused person indicted in the Supreme Court, during the period when Steyn\u2019s case26 was decided, was not precluded by that decision from effectively preparing his or her defence with relatively full knowledge concerning the identity of State witnesses who were likely to be called at the trial and the details pertaining to what they were likely to depose to. This advantage followed from the procedure of preparatory examinations which invariably preceded the trial. In practice, every material witness who was to be called at the trial gave evidence at the preparatory examination and was available for cross-examination during those proceedings.", "Preparatory examinations were a central feature of the criminal justice system in the Republic both before and after the commencement of the Criminal Procedure Act No 31 of 1917. They were a feature of criminal procedure in 25 See, for example, S v Patrick Mabuya Baleka and 21 Others (unreported judgment, TPD case No. CC482/85 dated 4/8/87); Zweni v Minister of Law and Order (1) 1991 (4) SA 166 (W) at 169B-F; Jonas v Minister of Law and Order 1993 (2) SACR 692 (E) at 694A-696i; Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing 1979 (1) SA 637 (C) at 642A-644G; Khala v The Minister of Safety and Security 1994 (2) BCLR 89 (W) at 99G-100E; 1994 (4) SA 218 (W) at 228I-230H. 26 supra n.9. 11 \fMAHOMED DP terms of Ordinance 40 of 1828 in the Cape and continued after Union in 1910. They were entrenched in the 1917 Act by section 92 and perpetuated in the Criminal Procedure Act 56 of 1955 by section 54.27", "The first indirect erosion into this advantage occurred in 1952 with the establishment of Regional Court jurisdiction in criminal cases which previously fell within the jurisdiction of the Supreme Court. No preparatory examinations were necessary in such cases. The impact on accused persons was quite far-reaching because more and more cases came to be heard in the Regional Courts. The next erosion took place in 1963 when section 54 of the 1955 Act was amended to authorise summary trials in Superior Courts without a preceding preparatory examination whenever the relevant Attorney-General was of the opinion that there was \"any danger of interference with or intimidation of witnesses or wherever he deemed it to be in the interest of the safety of the State or in the public interest.\" The most radical inroad into the procedure of preparatory examinations was however introduced into the criminal justice system by the Criminal Procedure Act in consequence of the recommendations of the report of the Botha 27 See Dugard, South African Criminal Law Procedure, Vol IV, pages 21, 25, 33 to 35. 12 \fMAHOMED DP Commission.28 Paragraph 3.24 of that report recommended that preparatory examinations should not be essential and that \"a summary of the substantial facts as they appear from the statements of the witnesses, which are alleged against the accused\" should be provided instead. This proposal found expression in the Criminal Procedure Act and preparatory examinations have now become very rare. During the whole calendar year from 1 July 1980 to 30 June 1981, for example, only 22 preparatory examinations were held in the whole of South Africa.29 During the year ending on 30 June 1991 there were only 6 such preparatory examinations which were held in the whole country30 and in the subsequent years preparatory examinations disappeared altogether. Certainly there were no preparatory examinations held during the period 1 July 1992 to 30 June 1994.31 Jones J summarises the effect of these developments in S v Fani and Others32, as follows: 28 \u201cReport of the Commission of Inquiry into Criminal Procedure and Evidence\u201d, RP 78/1971. 29 See paragraph 1.1 at page 72 of the Annual Report of the Department of Justice for the period 1 July 1980 to 30 June 1981. 30 Hiemstra: Suid Afrikaanse Strafproses (5th ed) by J Kriegler, page 342. 31 Annual Reports of the Department of Justice for the periods 1 July 1992 to 30 June 1993, pg. 121; 1 July 1993 to 30 June 1994, pg. 104. 32 1994 (1) BCLR 43 (E) at 46B-H; 1994 (3) SA 619 (E) at 621J-622H. 13 \fMAHOMED DP \"Under the now repealed Criminal Procedure Act 56 of 1955 the general practice was to hold a preparatory examination before a magistrate before a criminal trial was held in the Supreme Court. At such an examination the prosecution would lead its evidence, or at least sufficient evidence, to have the accused committed for trial in the Supreme Court. The accused had the right to be represented and to challenge the evidence led if he so wished, either in cross-examination, or by giving evidence himself if so advised, or by calling the evidence of witnesses. A copy of the proceedings at the preparatory examination would be made available to an accused if he was committed for trial, so that he could prepare properly for trial. A copy was also made available to the trial judge. Preparatory examinations are still part of the procedure laid down in the present Criminal Procedure Act 51 of 1977. But they are virtually never held. The result has been an erosion of the principle of full disclosure. The present practice is invariably to hold a summary trial in the Supreme Court without any preliminary hearing. There is no procedure laid down for the disclosure of information which characterises civil litigation and which was almost universal practice when preparatory examinations were held as a matter of course. Instead of a preliminary hearing, the prosecution now attaches a summary of material facts to a criminal indictment in the Supreme Court. In practice, this has not always in my opinion measured up to the requirement of sufficient information to prepare properly for trial, and hence it does not necessarily facilitate a fair trial within the meaning of the new Constitution Act. It often says little more than the indictment itself. I have the impression that the information contained in this document has become less and less informative as the years go by. Indeed, I recently read such a document, which was annexed to an indictment on a charge of murder, which ran to no more than three paragraphs. It was eight lines in length. In recent years the practice has grown up of the prosecution refusing to furnish an accused with documents such as medical reports until just before the medical witness enters the witness box. This has elicited unfavourable comments from the bench in the past. Only recently have I detected a more open approach to prosecutions in this division.\"33", "In terms of the Criminal Procedure Act (interpreted without any reference to the Constitution), therefore, in cases being heard in the Supreme Court, accused persons no longer enjoy the right to a preparatory examination effectively 33 See also Shabalala\u2019s case, supra n.1, BCLR at 97G-J and S v Sefadi 1994 (2) BCLR 23(D) at 36C-G; 1995 (1) SA 433 (D) at 445F-J. 14 \fMAHOMED DP containing the substance of the evidence of State witnesses to be called at a trial in the Supreme Court. That right is substituted with a summary of substantial facts of the case which \"in the opinion of the Attorney-General are necessary to inform the accused of the allegations against him and that will not be prejudicial to the administration of justice and the security of the State, as well as a list of names and addresses of the witnesses the Attorney- General intends calling at the summary trial\"34. The contents of the summary do not bind the State and the Attorney-General is entitled to withhold the name and address of a witness if he or she is of the opinion that the witness may be tampered with or be intimidated or that it would be in the interest of the security of the State that the name and address of such witness be withheld35. The omission of the name or address of a witness from the list in no way affects the validity of the trial36.", "Apart from this summary, the accused in such proceedings is entitled to be furnished with further particulars of any 34 Section 144(3)(a) of the Criminal Procedure Act. 35 Sections 144(3)(a)(i) and (ii) of the Criminal Procedure Act. 36 Section 144(3)(a)(iii) of the Criminal Procedure Act. 15 \fMAHOMED DP matter alleged in the charge37. If the prosecution does not supply the particulars requested, the Court may order it to do so, if it is satisfied that they are necessary for the proper preparation of the defence of the accused38. The particulars directed must be \"particulars of any matter alleged in that charge\" in terms of section 87 and the Court is entitled to have regard to the summary of substantial facts in determining whether they are necessary for the preparation of the defence of the accused39.", "Although an accused indicted in the Supreme Court is entitled to the summary of substantial facts in terms of section 144, other accused are not. Very many serious and complicated criminal cases are heard in the Regional Courts and sometimes in the District Courts. In terms of the Criminal Procedure Act, the accused in such cases does not enjoy the advantage of either a preparatory examination or \"a summary of the substantial facts of the case\". The particularity to which the accused is entitled must either be contained in the charge sheet itself or in any further particulars granted or directed in terms of section 87. 37 Section 87 of the Criminal Procedure Act. 38 S v Cooper and Others 1976(2) SA 875 (T) at 885H; R v Moyage and Others 1958(2) SA 400 (A) at 413B. 39 S v Mpetha and Others (1) 1981 (3) SA 803 (C) at 809F. 16 \fMAHOMED DP", "In all proceedings, in superior or in inferior Courts, evidence of State secrets, the identity of informers and communications between a legal advisor and a client have at all relevant times before the enactment of the Constitution been protected from disclosure by the rules of privilege set out in Steyn\u2019s case.40", "It is necessary to examine the provisions of the Constitution in the light of the law pertaining to the right of an accused person to access to any of the contents of police dockets, to which I have referred. Three constitutional provisions are clearly relevant in this regard. They are sections 23, 25(3) and 33. Section 23 provides : \"23. Every person shall have the right of access to all information held by the state or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her rights.\" Section 25(3) provides : \"(3) Every accused person shall have the right to a fair trial, which shall include the right - (a) (b) (c) .. .... to be informed with sufficient particularity of the charge; to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during the trial; 40 Supra n.9, at 330D-E; Khala v Minister of Safety and Security, supra n.25, BCLR at 98H; SA at 228I-J; Du Toit: Commentary on the Criminal Procedure Act, at 23-42E. 17 \f(d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself; ...\" MAHOMED DP These sections must be read with section 33 which reads as follows: \"33(1) The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation - (a) (b) shall be permissible only to the extent that it is - (i) reasonable; and (ii) justifiable in an open and democratic society based on freedom and equality; and shall not negate the essential content of the right in question, and provided further that any limitation to - (aa) a right entrenched in section ....25; or a right entrenched in section ....23, in so far as such right relates to free and fair political activity, (bb) shall, in addition to being reasonable as required in paragraph (a)(I), also be necessary.\" \"Law of general application\u201d within the meaning of section 33(1) would ordinarily include a rule of the common law41.", "In the interpretation of these three sections of the Constitution it is relevant also to have regard to the provisions of section 35 which read as follows: \"35.(1) In interpreting the provisions of this Chapter a Court of law shall promote the values which underlie an open and democratic society based on freedom and equality and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this Chapter, and may have regard to comparable foreign case law. 41 Section 33(2) of the Constitution. 18 \fMAHOMED DP (2) No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation. (3) In the interpretation of any law and the application and development of the common law and customary law, a Court shall have due regard to the spirit, purport and objects of this Chapter.\"", "Section 35 articulates also the dominant theme of the Constitution, expressed both in the preamble and in the postscript, which is to emphasize the \"historic bridge\" which the Constitution provides between a past based on \"conflict, untold suffering and injustice\" and a future which is stated to be founded on the recognition of human rights.", "What is perfectly clear from these provisions of the Constitution and the tenor and spirit of the Constitution viewed historically and teleologically, is that the Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive break from that part of the past which is unacceptable. It constitutes a decisive break from a culture of Apartheid and racism to a constitutionally protected culture of openness and 19 \fMAHOMED DP democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised.42 The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is \u201cjustifiable in an open and democratic society based on freedom and equality\u201d. It is premised on a legal culture of accountability and transparency.43 The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.", "This approach has been consistently followed in Southern Africa.44 Even in jurisdictions without our peculiar history, national Constitutions, and Bills of Rights in 42 S v Makwanyane and Another 1995 (6) BCLR 665 (CC), para 262; 1995 (3) SA 391 (CC),para 262. 43 See sections 8; 10; 11; 13; 15; 21; 22; 23; 25; 33 and 35 of the Constitution. 44 S v Zuma and Others 1995 (4) BCLR 401 (CC); 1995(2) SA 642 (CC) at para\u2019s 15 - 18; S v Makwanyane and Another, supra n.42, para\u2019s 9, 262, 302, 323, 362 and 373; Mwandinghi v The Minister of Defence, Namibia 1991 (1) SA 851 (Nm) at 857G-858E; Minister of Defence, Namibia v Mwandinghi; 1992 (2) SA 355 (Nm) at 362G-363B; S v Marwane 1982 (3) SA 717 (A)at 748-9. 20 \fparticular, are interpreted purposively to avoid the \u201causterity of tabulated legalism\u201d.45 MAHOMED DP", "The fact that the Constitution contains, in material respects, a new and fundamental commitment to human rights and is not merely a contemporization and incremental articulation of previously accepted and entrenched values shared in our society, is illustrated by the approach of the Appellate Division in the cases of S v Rudman and another; S v Mthwana.46 Nicholas AJA, giving the judgment of the Court, rejected the suggestion that recourse could be had to the principle of a \u201cfair trial\u201d to justify the finding that an indigent accused person who did not have the means to pay for his or her own defence was entitled to be provided with legal representation, if necessary, at the expense of the State.47 He stated that none of the authorities relied on in the case of S v Davids48 - \"when viewed in their contextual setting, afford any support for the learned Judge's basic premise that the 45 Minister of Home Affairs (Bermuda) v Fisher 1980 AC 319 (PC) at 328- 329; Attorney-General of the Gambia v Momodou Jobe (1984) AC 689 at 700; R v Big M Drug Mart Ltd (1985) 18 DLR (4ed) 321 (SCC) at 395; Boyd v United States 116 US 616 at 635; Attorney General v Moagi 1982(2) Botswana LR 124 at 184. 46 1992 (1) SA 343(A). 47 See S v Davids; S v Dladla 1989 (4) SA 172 (N) at 178C-E. 48 supra n.47. 21 \fMAHOMED DP touchstone in a procedural appeal is whether the trial was unfair ....... The Court of Appeal does not enquire whether the trial was fair in accordance with \"notions of basic fairness and justice\", or with \"the ideas underlying ... the concept of justice which are the basis of all civilized systems of criminal administration\". The enquiry is whether there has been an irregularity or an illegality, that is a departure from the formalities, rules and principles of procedure according to which our law required a criminal trial to be initiated or conducted....\"49", "The basic distinction made by Nicholas AJA is between an attack made on behalf of an accused person on the general ground that his or her \u201cright to a fair trial\u201d was breached and an attack on the narrow ground that certain specific rules and formalities which were entrenched in the law were not satisfied. The latter attack was held to be competent. The former was not. It is precisely this distinction which is affected by section 25(3) of the Constitution, which expressly guarantees to every accused person the right to a fair trial.50 If such a fair trial is denied to an accused it can found a competent attack on any ensuing conviction. The accused is not limited to an attack on any specific rules and formalities entrenched in the Criminal Procedure Act. The Constitution imports a radical movement away from the previous state of the law. 49 Rudman's case, supra n.46, at 376J - 377C. 50 Zuma\u2019s case, supra n.44, para 16. 22 \fMAHOMED DP", "The crucial issue which needs to be determined is whether the \"blanket docket privilege\" from the pre-constitutional era can survive the application of Chapter 3 of the Constitution. The determination of that issue requires a consideration of the various factors impacting on the consequences of any departure from the rule in Steyn's case.51", "There has been considerable debate in the different divisions of the Supreme Court on the issue as to whether or not section 23 of the Constitution is of application when an accused person seeks access to the contents of a police docket in order to advance his or her defence. Some Courts have held that it did; others that it was 51 supra n.9. 23 \funcertain.52 In some cases it was positively argued that MAHOMED DP section 23 has no application.53", "In support of the contention that section 23 is of application to such proceedings, reliance is substantially placed on the unqualified language of section 23 and the escalating human rights jurisprudence pertaining to the right to official information.54 52 The cases that held that section 23 was of application include: S v Majavu 1994 (2) BCLR 56 (CkGD) at 76D-77E; 1994 (4) SA 268 (Ck)at 309D; S v Sefadi, supra n.33, BCLR at 28F-I and 36I; SA at 438B-E; S v Botha en Andere 1994 (3) BCLR 93 (W) at 121I-124H; 1994 (4) SA 799 (W) at 831G and 834F; Phato v Attorney-General, Eastern Cape and Another; Commissioner of the South African Police Services v Attorney-General, Eastern Cape, and Others 1994 (5) BCLR 99 (E) at 112E-114B; 1995 (1) SA 799 (E) at 814D-816B; Khala v The Minister of Safety and Security, supra n.25, BCLR at 96F-G; SA at 226G- H; 97A and 107G; Qozoleni v Minister of Law and Order and Another 1994 (1) BCLR 75 (E) at 89C-E; 1994 (3) SA 625(E) at 642G-H; S v Smith and Another 1994 (1) BCLR 63 (SE) at 70J-71B; 1994 (3) SA 887 (SE) at 895G-H; Nortje and Another v The Attorney-General of the Cape and Another 1995 (2)BCLR 236 (C)at 249J-250E; 1995(2) SA 460 (C) at 473H - 474D; S v Fani, supra n.32, BCLR at 45D-G; SA at 621B-E; S v de Kock 1995 (3) BCLR 385 (T) at 391H and 392I-393A; S v Mtyuda 1995(5) BCLR 646 (E) at 648B-649D; S v Khoza en Andere 1994 (2) SASV 611 (W) at 617F; Shabalala\u2019s case, supra n.1 BCLR at 119F-H; SA at 643A- C. The cases that held that it was uncertain whether or not section 23 was of application include: S v James 1994 (1) BCLR 57 (E)at 61C-I; 1994 (3)SA 881 (E) at 885C-I; S v Dontas and Another 1995(3) BCLR 292 (T) at 300D. 53 See for example, Nortje and Another v Attorney-General of the Cape and Another, supra n. 52, BCLR at 249J-250B; SA at 473H-J; Shabalala\u2019s case, supra n.1, BCLR at 97D-G; SA at 620F-I. 54 See for example, Khala v The Minister of Law and Order and Another, supra n.25, BCLR at 95 and 96; SA at 225 and 226; S v Majavu, supra n.52, BCLR at 76J-77H; SA at 308H-309F; Phato\u2019s case, supra n.52, BCLR at 112E-114C; SA at 814D-816D; S v Botha, supra n.52, BCLR at 121; SA at 830I-831G. 24 \f[33] The opposing contention is substantially founded on the MAHOMED DP maxim generalia specialibus non derogant, the contention being that rights of an accused person in a trial are regulated by the specific provisions of section 25(3) and not by the general provisions of section 23. It is also contended that section 23 was not intended to be a \u201cdiscovery\u201d mechanism in criminal trials, but a right conferred on citizens to compel disclosure of information in the public interest.55", "The application for the production of documents in the present case was made during the course of a criminal prosecution of the accused. In that context, not only is section 25(3) of the Constitution of direct application in considering the merits of that application, but it is difficult to see how section 23 can take the matter any further. If the accused are entitled to the documents sought in terms of section 25(3), nothing in section 23 can operate to deny that right and conversely, if the accused cannot legitimately contend that they are entitled to such documentation in terms of section 25(3) it is difficult to understand how they could, in such circumstances, succeed 55 See, for example, Botha\u2019s case, supra n.52, BCLR at 120H-I; SA at 830E-G; Nortje\u2019s case, supra n. 52, BCLR at 249J-250A; SA at 473H; S v James, supra n.52, BCLR at 61C-61J; SA at 885C-J; Shabalala\u2019s case, supra n.1 at 97D; SA at 620F-H. 25 \fMAHOMED DP in an application based on section 23. The real enquiry therefore is whether or not the accused were entitled to succeed in their application on the basis of a right to a fair trial asserted in terms of section 25(3).56", "Section 25(3) must, of course, not be read in isolation but together with Section 23 and in the broad context of a legal culture of accountability and transparency manifested both by the preamble to the Constitution and the detailed provisions of Chapter 3.57", "The basic test in the present matter must be whether the right to a fair trial in terms of section 25(3) includes the right to have access to a police docket or the relevant part thereof. This is not a question which can be answered in the abstract. It is essentially a question to be answered having regard to the particular circumstances of each case. 56 Many cases illustrate the application of the right to a fair trial. See for example, Stinchcombe v The Queen 18 C.R.R (2d) 210; Regina v Egger 103 DLR (4th) 678; R v Leyland Magistrates, ex parte Hawthorn [1979] 1 All ER 209 Q.B.; R v Maguire and Others [1992] 2 All ER 433 C.A.; Regina v Ward [1993] 1 WLR 619 C.A.; Regina v Brown (Winston) [1994] 1 WLR 1599 C.A.; S v Nassar 1994 (5) BCLR 60 (Nm); Bendenoun v France 18 EHRR 54; Hentrich v France, European Court of Human Rights, case No 23/1993/418/497, judgment dated 22 September 1994. 57 S v Makwanyane, supra n.42, para 10. 26 \f[37] Ordinarily, an accused person should be entitled to have MAHOMED DP access at least to the statements of prosecution witnesses but the prosecution may, in a particular case, be able to justify the denial of such access on the grounds that it is not justified for the purposes of a fair trial. What a fair trial might require in a particular case depends on the circumstances. The simplicity of the case, either on the law or on the facts or both; the degree of particularity furnished in the indictment or the summary of substantial facts in terms of section 144 of the Criminal Procedure Act; the particulars furnished pursuant to section 87 of the Criminal Procedure Act;58 the details of the charge read with such particulars in the Regional and District Courts, might be such as to justify the denial of such access. The accused may, however, be entitled to have access to the relevant parts of the police docket even in cases where the particularity furnished might be sufficient to enable the accused to understand the charge against him or her but, in the special circumstances of a particular case, it might not enable the defence to prepare its own case sufficiently, or to properly exercise its 58 The application of the law pertaining to the adequacy of the particulars furnished might have to be re-examined having regard to the \u201cspirit, purport and objects\u201d of the Constitution. 27 \fMAHOMED DP right \u201cto adduce and challenge evidence\u201d;59 or to identify witnesses able to contradict the assertions made by the State witnesses; or to obtain evidence which might sufficiently impact upon the credibility and motives of the State witnesses during cross-examination; or to properly instruct expert witnesses to adduce evidence which might similarly detract from the probability and the veracity of the version to be deposed to by the State witnesses; or to focus properly on significant matters omitted by the State witnesses in their depositions; or to properly deal with the significance of matters deposed to by such witnesses in one statement and not in another or deposed to in a statement and not repeated in evidence; or to hesitations, contradictions and uncertainties manifest in a police statement but overtaken by confidence and dogmatism in viva voce testimony.", "In other cases, which might include a substantial number of routine prosecutions in the inferior Courts, there might be scant justification for allowing such access to police dockets in order to ensure a fair trial for the accused. This would be the case where there is a simple charge in respect of a minor offence involving no complexities of 59 section 25(3)(d). 28 \fMAHOMED DP fact or law, in which there is no reasonable prospect of imprisonment,60 and in which the accused can easily adduce and challenge the evidence which the State might lead against him or her, through an analysis of the charge-sheet and any particulars furnished in respect thereof. Hundreds of routine prosecutions in respect of such minor offences take place every day in the Magistrates\u2019 Court following upon some kind of acrimony or brawl during a weekend, in which an accused might have become involved. There would ordinarily be little sense in requiring copies of the whole docket to be prepared and made available to the accused in order to dispose of such prosecutions. In such cases where access to witnesses\u2019 statements is nevertheless justified it does not follow that copies of witnesses\u2019 statements have to be furnished. It might be sufficient to give the defence an opportunity of looking at such statements. No rigid rules are desirable. It is for the trial Court to exercise a proper discretion having regard to the circumstances of each case.", "Even in prosecutions in the Supreme Court, the State might successfully contend that, having regard to the particulars in the indictment, read with the summary of substantial 60 Leach v The Ministry of Transport (1993) 1 NZLR 106. 29 \fMAHOMED DP facts and any particulars obtained under section 87 of the Criminal Procedure Act, access to the contents of the police docket itself is not justified by the need to ensure a fair trial. The Court would have to have regard to all the relevant circumstances in identifying whether the right to a fair trial in a particular case should include the right of access to the police docket. If the answer is in the negative, the application for such access must fail. If the answer is in the affirmative, the Court would ordinarily direct that access by the accused to the relevant parts of the police docket be allowed unless the rule in Steyn\u2019s case61 is held to be consistent with the Constitution. It accordingly becomes necessary to examine the constitutionality of the rule in Steyn\u2019s case.62", "The approach to the constitutionality of the rule in Steyn's case,63 insofar as it pertains to witnesses\u2019 statements, involves an analysis of what that rule seeks to protect. It seems to me that the following is included in the protection - 61 supra n.9. 62 supra n.9. 63 supra n.9. 30 \fMAHOMED DP 1 the statements of witnesses which need no protection on the grounds that they deal with State secrets, methods of police investigation, the identity of informers, and communications between a legal advisor and his client; 2 the statements of witnesses in circumstances where there is no reasonable risk that such disclosure might lead to the intimidation of such witnesses or otherwise impede the proper ends of justice; 3 the statements of witnesses made in circumstances where there is a reasonable risk that their disclosure might constitute a breach of the interests sought to be protected in paragraph 1; and 4 the statements of witnesses made in circumstances where their disclosure would constitute a reasonable risk of the nature referred to in paragraph 2.", "The blanket rule in Steyn\u2019s case64 denies an accused person access to the statements of State witnesses in all cases falling within all four categories referred to in paragraph 40, regardless of the circumstances. The first question which needs to be considered is whether such a \u201cblanket\u201d 64 supra n.9. 31 \frule of exclusion is constitutional; and secondly, what the consequences are if it is not? MAHOMED DP", "In the determination of those issues it is important to have regard to all the factors which impact on the reasonableness of, and the justifiability and the necessity for, the limitation and on whether or not the limitation negates the essential content of the right. There are factors which support the limitation and others which do not. All these factors must be balanced against each other, regard being had to the purposes sought to be attained both by the right which is protected and the limitation which is claimed to be authorized. What are these factors?", "The dominant argument advanced on behalf of the accused to support the attack on the limitations introduced by the rule in Steyn's case65, is that it potentially enables the State to invade their right to a fair trial in terms of section 25(3). It is contended that this is not reasonable or justifiable or necessary. If an accused requires the documents protected by the rule in Steyn's case66 in order 65 supra n.9. 66 supra n.9. 32 \fMAHOMED DP to have a fair trial, it is argued that both justice and the public interest require that these documents should not be denied to the defence. There would otherwise be the danger of a conviction following upon a trial which is ex hypothesi not fair within the meaning of section 25(3). This is obviously a formidable argument. The interests of the accused must, however, be balanced against other legitimate considerations.", "A number of general objections have been articulated in support of the privilege against the disclosure of all the statements described in the categories referred to in items 1 to 4 in paragraph 40 above. It is necessary to examine more carefully these objections, which are common to all these categories.", "It was contended in the first place on behalf of the State that the written statements of witnesses made to the police are very frequently inaccurate because of administrative and language difficulties and because they have to be obtained under pressure during the initial stage of investigations. It was suggested that disclosure of such statements might lead to cross-examination which might, in the circumstances, unfairly impact on the credibility of 33 \fMAHOMED DP the relevant witnesses who might be deposing to fuller and more carefully considered evidence in Court.67 Balanced against the dominant interest of the accused to a fair trial, this objection loses much of its impact particularly when regard is had to the fact that the Court must be credited with the capacity of making proper allowances in its judgment for the circumstance that the statement might have been compiled hastily by police officers with administrative, linguistic and logistical problems. The possibility that such statements may be disclosed might also serve as an incentive to investigating officers to compile statements as accurately and as carefully as the circumstances permit.", "A recurrent theme which asserts itself in some of the cases is that the disclosure of witnesses\u2019 statements might enable an accused person to \u201ctailor\u201d evidence and to give perjured testimony because he or she becomes alive to the fact that the falseness of such evidence may not be detected by the prosecution on the information available to 67 See for example, Steyn\u2019s case, supra n.9, at 35G-H, S v Jija and others 1991 (2) 52(E) at 64D-F; S v Botha and Others, supra n.52, BCLR at 98 G-J; SA at 807H-808B; Shabalala\u2019s case, supra n.1, BCLR at 102I-J; SA at 626B- D; S v Majavu, supra n.52, BCLR at 79C; SA at 310J-311B; S v Dontas and Another, supra n.52, BCLR at 301H-302B; S v Nassar, supra n.52, at 84 B-D; Phato\u2019s case, supra n.52, BCLR at 124D-E; SA at 826G-I. 34 \fMAHOMED DP it from the State witnesses.68 This objection is conjectural and it must be balanced against other factors which have to be weighed in dealing with an accused\u2019s insistence that he or she has a right to a fair trial. An alert prosecutor and a competent Court would be able to make adequate allowance for the fact that in the assertion of his or her defence the accused has had the benefit of access to the statement of the State witness and any falsity in the evidence of the accused may be capable of being exposed by establishing other relevant issues. Many enquiries are obvious. When was the defence raised for the first time? What previous opportunities were there to do so? Is the defence consistent not only with the statements of the State witness but with other objective evidence and the probabilities? Is the accused person consistent and credible when the defence is tested? It is also dangerous to assume that every accused person seeking a disclosure of the statements of State witnesses is in fact guilty and is merely seeking an opportunity to fabricate perjured evidence. The presumption of innocence, fundamental to the 68 Steyn\u2019s case, supra n.9, at 333F-H; Knapp v Harvey 1911(2) KB 725 at 730-731; Shabalala\u2019s case, supra n.1, BCLR at 103B-E; SA at 626D-G; S v Tune 98 Atlantic Reporter 2d series, 881 at 884 to 886; S v Majavu supra, n.52, BCLR at 81B; SA at 312I-313B; S v Dontas and Another, supra n.52, BCLR at 301H-302D; Stinchcombe v The Queen, supra n.56, at 216; Nortje and Another v The Attorney-General of the Cape and Another, supra n.52, BCLR at 255H-256A; SA at 479G-480A; S v Sefadi, supra n.33, BCLR at 38B-F; SA at 447E-I; S v Nassar, supra n.56, at 75E-F. 35 \fMAHOMED DP criminal law, does not support such an approach. In many cases disclosure would be sought by innocent persons who are assisted by such disclosure in seeking corroborative evidence and probabilities which might establish their innocence.69 Even in the case of a guilty person the disclosure might sometimes have the opposite effect to the danger suggested. A guilty accused might often genuinely believe that the State would not succeed in proving its case beyond a reasonable doubt, but an examination of the statements of State witnesses might induce the accused to plead guilty and abandon his or her previous plan strenuously and vigorously to contest the State\u2019s case.70 Undoubtedly there are cases in which the disclosure of the statements might remove the tactical advantage of surprise with which the prosecution might successfully have confronted the accused in an ambush. But this does not appear to me to be a sufficiently decisive and pervading consideration to justify denying to an accused person in all cases a right, which he or she has otherwise demonstrated, to the disclosure of the statements for the purposes of a fair trial. Generally, 69 See for example, R v Maguire and Others, supra n.56 and Regina v Ward, supra n.56. 70 See Stinchcombe v The Queen, supra n.56, at 215-216. 36 \f\u201cthe search for truth is advanced rather than retarded by disclosure of all relevant material.\u201d71 MAHOMED DP", "It has also been suggested that any obligation on the State to disclose witnesses\u2019 statements will place an onerous burden on the prosecution and may lead to delays in bringing an accused to trial.72 In my view this is not an objection of any great weight. Witnesses\u2019 statements have to be prepared in any event in many cases before a charge is proffered and in almost all cases before the trial commences. As I have previously said, such disclosure will not be necessary in a large number of cases because the State may be able successfully to contend that, regard being had to the relative triviality of the charge or its inherently simple content or the particularity already furnished to the accused or from such other circumstances, no access to the police docket is justified for the purposes of ensuring a fair trial for the accused. However, even in cases where the State does not establish such justification, it would not lead to substantial delays 71 Stinchcombe\u2019s case, supra n.56, at 216; See also, S v Nasser, supra n.56, at 75E-F; Khala\u2019s case, supra n.25, BCLR at 111E-J; SA 242E-J; S v Sefadi, supra n.33, BCLR at 38C; SA at 447F; S v Botha and Others, supra n.52, BCLR at 114C; SA at 823I; Phato\u2019s case, supra n.52, BCLR at 125D-I; SA at 827H-828D; S v Fani, supra n.32, BCLR at 46B; SA at 621I; International Tobacco Company v The United Tobacco Companies Ltd (2) 1953 (3) SA 879 (W) at 883D; S v Mayo supra n. 23 at 661 (G); S v Jija, supra n.67, at 60H-618B. 72 R v Steyn, supra n.9, at 334H; Stinchcombe v The Queen, supra n.56, at 215; S v Nasser, supra n.56, BCLR at 74J; S v Sefadi, supra n.33, BCLR at 25H-I; SA at 435E; Phato\u2019s case, supra n.52, BCLR at 123I-J; SA at 826C. 37 \fMAHOMED DP or burdens upon the State, because the statements will in any event have had to be prepared for the prosecution to commence. Indeed, in many cases the prior production of witnesses\u2019 statements might even shorten the kind of delays which sometimes occur during the trial when the defence asks for opportunities to \u201cobtain instructions\u201d for cross- examination. As I previously remarked, the disclosure might in many instances lead to guilty pleas and shorten delays which would otherwise result.73", "A related objection is that the trial might become side- tracked into \u201cextraneous issues\u201d as to what a witness might or might not have said on a previous occasion.74 Such issues may not always be so extraneous. They might be crucial to determine the guilt or innocence of the accused. In cases where they might be of peripheral relevance and of no effective assistance to the Court, the presiding officer has the authority and the experience to control the resultant debate and not to accord to it a weight disproportionate to its importance. 73 Stinchcombe\u2019s case, supra n.56, at pages 215-216. 74 R v Steyn, supra n.9, at 335A; S v Majavu, supra n.52, BCLR at 80D- E; SA at 312C-D; S v Sefadi, supra n.33, BCLR at 25H-I; SA at 435E-F. 38 \f[49] It is also contended that the disclosure of statements MAHOMED DP might lead to intimidation of witnesses and be prejudicial to the ends of justice or to State interests.75 It is difficult to see the force of this argument with respect to statements falling within the categories referred to in items 1 and 2 of paragraph 40 above. Any interests of the State in the non-disclosure of such statements must substantially be outweighed by the right of the accused person to obtain access to such statements for the purposes of a fair trial.", "If the conflicting considerations are weighed, there appears to be an overwhelming balance in favour of an accused person\u2019s right to disclosure in those circumstances where there is no reasonable risk that such disclosure might lead to the disclosure of the identity of informers or State secrets or to intimidation or obstruction of the proper ends of justice. The \u201cblanket docket privilege\u201d which effectively protects even such statements from disclosure therefore appears to be unreasonable, unjustifiable in an open and democratic society and is certainly not necessary. 75 S v Botha and Others, supra n.52, BCLR at 98E-H; SA at 807E-I; Khala v The Minister of Safety and Security, supra n.25, BCLR at 101B-J; SA at 231E- 232D; S v Majavu, supra n.52, BCLR at 79J-80J; SA at 311B-I; Stinchcombe v The Queen, supra n.56 at 216-217. 39", "What about statements falling within items 3 and 4 of MAHOMED DP paragraph 40? The claim of the accused to the statements referred to in these categories, however justifiable on its own for the purposes of a fair trial, must be weighed against conflicting interests of real substance. The result of affording access to such statements to the accused in these circumstances may indeed impede the proper ends of justice and lead to the intimidation of witnesses. An open and democratic society based on freedom and equality is perfectly entitled to protect itself against such consequences.76 These dangers clearly exist during the trials of members of crime syndicates who sometimes use organised tactics of terror to prevent witnesses coming forward to give evidence.", "In such circumstances it might be proper to protect the disclosure of witnesses\u2019 statements and the State might succeed in establishing that such a restriction is reasonable, justifiable in an open and democratic society based on freedom and equality and that it is necessary and does not negate the essential content of a right to a fair 76 see, for example, Stinchcombe v The Queen, supra n.56, at 217; Commissioner of Police v Ombudsman (1988) 1 NZLR 385 at 395. 40 \fMAHOMED DP trial.77 Even in such cases, however, it does not follow that the disclosure of the statements concerned must always be withheld if there is a risk that the accused would not enjoy a fair trial. The fair trial requirement is fundamental. The court in each case would have to exercise a proper discretion balancing the accused\u2019s need for a fair trial against the legitimate interests of the State in enhancing and protecting the ends of justice.", "The real problems arise, however, not with this principle but with its application. Who determines whether there is a reasonable risk that the disclosure of such statements might reasonably lead to the intimidation of witnesses or the disclosure of State secrets or the identity of informers or otherwise impede the proper ends of justice and how is that to be decided? And how is that to be balanced against the right of the accused to a fair trial in a particular case? The rule in Steyn\u2019s case78 would protect these statements from disclosure on the sole jurisdictional ground that they are contained within the police docket without any need for the prosecution to show 77 Section 33 of the Constitution; Khala v The Minister of Safety and Security, supra n.25, BCLR at 98E-F; SA at 228F-H; Qozoleni v The Minister of Law and Order and Others, supra n.52 BCLR at 87B-F; SA at 640F-J; S v Makwanyane and Others, supra n.42, para\u2019s 102, 217, 297. 78 supra n.9. 41 \fMAHOMED DP that the disclosure of the relevant statement would involve a breach of the nature referred to in item 3 of paragraph 40 above or the risk referred to in item 4. That, appears to me, to be unacceptable. If there is no obligation on the part of the prosecution to justify its claim, injustice towards the accused might be a real and indefensible risk. The alternative is therefore to entrust the Court with the task of enquiring whether the disclosure of the relevant documents fall within the categories referred to in items 3 or 4 of paragraph 40 above, because it would then be able to exercise a proper discretion on the facts of a particular case in order to decide whether the State should or should not be compelled to make the statement available to the defence. It is not, however, a course unattended by some difficulties. In order to exercise a proper discretion the Court would have to be equipped with the contents of the relevant statements so as to decide on the weight to be attached to the objection proffered on behalf of the State to their disclosure. Ordinarily the Court would want to hear the input of the accused in that regard but, if the accused had access to the very documents sought to be protected in order to make a proper input, the whole object of the protection might be defeated. Conceivably, even disclosure of peripheral information, not directly leading to the disclosure of the statements sought to be 42 \fMAHOMED DP protected, might prejudice the State\u2019s interest. In the result, the State might be compelled either to disclose a statement in circumstances where the proper ends of justice are impeded or to abandon, perhaps, what might be a prosecution of substantial merit.", "These arguments are clearly not without merit, but they must be weighed against the compelling objection that, if the claims of the State in justification of non-disclosure are not subject to judicial adjudication, an accused person might wrongly be refused access to statements and documents which the accused legitimately needs for his or her defence. There is therefore the danger of an unfair trial.", "How are these conflicting considerations to be resolved? This is an issue largely to be determined by the Supreme Court, regard being had to the following: a) It is difficult to conceive of any circumstances in which the prosecution can justify withholding from the accused access to any statement or document in the 43 \fpolice docket which favours the accused or is MAHOMED DP exculpatory.79 b) The unilateral claim of the prosecution in its justification of a refusal to allow access on the grounds that such access might defeat the objects of the protection in items 3 and 4 of paragraph 40 above cannot be sufficient in itself. c) Sufficient evidence or circumstances ought to be placed before the judicial officer to enable the Court to apply its own mind in assessing the legitimacy of the claim. It is for the Court to decide what evidence would be sufficient in a particular case and what weight must be attached thereto. d) Inherently there might be some element of uncertainty as to whether the disclosure of the relevant documents might or might not lead to the identification of informers or to the intimidation of witnesses or the impediment of the proper ends of justice. The judgment of the prosecuting and investigating authorities in regard to the assessment of such risks might be a very potent factor in the adjudication process. Police officers with long experience and 79 Regina v Keane, [1994] 2 ALL ER 478; R v Leyland Magistrates, ex parte Hawthorn, supra n.56; R v Ward, supra n.56; R v Brown (Winston), supra n. 56; Stinchcombe v The Queen, supra n.56. 44 \fMAHOMED DP acquired skills and with access to sources which can sometimes not be disclosed, quantified and identified, have an advantage which the Court does not always have. What the prosecution must therefore be obliged to do (by a proper disclosure of as much of the evidence and material as it is able) is to establish that it has reasonable grounds for its belief that the disclosure of the information sought carries with it a reasonable risk that it might lead to the identity of informers or the intimidation of witnesses or the impediment of the proper ends of justice. It is an objective test. It is not sufficient to demonstrate that the belief is held bona fide. It must be shown that a reasonable person in the position of the prosecution would be entitled to hold such a belief. e) If the State is unable to justify its opposition to the disclosure of the relevant information on these grounds, its claim that a refusal of access to the relevant documents is justified, should fail. f) If, in the special circumstances of a particular case, the Court needs access to disputed documents concerned in order to make a proper assessment of the legitimacy of the prosecution\u2019s claim and any insight in that document might reasonably defeat the object of the 45 \fMAHOMED DP protection which the prosecution is anxious to assert, the Court would be entitled to examine such a document for this purpose without affording to the accused a opportunity of any knowledge of its contents but making proper allowance for that factor in the ultimate act of adjudication.80 g) Even where the State has satisfied the Court that there is a reasonable risk that the disclosure of the statements or documents sought might impair the protection and the concerns referred to in items 1 or 2 of paragraph 40 above or in any way impede the proper ends of justice, it does not follow that access to such statements in such circumstances must necessarily be denied to the accused. The Court still retains a discretion. There may be circumstances where the non-disclosure of such statements might carry a reasonable risk that the accused may not receive a fair trial and might even wrongly be convicted. The Court should exercise a proper discretion in such cases by balancing the degree of risk involved in attracting the consequences sought to be avoided by the prosecution (if access is 80 see, for example, Regina v Davis, [1993] 1 W.L.R. 613; Regina v Ward, supra n.56; Regina v Keane supra n.79; Regina v Brown (Winston), supra n.56; Stinchcombe v The Queen, supra n.56 at 219. 46 \fMAHOMED DP permitted) against the degree of the risk that a fair trial might not ensue (if such access is denied). What is essentially involved is a judicial assessment of the balance of risk not wholly unanalogous to the function which a judicial officer performs in weighing the balance of convenience in cases pertaining to interdicts pendente lite. h) It clearly follows from these conclusions that the blanket rule of privilege articulated in Steyn\u2019s case81 cannot survive the discipline of the Constitution.", "In making the aforegoing analysis I have addressed only the issue as to whether and in what circumstances the contents of witnesses\u2019 statements should or should not be disclosed to an accused person for the purposes of the proper conduct of the defence. The next issue which arises is when such disclosure must be made if the State fails to justify a refusal to allow the accused access to such material. In many cases such disclosure would be made at the time when the accused is acquainted with the charge or the indictment or immediately thereafter.82 But if the prosecution succeeds in justifying its assertion that there is a 81 supra n.9. 82 cf S v Khoza, supra n.52 at 617. 47 \fMAHOMED DP reasonable risk that the disclosure of such material at that stage might impede the proper ends of justice and the Court does not exercise its discretion in favour of the accused at that time, it does not follow that the relevant statements or documents will necessarily remain forever protected during the course of the prosecution. There is a need to assess the extent of the risk at all relevant times during the prosecution. It may be possible to disclose certain parts and not others or some parts earlier than others. There may, for example, be adequate and demonstrable justification for the apprehension that, if the statement of a particular witness is disclosed, there is a reasonable risk that such a witness would be intimidated and would thereafter refuse to testify if his or her identity became known. That objection would, however, not necessarily apply once the witness has given evidence in chief because by that time his or her identity will obviously be known in any event. There might in such circumstances be no justification for refusing to allow the defence to have access to the statement of the witness for the purpose of enabling it to test the consistency of that statement with his or her evidence in chief or any other assertions the witness might make during cross-examination. The crucial determinant is what is fair in the circumstances, regard being had to what might be 48 \fMAHOMED DP conflicting but legitimate considerations. \u201cWhat the charter guarantees is a fair trial, not the most favourable procedure imaginable and the fairness involves the weighing of the public interests in the equation.\u201d83 Again, it follows from this that the rule in Steyn\u2019s case84 is clearly unsustainable in its present form.", "In making this analysis I have substantially confined myself to the problem of access to witnesses\u2019 statements included in the police docket. There might be other documents in the docket such as expert and technical reports, for example, which might also be important for an accused to properly \u201cadduce and challenge evidence\u201d,85 and therefore for the purposes of ensuring a fair trial. Such documents would seem to fall within the same principles which I have discussed in dealing with witnesses\u2019 statements.", "The details as to how the Court should exercise its discretion in all these matters must be developed by the Supreme Court from case to case but always subject to the 83 Per La Forest, Thompson Newspapers Limited and Others v Directer of Investigation and Research and Others 67 DLR 161 at 260. 84 supra n.9. 85 Section 25(3)(d) of the Constitution. 49 \fright of an accused person to contend that the decision made by the Court is not consistent with the Constitution. MAHOMED DP Consultations with State Witnesses", "The Court a quo refused the applications of the accused to consult with the witnesses for the State on the ground that it could not conclude that the accused would not be given a fair trial without that relief. Cloete J stated, however, that- \u201cthe Courts have repeatedly given effect to the practice whereby an accused or his legal representative may only consult with a State witness with the consent of the prosecutor.\u201d86", "The practice to which Cloete J refers does indeed appear from the authorities which he quotes.87 The origins of this practice do not appear to rest on any specific provision of the common law or any relevant statutory provision. It seems clearly to be founded on ethical rules of professional practice both in South Africa and abroad. The South African rule is Rule 4.3.2 of the Uniform Rules of Professional Ethics of the various Societies of Advocates. It reads as follows: \"4.3.2 Criminal Proceedings 86 Shabalala\u2019s case, supra n.1, BCLR at 121B-C; SA at 644G. 87 S v Hassim and Others 1972 (1) SA 200 (N); S v Mangcola and Others 1987(1) SA 507 (C); S v Tjiho 1992(1) SACR 639 (Nm); S v Gquma and Others (3) 1994(2) SACR 187 (C). 50 \fMAHOMED DP (a) (b) Unless they have obtained the permission of the attorney-general or of the prosecutor to do so, and unless they comply with any conditions which either of the latter may have imposed when granting such permission, the legal representatives of an accused person may not, at any time after the accused person has been arrested or charged and before he has been convicted or acquitted in respect of the charge against him, interview any other person in connection with such charge or the evidence relating thereto whom they know to be a witness for the prosecution in relation to such charge. It is the duty of the legal representatives of an accused person, when they do not know whether or not any other person is a witness for the prosecution in relation to the charge against the accused person but when the circumstances are such that it is reasonable to suppose that such other person may be, to ascertain either from such other person or from the prosecutor or the police, before endeavouring to interview such other person in circumstances in which to do so is prohibited in terms of paragraph (a) above, whether or not such other person is in fact a witness for the prosecution in relation to such charge. (c) For the above purpose of paragraphs (a) and (b) above, a witness for the prosecution in relation to a charge against an accused person: (i) is someone from whom at any time, whether before or after the accused person was arrested or charged, the prosecutor has or the police have obtained a statement in connection with such charge or the events from which it has ensued; (ii) is also someone who, having been called by the prosecutor to do so, has testified during the trial resulting from such charge; (iii) is, notwithstanding that the prosecutor has, or the police have, obtained a statement from him in connection with such charge or the events from which it has ensued, not someone whom the prosecutor has decided not to call to testify during the trial resulting from such charge. (d) It is the duty of every prosecutor: (i) when he has decided that any person from whom he has or the police have obtained a statement in connection with the charge against an 51 \fMAHOMED DP accused person or the events from which it has ensued will not be called to testify during the trial resulting from such charge, forthwith to notify the defence of that decision, to supply it with all the statements of such persons which are in his possession, except for any parts thereof protected from disclosure by reason of some lawful privilege, and to inform it of any other statements of such person previously in his possession and of the reason for their having ceased to be; when any person from whom he has or the police have obtained a statement in connection with the charge against an accused person or the events from which it has ensued has been called to testify during the trial resulting from such charge, and when while doing so such person has contradicted or materially deviated from the contents of such statement, immediately to notify the defence of that circumstance and to supply it with such statement. (ii) (e) (i) For the purposes of paragraph (d) above, the defence is; any legal representative of the accused person in a case in which he is legally represented; (ii) the accused person in a case in which he is not legally represented.\"", "There were previous ethical rules accepting substantially the same practice.88", "Whatever be the origin of the rule that an accused person may not consult State witnesses save with the permission of the Attorney-General or the prosecutor, it subsequently became entrenched in practice and now forms such a basic part of our system of criminal justice as to make it effectively impossible for an accused person to get his or 88 See S v Hassim and Others, supra n.87, at 201 A-C. 52 \fMAHOMED DP her legal representative to consult with such witnesses without the permission of the prosecuting authority. Any legal practitioner who does so would be guilty of unprofessional and unethical practice.89 Moreover, a breach of an ethical rule has been held to be capable of constituting an irregularity in the trial.90", "The question which arises is whether such a practice can constitute a denial of the right to a fair trial to an accused person in terms of section 25(3) of the Constitution. In many cases it would not because the accused or his or her legal representative would have a full opportunity of canvassing with the witness during cross-examination relevant material which he or she would otherwise have wanted to canvass in consultation. But there may be circumstances where the right to a fair trial might justify a prior consultation with a State witness. An accused might wish to canvass with the witness the identity or whereabouts of some person vital to his or her alibi and there may be a real risk that the evidence would be lost if the witness is not immediately traced. In a prosecution for culpable homicide there may be an urgent 89 S v Hassim and Others, supra n.87. 90 S v Mangcola and Others, supra n.87, at 509-510. 53 \fMAHOMED DP need to trace the whereabouts of a particular motor car in order to identify the nature of the damage sustained by it during a collision and there may again be a real danger that, if the witness was not consulted, such evidence might be lost, obscured or distorted by the subsequent use of the vehicle. Many other such examples are conceivable.", "The relevant issue is not whether or not such consultations would ordinarily be justified in order to ensure a fair trial but whether it could legitimately be said that such consultations can never be justified. If it cannot be said that such consultations are never justified, the blanket prohibition against the right of an accused to consult State witnesses (without the consent of the prosecution), regardless of the circumstances or the conditions, might indeed bear unfairly on the accused.", "This consideration is, however, not in itself decisive in determining whether the rule is indeed unconstitutional because the prejudicial effects of the application of the rule must be weighed against other factors which also bear upon the problem.", "The first such factor is that a State witness might be intimidated during such a consultation and might even be 54 \fMAHOMED DP discouraged from making a statement in the first place if the witness is aware of the risk that he or she might have to consult with the accused or his or her legal representative. This is a legitimate consideration but its impact is substantially deflected by the consideration that no witness can be obliged to attend such a consultation. The witness can be informed of this right and he or she could simply exercise that right by declining the opportunity to consult with the defence.91", "There is a second and related consideration. If such a witness does attend a consultation with the defence, arguments might subsequently develop at the trial as to what he or she did or did not say on such an occasion. This is undoubtedly an undesirable risk but, if the consultation is always subject to the condition that it must be held in the presence of the Attorney-General or a prosecutor or official nominated by them and the interview is recorded, the risk which I have mentioned would substantially be attenuated.92 It is perfectly true that this would impose some strain on the State to make personnel and facilities available, but it must be 91 S v Botha and Others, supra n.52, BCLR at 124B; SA at 833I; c/f S v Le Roux and Others, unreported judgment, WLD, Case No 64/94 at 13. 92 S v Botha and Others, supra n.52, BCLR at 124B-C; SA at 834A. 55 \fMAHOMED DP remembered that there may not be many cases in which such consultations can be justified on the ground that a fair trial will be impaired if such prior consultation is not allowed and on the ground that the opportunities subsequently offered to the accused in cross-examination of the witness to canvass the relevant issues, will not sufficiently compensate the accused for the disadvantage.", "My real difficulty with the present rule is its blanket prohibition against all consultations regardless of the circumstances unless the consent of the prosecuting authority is obtained. To that extent, it is unjustified, because it might in some cases impair the right of the accused to a fair trial. Moreover, such a blanket rule of exclusion cannot be justified under Section 33 of the Constitution. It is unreasonable, unjustifiable in an open and democratic society based on freedom and equality and unnecessary. Whatever be its motivation, it must in part at least be based on two untenable propositions. The first is that there can be no circumstances in which the right to a fair trial would justify a consultation with a State witness at the instance of an accused. For the reasons I have already discussed that proposition must be incorrect. The second proposition is that, because the prosecution interviewed a relevant witness first, it had some kind of 56 \fMAHOMED DP right to preclude an accused person from seeing the same witness because he or she was late in the queue or because the State acquired some kind of \"property\" in the witness. That is manifestly incorrect.93", "It follows from these conclusions that the blanket rule which prohibits an accused person from consulting with a State witness without the permission of the prosecuting authority in all cases and regardless of the circumstances is too wide and is not protected by section 33 of the Constitution. However, the claim to consult State witnesses without the prior permission of the prosecuting authority can only be justified in circumstances where the right of the accused to a fair trial would in the special circumstances of the case be impaired if the defence is denied the opportunity to have such consultations.", "If such consultation is denied to the accused in these circumstances the Court must have the right, in an appropriate case, to test the legitimacy of any such denial and to direct access to a witness for the purpose of such consultation, if such a course is justified for the purpose of ensuring a fair trial. 93 see Harmony Shipping Co SA v Davis and others [1979] 3 All ER 177 C.A. 57 \fMAHOMED DP", "Even in cases where the Court takes the view that the requirements of a fair trial indeed justify such consultations with State witnesses in a particular case, it does not necessarily follow that it is obliged to direct access by the accused to the witnesses for such consultation purposes. The Court has a discretion to refuse such a direction if the prosecution is able to establish through the relevant evidence and circumstances, that there is a reasonable risk that such access might lead to the intimidation of the witness or otherwise prejudice the proper ends of justice. It would not be sufficient, however, for the State merely to establish that that is its bona fide belief. It must show that a reasonable person in the position of the prosecution would hold such a belief and, even in such a case, the Court would be entitled to exercise its discretion against the prosecution by balancing the interests of the accused against the interests of the State. Order", "In the result I would make an order declaring that - A. 1. The \"blanket docket privilege\" expressed by the rule in R v Steyn 1954 (1) SA 324 (A) is 58 \fMAHOMED DP inconsistent with the Constitution to the extent to which it protects from disclosure all the documents in a police docket, in all circumstances, regardless as to whether or not such disclosure is justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial in terms of section 25(3). 2. The claim of the accused for access to documents in the police docket cannot be defeated merely on the grounds that such contents are protected by a blanket privilege in terms of the decision in Steyn\u2019s case. 3. Ordinarily an accused person should be entitled to have access to documents in the police docket which are exculpatory (or which are prima facie likely to be helpful to the defence) unless, in very rare cases, the State is able to justify the refusal of such access on the grounds that it is not justified for the purposes of a fair trial. 4. Ordinarily the right to a fair trial would include access to the statements of witnesses (whether or not the State intends to call such witnesses) and such of the contents of a police docket as are relevant in order to enable an accused person properly to exercise that right, but the prosecution may, in a particular case, be able to justify the denial of such access on the grounds that it is not justified for the purposes 59 \fof a fair trial. This would depend on the circumstances of each case. MAHOMED DP 5. The State is entitled to resist a claim by the accused for access to any particular document in the police docket on the grounds that such access is not justified for the purposes of enabling the accused properly to exercise his or her right to a fair trial or on the ground that it has reason to believe that there is a reasonable risk that access to the relevant document would lead to the disclosure of the identity of an informer or State secrets or on the grounds that there was a reasonable risk that such disclosure might lead to the intimidation of witnesses or otherwise prejudice the proper ends of justice. 6. Even where the State has satisfied the Court that the denial of access to the relevant documents is justified on the grounds set out in paragraph 5 hereof, it does not follow that access to such statements, either then or subsequently must necessarily be denied to the accused. The Court still retains a discretion. It should balance the degree of risk involved in attracting the potential prejudicial consequences for the proper ends of justice referred to in paragraph 5 (if such access is permitted) against the degree of the risk that a fair trial may not enure for the accused (if such access is denied). A ruling by the Court pursuant to this paragraph shall be an further interlocutory amendment, review or recall in the light of subject ruling to 60 \fcircumstances disclosed by the further course of the trial. MAHOMED DP B. 1. Insofar and to the extent that the rule of practice pertaining to the right of an accused or his legal representative to consult with witnesses for the State prohibits such consultation without the permission of the prosecuting authority, in all cases and regardless of the circumstances, it is not consistent with the Constitution. 2. An accused person has a right to consult a State witness without prior permission of the prosecuting authority in circumstances where his or her right to a fair trial would be impaired, if, on the special facts of a particular case, the accused cannot properly obtain a fair trial without such consultation. 3. The accused or his or her legal representative should in such circumstances approach the Attorney-General or an official authorized by the Attorney-General for consent to hold such consultation. If such consent is granted the Attorney-General or such official shall be entitled to be present at such consultation and to record what transpires during the consultation. If the consent of the Attorney- General is refused the accused shall be entitled to approach the Court for such permission to consult the relevant witness. 61 \f4. The right referred to in paragraph 2 does not entitle an accused person to compel such consultation with a State witness:- MAHOMED DP (a) if such State witness declines to be so consulted; or (b) if it is established on behalf of the State that it has reasonable grounds to believe such consultation might lead to the intimidation of the witness or a tampering with his or her evidence or that it might lead to the disclosure of State secrets or the identity of informers or that it might otherwise prejudice the proper ends of justice. 5. Even in the circumstances referred to in paragraph 4(b), the Court may, in the circumstances of a particular case, exercise a discretion to permit such consultation in the interest of justice subject to suitable safeguards. Chaskalson P, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O\u2019Regan J and Sachs J concur in the judgment of Mahomed DP. 62 \fCounsel for the Applicants/Accused: RKR Zeiss SC SJJ Van Rensburg Instructed By: The Minister of Justice Counsel for the First Respondent: JA Van S D\u2019Oliveira SC HM Meintjies E Leonard Instructed by: The Attorney-General, Transvaal 63 \fCounsel for the Second Respondent: E Bertelsmann SC JG Cilliers Instructed by: The State Attorney, Pretoria 64"], "max_length_judgement_paras": 947}, {"title": "Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/13.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-13.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/13.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\n \n\n \n \nIn the matter between: \n \n \nFERREIRA, CLIVE \n \n \nand \n \n \nLEVIN, ALLAN NO \n\n \n\n \n\n \n \nWILKENS, ANDREW DAVID \n\n \n\n \n\n \n\n \n\n \n\n \n\nCOOPER, BRIAN ST CLAIR \nVAN DER MERWE, SCHALK WILLEM NO \nIn their capacities as the joint \nprovisional liquidators of Prima \nBank Holdings Limited \n \n \nTHE MASTER OF THE SUPREME COURT \n\n \nand \n \nVRYENHOEK, ANN \n\n \n\nVRYENHOEK, LUKE JOHN \n\nVRYENHOEK, ANDREW \n\n \nand \n \nPOWELL, OLIVER NO \n\nBRETT, JJ NO \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\nCASE NUMBER: CCT \n5/95 \n\n \n\nApplicant \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \nRespondent \n\n1st \n\n \n\n \n\n \n\n \n\n \n\n \n \n\n \n \nRespondents \n\n \n2nd \n\n \n\n \n\n \n \nRespondent \n\n \n 3rd \n\n \n \n 1st Applicant \n \n \n \n2nd \nApplicant \n\n \n3rd Applicant \n\n \n\n \n\n \n \nRespondent \n \n \n\n \n1st \n\n \n2nd \n\n\fAVFIN INDUSTRIAL FINANCE (PTY) LTD \n\n \n\n \n\nRespondent \n\n \n3rd Respondent \n\n \n \n \n\n9 May 1995 \n\n \n \nHeard on: \n \nDelivered on: 6 December 1995 \n \n______________________________________________________________________\n_____ \n \n \n______________________________________________________________________\n_____ \nAckermann J. \n \n \nThe issues \n \n\nJUDGMENT \n\n \n\n[1] \n\nThe two referrals before us (the \"Ferreira referral\" and the \"Vryenhoek referral\") \n\nwere heard together for the sake of convenience (as they were in the \n\nWitwatersrand Local Division of the Supreme Court by Van Schalkwyk J) \n\nbecause identical issues arise in both cases. These issues concern the alleged \n\ninconsistency of certain provisions in section 417 of the Companies Act, No. 61 \n\nof 1973, as amended (\"the Act\") relating to the examination of persons in \n\nwinding-up proceedings, with the Constitution of the Republic of South Africa, \n\n1993 (\"the Constitution\" or \"the transitional Constitution\"). Section 417 of the Act \n\nprovides as follows - \n\n \n\n\"417. Summoning and examination of persons as to affairs of \n\ncompany. \n\n(1) \n\nIn any winding-up of a company unable to pay its debts, \nthe Master or the \n\n\f \n \n\n \n\n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 3 \n\nACKERMANN J \n\nin \n\nafter \n\nCourt may, at any \ntime \na \nwinding-up order \nhas been made, \nsummon before \nhim or \nit any \ndirector or officer \nof the company \nor person known \nor suspected to \nhave \nhis \npossession any \nthe \nproperty of \ncompany \nor \nbelieved \nto be \nindebted to the \ncompany, or any \nperson whom the \nthe \nMaster or \nCourt \ndeems \ncapable of giving \ninformation \nconcerning \nthe \ntrade, dealings, \naffairs or property \nof the company.\n \n \n\n \n \n\n \n\n(1A) Any person summoned under subsection (1) may be \nrepresented at his attendance \nbefore the Master or the Court \nby an attorney with or without \ncounsel. \n \n\n \n\n \n\n \n\n(2)(a) The Master or the Court may examine any person \nsummoned under sub-section (1) on oath or affirmation \nconcerning any matter referred to in that subsection, either \norally or on written interrogatories, and may reduce his \nanswers to writing and require him to sign them. \n\n (b) Any such person may be required to answer any question \nput to him at the examination, notwithstanding that the \nanswer might tend to incriminate him, and any answer given \nto any such question may thereafter be used in evidence \nagainst him. \n\n(3) \n\nThe Master or the Court may require any \n\n\f \n \n\n \n\n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 4 \n\nACKERMANN J \n\n \n\n(4) \n\nsuch person to produce any books or papers \nin his custody or under his control relating to \nthe company but without prejudice to any lien \nclaimed with regard to any such books or \npapers, and the Court shall have power to \ndetermine all questions relating to any such \nlien. \n\nIf any person who has been duly summoned \nunder subsection (1) and \nto whom a \nreasonable sum for his expenses has been \ntendered, fails to attend before the Master or \nthe Court at the time appointed by the \nsummons without lawful excuse made known \nto the Master or the Court at the time of the \nsitting and accepted by the Master or the \nCourt, the Master or the Court may cause him \nto be apprehended and brought before him or \nit for examination. \n\n(5) \n\nAny person summoned by the Master under subsection (1) \nshall be entitled to such witness fees as he would have \nbeen entitled to if he were a witness in civil proceedings in a \nmagistrate's court. \n\n(6) Any person who applies for an examination or enquiry in \nterms of this section or section 418 shall be liable for the \npayment of the costs and expenses incidental thereto, \nunless the Master or the Court directs that the whole or any \npart of such costs and expenses shall be paid out of the \nassets of the company concerned. \n\n(7) Any examination or enquiry under this section or section \n418 and any application therefore shall be private and \nconfidential, unless the Master or the Court, either generally \nor in respect of any particular person, directs otherwise.\" \n\nAlthough the matters before us are referrals, and not appeals or applications in \n\nthe ordinary sense, \n\nthe parties will be referred to (and described) as they were in the Court below. \n\n \n\n[2] \n\nIn the winding-up of two companies unable to pay their debts, the applicants \n\n\fwere summoned for examination (\"the section 417 examination\" or \"the section \n\n\u03a0\u03b1\u03b3\u03b5 5 \n\nACKERMANN J \n\n417 enquiry\") pursuant to the provisions of sub-sections (1) and (2) of section \n\n417 of the Act. During the course of their examination, the applicants in both the \n\nFerreira and the Vryenhoek cases objected to being compelled, by virtue of the \n\nprovisions of section 417(2)(b), to answer questions put to them which might \n\ntend to incriminate them. They applied to the Witwatersrand Local Division of the \n\nSupreme Court for a temporary interdict against the respondents, prohibiting the \n\nfurther interrogation of the applicants pending the determination of the \n\nconstitutionality of section 417(2)(b) of the Act. \n\n \n \n\n \n\n[3] \n\nOn 28 November 1994 Van Schalkwyk J dismissed both the applications for \n\ninterim relief, granted leave to appeal against such dismissal to the full bench of \n\nthe Transvaal Provincial Division or the Witwatersrand Local Division, if the \n\nJudge President so directed, and referred the following matters to the \n\nConstitutional Court in terms of section 102(1) of the Constitution - \n\n\"1. Whether section 417(2)(b) of the Companies Act 68 \nof 1973, as amended (\"the Act\"), is unconstitutional \nin that it compels a person summoned to an enquiry \nto testify and produce documents, even though such \nperson seeks to invoke the privilege against self-\nincrimination. \n\n 2. Whether evidence given by a person at an enquiry in \nterms of section 417 of the Act falls to be excluded in \nany subsequent criminal proceedings brought \nagainst such person where the evidence may be \n\n \n\n\f\u03a0\u03b1\u03b3\u03b5 6 \n\nACKERMANN J \n\nincriminating and was extracted without recognition \nof such person's privilege against self-incrimination. \n\n 3. Whether a person appearing at an enquiry in terms \nof section 417 of the Act is entitled to have prior \naccess to: \n\n3.1 \n\n3.2 \n\na copy of the record of the \nexamination of all other \npersons examined at \nthe \ninquiry; \nall documents in the possession of the liquidator or \nthose prosecuting \nthe inquiry relevant to the \ninterrogation of such person. \n\n 4. Whether a person is required to give testimony at an \ninquiry in terms of section 417 which testimony may \ntend or have the effect of supporting a civil claim \nagainst such person. \n\n5. Whether a person who has given testimony at an enquiry in \nterms of section 417, which testimony tends to support a \ncivil claim against such person, may have such testimony \nexcluded in any subsequent civil proceedings.\" \n\n \n\nThe referral took place before the current rules of the Constitutional Court were \n\npromulgated on 6 January 1995. \n\n \n \n\n \n\n \n\n \n\n \n\n \n\n[4] \n\nOf the respondents in the two matters, only the second respondent in the \n\nFerreira application and the third respondent in the Vryenhoek application \n\nopposed the relief sought and were represented at the hearing in this Court. The \n\nthird respondent in the Ferreira application (the Master) lodged a memorandum \n\nin the form of an affidavit but did not oppose the relief sought. Certain of the \n\npartners and employees of Coopers and Lybrand, the auditors of Prima Bank \n\n\fHoldings Ltd. (one of the companies in liquidation) were granted leave to \n\n\u03a0\u03b1\u03b3\u03b5 7 \n\nACKERMANN J \n\nintervene as amici curiae in terms of Constitutional Court rule 9 and to present \n\nviva voce argument as well. Written memoranda were invited and accepted from \n\nthe Association of Law Societies, the Public Accountants' and Auditors' Board, \n\nthe South African Institute of Chartered Accountants and the Association of \n\nInsolvency Practitioners of Southern Africa. We are at the beginning stages of \n\nutilising the amicus curiae intervention procedures for which provision is made in \n\nConstitutional Court rule 9. We wish to acknowledge the valuable assistance \n\nderived by this Court from the argument on behalf of the amici curiae, JSN \n\nFourie and others, as well as from the memoranda filed by the above mentioned \n\nprofessional bodies. \n\n \n \n\n \n\n[5] \n\nAll parties were in agreement (expressly or tacitly) that the matter in paragraph 1 \n\nof the order of referral had been properly referred to this Court by Van Schalkwyk \n\nJ in terms of the provisions of section 102(1) of the Constitution. The correctness \n\nof this agreement (or assumption) was not questioned at the hearing of the \n\nmatter before us. On reflection, the assumption appears to be wrong in law and \n\nthe correctness of it, inasmuch as it involves a matter of law (constitutional law in \n\nfact), must be considered by this Court. In so doing it is necessary to say \n\nsomething about the meaning and use of section 102(1) in general. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 8 \n\nACKERMANN J \n\n[6] \n\nFor present purposes the relevant part of section 102(1) provides that - \n\n\"If, in any matter before a provincial or local division of the \nSupreme Court, there is an issue which may be decisive for the \ncase, and which falls within the exclusive jurisdiction of the \nConstitutional Court in terms of section 98(2) and (3), the provincial \nor local division concerned shall, if it considers it to be in the \ninterest of justice to do so, refer such matter to the Constitutional \nCourt \ndecision: \n..........................................................................................................\n.......\". \n\nfor \n\nits \n\n \n\nSection 102(1) does not confer a general discretion on the Court in question to \n\nrefer matters to the Constitutional Court. The referral is mandatory (\"the \n\nprovincial or local division concerned shall ... refer\") and the power and duty to \n\nrefer only arises when the following three conditions are fulfilled: \n\n(a) \n\nthere is an issue in the matter before the Court in question which \n\nmay be decisive for the case; \n\n(b) \n\nsuch \n\nissue \n\nfalls within \n\nthe exclusive \n\njurisdiction of \n\nthe \n\nConstitutional Court; \n\nand, \n\n(c) \n\nthe Court in question considers it to be in the interests of justice to \n\nrefer such issue to the Constitutional Court. \n\n(I use the word \"issue\" in paragraph (c) above instead of the word \"matter\", which \n\nappears in the text of section 102(1), because this is the construction which \n\n\fDidcott J, writing for the Court in S v. Vermaas; S v. du Plessis1 gave to the word \n\n\u03a0\u03b1\u03b3\u03b5 9 \n\nACKERMANN J \n\n\"matter\" where it appears for the second time in section 102(1)). \n\nThese conditions are conjunctive and all have to be fulfilled before the Court has \n\nthe power to refer an issue to the Constitutional Court in terms of section 102(1). \n\nIt is true that the fulfilment of conditions (a) and (c) depends upon the Court in \n\nquestion reaching particular conclusions on the basis of the criteria there stated, \n\nbut these conclusions have to be reached (and condition (b) must exist) before \n\nthe Court is empowered and obliged to refer the issue. \n\n \n \n\n \n\n \n\n \n\n11995 (3) SA 292 (CC); 1995 (7) BCLR 851 (CC) at para 10. \n\n\f \n \n[7] \n\nSection 103(4) of the Constitution deals inter alia with the referral by a Provincial \n\n\u03a0\u03b1\u03b3\u03b5 10 \n\nACKERMANN J \n\nor Local division of the Supreme Court to this Court of issues originating in \n\nCourts other than Provincial or Local divisions of the Supreme Court and, in \n\nparticular, with the referral to this Court of an issue regarding the validity of a law \n\nfalling within the exclusive jurisdiction of this Court. In addition to stipulating other \n\nconditions precedent for such referral, the sub-section requires the Povincial or \n\nLocal Division of the Supreme Court to be of the opinion \"that there is a \n\nreasonable prospect that the relevant law or provision will be held to be invalid.\" \n\nAlthough there is no such express requirement in section 102(1), Kentridge AJ, in \n\nMhlungu and Others v. The State2, held that \"it was implicit therein\".3 He further \n\nexplained that \n\n\"[t]he reasonable prospect of success is, of course, to be \nunderstood as a sine qua non of a referral, not as in itself sufficient \nground. It is not always in the interests of justice to make a \nreference as soon as the relevant issue has been raised\".4\n\n(It is clear from the context of the above passage, that Kentridge AJ was dealing \n\nonly with condition (c) of my above analysis.) He explained why it was not always \n\nin the interests of justice to make a referral immediately (an exposition which I \n\nneed not repeat here) and laid down \"as a general principle\" that \"where it is \n\n \n \n\n \n21995 (7) BCLR 793 (CC). \n\n3At para 59. \n\n\fpossible to decide any case, civil or criminal, without reaching a constitutional \n\n\u03a0\u03b1\u03b3\u03b5 11 \n\nACKERMANN J \n\nissue, that is the course which should be followed\".5 Although the Court was \n\ndivided in Mhlungu as to the construction and application of section 241(8), there \n\nwas unanimous agreement with Kentridge AJ's construction and application of \n\nsection 102(1). \n\n \n \n\n \n\n[8] \n\nI round off this general discussion of section 102(1) by pointing out that \n\nConstitutional Court rule 22(2) obliges the judge or judges referring an issue in \n\nterms of section 102(1) to \n\n\"formulate in writing .... the reason why he or she or they consider \nit to be in the interest of justice that the matter be referred.\" \n\n \n\nOn the construction which this Court in Mhlungu placed on the third pre-condition \n\nfor referral (i.e. that it must be in the interest of justice to do so), it therefore \n\nfollows that the judge or judges referring to the Constitutional Court the issue of \n\nthe constitutionality of an Act of Parliament are obliged to furnish written reasons \n \n\n4Id. \n\n5Id. \n\n\f\u03a0\u03b1\u03b3\u03b5 12 \n\nACKERMANN J \n\nwhy it is considered that \n\n(a) \n\nthere is a reasonable prospect that the Act of Parliament in \n\nquestion will be held to be invalid; and \n\n(b) \n\nthe interest of justice requires this issue to be referred at this \n\nparticular stage. \n\n(I hasten to add that when Van Schalkwyk J referred the matter to this Court the \n\njudgment in Mhlungu had not been delivered and rule 22(2) had not been \n\npromulgated). \n\n \n \n\n \n\n[9] \n\nThese principles have to be applied to the referral in the present case. The only \n\nmatters before Van Schalkwyk J were the applications for interim interdicts \n\nagainst the relevant respondents to prohibit further interrogation of the \n\napplicants. In dismissing both applications for interdicts Van Schalkwyk J in fact \n\ndisposed of all (and the only) matters properly before him. At this stage the issue \n\nof the validity of section 417(2)(b) had become irrelevant. He had decided, on the \n\nview he took of the law, that the issue of the validity of section 417(2)(b) was not \n\nrelevant to the matter before him. He could not, on his view of the law, even \n\nconsider the validity issue as part of the interdict enquiry. In adopting this \n\napproach he in fact decided (albeit implicitly) that the matter before him could \n\nand should be decided without reference to the validity issue, in other words, that \n\n\fthe validity issue could not be decisive for the case. The implication of this is that \n\n\u03a0\u03b1\u03b3\u03b5 13 \n\nACKERMANN J \n\nthe first condition for a section 102(1) referral, mentioned in paragraph [6](a) \n\nabove, has not been fulfilled. Accordingly the learned judge was precluded from \n\nreferring the constitutional validity of section 417(2)(b) of the Act to this Court. He \n\nin fact precluded the operation of section 102(1) by deciding the \"case\" or the \n\n\"matter\" before him. \n\n \n \n\n \n\n[10] The possibility that the referral of the paragraph (1) issue might be incompetent \n\nwas not alluded to during argument nor raised by the Court with counsel. When, \n\nhowever, the question of the competence of the referrals of the issues in \n\nparagraphs (2) - (5) of the referral order was raised with Mr. Levine, he \n\nrequested the Court to grant the applicants direct access on these issues in \n\nterms of section 100(2) of the Constitution. I have no doubt that, if the \n\nincompetence of the referral of the paragraph (1) issue had been raised with him, \n\nMr. Levine would likewise have urged the Court to grant direct access on this \n\nissue as well. The matter has been fully argued before us and all the parties are \n\nclamant for a decision from the Court. We were informed that many section 417 \n\nenquiries were being held up because the issue of the constitutionality of section \n\n417(2)(b) had been raised in such enquiries. This is substantially hampering the \n\nproper liquidation of companies and is therefore a matter of such urgency and \n\n\fpublic importance that a ruling should be given thereon. Under the exceptional \n\n\u03a0\u03b1\u03b3\u03b5 14 \n\nACKERMANN J \n\ncircumstances of this case it would be surrendering to the merest formalism if we \n\ndid not deal with the paragraph (1) issue as one which was before us by way of \n\ndirect access in terms of section 100(2) of the Constitution. It should therefore be \n\ntreated as such. The interested parties are amenable to the issue being dealt \n\nwith on this basis. \n\n \n \n\n \n\n[11] \n\nIt was contended on behalf of the respondents that the referral to this Court of \n\nthe issues in paragraphs (2) - (5) of the referral order were not competent in \n\nterms of section 102(1) of the Constitution because none of these issues falls \n\nwithin the exclusive jurisdiction of the Constitutional Court and, consequently, a \n\ncondition precedent to referral has not been fulfilled. \n\n \n\n[12] \n\nIt is not immediately apparent whether the issue referred in paragraph (2) of the \n\nreferral order is premised on the finding that section 417(2)(b) of the Companies \n\nAct is inconsistent with the Constitution by this Court or premised on the finding \n\nthat it is consistent. On either premise it is difficult to see how it can be \n\ncontended that this issue was properly referred. The only issue before van \n\nSchalkwyk J was the interdict sought by the applicants \"to prohibit their further \n\ninterrogation pending the determination of the constitutionality of section \n\n\f417(2)(b) of the Companies Act, by the Constitutional Court.\"6 The matter \n\n\u03a0\u03b1\u03b3\u03b5 15 \n\nACKERMANN J \n\ndetailed in paragraph (2) of the referral order, namely the admissibility of \n\ntestimony given pursuant to the provision of section 417(2)(b) of the Act in \n\nsubsequent criminal proceedings, was simply not an issue before Van Schalkwyk \n\nJ. The wording of section 102(1) of the Constitution is perfectly clear. The only \n\nissue which can be referred to the Constitutional Court is one \"in any matter \n\nbefore a provincial or local division of the Supreme Court.\" Van Schalkwyk J did \n\nnot therefore have the power to refer the paragraph (2) issue to this Court. \n\n \n \n\n \n\n[13] Even if the question of admissibility had been an issue before Van Schalkwyk J, \n\nfor example by way of an application for a declaratory order, it ought not to have \n\nbeen be referred to us, because it does not fall within our exclusive jurisdiction. \n\nAlthough section 101(3) nowhere expressly confers power on the Provincial or \n\nLocal Divisions of the Supreme Court to construe the Constitution, this is an \n\nimplied power, as found by Kentridge AJ in S v. Mhlungu and Four Others.7 \n\nThese Courts are obliged to decide constitutional questions within their \n\njurisdiction, together with discharging their customary duties of construing \n\n \n\n6At p. 2 - 3 of Van Schalkwyk J's judgment. \n\n7Supra note 2 at para 55. Although the judgment of Kentridge AJ was the minority judgment, there \n\nwas no disagreement on this issue. \n\n\fstatutes and applying them, as well as the common law, under the ever present \n\n\u03a0\u03b1\u03b3\u03b5 16 \n\nACKERMANN J \n\ninfluence of the Constitution. These are the Courts which must, in the first \n\ninstance, construe the Constitution and statutory law, even (or perhaps \n\nespecially) when portions of a statute have been declared to be invalid. In this \n\ncontext the following remarks of Kentridge AJ, in S v. Zuma and Others bear \n\nrepeating: \n\n\"The jurisdiction conferred on judges of the Provincial and Local \nDivisions of the Supreme Court under section 101(3) is not an \noptional jurisdiction. The jurisdiction was conferred in order to be \nexercised.\"8\n\n \n \n\n \n\n[14] The issue in paragraph (2) relates exclusively to the admissibility of evidence in \n\nsubsequent criminal proceedings against persons who have testified pursuant to \n\nthe provisions of section 417 and given evidence which tends to incriminate \n\nthem. The question of the admissibility of evidence is, in the first instance, a \n\nmatter for the Court dealing with the criminal proceedings in question. Should \n\nevidence be admitted incorrectly, and this raises a constitutional issue, the \n\nConstitutional Court may ultimately be called upon to decide the issue, but not \n\nbefore; unless the issue is one falling within its exclusive constitutional \n\n \n\n81995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 10. \n\n\f \n \n\n \n\njurisdiction. \n\n\u03a0\u03b1\u03b3\u03b5 17 \n\nACKERMANN J \n\n[15] We were pressed in argument to deal with such other issues because they are \n\nancillary to the issue of the invalidity of section 417(2)(b) of the Act. Neither the \n\ncontext, wording nor purpose of the sections in the Constitution dealing with this \n\nCourt's jurisdiction gives this Court jurisdiction to deal with matters of evidential \n\nadmissibility on the basis that they are ancillary to a section 98(5) declaration of \n\ninvalidity. It was certainly not the purpose of the institution of the Constitutional \n\nCourt, or the framing of its jurisdiction, to require it to give an advisory opinion \n\n(for this is in essence what the applicants seek) as to the admissibility of \n\nevidence in some future criminal proceedings which might be brought against the \n\napplicants. The admissibility of evidence is traditionally, and for very good \n\nreasons, a matter which the trial Court must in the first instance always decide. \n\nThere is no contextual or teleological indication that the framers of the \n\nConstitution wished to depart from this fundamental and self-evident rule. We are \n\nnot here dealing with a case where a criminal trial Court (on a proper application \n\nof section 102(1) of the Constitution as explained above9) has referred to us an \n\nissue regarding the validity of a provision in an Act of Parliament which directly or \n\nindirectly bears on the admissibility of evidence. I accordingly conclude that the \n\n\fmatter set forth in paragraph (2) of the referral order was incorrectly referred to \n\n\u03a0\u03b1\u03b3\u03b5 18 \n\nACKERMANN J \n\nthis Court. \n\n \n \n\n \n\n[16] The matters referred to in paragraph 3 of the referral order relate to the \n\nconstruction of section 417 of the Act and the conduct of proceedings pursuant to \n\nit. These were not, for the reasons previously mentioned, issues before van \n\nSchalkwyk, J. If examinees feel aggrieved by the way a section 417 enquiry is \n\nbeing conducted, they have their ordinary remedies (including review remedies) \n\nin the Supreme Court.10 Had these issues been properly before van Schalkwyk J \n\nhe would have had the jurisdiction to deal with them. They do not fall within the \n\nexclusive jurisdiction of the Constitutional Court. I conclude that these issues \n\nwere also incorrectly referred. \n\n \n\n[17] The issue in paragraph (4) of the referral order is formulated as follows: \n\n\"Whether a person is required to give testimony at an enquiry in \n\n \n \n\n9At paras 6 - 8. \n\n10See Ferreira v Levin NO and Others 1995(2) SA 813 (W) at 843 H. \n\n\f\u03a0\u03b1\u03b3\u03b5 19 \n\nACKERMANN J \n\nterms of section 417 which testimony may tend or have the effect \nof supporting a civil claim against such person.\" \n\nThis issue does not raise the constitutional validity of section 417(2)(b) or any \n\nother statutory provision. In essence it seeks a ruling from this Court as to \n\nwhether the examinee has a privilege to refuse to answer a question which might \n\ntend to support or have the effect of supporting a civil claim against such person. \n\nThis was not an issue before van Schalkwyk J and could not therefore have been \n\nreferred to this Court. If it had been an issue, it would have been one within his \n\njurisdiction and with which he was competent to deal. For both these reasons, it \n\nought not to have been referred to this Court. \n\n \n \n\n \n\n \n\n[18] The issue referred in terms of paragraph 5 of the referral order relates to the \n\nadmissibility in subsequent civil proceedings of testimony given pursuant to the \n\nprovisions of section 417 of the Act. For the reasons set forth, above this too is \n\nan issue which could not competently be referred to this Court. \n\n \n\n[19] The applicants, in their written argument handed in at the hearing (as distinct \n\nfrom their heads of argument lodged pursuant to Constitutional Court rule 19), \n\nsought to counter the problems relating to the competence of paragraph 3 of the \n\nreferral order by submitting that: \n\n\f \n \n\n \n\n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 20 \n\nACKERMANN J \n\n\"The proper exercise of this court's jurisdiction under section 98(5) \nwould ... be to declare under such section as follows: ............. \n\nSection 417(2) of the Companies Act is declared to be inconsistent \nwith the Constitution of the Republic of South Africa Act, no. 200 of \n1993, to the extent that it provides that a person summoned to give \nevidence under section 417(1) of the Companies Act is not \nentitled, as of right, to prior access to - \n\n(a) \n\n(b) \n\nall documents in the possession of the liquidator for an \nexamination or inquiry under section 417 or 418 of the \nCompanies Act, in so far as it relates to such person and \nthe reason or purpose of requiring him to give evidence at, \nand to produce any books or papers in his custody or under \nhis control relating to the company under winding-up; \n\nA copy of the record of the examination of all other persons \nexamined at the enquiry, in so far as it relates to such \nperson and the reason or purpose of requiring him to give \nevidence at, and to produce any books or papers in his \ncustody or under his control relating to the company under \nwinding-up.\"11\n\nThis contention cannot prevail. The invalidity of section 417 of the Act on this \n\nground was not an issue before Van Schalkwyk J and was not referred to this \n\nCourt in the order of referral. In any event, section 417(2) simply does not \n\ncontain the provision imputed to it in the above quoted passage. What applicants \n\nare seeking to obtain from this Court, under the guise of an attack on the validity \n\nof section 417(2), is a declaration of rights concerning the proper conduct of a \n\nsection 417 hearing. This they cannot expect to achieve and will not be permitted \n\nto achieve under a referral pursuant to section 102(1) of the Constitution, \n\nbecause it was not an issue before Van Schalkwyk J and is not an issue within \n\n\fthe exclusive jurisdiction of the Constitutional Court. \n\n\u03a0\u03b1\u03b3\u03b5 21 \n\nACKERMANN J \n\n \n \n\n \n\nThe Constitutional validity of section 417(2)(b) of the Companies Act \n\n[20] The way is now open to consider the only issue properly before this Court, \n\nnamely, the constitutional validity of section 417(2)(b) of the Companies Act. The \n\ngrounds of constitutional inconsistency were formulated as follows in the referral \n\norder: \n\n \n\n\".... it compels a person summoned to an enquiry to testify and \nproduce documents even though such person seeks to invoke the \nprivilege against self-incrimination.\" \n\nSection 417(2)(b) does not compel the production of documents; section 417(3) \n\ndoes. The constitutionality of section 417(3) was not referred to this Court and no \n\namendment of the referral order was sought to incorporate an attack on section \n\n417(3). This ground for the invalidation of section 417(2)(b) is unfounded. \n\nAppreciating this difficulty, the applicants limited their attack to seeking an \n\ninvalidation of section 417(2)(b) \n\n\".... to the extent that it requires a person examined under section \n417(2) of the Act to answer questions which might tend to \n\n \n\n11In para 37 thereof. \n\n\f\u03a0\u03b1\u03b3\u03b5 22 \n\nACKERMANN J \n\nincriminate him and provides that any answers given to any such \nquestion may thereafter be used in evidence against him.\" \n\nThe issue properly before this Court is therefore a relatively narrow one. In the \n\ncase of Bernstein and Others v. L.V.W. Bester NO and Others, CCT 23/95, \n\nheard subsequent to this case on 19 September 1995, a broader attack was \n\nlaunched against sections 417 and 418 of the Companies Act. Nothing contained \n\nin the present judgment is to be interpreted as a prejudgment in any way of this \n\nbroader attack. \n\n \n \n\n \n\n \n\nThe attack based on section 25(3) of the Constitution \n\n[21] The main attack which Mr. Levine, on behalf of the applicants, launched on the \n\nconstitutionality of section 417(2)(b) of the Act was that its provisions were \n\ninconsistent with an accused's rights \"to a fair trial\" as provided in section 25(3) \n\nof the Constitution. For the sake of brevity these rights will be referred to as \"the \n\nsection 25(3) rights\" or \"an accused's section 25(3) rights.\" It was submitted that \n\nthe right against self-incrimination is not limited to detained, arrested or accused \n\npersons (which are the classes of persons to which the section 25 rights apply) \n\nbut that \"the right against self-incrimination is a right recognised under the \n\nConstitution in extra-curial proceedings including proceedings at an enquiry \n\nconstituted in terms of section 417 of the Companies Act.\" \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 23 \n\nACKERMANN J \n\n[22] Mr. Levine submitted that, properly construed, the issue before this Court relating \n\nto the constitutionality of section 417(2)(b) of the Companies Act, was whether: \n\n(a) \n\nthe statutory duty to give answers which might tend to incriminate \n\nthe person examined; and \n\n(b) \n\nthe statutory provision that such answers may thereafter be used \n\nin evidence against the examinee, \n\nlimit any right entrenched in Chapter 3 of the Constitution. Mr. Cilliers, on behalf \n\nof second respondents in the Ferreira referral, submitted that the attack based on \n\nsection 25 of the Constitution was, on the clear and unambiguous wording of the \n\nConstitution, fundamentally flawed. As to (a), Mr. Cilliers submitted that there \n\nwas no general right against self-incrimination expressly enumerated in Chapter \n\n3. Mr. Cilliers rightly conceded that some protection against self-incrimination \n\nwas extended by section 25(2) of the Constitution to \"[e]very person arrested for \n\nthe alleged commission of an offence\" and in terms of section 25(3)(c) and (d) to \n\n\"[e]very accused person\" as part of such person's right to a fair trial. However, \n\nthe rights enumerated in section 25(2)(a) to (d) only apply to arrested persons \n\nand the rights enumerated in section 25(3)(c) and (d) only to an accused person \n\nwhile such person is on trial. \n\n[23] As to (b), Mr. Cilliers submitted that \"the right to a fair trial\" enacted in section \n\n\f25(3) would, unless the context otherwise indicates, require self-incriminating \n\n\u03a0\u03b1\u03b3\u03b5 24 \n\nACKERMANN J \n\nevidence, involuntarily given, to be excluded in the criminal trial of an accused. \n\nThat is the rule of our common law. In R v. Camana,12 Innes CJ observed as \n\nfollows: \n\n\"Now, it is an established principle of our law that no one can be \ncompelled to give evidence incriminating himself. He cannot be \nforced to do that either before the trial, or during the trial.\"13\n\n \n \n\n \n\nMr. Cilliers also submitted that, unless the context of section 25(3) otherwise \n\nindicated, the provisions of section 417(2)(b) of the Act, which enable the State \n\nto use self-incriminating evidence obtained under the legal compulsion of the \n\nlatter section during a criminal trial, limit the accused's section 25(3) right to a fair \n\ntrial. On this approach it is no answer to contend that, at the time of the \n\n \n\n12R v. Camana 1925 AD 570 at 575. \n\n13Id at 575. See also S v. Zuma supra note 8 at para 31; S v. Mabaso and Another 1990 (3) SA \n185 (A) at 208 G; S v. Shangase and Another 1995 (1) SA 425 (D) at 431 D; Nkosi v. Barlow NO en \nAndere 1984 (3) SA 148 (T) at 151 I; S v. Evans 1981 (4) SA 52 (C) 56 A; S v. Robinson 1975 (4) SA 438 \n(RA). \n\n\fexamination under section 417 of the Act, the examinee is not yet an accused \n\n\u03a0\u03b1\u03b3\u03b5 25 \n\nACKERMANN J \n\nperson. The concluding words of section 417(2)(b) of the Act \"and any answer \n\ngiven to such question may thereafter be used in evidence against him\" do refer \n\nto and find application, inter alia, during a subsequent criminal trial. On the other \n\nhand, the mere statutory obligation to answer self-incriminating questions in \n\nextra-curial proceedings is not inconsistent with the \"right to a fair trial\" (for the \n\nexaminee is not an accused and therefore not entitled to invoke the section 25(3) \n\nrights); only the subsequent use of such answers at any criminal trial against the \n\nexaminee would fall within the purview of section 25(3). The applicants are not \n\naccused nor is there any suggestion that they will be accused. Accordingly they \n\ncannot, at the time of their examination under section 417(2)(b) of the Act, rely \n\non the section 25(3) rights. \n\n \n \n\n \n\n[24] The correctness of this attack by Mr. Cilliers on the applicants' argument from \n\nsection 25(3) of the Constitution needs to be considered first, before dealing with \n\nhis other submissions. It seems to me that the only line of reasoning which might \n\ncounter Mr. Cilliers' objection would be along the following lines. There is \n\nauthority in Australia and Canada for the proposition that the common law \n\nprivilege against extra-curial self-incrimination is a substantive right and not \n\n\f \n \n\nmerely a rule of evidence;14 that, without being able to invoke such a right at trial, \n\n\u03a0\u03b1\u03b3\u03b5 26 \n\nACKERMANN J \n\nan accused cannot obtain a fair trial, and therefore reliance upon such right must \n\nbe regarded as an unenumerated section 25(3) right.15 When the examinee at a \n\nsection 417 of the Act enquiry is asked a question which might tend to \n\nincriminate the examinee, he or she objects and raises the common law right \n\nagainst self-incrimination. In so doing, the examinee is not invoking a section \n\n25(3) right, but a substantive common law right. The examiner counters this \n\nobjection by pointing to the repeal of this common law right, in the context of \n\nsection 417 enquiries, by section 417(2)(b) of the Act. The rejoinder of the \n\nexaminee is that such purported repeal is invalid on the grounds that section \n\n417(2)(b) is unconstitutional by virtue of the fact that it is inconsistent with the \n\nsection 25(3) rights of an accused. The objection that the examinee is not an \n\naccused in a criminal trial, and cannot therefore rely on a section 25(3) right \n\nwhich only accrues to an accused, is met by appealing to section 4(1) and \n\n7(4)(b) of the Constitution. Section 4(1) provides in part that - \n\n\"This Constitution shall be the supreme law of the Republic and \nany law inconsistent with [the Constitution's] \nprovisions shall, unless otherwise provided \nexpressly or by necessary implication in this \n\n \n \n\n14See Pyne Board Pty. Ltd. v. Trade Practices Commission (1983) ALJR 236 at 240 G; Sorby and \nAnother v. The Commonwealth of Australia and Others (1983) ALJR 248 at 260 and Solsky v. R. (1979) \n105 D.L.R. (3d) 745 at 757. \n\n15This is of course challenged, but its correctness is assumed for purposes of this part of the \n\nargument. \n\n\f\u03a0\u03b1\u03b3\u03b5 27 \n\nACKERMANN J \n\nConstitution, be of no force and effect to the \nextent of this inconsistency.\" \n\n \n\nThis provision came into operation on 27 April 1994. Section 7(4)(b) provides, \n\ninter alia, that the relief referred to in section 7(4)(a) (which includes a declaration \n\nof rights) may be sought by - \n\n\"(i) \n (ii) \n (iii) \n (iv) \n (v) \n\na person acting in his or her own interest; \n........... \n........... \n........... \na person acting in the public interest.\" \n\n \n \n\n \n\n \n\n[25] There are four parts to the above line of reasoning. The first relates to the \n\nquestion whether the invalidity (being of \"no force and effect\") of a statute (as a \n\nspecies of \"law\") is determined by an objective or a subjective enquiry. The \n\nsecond relates to the question of the time at which such invalidity occurs. The \n\nthird relates to the circumstances under which an appeal to invalidity may be \n\nmade (the question of justiciability) and the fourth to the question as to who may \n\ninvoke the invalidity (locus standi in the narrower sense). \n\n \n\n[26] The answer to the first question is that the enquiry is an objective one. A statute \n\nis either valid or \u201cof no force and effect to the extent of its inconsistency\u201d. The \n\nsubjective positions in which parties to a dispute may find themselves cannot \n\nhave a bearing on the status of the provisions of a statute under attack. The \n\n\fConstitutional Court, or any other competent Court for that matter, ought not to \n\n\u03a0\u03b1\u03b3\u03b5 28 \n\nACKERMANN J \n\nrestrict its enquiry to the position of one of the parties to a dispute in order to \n\ndetermine the validity of a law. The consequence of such a (subjective) approach \n\nwould be to recognise the validity of a statute in respect of one litigant, only to \n\ndeny it to another. Besides resulting in a denial of equal protection of the law, \n\nconsiderations of legal certainty, being a central consideration in a constitutional \n\nstate, militate against the adoption of the subjective approach. This also follows \n\nfrom the wording of section 4(1). The words \"shall be\" do not refer to a date \n\nbeyond 27th April 1994. On 27 April 1994, and subject to the qualification in the \n\ntext of section 4(1) (\"unless otherwise provided expressly or by necessary \n\nimplication in this Constitution\"), a law which is inconsistent with the Constitution \n\nceases to have legal effect. For this reason, it was necessary to enact a \n\nprovision such as section 98(6)(a) of the Constitution which provides that, unless \n\nthe Constitutional Court otherwise orders - \n\n \n\n\"... the declaration of invalidity of a law or a provision thereof - \n\n(a) Existing at the commencement of this Constitution, \nshall not invalidate anything done or permitted in \nterms thereof before the coming into effect of such \ndeclaration of invalidity;\" \n\n \n \n\n \n\n[27] The Court's order does not invalidate the law; it merely declares it to be invalid. It \n\nis very seldom patent, and in most cases is disputed, that pre-constitutional laws \n\n\fare inconsistent with the provisions of the Constitution. It is one of this Court's \n\n\u03a0\u03b1\u03b3\u03b5 29 \n\nACKERMANN J \n\nfunctions to determine and pronounce on the invalidity of laws, including Acts of \n\nParliament. This does not detract from the reality that pre-existing laws either \n\nremained valid or became invalid upon the provisions of the Constitution coming \n\ninto operation. In this sense laws are objectively valid or invalid depending on \n\nwhether they are or are not inconsistent with the Constitution. The fact that a \n\ndispute concerning inconsistency may only be decided years afterwards, does \n\nnot affect the objective nature of the invalidity. The issue of whether a law is \n\ninvalid or not does not in theory therefore depend on whether, at the moment \n\nwhen the issue is being considered, a particular person's rights are threatened or \n\ninfringed by the offending law or not. \n\n \n \n\n \n\n[28] A pre-existing law which was inconsistent with the provisions of the Constitution \n\nbecame invalid the moment the relevant provisions of the Constitution came into \n\neffect. The fact that this Court has the power in terms of section 98(5) of the \n\nConstitution to postpone the operation of invalidity and, in terms of section 98(6), \n\nto regulate the consequences of the invalidity, does not detract from the \n\nconclusion that the test for invalidity is an objective one and that the inception of \n\ninvalidity of a pre-existing law occurs when the relevant provision of the \n\nConstitution came into operation. The provisions of sections 98(5) and (6), which \n\n\fpermit the Court to control the result of a declaration of invalidity, may give \n\n\u03a0\u03b1\u03b3\u03b5 30 \n\nACKERMANN J \n\ntemporary validity to the law and require it to be obeyed and persons who ignore \n\nstatutes that are inconsistent with the Constitution may not always be able to do \n\nso with impunity. \n\n \n \n\n \n\n[29] There is also Canadian authority for such an \n\nobjective approach.16 Peter \n\nHogg describes the position in \n\nthat country as follows: \n\n \n\n\"This practice of \u2018prospective overruling' is difficult to justify in \ntheory, however attractive it may be in practice, and it has never \nbeen accepted by Canadian Courts. For a Canadian Court, a \nconstitutional restriction operates of its own force, even if judicial \nrecognition of the fact has been delayed. Once the Supreme Court \nof Canada has held that a law is unconstitutional, there can be no \ndoubt about the status of the law: it is invalid, and need not be \nobeyed.\u201d17 (Emphasis added) \n\n \n\n16See Re Edward v. Edward (1987) 39 D.L.R. (4th) 654 (Sask. C.A.) at 661 - 664 and R v. Big M \nDrug Mart Ltd. (1985) 13 C.R.R. 64 at 80 where the following was stated: \n\n\"Any accused, whether corporate or individual, may defend a criminal charge by \narguing that the law under which the charge is brought is constitutionally invalid. \nBig M is urging that the law under which it has been charged is inconsistent with \ns. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of \nno force or effect. \n..............................................................................................................................................\n............ \nThe argument that the respondent, by reason of being a corporation, is incapable \nof holding religious belief and therefore incapable of claiming rights under s. 2(a) \nof the Charter, confuses the nature of this appeal. A law which itself infringes \nreligious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter \nand it matters not whether the accused is a Christian, Jew, Muslim, Hindu, \nBuddhist, atheist, agnostic or whether an individual or a corporation. It is the \nnature of the law, not the status of the accused, that is in issue.\" \n\n \n\n17 Constitutional Law of Canada 3ed (1992) 1242. \n\n\f\u03a0\u03b1\u03b3\u03b5 31 \n\nACKERMANN J \n\nThe German Federal Constitutional Court follows a similar approach. Klaus \n\nSchlaich puts it as follows: \n\n\"Das verfassungswidrige Gesetz ist, wie das BverfG formuliert, 'mit \ndem Grundgesetz unvereinbar und daher nichtig'. Das \nverfassungswidrige Gesetz ist von Anfang an (ex tunc) und dies \nohne weiteren gestaltenden Akt (ipso iure) unwirksam....Nach \ndeutscher Auffassung hebt das BverfG verfassungswidrige \nGesetze nicht auf, es vernichtet sie nicht: Es stellt die Nichtigkeit \nnur (deklaratorisch) fest....\u201d (An unconstitutional law is, as the \nFederal Constitutional Court puts it, 'inconsistent with the Basic \nLaw and therefore invalid'. An unconstitutional law is from its \ninception (ex tunc) and without need for any further constitutive act \n(ipso iure) inoperative... The German view is that the Federal \nConstitutional Court does not annul a statute, [the Court] does not \ninvalidate: it merely establishes the invalidity (in a declaratory \nway)).18 \n\n \n \n \n\n \n\n[30] The second question has really been resolved in the course of answering the \n\nfirst. The pre-constitutional law becomes invalid when the relevant provision of \n\nthe Constitution came into operation (i.e. 27 April 1994), notwithstanding the fact \n\nthat this Court declares it to be invalid at a later date and has, in terms of section \n\n98(5) and 98(6) of the Constitution, the power to postpone and regulate the \n\noperation of invalidity. \n\n \n \n \n\n18 Das Bundesverfassungsgericht 3ed (1994) 220 - 1. See 1 BVerfGE 14 at 37. \n\n\f \n \n[31] For the sake of convenience, the fourth question (locus standi in the narrower \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 32 \n\nsense) will be addressed next. The question in the present case is whether the \n\napplicants, as examinees, are acting in their own interest. Few, if any, countries \n\nhave at all times allowed all persons to invoke the jurisdiction of Courts to solve \n\nall legal problems. Some restrictions have always been placed on the locus \n\nstandi of a complainant. Section 7(4)(b) of the Constitution determines which \n\npersons are entitled to apply to a competent Court of law for appropriate relief. \n\nThey are: \n\n\"(i) \n (ii) \n (iii) \n\n (v) \n\n \n\na person acting in his or her own interest; \nan association acting in the interest of its members; \na person acting on behalf of another person who is not in a \nposition to seek such relief in his or her own name; \n\n (iv) a person acting as a member of or in the interest of a group \n\nor class of persons; or \na person acting in the public interest.\" \n\n[32] When an examinee at a section 417 enquiry attacks the validity of section \n\n417(2)(b) on the grounds that it conflicts with the implied residual rights of an \n\naccused in terms of section 25(3) of the Constitution, the examinee's contention \n\n(properly understood) is not that the examinee is entitled, as an accused, to \n\ninvoke the implied right against extra-judicial self-incrimination in section 25(3) of \n\nthe Constitution, but rather that section 417(2)(b) of the Companies Act is, as an \n\nabstract and objective proposition, inconsistent with the aforementioned \n\nconstitutional right and the examinee is entitled to a ruling thereon. The real \n\n\fquestion which must therefore be posed is whether an examinee who has \n\n\u03a0\u03b1\u03b3\u03b5 33 \n\nACKERMANN J \n\npreviously been compelled under section 417(2)(b) to give answers which \n\nincriminate him or her may, at a subsequent criminal trial of the examinee, \n\nsuccessfully attack the introduction of such incriminating answers on the basis \n\nthat section 417(2)(b) conflicts with the unenumerated right against self-\n\nincrimination in section 25(3). If the answer is in the affirmative, the only \n\nremaining question is whether the examinee may raise the issue of the \n\nunconstitutionality of section 417(2)(b) of the Act at the stage when a question, \n\nthe answer to which might tend to incriminate him or her, is put to the examinee \n\nin the section 417 examination. \n\n \n \n\n \n\n[33] \n\nIn terms of section 418(5)(b)(iii) of the Companies Act, any person who has been \n\n \n \n\nduly summoned under section 417(1) of the Companies Act and who \n\n\"fails, without sufficient cause - ... to answer fully and satisfactorily \nany question lawfully put to him in terms of section 417(2) ...\" \n\nis guilty of an offence and, in terms of section 441(1)(f), liable upon conviction to \n\na fine not exceeding R2000 or to imprisonment for a period not exceeding six \n\nmonths or to both such fine and such imprisonment. The witness is surely \n\nentitled to know whether a question, the answer to which might tend to \n\nincriminate him or her, is a \"question lawfully put\" and whether the witness has \n\n\f\"sufficient cause\" to refuse to answer it. This is dependant on whether section \n\n\u03a0\u03b1\u03b3\u03b5 34 \n\nACKERMANN J \n\n417(2)(b) is constitutionally valid. If it is not, the witness can with equanimity \n\nrefuse to answer. If it is valid, the choice arises between refusing to answer and \n\nbeing punished, possibly with a prison sentence, or answering and possibly \n\nprejudicing the witness's defence in a subsequent criminal trial. This dilemma, \n\nwith the possible adverse consequences on either choice the witness makes, \n\ngives the witness sufficient interest of \"his or her own\" to entitle the witness \"to \n\napply to a competent court of law for appropriate relief, which may include a \n\ndeclaration of rights\" in terms of section 7(4)(a) of the Constitution. \n\n \n \n\n \n\n[34] \n\nIt seems to me, however, that the suggested line of reasoning fails to meet the \n\nthird requirement, namely that of justiciability. Section 7(4)(a) of the Constitution \n\nis introduced by the phrase - \n\n\"When an infringement of or threat to any right entrenched in this \nChapter [Chapter 3] is alleged ...\" \n\n \n\nIt is only when this condition is fulfilled that the persons referred to in paragraph \n\n(b) \"shall be entitled to apply to a competent court of law for appropriate relief.\" \n\nThe crucial question is whether, when an examinee is compelled by section \n\n417(2)(b) to answer a question which might tend to incriminate him or her and \n\nthe section further provides that \"any answer given to such question may \n\n\fthereafter be used in evidence against him\", a section 25(3) right to a fair criminal \n\n\u03a0\u03b1\u03b3\u03b5 35 \n\nACKERMANN J \n\ntrial is being infringed or threatened with infringement. \n\n \n \n\n \n\n[35] Textually, the relevant wording of section 7(4)(a) is clear. It is only when a \n\nChapter 3 right is actually infringed or threatened with infringement that the \n\nprescribed persons are entitled to seek relief from a competent Court of law. The \n\npurpose seems clear. However widely the framers extended locus standi in \n\nsection 7(4)(b), they did not wish abstract questions of constitutionality to be \n\npursued in the Courts; the only exceptions being those specifically enacted in the \n\nConstitution, such as sections 98(2)(d) and 101(3)(e) of the Constitution, which, \n\nrespectively, confer jurisdiction on the Constitutional Court over any dispute over \n\nthe constitutionality of any Bill before Parliament or a provincial legislature and, in \n\nthe case of a Provincial or Local Division of the Supreme Court, over any dispute \n\nas to the constitutionality of a Bill before a provincial legislature. \n\n \n\n[36] The locus standi of all persons referred to in subparagraphs (i) - (v) of subsection \n\n(4)(b) is governed by the introductory phrase: \n\n \n\n \n\n\u201c (b) The relief referred to in paragraph (a) may be sought by - ...\u201d. \n\nIn my view the whole of subsection (4)(b) of section 7 must be read as being \n\nsubject to the qualification in subsection (4)(a). Subsection 4(a) expressly \n\n\frenders the right \u201cto apply to a competent court\u201d conditional upon \u201cwhen an \n\n\u03a0\u03b1\u03b3\u03b5 36 \n\nACKERMANN J \n\ninfringement of or threat to any right entrenched in this Chapter is alleged.\u201d The \n\npurpose of the introductory phrase in subsection (4)(b), \u201c[t]he relief referred to in \n\nparagraph (a) may be sought by\u201d, is to indicate by whom such relief may be \n\nsought. It neither textually, contextually nor teleologically alters the condition \n\nstipulated in subsection (4)(a); in particular it does not in any way affect the \n\nimpact of the words \u201cwhen an infringement of or threat to any rights entrenched \n\nin this Chapter is alleged\u201d. \n\n \n \n\n \n\n[37] Against this background, the provisions of subparagraph (4)(b)(iii) become clear \n\nand lend further weight to the above construction. This subparagraph refers to \u201ca \n\nperson acting on behalf of another person who is not in a position to seek such \n\nrelief in his or her own name.\u201d The words \u201csuch relief\u201d can only refer to the \u201crelief \n\nreferred to in paragraph (a)\u201d mentioned in the introductory words of paragraph \n\n(b), i.e. the relief which may be sought \u201cwhen an infringement of or threat to any \n\nright entrenched in this Chapter is alleged.\" Subparagraph (4)(b)(iii) means that \n\nwhen it is alleged that a Chapter 3 right of A has been infringed or threatened \n\nand A is not in a position to seek relief, B may do so on behalf of A. \n\n \n\n[38] Under these circumstances the provisions of subparagraph (4)(b)(i), namely - \n\n\f \n \n \n \n\n\u03a0\u03b1\u03b3\u03b5 37 \n\nACKERMANN J \n\n\u201cThe relief referred to in paragraph (a) may be sought by - \n \n\n (i) a person acting in his or her own interest\u201d \n\ncan only mean that there must be an \u201cinfringement of or threat to\u201d a Chapter 3 \n\nright of the \u201cperson acting in his or her own interest\u201d, for the \u201crelief referred to in \n\nparagraph (a)\u201d only becomes available when there is \u201can infringement of or threat \n\nto\u201d a Chapter 3 right. In terms of subparagraph (4)(b)(iii) B acts for A when A\u2019s \n\nChapter 3 right is infringed or threatened with infringement and A is not in a \n\nposition to seek such relief in his or her own name. In terms of subparagraph \n\n(4)(b)(i) A acts for himself or herself when A\u2019s Chapter 3 right is infringed or \n\nthreatened with infringement and A is in a position to seek such relief in his or \n\nher own name. Paragraph (4)(a) determines when the right to invoke the aid of a \n\nCourt arises; subsection (4)(b) determines by whom that right (when it accrues) \n\nmay be exercised. The locus standi of all categories of persons in paragraph \n\n(4)(b) is qualified by paragraph (4)(a). \n\n \n\n[39] \n\nIt was not suggested that such limitation of justiciability was contrary to the \n\nvalues mentioned in section 35(1). The contrary was not argued. Neither was it \n\nsuggested that such limitation of justiciability was contrary to the values \n\nmentioned in section 35(1), namely, \"the values which underlie an open and \n\ndemocratic society based on freedom and equality\"; nor that public international \n\n\flaw or foreign law would lead one to a different answer. The jurisdictions of the \n\n\u03a0\u03b1\u03b3\u03b5 38 \n\nACKERMANN J \n\nUnited States of America,19 Canada20 and Germany21 all have \"case and \n\ncontroversy\" and locus standi provisions which limit justiciability. There being no \n\nother justification for not doing so, the aforementioned words in section 7(4)(a) \n\nmust therefore be given their plain, ordinary, grammatical meaning.22 \n\n \n \n\n \n\n[40] To my mind the inescapable construction of subsection 7(4) leads to the \n\nconclusion that, if section 25(3) of the Constitution is to be relied upon, there \n\nmust be an \u201cinfringement of or threat to\u201d a section 25(3) right, whether the right \n\naccrues to the person seeking the relief (subparagraph (4)(b)(i)), or a person on \n\n \n\n19See in general Tribe American Constitutional Law 2ed (1988) 67 - 155. \n\n20See in general Hogg Constitutional Law of Canada 3ed (1992) 1263 - 1278. \n\n21See in general Umbach and Clemens Bundesverfassungsgerichtsgesetz (1992) 1039 - 46. \n\n22See S v. Zuma and Others supra note 8 at paras 17-18, per Kentridge AJ. \n\n\fwhose behalf someone else seeks relief (subparagraph (4)(b)(iii)) or for whom a \n\n\u03a0\u03b1\u03b3\u03b5 39 \n\nACKERMANN J \n\nperson acts in the public interest (subparagraph (4)(b)(v)). This all follows from \n\nthe express qualification in paragraph (4)(a) which is incorporated by reference in \n\nparagraph (4)(b) in the manner referred to above. \n\n \n \n\n \n\n[41] The section 25(3) rights accrue, textually, only to \"every accused person\". They \n\nare rights which accrue, in the subjective sense, when a person becomes an \n\n\"accused person\" in a criminal prosecution. The examinee is not such an \n\n\"accused person\". It is a matter of pure speculation whether the applicants will \n\never become accused persons. Even should they become accused persons, \n\ntheir rights against extra-curial self-incrimination (assuming for the moment that \n\nsuch a right is an implied right in the larger category \"right to a fair trial\") are not \n\nautomatically infringed when they become accused persons. It will depend upon \n\nwhether self-incriminating evidence given by the applicants at the section 417 \n\nenquiry is tendered in evidence against them. At that moment, for the first time, \n\nthere is a threat to any section 25(3) right against extra-curial self-incrimination. \n\nThe inescapable conclusion, therefore, is that section 417(2)(b) does not \n\nconstitute an infringement or threat of infringement of any section 25(3) rights of \n\nthe applicants and that their attack on section 417(2)(b) on this basis can \n\naccordingly not succeed. This was in fact the prima facie conclusion reached in \n\n\fLynn NO and Another v. Kreuger and Others.23 \n\n\u03a0\u03b1\u03b3\u03b5 40 \n\nACKERMANN J \n\n \n \n\n \n\n[42] \n\nIn the alternative, the applicants, for their constitutional challenge to section \n\n417(2)(b) of the Act, relied with differing degrees of enthusiasm and persistence \n\non the rights protected in sections 8, 10, 11, 13, 15, 22 and 24 of the \n\nConstitution. The main alternative argument was, however, based on the rights \n\nto \"freedom and security of the person\" and \"personal privacy\", respectively \n\nentrenched in sections 11(1) and 13. \n\n \n\n[43] Section 7(4)(a) of the Constitution does not present any difficulty to the \n\napplicants in so far as they seek to rely on such rights, since these rights are not \n\nlimited to any category of persons nor restricted to any particular factual context. \n\nSuch reliance does not raise mere \"academic\" questions of law, but ones which \n\nbecome justiciable the moment the applicants invoke these rights. \n\n \n\n \n\n231955 (2) BCLR 167 (N) per Hurt J at 169 I - 170 A. \n\n\f \n \n[44] The task of determining whether the provisions of section 417(2)(b) of the Act are \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 41 \n\ninvalid because they are inconsistent with the guaranteed rights here under \n\ndiscussion involves two stages24 first, an enquiry as to whether there has been \n\nan infringement of the section 11(1) or 13 guaranteed right; if so, a further \n\nenquiry as to whether such infringement is justified under section 33(1), the \n\nlimitation clause. The task of interpreting the Chapter 3 fundamental rights rests, \n\nof course, with the Courts, but it is for the applicants to prove the facts upon \n\nwhich they rely for their claim of infringement of the particular right in question. \n\nConcerning the second stage, \"[it] is for the legislature, or the party relying on the \n\nlegislation, to establish this justification (in terms of section 33(1) of the \n\nConstitution), and not for the party challenging it, to show that it was not \n\njustified.\"25 \n\n \n\nThe infringement of the section 11(1) right to freedom and security of the person \n\n[45] \n\nIn order to determine, at the first stage of the enquiry, whether the provisions of \n\nsection 417(2)(b) of the Act are inconsistent with the section 11(1) right to \n\nfreedom and security of the person, it is necessary, as a matter of construction, \n\n \n\n24See generally S v. Zuma and Others supra note 8 at para 21 and S v. Makwanyane and Another \n\n1995(6) BCLR 665(CC); 1995 (3) SA 391 (CC) at paras 100 - 102. \n \n \n\n25S v. Makwanyane and Another supra note 24 at para 102. \n\n\fto define or circumscribe the section 11(1) right to the extent necessary for \n\n\u03a0\u03b1\u03b3\u03b5 42 \n\nACKERMANN J \n\npurposes of this decision. It is obviously unwise and undesirable (if not \n\nimpossible) even to attempt an exhaustive or comprehensive definition or \n\ncircumscription of the right designed to hold good indefinitely and for all further \n\ncases. Yet, even if the exact nature and boundaries of the right are to be defined \n\non a case to case basis, some attempt must be made at this stage to determine \n\nthe meaning, nature and extent of the right. As part of this enquiry it is also \n\nnecessary to determine more precisely what it is about the nature and operation \n\nof the provisions of section 417(2)(b) of the Act, and their impact upon the \n\nexaminee, which can be said to be inconsistent with the right to freedom. \n\n \n \n\n \n\n[46] This Court has given its approval to an interpretive approach \n\n\"which, whilst paying due regard to the language that has been \nused, is 'generous' and 'purposive' and gives expression to the \nunderlying values of the Constitution\"26\n\nas well as to that expressed in the following passage in the Canadian case of R \n\nv. Big M Drug Mart Ltd.: \n\n\"The meaning of a right or freedom guaranteed by the Charter was \nto be ascertained by an analysis of the purpose of such a \nguarantee; it was to be understood, in other words, in the light of \nthe interests it was meant to protect. \n\nIn my view this analysis is to be undertaken, and the purpose of \n\n \n \n\n \n\n \n\n26Id at para 9. \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 43 \n\nACKERMANN J \n\nthe right or freedom in question is to be sought by reference to the \ncharacter and larger objects of the Charter itself, to the language \nchosen to articulate the specific right or freedom, to the historical \norigins of the concepts enshrined, and where applicable, to the \nmeaning and purpose of the other specific rights and freedoms \nwith which it is associated within the text of the Charter. The \ninterpretation should be ... a generous rather than legalistic one, \naimed at fulfilling the purpose of the guarantee and securing for \nindividuals the full benefit of the Charter's protection.\"27\n\nIn the words of Chaskalson P, the provisions of Chapter 3 \n\n\"must not be construed in isolation, but in its context, which \n\nincludes the history and background to the adoption of the \n\nConstitution, other provisions of the Constitution itself and, in \n\nparticular, the provisions of Chapter 3 of which it is part. It must \n\nalso be construed in a way which secures for 'individuals the full \n\nmeasure' of its protection.\"28\n\nI would, in the first place, read \"freedom\" disjunctively from \"security of the \n\nperson\" in section 11(1). The legislative history of the section would seem to \n\nconfirm this. It was only in the Sixth Report of the Technical Committee on \n\nFundamental Rights During the Transition that the right to \"personal liberty\" was \n\ncombined with the right to \"security of the person\".29 The right \"to freedom\" must \n\nbe construed as a separate and independent right, albeit related to the right to \n\n \n \n\n27(1985) 13 C.R.R. 64 at 103. \n\n28Id at para 10. \n\n\f \n \n\n\"security of the person.\" \n\n\u03a0\u03b1\u03b3\u03b5 44 \n\nACKERMANN J \n\n[47] Conceptually, individual freedom is a core right in the panoply of human rights. \n\nThe right to human dignity (\"menswaardigheid\") is specifically entrenched in \n\nsection 10 and has been categorised by this Court, together with the right to life, \n\nas \n\n \n \n\n29Compare p. 6 of the Fifth Report with p. 6 of the Sixth Report. \n\n\f\u03a0\u03b1\u03b3\u03b5 45 \n\nACKERMANN J \n\n\"the most important of all human rights ... .\"30\n\n \n \n\n \n\n[48] \n\nIn Makwanyane O'Regan J pointed out that \"without dignity, human life is \n\nsubstantially diminished\"31 and pronounced the prime value of dignity in the \n\nfollowing terms: \n\n\"The importance of dignity as a founding value of the new \n\nConstitution \n\ncannot \n\nbe \n\noveremphasised. Recognising \n\na \n\nright \n\nto dignity \n\nis an \n\nacknowledgement \n\nof \n\nthe \n\nintrinsic worth of human beings: \n\nhuman beings are entitled to be \n\ntreated as worthy of respect \n\nand \n\nconcern. This \n\nright \n\ntherefore is the foundation of \n\nmany of the other rights that \n\nare specifically entrenched in \n\n \n\n30S v. Makwanyane and Another supra note 24 at para 144. \n\n31Id at para 327. \n\n\f\u03a0\u03b1\u03b3\u03b5 46 \n\nACKERMANN J \n\nChapter 3.\"32 \n\nI agree with these views. O'Regan J also pointed out, rightly in my view, that \n\n\"[the] recognition and protection of human dignity is the touchstone \nof the new political order and is fundamental to the new \nConstitution.\"33\n\n \n \n\n \n\n \n \n\n32Id at para 328. \n\n33Id at para 329. \n\n\f \n \n[49] Human dignity cannot be fully valued or respected unless individuals are able to \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 47 \n\ndevelop their humanity, their \"humanness\" to the full extent of its potential. Each \n\nhuman being is uniquely talented. Part of the dignity of every human being is the \n\nfact and awareness of this uniqueness. An individual's human dignity cannot be \n\nfully respected or valued unless the individual is permitted to develop his or her \n\nunique talents optimally. Human dignity has little value without freedom; for \n\nwithout freedom personal development and fulfilment are not possible. Without \n\nfreedom, human dignity is little more than an abstraction. Freedom and dignity \n\nare inseparably linked. To deny people their freedom is to deny them their \n\ndignity. Although freedom is indispensable for the protection of dignity, it has an \n\nintrinsic constitutional value of its own.34 It is likewise the foundation of many of \n\nthe other rights that are specifically entrenched.35 Viewed from this perspective, \n\nthe starting point must be that an individual's right to freedom must be defined as \n\nwidely as possible, consonant with a similar breadth of freedom for others. \n\n \n \n\n34\"[T]hose who have ever valued liberty for its own sake believed that to be free to choose, and not \nto be chosen for, is an inalienable ingredient in what makes human beings human.\" Isaiah Berlin \n\"Introduction\" in Four Essays on Liberty Oxford University Press (1969) lx. \n\n35Amongst others, the rights entrenched in sections 12, 14, 15, 16, 17, 18, 19, 20, 21, 25(2)(c) and \n\n(d), 25(3)(c) and (d), 27, 28, 30(1)(e), 30(2) and 31. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 48 \n\nACKERMANN J \n\n[50] There are other and more specific indications in the Constitution that the right to \n\nfreedom is to be extensively interpreted. Section 35(1) embodies an injunction \n\nthat, generally, in interpreting the Chapter 3 provisions, a Court of law must \n\npromote the values which underlie an \"open\" and democratic society \"based on \n\nfreedom and equality\". An \"open society\" most certainly enhances the argument \n\nthat individual freedom must be generously defined. It is a society in which \n\npersons are free to develop their personalities and skills, to seek out their own \n\nultimate fulfilment, to fulfill their own humanness and to question all received \n\nwisdom without limitations placed on them by the State. The \"open society\" \n\nsuggests that individuals are free, individually and in association with others, to \n\npursue broadly their own personal development and fulfilment and their own \n\nconception of the \"good life\".36 \n\n \n\n[51] A teleological approach also requires that the right to freedom be construed \n\ngenerously and extensively. In Makwanyane O'Regan J, adopting such a \n\nteleological approach, correctly observed as follows: \n\n\"Respect for the dignity of all human beings is particularly \n\n \n\nsociety\" as: \n\n36Karl Popper in The Open Society and its Enemies 4 ed (1962) Vol. I at 173 refers to the \"open \n\n\"the society in which individuals are confronted with personal decisions\" and the \"closed \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 49 \n\nACKERMANN J \n\nimportant in South Africa. For apartheid was a denial of a common \n\nhumanity. Black people were refused respect and dignity and \n\nthereby the dignity of all South Africans was diminished. The new \n\nConstitution rejects this past and affirms the equal worth of all \n\nSouth Africans. Thus recognition and protection of human dignity is \n\nthe touchstone of the new political order and is fundamental to the \n\nnew Constitution.\"37\n\n \n \n\nsociety\" as \"the magical or tribal or collectivist society\". \n\n37Supra note 24 at para 329. \n\n\f \n \n\nIn my view exactly the same approach needs to be adopted in the case of the \n\n\u03a0\u03b1\u03b3\u03b5 50 \n\nACKERMANN J \n\nright to freedom. This is not the place to enumerate or elaborate on the vast \n\nnumber of limitations which, in the recent past and prior to the Constitution, had \n\nbeen placed on personal freedom, nor on the extent or variety of such \n\nlimitations.38 No right minded person in any society which claimed to be \n\ndemocratic and based on freedom and equality would today even try to justify \n\nthese limitations. They started at birth and continued relentlessly until death. For \n\nthe purposes of illustration, the most selective outline of such restrictions must \n\nsuffice. The Population Registration Act and associated legislation eliminated or \n\nseverely restricted the freedom to identify one's child39 and hospitalise40 or \n\neducate41 one's child. As an adult the curtailments of freedom related, amongst \n\nother things, to where one could reside42, work43 or own property44; what work \n\n \n \n\n38Some of the most egregious are catalogued in Dugard Human Rights and the South African \nLegal Order (1978) 107 - 145 and Matthews Law, Order and Liberty in South Africa (1971) and Freedom, \nState Security and the Rule of Law (1988). \n\n39Sections 4 - 7 of the Population Registration Act 30 of 1950. \n\n40The old provinces had original legislative powers i.t.o. s 84(1) of the Constitution of the Republic \nof South Africa Act 32 of 1961 to deal with, inter alia, public health. This power was used to segregate the \nprovision of health services. See, for example, Section 20(2)(A) of Ordinance 8 of 1971 of the Orange Free \nState in its original version. \n\n41Bantu Education Act 47 of 53; Indians Education Act 60 of 1965; Coloured Persons Education \n\nAct 47 of 1963; Extension of University Education Act 45 of 1959. \n\n42Section 4 of the Group Areas Act 41 of 1950. \n\n43Section 5 of the Natives (Urban Areas) Act 21 of 1923; Section 10 - 15 of the Black (Urban \n\nAreas) Consolidation Act 25 of 1945. \n\n44Section 1 of the Natives Land Act 27 of 1913, section 2 of the Asiatic Land Tenure and Indian \nRepresentation Act 28 of 1946, Section 5 of the Group Areas Act 41 of 1950; Section 7 of the Black \n\n\f \n \n\none could do45; who one could marry46; how one could express47 or organise \n\n\u03a0\u03b1\u03b3\u03b5 51 \n\nACKERMANN J \n\noneself politically48 or where one could be buried.49 A feature common to all or \n\nmany of these denials of freedom was a denial of the freedom to choose or \n\ndevelop one's own identity, a denial of the freedom to be fully human. One of the \n\nmain objects of the Constitution is to eradicate such denial or restriction of \n\nfreedom, not in a casuistic way but as a profound constitutional commitment. In \n\nMakwanyane I had occasion to emphasise \"the importance, in our new \n\nconstitutional state, of reason and justification when rights are sought to be \n\ncurtailed\"50 and to refer to the fact that the Constitution is, in the words of Prof E \n\nMureinik, \"... a bridge to ... a culture of justification\".51 This further supports an \n\nextensive definition of freedom at the first stage of the enquiry. It may, in the \n\nState's interest, be necessary to limit the right to freedom, but then it is for the \n\n \n(Urban) Areas Consolidation Act 25 of 1945. \n\n45Section 4 of Act 12 of 1911; Section 14 of the Black Building Workers Act 27 of 1951; Bantu \n\nLabour Act 67 of 1964; Section 15(1) of Occupational Diseases in Mines and Works Act 78 of 1973. \n\n46Section 1 of the Prohibition of Mixed Marriages Act 55 of 1949. \n\n47Section 47(2) of the Publications Act 42 of 1974; Section 29 of the Black Administration Act 38 of \n\n1927; Section 15 of the Internal Security Act 74 of 1982. \n\n48Section 2 of the Suppression of Communism Act 44 of 1950; Section (1) of the Unlawful \nOrganisations Act 34 of 1960; Prohibition of Political Interference Act 51 of 1968; Affected Organisations \nAct 31 of 1974; Section 4(1) of the Internal Security Act 74 of 1982. \n\n49Local government structures were specifically authorised to segregate burial grounds through \npassing appropriate by-laws. See, for example, Section 146(1) of Orange Free State Ordinance 8 of 1962 \nin its original form. \n\n50Supra note 24 at para 156. \n\n\fbody or person relying upon such limitation to establish in terms of section 33(1) \n\n\u03a0\u03b1\u03b3\u03b5 52 \n\nACKERMANN J \n\ninter alia, in the case of the limitation of a section 11(1) right, that such limitation \n\nis reasonable, justifiable in an open and democratic society based on freedom \n\nand equality, and necessary. \n\n \n \n\n \n\n[52] \n\nI do not think that, in the context of the Constitution as a whole, there is any \n\ndifference between freedom and liberty.52 In the negative sense freedom is, as \n\npointed out by Isaiah Berlin, \n\n\"involved in the answer to the question 'What is the area within \nwhich the subject - a person or a group of persons - is or should be \nleft to do or be what he is able to do or be, without interference by \nother persons?'\"53\n\nIn the positive sense freedom, so contends Berlin, \n\n \n \n\n\"is involved in the answer to the question 'What, or who, is the \nsource of control or interference that can determine someone to \ndo, or be, this rather than that?'\"54\n\n \n\n51Id at para 156 note 1. \n\n52Isaiah Berlin \"Two Concepts of Liberty\" in Four Essays on Liberty Oxford University Press (1969) \n\nat 121. \n\n53Id at 121-122. \n\n54Id at 122. \n\n\f\u03a0\u03b1\u03b3\u03b5 53 \n\nACKERMANN J \n\nSection 11(1) is concerned with freedom in the negative sense and that is the \n\nsense in which I shall hereafter use it. It is essential to distinguish between \n\nfreedom (liberty) and the conditions of its exercise. It could be dangerous to \n\nconflate the two concepts. \n\n\"If a man is too poor or too ignorant or too feeble to make use of \nhis legal rights, the liberty that these rights confer upon him is \nnothing to him, but it is not thereby annihilated. The obligation to \npromote education, health, justice, to raise standards of living, to \nprovide opportunity for the growth of the arts and the sciences, to \nprevent reactionary political or social or legal policies or arbitrary \ninequalities, is not made less stringent because it is not necessarily \ndirected to the promotion of liberty itself, but to conditions in which \nalone its possession is of value, or to values which may be \nindependent of it. And still, liberty is one thing, and the conditions \nfor it another .... . Useless freedoms should be made usable, but \nthey are not identical with the conditions indispensable for their \nutility. This is not a merely pedantic distinction, for if it is ignored, \nthe meaning and value of freedom of choice is apt to be \ndowngraded. In their zeal to create social and economic conditions \nin which alone freedom is of genuine value, men tend to forget \nfreedom itself; and if it is remembered, it is liable to be pushed \naside to make room for these other values with which the \nreformers or revolutionaries have become pre-occupied ..... . To \nprovide for material needs, for education, for such equality and \nsecurity as, say, children have at school or laymen in a theocracy, \nis not to expand liberty. We live in a world characterized by \nr\u00e9gimes (both right- and left-wing) which have done, or are seeking \nto do, precisely this; and when they call it freedom, this can be as \ngreat a fraud as the freedom of the pauper who has a legal right to \npurchase luxuries. Indeed, one of the things that Dostoevsky's \ncelebrated fable of the Grand Inquisitor in The Brothers \nKaramazov is designed to show is precisely that paternalism can \nprovide the conditions of freedom, yet withhold freedom itself.\"55\n\n \n \n \n\n \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 54 \n\nACKERMANN J \n\n \n\n55Berlin \"Introduction\" in Four Essays on Liberty supra note 52 at Iiii to Iv. \n\n\f \n \n\nThe fact that the right to freedom must, in my view, be given a broad and \n\n\u03a0\u03b1\u03b3\u03b5 55 \n\nACKERMANN J \n\ngenerous interpretation at the first stage of the enquiry, must therefore not be \n\nthought to be premised on a concept of the individual as being in heroic and \n\natomistic isolation from the rest of humanity, or the environment, for that matter. I \n\nwish to emphasise quite explicitly that a broad and generous interpretation of \n\nfreedom does not deny or preclude the constitutionally valid, and indeed \n\nessential, role of state intervention in the economic as well as the civil and \n\npolitical spheres. On the contrary, state intervention is essential to resolve the \n\nparadox of unlimited freedom (where freedom ultimately destroys itself) in all \n\nthese spheres.56 But legitimate limitations on freedom must occur through and be \n\n \n\nits Enemies 4 ed (1962) Vol. II at 124 -- 5: \n\n56The solution to this paradox is eloquently stated by Popper as follows in The Open Society and \n\n \n\n \n\n\"Freedom, we have seen, defeats itself, if it is unlimited. Unlimited freedom \nmeans that a strong man is free to bully one who is weak and to rob him of his \nfreedom. This is why we demand that the state should limit freedom to a certain \nextent, so that everyone's freedom is protected by law. Nobody should be at the \nmercy of others, but all should have a right to be protected by the state. \n\nNow I believe that these considerations, originally meant to apply to the realm of \nbrute force, of physical intimidation, must be applied to the economic realm also. \nEven if the state protects its citizens from being bullied by physical violence (as it \ndoes, in principle, under the system of unrestrained capitalism), it may defeat our \nends by its failure to protect them from the misuse of economic power. In such a \nstate, the economically strong is still free to bully one who is economically weak, \nand to rob him of his freedom. Under these circumstances, unlimited economic \nfreedom can be just as self-defeating as unlimited physical freedom, and \neconomic power may be nearly as dangerous as physical violence; for those who \npossess a surplus of food can force those who are starving into a 'freely' \naccepted servitude, without using violence. And assuming that the state limits its \nactivities to the suppression of violence (and to the protection of property), a \nminority which is economically strong may in this way exploit the majority of \nthose who are economically weak. \n\nIf this analysis is correct, then the nature of the remedy is clear. It must be a \npolitical remedy - a remedy similar to the one which we use against physical \nviolence. We must construct social institutions, enforced by the power of the \nstate, for the protection of the economically weak from the economically strong. \n\n\fjustified under the principles formulated in section 33(1), not by giving a restricted \n\n\u03a0\u03b1\u03b3\u03b5 56 \n\nACKERMANN J \n\ndefinition of the right to freedom in section 11(1). Kant luminously conceptualises \n\nfreedom as the \"only one innate right\" in the following terms: \n\n\"Freedom (independence from the constraint of another's will), \n\ninsofar as it is compatible with the freedom of everyone else in \n\naccordance with a universal law, is the one sole and original right \n\nthat belongs to every human being by virtue of his humanity.\"57\n\n \n \n\n \n\n[53] \n\nI also accept that it is not possible in all circumstances to fully harmonise all the \n\nChapter 3 rights with one another and that, in a given case, one right will have to \n\nbe limited in favour of another. As Berlin points out: \n\n \n \n\nThe state must see to it that nobody need enter into an inequitable arrangement \nout of fear of starvation, or economic ruin.\" \n\n57The Metaphysical Elements of Justice (tr. John Ladd) Macmillan (1985) at 43. \n\n\f\u03a0\u03b1\u03b3\u03b5 57 \n\nACKERMANN J \n\n\"... since some values may conflict intrinsically, the very notion that \na pattern must in principle be discoverable in which they are all \nrendered harmonious is founded on a false a priori view of what \nthe world is like. If ... the human condition is such that men cannot \nalways avoid choices ... [this is] for one central reason ... namely, \nthat ends collide; that one cannot have everything ... The need to \nchoose, to sacrifice some ultimate values to others, turns out to be \na permanent characteristic of the human predicament\";58\n\nand further comments: \n\n\"If we wish to live in the light of reason, we must follow rules and \nprinciples; for that is what being rational is. When these rules or \nprinciples conflict in concrete cases, to be rational is to follow the \ncourse of conduct which least obstructs the general pattern of life \nin which we believe. ... [E]ven those who are aware of the complex \ntexture of experience, of what is not reducible to generalisation or \ncapable of computation, can, in the end, justify their decisions only \nby their coherence with some over-all pattern of a desirable form of \npersonal or social life, of which they may become fully conscious \nonly, it may be, when faced with the need to resolve conflicts of \nthis kind. If this seems vague, it is so of necessity.\"59\n\n \n \n\n \n \n\n \n\n \n\n58Supra note 52 \"Introduction\" at Ii. \n\n59Id at Iv. \n\n\f \n \n\nAlthough Berlin's views pertain to the field of political and moral philosophy, they \n\n\u03a0\u03b1\u03b3\u03b5 58 \n\nACKERMANN J \n\nare in my view equally applicable, mutatis mutandis, to constitutional \n\ninterpretation and adjudication, where for the touchstone of \"some over-all \n\npattern of a desirable form of personal or social life\" one could substitute \"some \n\nover-all pattern of the norms and values of the Constitution.\" Section 35(1) of our \n\nConstitution points to the norms and values \"which underlie an open and \n\ndemocratic society based on freedom and equality.\" As a prerequisite for the \n\nlimitation of rights entrenched in Chapter 3 of the Constitution, section 33(1)(a)(ii) \n\nprovides that such limitation shall be permissible only to the extent that it is \n\n\"justifiable in an open and democratic society based on freedom and equality\". \n\nHowever, rights of freedom and equality are not always reconcilable and in \n\nconcrete situations difficult choices may have to be made, because section \n\n33(1)(a)(ii) does not provide an obvious answer to the choice between freedom \n\nand equality. Nor does section 35(1). It is, however, neither necessary nor \n\ndesirable, for purposes of this case, to pursue this aspect of the matter any \n\nfurther.60\n\n \n\n60I would, however, refer in passing to the analysis and suggested resolution by Prof Louis Henkin \nof the clash, in constitutional law, between freedom and privacy on the one hand and equality on the other, \nin his seminal article, \"Shelley v. Kraemer: Notes for a Revised Opinion\" (1962) 110 U Pa L Rev 473 \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 59 \n\nACKERMANN J \n\n \n \nparticularly at 487-492 and 494-496. \n\n\f \n \n[54] \n\nIn the light of all the aforegoing I would, at this stage, define the right to freedom \n\n\u03a0\u03b1\u03b3\u03b5 60 \n\nACKERMANN J \n\nnegatively as the right of individuals not to have \"obstacles to possible choices \n\nand activities\"61 placed in their way by (for present purposes we need go no \n\nfurther) the State. I am indeed mindful of the fact that, as alluded to in paragraph \n\n[44] above, specific \u201cfreedom rights\u201d are separately protected in Chapter 3. So, \n\nfor example, the freedom to choose one\u2019s place of residence is specifically \n\nprotected in section 19, as is the right to enter, remain in and leave the Republic \n\nin section 20. The meaning and ambit of these specifically and separately \n\nprotected freedom rights must of course, in my view, be construed in the context \n\nof their specific entrenchment with due regard to the rules of constitutional \n\nconstruction and, in particular, the purpose they were intended to serve. It is also \n\nimportant to bear in mind that, when considering possible limitations on these \n\nsection 19 and 20 rights in terms of the provisions of section 33(1) of the \n\nConstitution, such limitations do not, in addition to being reasonable, also have to \n\nbe \u201cnecessary\u201d for purposes of the provisos in subparagraphs (aa) or (bb) of \n\n \n \n\n61Berlin supra note 52 \"Introduction\" at xxxix. See also R v. Big M Drug Mart supra note 27 at 97, \nwhere Dickson CJC, in the context of the freedom of conscience and religion guaranteed in section 2(a) of \nthe Canadian Charter, characterised freedom \"primarily ... by the absence of coercion or constraint\" and \nstated that, \n\n\"[i]f a person is compelled by the state or the will of another to a course of action or \ninaction which he would not otherwise have chosen, he is not acting of his own volition \nand he cannot be said to be truly free. One of the major purposes of the Charter is to \nprotect, within reason, from compulsion or restraint. Coercion includes not only such \nblatant forms of compulsion as direct commands to act or refrain from acting on pain of \nsanction, coercion includes indirect forms of control which determine or limit alternative \ncourses of conduct available to others.\" \n\n\f \n \n\n \n\nsubsection 33(1). \n\n\u03a0\u03b1\u03b3\u03b5 61 \n\nACKERMANN J \n\n[55] Similarly the freedoms of expression, assembly, demonstration and petition, \n\nassociation, and movement, are dealt with separately and specifically in sections \n\n15 to 18 respectively. These rights, too, have to be construed and defined \n\nseparately, as indicated above. Legitimate limitations on these rights are not \n\nsubject to the additional requirement of being \u201cnecessary\u201d in terms of proviso \n\n(bb) to section 33(1) unless and insofar as any such right \u201crelates to free and fair \n\npolitical activity\u201d. \n\n \n\n[56] There are also specifically enumerated freedom rights where any limitation, in \n\naddition to being reasonable, must under all circumstances also be necessary in \n\norder to pass section 33(1) scrutiny. Such rights include the section 14(1) rights \n\nto freedom of conscience, religion, thought, belief and opinion and the section 21 \n\npolitical rights. \n\n \n\n[57] The implication of this separate enumeration and independent protection of \n\nspecific freedom rights is of course that the freedom rights protected by section \n\n11(1) should more properly be designated \u201cresidual \n\nfreedom rights\u201d. \n\nConsequently, when it is alleged that any freedom right has been infringed, the \n\n\fproper methodology would be first to determine whether the right infringed is a \n\n\u03a0\u03b1\u03b3\u03b5 62 \n\nACKERMANN J \n\nspecifically enumerated freedom right. This will be done by analysis and \n\nconstruction of the specific section entrenching the right in question and applying \n\nit to the case at hand. If any limitation of such right is relied upon, regard will then \n\nbe had to the specific provision in section 33(1) relating to such enumerated \n\nfreedom right. If the alleged infringement is not of an enumerated freedom right, \n\nthen the enquiry will be directed to determining whether a residual freedom right \n\nprotected by section 11(1) has been infringed. If so, any limitation of such \n\nresidual freedom right must, in addition to being reasonable, also be necessary \n\nbecause section 11 is included in proviso (aa) to section 33(1). I have had the \n\nbenefit of reading the President's judgment in draft. I fully agree with his view that \n\nthe ambit of the section 11(1) freedom right \"does not depend on the construction \n\nof the section in isolation but on its construction in the context of Chapter 3 of the \n\nConstitution.\" It is, in fact, such an approach which has led me to the conclusion \n\nthat it is a residual freedom right. I also agree, and have indeed adopted this \n\napproach, that in considering a constitutional challenge based on an alleged \n\ndenial or limitation of freedom the first step is to enquire whether the impugned \n\nact falls within the freedoms elsewhere protected in Chapter 3. \n\n \n \n\n \n\n[58] \n\nIt might be suggested that, because the legislature has sought fit to subject any \n\n\f \n \n\nlimitation of a residual freedom right to stricter scrutiny, that such residual \n\n\u03a0\u03b1\u03b3\u03b5 63 \n\nACKERMANN J \n\nfreedom rights ought to be more narrowly construed. In my view there is no \n\nwarrant for such an approach, for at least two reasons. First, it would constitute \n\nan unjustified \u201csecond-guessing\u201d of the framers\u2019 intention. They must have been \n\nonly too well aware that at least some of the section 11(1) rights were residual \n\nfreedom rights in view of the fact that so many freedom rights were specifically \n\nenumerated in other sections of the Constitution. Despite this awareness, they \n\nchose to confer the higher level of protection on these rights in proviso (aa) to \n\nsection 33(1). In my view, this decision, which is quite unambiguous, must be \n\nrespected by this Court. It is not our function to cut down artificially the patent \n\nprotection afforded by section 11(1) to residual freedom rights by giving a limited \n\nconstruction, and a strained one at that, to these residual freedom rights. \n\nSecond, such a construction would be in conflict with the \u201cgenerous\u201d and \u201cfull \n\nbenefit\u201d interpretative approach unanimously approved by this Court in S v Zuma \n\nand Others62 and in particular the following quotation approved of by Kentridge \n\nAJ: \n\n\u201cConstitutional rights conferred without express limitation should \n\nnot be cut down by reading implicit restrictions into them, so as to \n\n \n\n621995 (4) BCLR 401 (SA); 1995 (2) SA 642 (CC); at paras 14-15. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 64 \n\nACKERMANN J \n\nbring them into line with the common law.\u201d63\n\n \n \n\n63Id at para 15. \n\n\f \n \n\nI respectfully disagree with the President's view that those freedoms (and by \n\n\u03a0\u03b1\u03b3\u03b5 65 \n\nACKERMANN J \n\nimplication other rights) whose limitation is made subject to the \"necessary\" test \n\nby section 33 of the Constitution are necessarily of a \"higher order\" than those \n\nfreedoms which are not subjected to such an onerous test. A limitation of the \n\nsection 8 equality right, for example, is not made subject to the more stringent \n\n\"necessary\" test, yet in my view it could scarcely be said that this right is of a \n\n\"lower\" order. I therefore consider it unhelpful to focus, as the President does, on \n\nthe fact that a limitation of the section 13 right to privacy is only subject to the \n\n\"reasonable\" test. I certainly disagree, with respect, that this is anomalous. Even \n\nif it were anomalous, I do not believe that the anomaly assists this Court in \n\nconstruing the section 11(1) right to freedom. It certainly does not call for what I \n\nwould consider a strained and limited construction. There may well be good \n\nreason why the limitation of a section 13 right is only subject to the \"reasonable\" \n\ntest. It may be because of the natural tension between this right and the right to \n\nfreedom, or for some other reason, about which it is unprofitable to speculate. \n\nThe fact that the guarantee against \"torture\" in section 11(2) is made subject to \n\nany limitation at all (particularly when regard is had to the fact that both the \n\nInternational Covenant on Civil and Political Rights and the European Convention \n\non Human Rights outlaw any derogation from this right even in times of war64 or \n\n \n \n\n64European Convention on Human Rights articles 3 and 15(2). \n\n\fpublic emergency threatening the life of the nation65) I find far more anomalous, \n\n\u03a0\u03b1\u03b3\u03b5 66 \n\nACKERMANN J \n\nbut I do not consider such anomaly useful in construing other provisions of \n\nChapter 3. \n\n \n \n\n \n\n[59] \n\nIt needs to be emphasised that what is being contended for in this judgment is \n\nnot an unlimited right to freedom or that the section 11(1) residual freedom rights \n\nare unlimited. What is being postulated is a broad and generous construction of \n\nthese rights, which is quite different from contending that they are unlimited. \n\nThese rights are indeed subject to limitation, but limitation justified in terms of \n\nsection 33(1) of the Constitution. \n\n \n\n[60] \n\nIt might be contended that, by giving a broad and generous construction to the \n\nsection 11(1) residual freedom rights, the Court will, in the fields of criminal law \n\nand general regulatory provisions for example, be dragged into what are \n\nessentially legislative functions, because the state will be called upon to show in \n\n \n \n\nPolitical Rights articles 4(2) and 7. \n\n65European Convention on Human Rights articles 3 and 15(2); International Covenant on Civil and \n\n\fall these cases that the limitations imposed are necessary. I cannot, however, \n\n\u03a0\u03b1\u03b3\u03b5 67 \n\nACKERMANN J \n\nsee that this differs in any principled way from the task which the Court has to \n\ndischarge when it tests any legislative or regulatory provision against the \n\nprovisions of the Constitution in order to determine the validity of the former. \n\nProvisos (aa) and (bb) to section 33(1) embody an extensive array of \n\nConstitutional rights which, if infringed by any criminal statute or regulatory \n\nprovision, would require the state (when rights enumerated in proviso (aa) are \n\ninfringed and, in certain circumstances, when rights enumerated in proviso (bb) \n\nare infringed) to establish that limitations are, in addition to any other \n\nrequirement, also necessary. \n\n \n \n\n \n\n[61] \n\nIt might also be contended that, by giving such a broad and generous \n\nconstruction to the section 11(1) residual freedom rights, the Court will be inviting \n\nan intolerable workload because it will be obliged to test a multitude of criminal \n\nand other statutory provisions which are challenged on the grounds, inter alia, \n\nthat the limitations thus placed on residual freedom rights are not necessary. \n\nSuch an argument could proceed on the following basis: \n\n (a) \n\nthat the majority of these statutory provisions will only be attacked if the \n\nright to freedom in section 11(1) is not narrowly construed; \n\n \n\n \n\n(b) \n\nthat the court will be flooded with frivolous complaints; and \n\n\f \n \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 68 \n\nACKERMANN J \n\n(c) \n\nthat the court is powerless to prevent this. \n\nIn my view none of these premises can be assumed and all are unfounded. \n\n \n\n[62] Depending on the nature of the criminal or other regulatory statutes involved, \n\nthere are likely to be many other Chapter 3 rights which are facially involved. It \n\ncannot simply be postulated that an internally unlimited residual freedom right will \n\nopen the floodgates. \n\n \n\n[63] \n\nIt is patent that the overwhelming substance of criminal and other regulatory \n\nlegislative provisions constitute constitutionally justified limitations on rights, a \n\nfact which I believe is well recognised even by the lay public. It is unduly \n\npessimistic to expect a deluge of frivolous challenges to legislation based simply \n\non a broad reading of the section 11(1) right to freedom. In any event it is \n\nreasonable to suppose that most challenges will arise either in the Provincial and \n\nLocal Divisions of the Supreme Court or in other Courts. In both cases the \n\nSupreme Courts (either through section 102(1) of the Constitution or section \n\n103(4), in the case of matters originating in other Courts) are well able, by a \n\nproper application of these provisions in the Constitution, to dispose of \n\nchallenges where there is not a reasonable prospect that the law or provision is \n\ninvalid. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 69 \n\nACKERMANN J \n\n[64] This Court itself controls direct access through the provisions of section 100(2) of \n\nthe Constitution and the Constitutional Court rules, in particular rule 17. The \n\nUnited States and German courts of equivalent jurisdiction have devised \n\neffective means of preventing docket overload and there is no reason to believe \n\nthat this Court is not able to do likewise. If a frivolous or vexatious matter does \n\nsucceed in slipping through the net there are appropriate ways (including an \n\nappropriate punitive order as to costs) by which this Court could discourage such \n\nmatters from being brought before it. \n\n \n\n[65] There may also be the anxiety that, unless freedom is given a more restricted \n\nmeaning, this Court will inevitably be drawn into matters which are the concern of \n\nthe Legislature rather than the Courts and could stand accused of what Tribe has \n\ndescribed as being the error in decisions such as Lochner v New York66 which \n\nwas \u201ca misguided understanding of what liberty actually required in the industrial \n\nage.\u201d67 I believe this fear to be unfounded. Lochner, a case in which the United \n\nStates Supreme Court invalidated maximum hour work laws as violative of \n\ncontractual liberties protected by the Constitution, was decided in 1905 at a time \n\n \n\n66198 US 45 (1905). \n\n67Tribe American Constitutional Law 2ed (1988) at 769. \n\n\fand in a socio-economic context completely different from ours in 1995. I do not \n\n\u03a0\u03b1\u03b3\u03b5 70 \n\nACKERMANN J \n\nbelieve that we ought to allow ourselves to be haunted by the Lochner ghost. It is \n\nto me inconceivable that the broad sweep of labour legislation in this country68 \n\ncould be struck down because of an argument that it infringed rights of \n\ncontractual freedom protected by the Constitution. This is so for a number of \n\nreasons. \n\n \n \n\n \n\n \n\n68One is not here concerned with discrete provisions which might give rise to constitutional \n\ncontroversy even with a narrowly construed right to freedom. \n\n\f \n \n[66] First, the interventionist role of the state is no longer seen, in broad terms, as \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 71 \n\nbeing limited to protecting its citizens against brute physical force and \n\nintimidation from others only, but is seen as extending to the economic and social \n\nrealm as well.69 Second, there are specific provisions in the Constitution itself \n\nwhich will ensure that appropriate labour and other social legislation will not be \n\ninvalidated because of a \u201cmisguided understanding\u201d of what liberty requires.70 \n\nThird, statutory limitations on contractual freedom will (quite apart from the \n\n \n \n\n69See Popper's analysis supra note 56. The German Basic Law emphasises the social as well as \nthe democratic character of the state (article 20(1)) and that property imposes duties and should serve the \npublic weal (article 14(2)): In fact a very considerable jurisprudence has been built up around the concept \nof the social responsibility of the state, as to which, in general, see the comprehensive list of literature on \nthe topic in Maunz-D\u00fcrig Grundgesetz Kommentar (1994) Vol. II, commentary on article 20 at 295-302. \n \n \n\n70The section 8 right to equality before the law and the freedom from unfair discrimination is \n\nqualified in subsection (3) as follows: \n \n\n\u201c(3)(a) This section shall not preclude measures designed to achieve the \nadequate protection and advancement of persons or groups or \ncategories of persons disadvantaged by unfair discrimination, in order to \nenable their full and equal enjoyment of all rights and freedoms. \n\n (b) \n\nEvery person or community dispossessed of rights in land \nbefore the commencement of this Constitution under any law which \nwould have been inconsistent with subsection (2) had that subsection \nbeen in operation at the time of the dispossession, shall be entitled to \nclaim restitution of such rights subject to and in accordance with \nsections 121, 122 and 123.\u201d \n\nThe section 26 right to free economic activity is qualified in subsection (2) as follows: \n \n\n\u201c(2) \n\nSubsection (1) shall not preclude measures designed to promote the \nprotection or the improvement of the quality of life, economic growth, \nhuman development, social justice, basic conditions of employment, fair \nlabour practices or equal opportunity for all, provided such measures are \njustifiable in an open and democratic society based on freedom and \nequality.\u201d \n\n\u201c(1) \n\nSection 27 is to the following effect: \n \n (2) Workers shall have the right to form and join trade unions, and \nemployers shall have the right to form and join employers\u2019 organisations. \n \n\nEvery person shall have the right to fair labour practices. \n\n (3) Workers and employers shall have the right to organise and bargain collectively. \n\n \n\n (4) Workers shall have the right to strike for the purpose of collective bargaining. \n (5) \nEmployers' recourse to the lock-out for the purpose of collective bargaining shall \n\n\fimportance in this field of the provisions of section 26(2) of the Constitution)71 be \n\n\u03a0\u03b1\u03b3\u03b5 72 \n\nACKERMANN J \n\njustified under section 33(1), assuming the other requirements for limitation to \n\nhave been fulfilled, if they are, in terms of section 33(1)(a)(ii), \u201cjustifiable in an \n\nopen and democratic society based on freedom and equality\u201d. As a general \n\nproposition it is difficult to see how labour and other social legislation would be \n\nstruck down where such legislation easily passes constitutional scrutiny in \n\ncountries such as the United States of America, Canada and Germany. \n\n \n \n\n \n\n[67] \n\nIt has been suggested that the \u201cdue process\u201d provisions of section 25, the \n\nprohibition against cruel, inhuman or degrading punishment in section 11(2) and \n\nthe fact that substantive criminal law must not be inconsistent with the provisions \n\nof Chapter 3, provide accused persons with all the protection that one expects in \n\nan \u201copen and democratic society based on freedom and equality\u201d and that this is \n\na strong reason for holding that \u201cfreedom and security of the person\" in section \n\n \n \n\nnot be impaired subject to section 33(1).\" \n\n71See previous note 70. \n\n\f11(1) should not be construed as including freedom from criminal prosecution \n\n\u03a0\u03b1\u03b3\u03b5 73 \n\nACKERMANN J \n\nand imprisonment in accordance with the laws of the land. This is a very broad \n\nproposition which would, in my view, require for its justification a very detailed \n\nexamination of our criminal law and the possible abuses to which it could be put. \n\nIt is a proposition with which I am in any event unable to agree. One can think \n\noffhand of many prohibitions (such as an unqualified prohibition against the \n\npossession of any fire-arm, the possession of liquor in any form, the playing of \n\nsport on Sunday, and the proscription of various activities or where or when they \n\nmay be carried out) which might be difficult to challenge under provisions of \n\nChapter 3 other than the section 11(1) residual freedom rights, but would be \n\nunacceptable in an \u201copen and democratic society based on freedom and \n\nequality\u201d. \n\n \n \n\n \n\n[68] A major difficulty with reading a limitation into section 11(1) where the framers \n\nhave not seen fit to do so is the absence of any neutral principle or norm for \n\ndoing so. Neither the text, context nor purpose of Chapter 3 requires it. To read a \n\nlimitation into the subsection in these circumstances is to run the risk of injecting \n\nsubjective values into the text at the expense of a proper interpretation of the \n\nConstitution. \n\n \n\n\f \n \n[69] \n\n Even though the freedom rights in section 11(1) are residual freedom rights, \n\n\u03a0\u03b1\u03b3\u03b5 74 \n\nACKERMANN J \n\nthere is no justification for not giving these residual freedom rights the broad and \n\ngenerous interpretation I have suggested. They constitute the residual rights of \n\nindividuals (where such or similar rights are not protected elsewhere in Chapter \n\n3) not to have \u201cobstacles to possible choices and activities\u201d placed in their way by \n\n(for present purposes we need not, as already indicated, go any further) the \n\nState.72 \n\n \n\n[70] What is it about the nature and operation of the provisions of section 417(2)(b) of \n\nthe Act, and their impact upon the examinee, which can be said to be \n\ninconsistent with the right in question? Although it is section 417(2)(b) of the Act \n\nwhich is under attack, it must be analysed in the full context of its operation with \n\nother relevant provisions of the Act. In the first place, the examinees, if they fall \n\nwithin the classes of persons referred to in sub-section (1) of section 417 of the \n\nAct (which all the applicants do) appear at the examination under compulsion, for \n\nif they are duly summoned and fail to attend voluntarily, the Master or the Court \n\n \n \n\n72See supra paragraph [49] and note 61. \n\n\f \n \n\nmay, by virtue of the provisions of sub-section (4) cause them to be apprehended \n\n\u03a0\u03b1\u03b3\u03b5 75 \n\nACKERMANN J \n\nand brought before the Master or Court for examination. The examinee has no \n\nchoice but to attend. The examinee is, in terms of sub-section (2) obliged to \n\nsubmit to examination. Moreover, any examinee who fails, without sufficient \n\ncause, to answer fully any question lawfully put to the examinee in terms of sub-\n\nsection (2) is, in terms of the provisions of section 418(5)(b)(iii) of the Act, guilty \n\nof an offence and, in terms of section 441(1)(f), liable upon conviction to a fine \n\nnot exceeding R2000 or to imprisonment for a period not exceeding six months \n\nor to both such fine and such imprisonment. Section 417 obliges the examinee to \n\nanswer all questions even though the answer given to any such question may \n\ntend to incriminate him or her. Examinees thus have a very restricted choice if \n\nthey have in the past acted in a way which might make them liable to criminal \n\nprosecution in connection with the trade, dealings, affairs or property of the \n\ncompany and they are examined in connection with such acts. If they refuse to \n\nanswer, they face conviction and sentence to a fine or imprisonment (or both). If \n\nthey answer, they run the risk of prosecution and conviction under circumstances \n\nwhere they might not have been prosecuted or convicted but for their answers at \n\nthe examination, because section 417(2)(b) explicitly provides that even an \n\nanswer which tends to incriminate the examinee may thereafter be used in \n\nevidence against him or her. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 76 \n\nACKERMANN J \n\n[71] \n\nIt must be remembered that this stage of the enquiry is not concerned with \n\nwhether any infringement of an examinee's section 11(1) right is justified in terms \n\nof section 33(1) but merely whether the right has been infringed. On the basis of \n\nthe general principles set forth above, I would conclude that, prima facie, the \n\nrestrictions placed by section 417(2)(b) on an examinee's choices and activities \n\nconstitute an infringement of section 11(1). \n\n \n\n[72] \n\nIt is appropriate to consider whether comparable foreign case law would lead to a \n\ndifferent conclusion. Direct comparison is of course difficult and needs to be \n\ndone with circumspection because the right to personal freedom is formulated \n\ndifferently in the constitutions of other countries and in the international and \n\nregional instruments. Nevertheless, section 33(1) of our Constitution enjoins us \n\nto consider, inter alia, what would be \u201cjustifiable in an open and democratic \n\nsociety based on freedom and equality\u201d and section 35(1) obliges us to promote \n\nthe values underlying such a society when we interpret Chapter 3 and \n\nencourages us to have regard to comparable case law. In construing and \n\napplying our Constitution, we are dealing with fundamental legal norms which are \n\nsteadily becoming more universal in character. When, for example, the United \n\nStates Supreme Court finds that a statutory provision is or is not in accordance \n\n\fwith the \u201cdue process of law\u201d or when the Canadian Supreme Court decides that \n\n\u03a0\u03b1\u03b3\u03b5 77 \n\nACKERMANN J \n\na deprivation of liberty is not \u201cin accordance with the principles of fundamental \n\njustice\u201d (concepts which will be dealt with later) we have regard to these findings, \n\nnot in order to draw direct analogies, but to identify the underlying reasoning with \n\na view to establishing the norms that apply in other open and democratic \n\nsocieties based on freedom and equality. \n\n \n \n\n \n\n[73] Section 7 of the Canadian Charter entrenches the right to liberty and security of \n\nthe person in terms narrower than section 11(1) of our Constitution. It provides: \n\n\"7. Everyone has the right to life, liberty and security of the \n\nperson and the right not to be deprived thereof except in \n\naccordance with the principles of fundamental justice.\" \n\n(Emphasis added). \n\nSection 8 of the Charter is to the following effect: \n\n\"8. Everyone has the right to be secure against unreasonable \n\nsearch and seizure.\" \n\nIn Canada the general approach of the Courts is that there is a deprivation of \n\nliberty within the meaning of section 7 of the Charter where conduct is prescribed \n\nor proscribed by law, and imprisonment is a possible consequence of disobeying \n\n\f \n \n\nthe law in question.73 In Reference Re ss 193 and 195.1(C) of the Criminal Code \n\n\u03a0\u03b1\u03b3\u03b5 78 \n\nACKERMANN J \n\nDickson CJC, writing for three of the six Justices, held that \n\n\"... there is a clear infringement of liberty in this case given the \n\npossibility of imprisonment contemplated by the impugned \n\nprovisions.\"74\n\n \n\n \n\n73Hogg Constitutional Law of Canada 3 ed (1992) at 1026 - 1027 states that, \n\n\"'Liberty' certainly includes freedom from physical restraint. Any law that imposes \nthe penalty of imprisonment, whether the sentence is mandatory or discretionary, \nis by virtue of that penalty a deprivation of liberty and must conform to the \nprinciples of fundamental justice.\" \n\n74[1990] 48 C.R.R. 1 at 15. \n\n\f \n \n[74] The decision of the Supreme Court of Canada in Thomson Newspapers Ltd. et \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 79 \n\nal. v. Director of Investigation and Research et al75 is particularly instructive. The \n\nCanadian Combines Investigation Act76 (the \"CI Act\") provided for a system of \n\ninvestigation and research which allowed the Director to determine facts relevant \n\nto particular issues of market behaviour, including breaches of prescribed \n\nguidelines set forth in the Act. Section 17 of the Act allowed the Director of \n\nInvestigation and Research, in the course of carrying out an investigation under \n\nthe Act, to apply for an order requiring any person to be examined under oath \n\nand to produce business records. Section 20(2) of the Act protected examinees \n\nwho were compelled to testify against subsequent use of their oral testimony in \n\ncriminal proceedings against them, but not against the subsequent use of \n\nevidence derived from that testimony. Officers of Thomson Newspapers were \n\nserved with orders to appear before the Restrictive Trade Practices Commission \n\nto be examined under oath and to make production of certain documents. They \n\nattacked section 17 of the CI Act on the grounds of its violation of sections 7 and \n\n \n\n75[1990] 67 D.L.R. (4th) 161. \n\n76R.S.C. 1970, c. C-23. \n\n\f8 of the Canadian Charter. The Supreme Court of Canada ultimately held, Lamer \n\n\u03a0\u03b1\u03b3\u03b5 80 \n\nACKERMANN J \n\nand Sopinka JJ dissenting in part, and Wilson J dissenting, that section 17 of the \n\nCI Act violated neither section 7 or section 8 of the Charter. \n\n \n \n\n \n\n[75] Each member of the Supreme Court (Lamer, Wilson, La Forest, L'Heureux-Dub\u00e9 \n\nand Sopinka JJ) gave a separate judgment. The reasons for all the judgments \n\nare not readily amenable to brief, accurate summary. They are, however, \n\ninstructive both on the issue of the ambit of the right to liberty in section 7 of the \n\nCharter (the right to freedom in section 11(1) of our Constitution) and the \n\npossible limitation of such right in terms of section 1 of the Charter (section 33(1) \n\nof our Constitution). For the present part of this judgment I refer only to the \n\nformer. \n\n \n\n[76] Section 17(1) of the CI Act makes provision, inter alia, for the examination on \n\noath of persons before a member of the Commission who may make orders for \n\nsecuring the attendance of witnesses and their examination and \"may otherwise \n\nexercise, for the enforcement of such orders or punishment for disobedience \n\n\f \n \n\nthereof, all the powers that are exercised by any superior Court in Canada for the \n\n\u03a0\u03b1\u03b3\u03b5 81 \n\nACKERMANN J \n\nenforcement of subpoenas to witnesses or punishment of disobedience thereof.\" \n\nLamer J, without pronouncing on the section 7 issue, dismissed the section 7 \n\nchallenge on the basis that the wrong section of the CI Act had been challenged, \n\nsection 20(2) thereof and section 5(1) of the Canadian Evidence Act being the \n\nrelevant statutory provisions which had to be challenged in order for the \n\napplicants to succeed.77 Wilson J held that section 17 of the CI Act violated a \n\nperson's right to liberty and security of the person within the meaning of section 7 \n\nof the Charter78, stating that: \n\n\"There is, however, in my view a vast difference between a general \n\nregulatory scheme (such as the rules of the road for motorists) \n\ndesigned to give some order to human behaviour and a state-\n\nimposed compulsion on an individual to appear at proceedings \n\nagainst his will and testify on pain of punishment if he refuses. The \n\ndifference is even greater, in my view, where the compelled \n\ntestimony given by the individual may be used to build a case \n\n \n \n\n77Thomson supra note 75 at 175 a - b. \n\n78Id at 186 h. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 82 \n\nACKERMANN J \n\nagainst him in what is, in effect, a subsequent criminal prosecution. \n\nIt is my opinion that this compulsion, linked as it is to the criminal \n\nprocess, touches upon the physical integrity of the individual as \n\nwell as that individual's reasonable expectation of privacy. The fact \n\nthat the s. 17 procedure is in itself 'investigatory' as opposed to \n\n'prosecutorial' seems to me to be irrelevant when a criminal \n\nprosecution is a potential consequence of the s. 17 enquiry.\"79 \n\nThe learned Judge also found that the infringement by section 17 of the \n\nappellants' section 7 rights was not \"in accordance with the principles of \n\nfundamental justice\"80 (the phrase qualifying the section 7 right to \"liberty and \n\nsecurity of the person\"), stating that: \n\n\"Although s. 20(2) of the Act protects a witness who testifies under \n\ns. 17 from use of the testimonial evidence in a subsequent \n\nprosecution if one takes place, it does not protect the witness \n\nagainst use of the derivative evidence. Accordingly, s.17 violates \n\nthe residual s.7 right of an individual not to be compelled to testify \n\nin an investigatory proceeding with a view to possible subsequent \n\nprosecution absent legislative assurance that any derivative \n\n \n \n\n79Id at 186 d - f. \n\n80Id at 204 e - h. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 83 \n\nACKERMANN J \n\nevidence obtained as a result of his testimony cannot be used \n\nagainst him in such prosecution.\"81\n\n \n \n\n81Id at 204 f - h. \n\n\f \n \n\n \n\nSection 11(1) of the South African Constitution of course contains no such \n\n\u03a0\u03b1\u03b3\u03b5 84 \n\nACKERMANN J \n\nlimitation to the \"right to freedom and security of the person\"; but the possible \n\nsignificance of this aspect of the Thomson judgment for the present enquiry will \n\nbe dealt with later. La Forest J also found that section 17 of the CI Act \n\nconstituted a deprivation of liberty within the meaning of section 7,82 but \n\nconcluded that it did so in accordance with the principles of fundamental justice, \n\nholding that \n\n\".... complete immunity against such use [of derivative evidence] is \nnot required by the principles of fundamental justice. The immunity \nagainst use of actual testimony provided by s. 20(2) of the Act \ntogether with the judge's power to exclude derivative evidence \nwhere appropriate is all that is necessary to satisfy the \nrequirements of the Charter.\"83\n\nL'Heureux-Dub\u00e9 J came to a similar conclusion.84 Sopinka J, concurring with \n\nWilson J in this respect, held that section 17 of the CI Act violated section 7 of \n\nthe Canadian Charter, \"in particular, the principle of fundamental justice in which \n\nthe right to remain silent is embodied\" to the extent that the provisions of section \n\n17 compelled testimony.85 The learned Judge's reasons for concluding that \n\nsection 17 violated this principle of fundamental justice will be considered in due \n\ncourse, but it is clear that he considered that \"the right of a suspect to remain \n\n \n\n82Id at 242 c. \n\n83Id at 264 d - e. \n\n84Id at 271 g and 281 e - f. \n\n\fsilent during the investigative stage\" had the \"status of a principle of fundamental \n\n\u03a0\u03b1\u03b3\u03b5 85 \n\nACKERMANN J \n\njustice\" and that it was included in section 7, \"the repository of many of our basic \n\nrights which are not otherwise specifically enumerated.\"86\n\n \n \n\n \n\n[77] The Fifth Amendment to the United States Constitution provides in part that - \n\n\"[No person] ... shall be compelled in any criminal case to be \n\nwitness against himself, nor be deprived of life, liberty, or property, \n\nwithout due process of law\". \n\n \n \n\n85Id at 290 e - f. \n\n86Id at 294 a. \n\n\f \n \n\nIn dealing with the Fifth Amendment it must of course be borne in mind, as \n\n\u03a0\u03b1\u03b3\u03b5 86 \n\nACKERMANN J \n\npointed out by Wilson J in Thomson Newspapers87, that the United States \n\nConstitution has no limitation clause (such as section 1 in the Canadian Charter \n\nor section 33(1) of our Constitution) and that, accordingly, any limitation on a \n\nconstitutional right has to be read into the right itself. Nevertheless it is significant \n\nthat the United States Fifth Amendment right not to be so compelled \"has \n\nconsistently been accorded a liberal construction\"88 and \"is available outside of \n\ncriminal court proceedings and serves to protect persons in all settings in which \n\ntheir freedom of action is curtailed in any significant way from being compelled to \n\nincriminate themselves.\"89 It is regarded as a right in the broad panoply of \n\nfreedom rights which were added to the original Constitution \"in the conviction \n\nthat too high a price may be paid even for the unhampered enforcement of the \n\ncriminal law and that, in its attainment, other social objects of a free society \n\n \n\n87Id at 206 h - 207 a. \n\n88Miranda v. Arizona 384 US 436 (1965) at 461. \n\n89Id at 467. \n\n\f \n \n\nshould not be sacrificed.\"90 It is viewed as one of the fruits of \"[t]he battle for \n\n\u03a0\u03b1\u03b3\u03b5 87 \n\nACKERMANN J \n\npersonal liberty\".91 In defining explicitly the spirit in which this privilege against \n\nself-incrimination should be approached, Frankfurter J stated that \n\n \n \n\n479 (1950) at 486. \n\n90Feldman v. United States 322 US 487 (1944) 489. See also Hoffman v .United States 341 US \n\n91United States v. James 60 F. 257 (1894) at 264 - 265 and Ullmann v. United States 350 US 422 \n\n(1955) at 454. \n\n\f\u03a0\u03b1\u03b3\u03b5 88 \n\nACKERMANN J \n\n\"[t]his command of the Fifth Amendment ... registers an important \n\nadvance in the development of our liberty - 'one of the great \n\nlandmarks in man's struggle to make himself civilized.'\"92\n\n \n \n\n \n\n[78] As far as the breadth of our present Constitution's section 11(1) right to freedom \n\nand security of the person is concerned, Thomson's case93 provides some useful \n\nguidance. Reference has already been made94 to the fact that the right to \n\nfreedom is the foundation of many of the other rights that are specifically \n\nentrenched in the present Constitution. The existence of these other freedom-\n\n \n\n92Ullmann v. United States supra note 91 at 426. In Bolling v. Sharpe 347 US 497 (1953) (a school \n\nsegregation case) Chief Justice Warren pointed out the following at 499 - 500: \n\n\"Although the Court has not assumed to define 'liberty' with any great precision, that term \nis not confined to mere freedom from bodily restraint. Liberty under law extends to the full \nrange of conduct which the individual is free to pursue, and it cannot be restricted except \nfor a proper governmental objective. Segregation in public education is not reasonably \nrelated to any proper governmental objective, and thus it imposes on Negro children of \nthe District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in \nviolation of the Due Process Clause.\" \n\nGenerally speaking the right to liberty is given a broad definition by the United States Supreme Court, even \nin modern times and it is certainly not limited to mere freedom from bodily restraint. In Board of Regents of \nState College v. Roth 408 US 564 (1972) at 572, Stewart J explained the broad reach of the concept of \nliberty as embodied in the Fourteenth Amendment by quoting with approval the following passage from \nMeyer v. Nebraska 262 US 390 (1923) at 399: \n\n\"While this Court has not attempted to define with exactness the liberty ... guaranteed [by \nthe Fourteenth Amendment], the term has received much consideration and some of the \nincluded things have been definitely stated. Without doubt, it denotes not merely freedom \nfrom bodily restraint but also the right of the individual to contract, to engage in any of the \ncommon occupations of life, to acquire useful knowledge, to marry, establish a home and \nbring up children, to worship God according to the dictates of his own conscience, and \ngenerally to enjoy those privileges long recognized ... as essential to the orderly pursuit of \nhappiness by free men.\" \n\n\"In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' \nmust be broad indeed.\" \n\nThe learned Judge then added: \n\n93Supra note 75. \n\n94Para 44 above. \n\n\f \n \n\nbased or freedom-inspired rights does not warrant a restrictive interpretation \n\n\u03a0\u03b1\u03b3\u03b5 89 \n\nACKERMANN J \n\nbeing given to the section 11(1) rights. Section 13 of the Canadian Charter \n\nprovides an individual with a limited protection against self-incrimination in the \n\nfollowing terms: \n\n\"13. A witness who testifies in any proceedings has the right not \n\nto have any incriminating evidence so given used to \n\nincriminate that witness in any other proceedings, except in \n\na prosecution for perjury or for the giving of contradictory \n\nevidence.\" \n\nSection 11(c) embodies a limited right of non-compellability: \n\n\"11. Any person charged with an offence has the right \n\n........ \n(c) not to be compelled to be a witness in proceedings \n\nagainst that person in respect of the offence.\" \n\nIn Thomson's case the appellants could not take advantage of either section 13 \n\nor section 11(c) but contended that section 7 protects similar rights in contexts \n\nother than those to which section 13, and section 11(c) relate. This contention \n\nwas upheld by Wilson J who stated the following: \n\n\"The principle of statutory construction, expressio unius, is ill-suited \nto meet the needs of Charter interpretation. It is inconsistent with \nthe purposive approach to Charter interpretation which has been \nendorsed by this court and which focuses on the broad purposes \nfor which rights were designed and not on mechanical rules which \nhave traditionally been employed in interpreting detailed provisions \n\n\f \n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 90 \n\nACKERMANN J \n\nof ordinary statutes in order to discern legislative intent\", \n\nand, \n\n\"Sections 8 to 14 of the Charter are illustrative, but not exhaustive, \n\nof deprivations of life, liberty and security of the person which are \n\nnot in accord with the principles of fundamental justice. Otherwise, \n\ns. 7 would have no role to play. I conclude therefore that the \n\nspecific enumerations in ss.11(c) and 13 do not prevent residual \n\ncontent being given to s.7.\"95\n\n \n \n\n95Thompson's case supra note 75 at 192 h - 193 and 193 c - d. \n\n\f \n \n\nThis part of Wilson J's judgment was concurred in by Lamer J,96 La Forest J,97 \n\n\u03a0\u03b1\u03b3\u03b5 91 \n\nACKERMANN J \n\nL'Heureux-Dub\u00e9 J98 and Sopinka J (but only in regard to the section 11(c) right to \n\nremain silent).99 For the reasons advanced by Wilson J, I would hold that the \n\nfact that many other freedom rights are entrenched in our present Constitution \n\ndoes not for that reason mean that the section 11(1) right to freedom does not \n\nprotect similar rights in contexts other than those to which the more particular \n\nfreedom rights in the Constitution relate; the Court is not thereby precluded from \n\ngiving \"residual content\" to section 11(1). The same considerations also do not \n\nwarrant giving this residual freedom right a narrow construction. In Thomson, \n\nWilson J construed the words \"life, liberty and security of the person\" \n\ndisjunctively, holding that: \n\n\"it is not necessary for the citizen to show that his right to life, his \n\nright to liberty and his right to security of the person have all been \n\nviolated in order to constitute a breach of the section. It is sufficient \n\nthat one of them has been violated: see Singh v. Can. (Minister of \n\nEmployment & Immigration) (1985), 17 D.L.R. (4th) 422, [1985] 1 \n\n \n\n96Id at 172 f. \n\n97Id at 243 g - 244 c. \n\n98Id at 277 f, 278 a - b and 280 a. \n\n99Id at 293 g - 294 a. \n\n\f\u03a0\u03b1\u03b3\u03b5 92 \n\nACKERMANN J \n\nS.C.R. 177, 14 C.R.R. 13.\"100\n\nThis is further support for the disjunctive reading of \"freedom and security of the \n\nperson\" which I have favoured in para [41] above. \n\n \n \n\n \n\n \n \n\n100Id at 185 c - d. \n\n\f \n \n[79] \n\nI would, more specifically and in the context of this case, apply the above \n\n\u03a0\u03b1\u03b3\u03b5 93 \n\nACKERMANN J \n\ninterpretative approach to the rights enumerated in section 25(3)(c) and (d) \n\nrespectively of the Constitution, namely the right of an accused person \"to be \n\npresumed innocent and to remain silent during plea proceedings or trial and not \n\nto testify during trial\" and \"not to be a compellable witness against himself or \n\nherself\". In Zuma101 Kentridge AJ, writing for the Constitutional Court, pointed out \n\nthat South African courts have over the years recognised the origins and the \n\nimportance of the common law rule placing the onus of proving the voluntariness \n\nof a confession on the prosecution.102 In this context he quoted with approval the \n\nfollowing passage from R v. Camane 1925 AD 570 at 575: \n\n\"Now, it is an established principle of our law that no one can be \n\ncompelled to give evidence incriminating himself. He cannot be \n\nforced to do that either before the trial, or during the trial. The \n\nprinciple comes to us through the English law, and its roots go far \n\nback in history. Wigmore, in his book on Evidence (Volume 4, \n\nsection 2250) traces very accurately the genesis, and indicates the \n\nlimits of the privilege. And he shows that however important the \n\ndoctrine may be, it is necessary to confine it within its proper limits. \n\n \n\n101Supra note 8. \n\n102Id at para 31. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 94 \n\nACKERMANN J \n\nWhat the rule forbids is compelling a man to give evidence which \n\nincriminates himself\"103 (Emphasis added). \n\nAfter tracing the history of the embodiment of this rule in South African \n\nlegislation, Kentridge AJ concluded that: \n\n\"the common law rule in regard to the burden of proving that a \n\nconfession was voluntary has not been a fortuitous but an integral \n\nand essential part of the right to remain silent after arrest, the right \n\nnot to be compelled to make a confession and the right not to be a \n\ncompellable witness against oneself. These rights, in turn, are the \n\nnecessary reinforcement of Viscount Sankey's 'golden thread' - \n\nthat it is for the prosecution to prove the guilt of the accused \n\nbeyond reasonable doubt (Woolmington's case (supra)). Reverse \n\nthe burden of proof and all these rights are seriously compromised \n\nand undermined. I therefore consider that the common law rule on \n\nthe burden of proof is inherent in the rights specifically mentioned \n\nin section 25(2) and 3(c) and (d), and forms part of the right to a \n\n \n\n103Id. \n\n\f\u03a0\u03b1\u03b3\u03b5 95 \n\nACKERMANN J \n\nfair trial.\"104\n\nEven if it were not otherwise sufficiently clear from the wording of section \n\n25(3)(c) or (d) that these rights include the right of accused not to be compelled \n\nto give evidence which incriminates themselves, the aforementioned approach \n\nunquestionably does. I conclude that the right of a person not to be compelled to \n\ngive evidence which incriminates such person is inherent in the rights mentioned \n\nin section 25(2) and (3)(c) and (d). The fact that such rights are, in respect of an \n\naccused person, included (implicitly or otherwise) in section 25(3) of the \n\nConstitution, does not for that reason preclude the Court from giving residual \n\ncontent to section 11(1) and holding that section 11(1) protects rights similar to \n\nthose in section 25(3)(c) or (d) in contexts and in respect of persons other than \n\nthose there mentioned. \n\n \n \n\n \n\n[80] For this reason, the contention advanced by Mr. Cilliers that, because the section \n\n25(3) rights were enumerated in such detail, it was not possible, on the proper \n\nconstruction of the Constitution as a whole, to interpret the section 11(1) right to \n\n \n \n\n104Id at para 33. \n\n\ffreedom in such a way as to include a residual right not to be compelled to give \n\n\u03a0\u03b1\u03b3\u03b5 96 \n\nACKERMANN J \n\nevidence against oneself in a section 417 enquiry, cannot be sustained. \n\n \n \n\n \n\n[81] \n\nIn Reference re s.94(2) of Motor Vehicle Act Wilson J observed: \n\n\"Indeed, all regulatory offences impose some restrictions on liberty \n\nbroadly construed. But I think it will trivialize the Charter to sweep \n\nall those offences into s. 7 as violations of the right to life, liberty \n\nand security of the person even if they can be sustained under s. \n\n1.\"105\n\nI cannot, with due respect to so distinguished a Judge, comprehend why an \n\nextensive construction of freedom would \"trivialize\" the Charter, either in theory \n\nor in practice, or, more relevantly for our purposes, our present Constitution. It \n\nmight trivialise a constitution (it would indeed cause chaos) if it resulted in the \n\nregulating measures being struck down. But that is not the consequence. An \n\nextensive construction merely requires the party relying thereon to justify it in \n\nterms of a limitation clause. It does not trivialise a constitution in theory; in fact it \n\n \n\n105 (1985) 24 D.L.R. (4th) 536 at 565. \n\n\fhas the reverse effect by emphasising the necessity for justifying intrusion into \n\n\u03a0\u03b1\u03b3\u03b5 97 \n\nACKERMANN J \n\nfreedom. It does not trivialise a constitution in practice because in the vast \n\nmajority of cases dealing with regulatory matters, the justification is so obviously \n\nincontestable that it is taken for granted and never becomes a live issue. In the \n\nborderline cases (and even in mundane regulatory statutes such cases may \n\narise) there is no pragmatic reason why the person relying on the measure ought \n\nnot to justify it. \n\n \n \n\n \n\n[82] Section 11(1) of the transitional Constitution contains no internal limitation such \n\nas is found in section 7 of the Canadian Charter. There seems to be no reason in \n\nprinciple why the limitation of the right should not consistently be sought for and \n\njustified under section 33(1). The drafters of section 11(1) were undoubtedly well \n\naware of the provisions of section 7 of the Canadian Charter, yet they decided \n\nnot to place any limitation in section 11(1). Instead a detailed limitation clause \n\nhas been crafted. It would seem to further the norms of the rule of law and of \n\nconstitutionalism better for Courts, in applying the Constitution, to seek for any \n\nlimitation to section 11(1) rights in section 33(1), where the Constitution lays \n\ndown criteria for limitation, than to seek limits in section 11(1) by means of an \n\ninterpretative approach which must of necessity, having regard to the nature of \n\nthe right to freedom, be more subjective, more uncertain and more \n\n\f \n \n\n \n \n\nconstitutionally undefined. In Zuma106 this Court recognised the difference \n\n\u03a0\u03b1\u03b3\u03b5 98 \n\nACKERMANN J \n\nbetween the \"single stage\" approach and the \"two-stage\" approach to \n\ndetermining whether there has been an unconstitutional infringement of an \n\nentrenched right. It was further recognised that - \n\n\"The single stage approach (as in the United States constitution or \nthe Hong Kong Bill of Rights) may call for a more flexible approach \nto the construction of the fundamental right, whereas the two-stage \napproach may call for a broader interpretation of the fundamental \nright, qualified only at the second stage.\"107\n\nThe fact that such a \"two-stage\" approach is prescribed by the Constitution, and \n\nthat section 33(1) prescribes fully the criteria that have to be met before an \n\nentrenched right can be limited, in my view lends constitutional and policy \n\nsupport to an interpretative approach which requires that the broadest \n\ninterpretation be given to the entrenched right. If a limitation is sought to be made \n\nat the first stage of the enquiry, it requires, at best, an uncertain, somewhat \n\nsubjective and generally constitutionally unguided normative judicial judgment to \n\nbe made. The temptation to, and danger of, judicial subjectivity is great. This \n\n \n\n106Supra note 8 at para 21. \n\n107Id. \n\n\fCourt would, in my view, be discharging its interpretative function best, most \n\n\u03a0\u03b1\u03b3\u03b5 99 \n\nACKERMANN J \n\nsecurely and most constitutionally, if, as far as is judicially possible, it seeks for \n\nany limitation of an entrenched right through section 33(1). It may well be that the \n\nConstitution itself, either because of the descriptive ambit of one or more of the \n\nmany other rights entrenched in Chapter 3, or in some other way, expressly or by \n\nclear implication, indicates a limitation of an entrenched right at the first stage of \n\nthe enquiry. Absent such an indication, the Court would be on safer constitutional \n\nground if it were to find any limitation on the basis of the prescribed criteria in \n\nsection 33(1). This approach will afford a better guarantee against the Court, \n\nhowever unwittingly, reading its own subjective views into the Constitution. \n\n \n \n\n \n\n[83] Article 2 of the German Basic Law deals with the right to freedom in two separate \n\nsub-paragraphs, namely: \n\n\"(1) Everybody has the right to self-fulfilment in so far as they do \nnot violate the rights of others or offend against the \nconstitutional order or morality. \n\n (2) Everybody has the right to life and physical integrity. \n\n \n\nPersonal freedom is inviolable. These rights may not be \n\nencroached upon save pursuant to a law.\" \n\nThe formulation is patently different from that in section 11(1) of the transitional \n\nConstitution. The purpose of alluding to its provisions is not to attempt a direct \n\n\fcomparison, but to illustrate that a Constitution can operate effectively where the \n\n\u03a0\u03b1\u03b3\u03b5 100 \n\nACKERMANN J \n\nwidest possible construction is given to a freedom right. Article 2(2) is, it is \n\ngenerally agreed, given a very narrow construction which limits \"personal \n\nfreedom\" to freedom from physical restraint.108 Article 104 contains detailed \n\nrights applying to detention and arrest. The legislative history of article 2(2), the \n\nsystematic structure of the fundamental rights and the existence of article 104 \n\nare used to support a narrow construction of article 2(2).109\n\n \n \n\n \n\n \n \n\nBVerfGE 302 at 318. \n\n108Maunz-D\u00fcrig Grundgesetz Kommentar (1944) Vol. I, commentary on article 2 at 110 - 111; 10 \n\n109Maunz-D\u00fcrig supra note 108 at 110 - 111; 10 BVerfGE 302 at 322 - 323. \n\n\f \n \n[84] By contrast Article 2(1) of the Basic Law has been interpreted so broadly by the \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 101 \n\nFederal Constitutional Court that it presently allows the Court to subject any \n\nlegislative norm (statutory instrument) to constitutional scrutiny, the culmination \n\nof a process the basis for which was laid in the late 1950's when the Court \n\ninterpreted the right to self-fulfilment as a protection of the general \"freedom to \n\nact\".110 The freedom to act is guaranteed to the extent that it does not offend \n\nagainst the constitutional order, which includes all statutory instruments111, but, in \n\norder to pass constitutional scrutiny, all statutes must conform formally and \n\nsubstantively with the Basic Law. Formally the Court may, for example, examine \n\nwhether the legislative provision was passed by the appropriate Legislature, but \n\nthe substantive content of all legislative provisions are tested against the \n\nprinciple of proportionality.112 The Federal Constitutional Court requires the \n\nprinciple of proportionality to be respected even if a special limitation to the right, \n\nsuch as the \"constitutional order\" is invoked by the Legislature.113 The \n\nconsequences of the extremely wide interpretation given to Article 2(1) is that, in \n\neffect, all legislative provisions must be tested for compliance with the principle of \n\n \n \n\n152 - 3. \n\n1106 BVerfGE 32 at 36 - 37; 55 BVerfGE 159 at 165; 74 BVerfGE 129 at 151; 80 BVerfGE 137 at \n\n1116 BVerfGE 32 at 37 - 38. \n\n11255 BVerfGE 159 at 165; 75 BVerfGE 108 at 155; 80 BVerfGE 137 at 153. \n\n11380 BVerfGE 137 at 153. \n\n\f \n \n\nproportionality.114 \n\n \n\n\u03a0\u03b1\u03b3\u03b5 102 \n\nACKERMANN J \n\n[85] The phrase \u201cin so far as they do not violate the rights of others or offend against \n\nthe constitutional order or morality\u201d which qualifies the \u201cright to self-fulfilment\u201d in \n\narticle 2(1) of the German Basic Law is not an internal qualification of this right \n\nfor, as indicated above, the German Constitutional Court requires that all \n\nstatutory provisions which prima facie limit this right be tested for compliance \n\nwith the principle of proportionality. This is the equivalent of requiring all prima \n\nfacie infringements of the residual freedom rights in section 11(1) of our \n\nConstitution to pass section 33(1) scrutiny. The German Constitutional Court has \n\ninsisted on such justification according to the principles of proportionality in many \n\ncases. \n\n \n\n \n \n\n114Isensee and Kirchhof Handbuch des Staatsrechts (1988) Vol. vi at 1192. \n\n\f \n \n[86] \n\nIn Elfes115, the decision which laid the basis for the German Constitutional \n\n\u03a0\u03b1\u03b3\u03b5 103 \n\nACKERMANN J \n\nCourt\u2019s approach to section 2(1) as the general and residual freedom right \n\n(\u201cAuffanggrundrecht\u201d), the Court was concerned with the denial of an application \n\nfor thepassport renewal of a leading member of a political party which opposed \n\nthe West German government\u2019s re-armament policy in the 1950s. Having \n\nrejected the petitioner\u2019s reliance on the right to freedom of movement (section 11 \n\nof the Basic Law), on the basis that the right only guaranteed the right to move \n\nfreely within the boundaries of the Federal Republic of Germany, the Court \n\nproceeded to consider the state\u2019s justification for the legislation with reference to \n\nsection 2(1) and the principle of proportionality. In casu the Court found that \n\nconsiderations of national security justified the law limiting the issuing of \n\npassports. Similarly, in 1980 the Court held that a government prohibition on the \n\nfeeding of doves in a particular city passed constitutional muster.116 The Court \n\naccepted that section 2(1) of the Basic Law had been infringed, but held that the \n\nprohibition related to the public\u2019s interest in keeping the city clean and protecting \n\nproperty from damage caused by the doves. The public\u2019s interest, the Court \n\nstated, had to be balanced against the relatively minor infringement of \n\nindividuals\u2019 section 2(1) right to express their affection for animals. In the same \n\n \n\n1156 BVerfGE 32. \n\n11654 BVerfGE 143. \n\n\f \n \n\nyear, however, the Constitutional Court invalidated a requirement in Federal \n\n\u03a0\u03b1\u03b3\u03b5 104 \n\nACKERMANN J \n\nhunting laws which compelled those who sought to hunt with falcons to \n\ndemonstrate their competence in the use of firearms117. Again none of the \n\nspecific freedoms entrenched in the Basic Law applied to the situation, but the \n\napplicants successfully relied on the disproportionate infringement of section \n\n2(1). The Court held that the required skill had no connection with the practice of \n\nfalconry; in fact, the Court stated, falconers who discharged a firearm during the \n\nhunt would merely distract or even frighten their falcons. Other examples which \n\nillustrate the effect of the residual content found by the German Court in section \n\n2(1) are those decisions dealing with the freedom not to be compelled to join \n\npublic - as opposed to private - associations. In a long line of decisions118 the \n\nCourt has excluded the possibility of relying on the freedom of association \n\n(section 9(1)) against this form of compulsion. The reasoning is that, since \n\nindividuals may not invoke the right of freedom of association to establish public \n\nassociations (the state retains a discretion whether or not to confer public status \n\non an association), individuals may also not rely on the right of freedom of \n\nassociation to refrain from joining such public associations. While excluding \n\n \n \n\n11755 BVerfGE 159. \n\n1184 BVerfGE 7 at 26; 10 BVerfGE 89 at 102; 10 BVerfGE 354 at 361; 11 BVerfGE 105 at 126; 12 \n\nBVerfGE 319 at 323; 38 BVerfGE 281 at 297. \n\n\freliance on the right to freedom of association, the Court has acknowledged that \n\n\u03a0\u03b1\u03b3\u03b5 105 \n\nACKERMANN J \n\nthe individual is protected from state compulsion to join public associations \n\nthrough the residual protection afforded by section 2(1) of the Basic Law. \n\n \n \n\n \n\n[87] One's sense is that the German Federal Constitutional Court seldom strikes \n\ndown laws on the basis of section 2(1) - the general freedom of action. The \n\nreason seems to be that the Court shows deference to the legislature in many of \n\nthe areas protected by the freedom and not because it is not prepared to test \n\nlegislation against the principles of proportionality or because it subjects the \n\nlegislation to a different type of limitation test. The German Court is more inclined \n\nto exercise a stricter form of scrutiny on the basis of section 2(1) when the \n\ninfringement is somehow analogous to the infringement of another right or \n\nfreedom, not dissimilar to the heightened scrutiny the US Supreme Court \n\nemploys through the \"fundamental rights\" strand of jurisprudence under that part \n\nof the 14th Amendment that deals with due process.119 In other words, when the \n\nother rights or freedoms, for some reason or another, do not apply, section 2(1) \n\nis activated. This is the situation with which we are dealing here. It is important to \n\ndefine section 11(1) broadly in the first stage of the enquiry because it cannot \n\n \n \n\nat 786. \n\n119See Gunther Constitutional Law 12ed (1992) at 433; Stone et al Constitutional Law 2ed (1991) \n\n\ffunction as a residual freedom right if narrowly defined at this stage. If a broad \n\n\u03a0\u03b1\u03b3\u03b5 106 \n\nACKERMANN J \n\nresidual freedom right is not acknowledged by the Court, the Court will not be \n\nable to develop any form of due process jurisprudence - procedural or \n\nsubstantive. There may be concerns about substantive due process and \n\nLochner, but in the absence of a broad interpretation of section 11(1) we will not \n\nhave a general procedural due process right either. In the present case we are \n\nconcerned with process as much as with substance. We are not creating a right, \n\nwe are asking the state to be consistent - procedurally - when it denies \n\nindividuals their rights. \n\n \n \n\n \n\n[88] Article 9(1) of the International Covenant on Civil and Political Rights provides \n\nthat- \n\n\u201cEveryone has the right to liberty and security of person. No one \n\nshall be subjected to arbitrary arrest or detention. No one shall be \n\ndeprived of his liberty except on such grounds and in accordance \n\nwith such procedure as are established by law.\u201d \n\nThe other sub-articles ((2) to (5)) of Article 9 deal with arrest and detention. In \n\nany event the last sentence in article 9(1) does not constitute an internal \n\nlimitation of the right but provides scope for statutory limitation and it is not any \n\nground or any procedure, even though established by law, which will justify \n\n\f \n \n\n \n\ndeprivation of liberty. \n\n\u03a0\u03b1\u03b3\u03b5 107 \n\nACKERMANN J \n\n[89] Article 5(1) of the European Convention of Human Rights provides that- \n\n \u201cEveryone has the right to liberty and security of person. No one shall be \n\ndeprived of his liberty save in the following cases and in accordance with \n\na procedure prescribed by law.\u201d \n\nThe remaining provisions of article 5 (paragraphs 5(1)(a) - (f) and sub-articles \n\n5(2) - 5(5)) deal exclusively with arrest and detention. The structure of the \n\nConvention is determinative of the interpretation of article 5. The Convention \n\ncontains no general limitation provision, but special limitations are enumerated in \n\nrelation to virtually all the protected rights and freedoms. The specialized order of \n\nlimitation is of particular importance for the interpretation of article 5 since the \n\nexceptions enumerated in article 5(1)(a) - (f) constitute the only form of limitation \n\nto the right to freedom and security of the person. The exceptions merely \n\nrecognise the legitimacy of arrest and detention in certain circumstances. The \n\nCommission and the Court, responsible for the interpretation of the Convention, \n\nare therefore confronted with the problem that it is not possible to assign a wide \n\nmeaning to the terms \u201cliberty\u201d and \u201csecurity\u201d of the person in article 5(1) since the \n\nspecial limitation provisions deal exclusively with arrest and detention. If forms of \n\nconduct, other than the activity of being arrested or detained, were to be brought \n\n\f \n \n\nunder the protection afforded by the right to liberty, those forms of conduct would \n\n\u03a0\u03b1\u03b3\u03b5 108 \n\nACKERMANN J \n\nin effect be insulated from state regulation altogether. A narrow definition of \n\n\u201cliberty\u201d also follows from the fact that the rights mentioned in sub-articles 5(2) - \n\n5(5) only accrue to \u201carrested and detained\u201d persons and not to persons who are \n\ndeprived of their freedom in other respects. In this context it comes as no \n\nsurprise that the Commission has held that: \n\n\u201cThe term \u2018liberty\u2019 and \u2018security\u2019 must be read as a whole \n\nand, in view of its context, as referring only to physical \n\nliberty and security. \u2018Liberty of person\u2019 in Article 5(1) thus \n\nmeans freedom from arrest and detention and \u2018security of \n\nperson\u2019 the protection against arbitrary interference with this \n\nliberty.\u201d 120 (emphasis added) \n\n \n\n120In applications 5573/72 and 5670/72, Adler and Bivas v. Federal Republic of Germany, \nYearbook XX (1977) 102 at 146, as cited in Van Dijk and Van Hoof Theory and Practice of the European \nConvention on Human Rights 2ed (1990) at 252. The same learned authors point out at 252-253 that the \ncase-law \u201cseems to share Fawcett\u2019s view when he says: \u2018liberty and security are the two sides of the same \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 109 \n\nACKERMANN J \n\nThis narrow definition also flows from the fact that the exceptions dealt with in \n\nparagraphs (a)-(f) of sub-article 5(1) \n\ndeal only with deprivation of liberty, \n\nand only in the context of arrest or \n\ndetention. The context of section 11(1) \n\nin our Constitution is quite different, \n\ninasmuch as arrest and detention are \n\ndealt with in section 25(1) and (2) and \n\nthe concluding phrase \u201cwhich shall \n\ninclude the right not to be detained \n\nwithout trial\u201d in section 11(1) indicates \n\nquite clearly that the preceding rights \n\nto freedom and security of the person \n\ndo not constitute a numerus clausus.\n\n \n \ncoin; if personal liberty spells actual freedom of movement of the person, security is the condition of being \nprotected by law in that freedom\u2019.\u201d \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 110 \n\nACKERMANN J \n\n \n\n \n\n \n\n[90] \n\nIn the end result there appears to me to be no good reason for not giving section \n\n11(1) the broad construction which I have suggested and requiring an \n\ninfringement of its provisions to be justified under 33(1). The examinee, facing \n\ncompulsion under section 417(2)(b) of the Companies Act to give self-\n\nincriminating testimony, is subjected \"to the cruel trilemma of self-accusation, \n\nperjury or contempt\".121 On the basis of the considerations mentioned by Wilson \n\nJ in Thomson's case, to which I have already referred, I have no doubt that the \n\nprovisions of section 417(2)(b) of the Companies Act, which require an examinee \n\nsummoned under sub-section (1) to answer, under pain of fine or imprisonment, \n\nor both, any question put to the examinee, notwithstanding that the answer might \n\ntend to incriminate the examinee and notwithstanding that any answer to any \n\nsuch question may thereafter be used in evidence against the examinee, infringe \n\nthe examinee's section 11(1) right to freedom, more particularly the residual \n\nsection 11(1) right of an examinee at a section 417 enquiry not to be compelled \n\nto incriminate himself or herself. \n\n \n\n2nd 678 at 681 - 2. \n\n121Murphy et al v. Waterfront Commission of New York Harbor 378 US 52 (1964) at 55; 12 L Ed \n\n\f \n \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 111 \n\nACKERMANN J \n\nThe right against self-incrimination. \n\n[91] Before dealing with the actual application of the provisions of section 33(1) to the \n\ninfringement of the section 11(1) right in question, it is necessary to examine our \n\nown common law as well as the common law in other jurisdictions relating to \n\nprovisions of the kind with which we are here dealing. This is necessary for \n\ngeneral jurisprudential and constitutional reasons122, but particularly so because \n\nsection 33(1)(a) (ii) requires any limitation of a right to be justified in the context \n\nof an \"open and democratic society based on freedom and equality\" and section \n\n35(1) mandates us, in interpreting Chapter 3, to \"promote the values which \n\nunderlie\" precisely such a society. \n\n \n\n[92] \n\nIn Zuma123 Kentridge AJ briefly traced the history of the privilege against self-\n\nincrimination in English law. I propose to say nothing further on that score, save \n\nto suggest that it may at some future occasion become necessary in the light of \n\nrecent research,124 to reconsider the received wisdom (for which Wigmore has \n\n \n\n122See also the concluding phrase in section 35(1) of the Constitution. \n\n123Supra note 8 at paras 29 - 30. \n\n124E.g. Prof JH Langbein of Yale Law School \"The Historical Origins of the Privilege against Self-\nincrimination at Common Law\" in 92 (1994) Michigan Law Review 1047 and Prof. E Moglen of Columbia \n\n\fgenerally been credited125) that the privilege developed in response to the \n\n\u03a0\u03b1\u03b3\u03b5 112 \n\nACKERMANN J \n\noppressive and often barbaric methods of the Star Chamber. \n\n \n \n\n \n\n \n \nLaw School \"Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege against Self-\nincrimination\" in 92 (1994) Michigan Law Review 1086. Both learned authors conclude that the privilege \ndid not develop in the way commonly suggested but that it became functional only because of the fact that \nthe advent of defence counsel and adversary criminal procedure substantially changed the nature of the \ncriminal trial. \n\n125See, for example, Thompson's case, supra note 75 at 193 g - 194 f and Bishopsgate \nInvestment Management Ltd (In Provisional Liquidation) v. Maxwell and Another (1993) Ch 1 (CA) at 17 D \n- H. \n\n\f \n \n[93] That the \"privilege\" or \"immunity\" against self-incrimination applies generally in \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 113 \n\nthe English common law in extra-judicial settings is beyond doubt. In Regina v. \n\nDirector of Serious Fraud Office, Ex Parte Smith126 Lord Mustill regarded it as a \n\ngeneral immunity in \"a disparate group of immunities, which differ in nature, \n\norigin, incidence and importance\" which he categorised collectively as \"the right \n\nof silence\" and which he described as: \n\n\"A general immunity, possessed by all persons and bodies, from \n\nbeing compelled on pain of punishment to answer questions the \n\nanswers to which may incriminate them.\"127\n\n \n\n \n\n126(1993) AC 1. \n\n127Id at 30 F - G. \n\n\f \n \n[94] This also emerges clearly from the fact that, in a wide variety of situations, \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 114 \n\nreliance on the immunity could only be rejected on the ground that it had been \n\nexpressly or by implication abrogated by statute. In In re London United \n\nInvestments Plc128 it was held that the privilege against self-incrimination was not \n\navailable to persons who were being examined by inspectors appointed by the \n\nDepartment of Trade and Industry under section 432 of the Companies Act 1985, \n\nbecause sections 434, 436 and 452(1) of the Act excluded the privilege by \n\nnecessary implication. In Bank of England v. Riley and Another129 it was held that \n\nit was not available to persons who were being examined by inspectors of the \n\nBank of England under the Banking Act 1987, because it had been excluded by \n\nnecessary implication. A relevant consideration in the latter judgment, however, \n\nwas the fact that section 31(1) of the Theft Act 1968 provided that no information \n\nor documents produced in consequence of the order in question would be \n\nadmissible in the prosecution pending against the respondent or in any further \n\nprosecution under the Theft Act 1968. Bishopsgate Investment Management Ltd. \n\n(In Provisional Liquidation) v. Maxwell and Others130 was concerned with \n\nsections 235 and 236 of the Insolvency Act 1986, the purpose whereof was to \n\n \n\n128(1992) Ch 578 (CA). \n\n129(1992) Ch 475. \n\n130(1993) Ch 1 (CA). \n\n\fbring together the law as to personal and corporate insolvency and, in the public \n\n\u03a0\u03b1\u03b3\u03b5 115 \n\nACKERMANN J \n\ninterest, to provide a statutory framework in which the law could deal adequately \n\nwith dishonesty and malpractice on the part of the bankrupt individual or the \n\nofficers of a company. It was held that it would be contrary to the purposes of the \n\nAct if company directors, unlike an individual bankrupt, could rely on the privilege \n\nagainst self-incrimination to defeat the statutory right of the liquidator or other \n\noffice-holder to obtain the necessary information required to manage the affairs \n\nof the company and that, accordingly, sections 235 and 236 of the Act had \n\nabrogated the privilege.131 \n\n \n \n\n \n\n \n \n\n131At 46 D - H; 48 B. \n\n\f \n \n[95] \n\nIn England, therefore, Parliament may abrogate the privilege against self-\n\n\u03a0\u03b1\u03b3\u03b5 116 \n\nACKERMANN J \n\nincrimination by statute. In doing so Parliament sometimes provides that a \n\nperson may be compelled to answer questions which tend to incriminate but \n\nlimits the use that may be made of his or her answers in any subsequent \n\nprosecution. There are other examples of this approach. In Rank Film \n\nDistributors Ltd. and Others v. Video Information Centre and Others132 the House \n\nof Lords held that the privilege against self-incrimination applied in the context of \n\ntwo respondents against whom certain \"Anton Piller\" orders133 had been granted \n\nin connection with alleged acts of piracy of video tapes of films and which orders \n\ninter alia required them to furnish information concerning the video tapes.134 In \n\nconsequence of this judgment135, section 72(1) of the Supreme Court Act 1981 \n\nwas enacted to abrogate the privilege in intellectual property infringement or \n\npassing off proceedings; but it also provided that a statement or admission made \n\nby a person in answering questions put in such proceedings could not be used in \n\na prosecution against such person for any related offence, or for the recovery of \n\nany related penalty, save in proceedings for perjury or contempt of court. The \n\n \n\n132(1982) AC 380. \n\n133See Anton Piller KG v. Manufacturing Processes Ltd. (1976) Ch 55 (CA). \n\n134Rank Film Distributors, supra note 114 at 438 H - 439 H; 443 H. \n\n135See the invitation to legislate by Lord Russel of Killowen in Rank Film Distributors Ltd supra \n\nnote 114 at 448 G. \n\n\fCriminal Justice Act 1987 established the Serious Fraud Office. Section 2 of the \n\n\u03a0\u03b1\u03b3\u03b5 117 \n\nACKERMANN J \n\nAct provides for the questioning of suspected offenders but it is expressly \n\nprovided in section 2(8) that a statement made by a person in response to a \n\ndemand for information under the section may only be used in evidence against \n\nsuch person in proceedings relating to the making of a false or misleading \n\nstatement or in proceedings of a similar nature.136 \n\n \n \n\n \n\n[96] \n\nIn South African law the privilege is not limited to criminal or civil trial proceedings \n\nbecause \n\n \n \n\nIncrimination\" in 87 (1971) LQR 214. \n\n136For further examples see J.D. Heydon \"Statutory Restrictions on the Privilege Against Self-\n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 118 \n\nACKERMANN J \n\n\".... it is an established principle of our law that no one can be \n\ncompelled to give evidence incriminating himself. He cannot be \n\nforced to do that either before the trial, or during the trial.\"137\n\nThe privilege has been described as one of the personal rights to refuse to \n\ndisclose admissible evidence the particular right in terms whereof \"a witness may \n\nrefuse to answer a question where the answer may tend to expose him to a \n\ncriminal charge\"138 and is also available, for example, to a person called as a \n\nwitness in inquest proceedings.139 With reference to the above quoted passage \n\nfrom R v. Camane, Thirion J observed in S v. Khumalo that \n\n\"[t]here is indeed even a greater need for protection of the accused \n\nagainst forced self-incrimination before the trial than there is at the \n\ntrial.\"140\n\nHoffmann and Zeffert141 also point out that the privilege may be claimed in \n\nadministrative or quasi-judicial hearings. Lastly, mention should be made of \n\nsection 65(2) of the Insolvency Act, No. 24 of 1936 which makes provision for the \n\ninterrogation of the insolvent and other witnesses and stipulates that a person \n\n \n\n137R v. Camane 1925 AD 570 at 575 per Innes CJ. \n\n138Magmoed v. Janse van Rensburg and Others 1993 (1) SA 777 (A) at 819I. \n\n139Id at 820 F and S v. Ramaligela en _ Ander 1983 (2) SA 424 (V) at 428 - 430. \n\n1401992 (2) SACR 411 (N) at 421 E. \n\n141The South African Law of Evidence 4ed (1988) at 239. \n\n\finterrogated - \n\n\u03a0\u03b1\u03b3\u03b5 119 \n\nACKERMANN J \n\n\"shall not be entitled at such interrogation to refuse to answer any \n\nquestion upon the ground that the answer would tend to \n\nincriminate him or upon the ground that he is to be tried on a \n\ncriminal charge and may be prejudiced at such trial by his answer.\" \n\nSub-section (2A)(b) does, however, confer use immunity on such incriminating \n\nanswers given by the witness by providing that they shall not - \n\n\"be admissible in any criminal proceedings, except in criminal \n\nproceedings where the person concerned stands trial on a charge \n\nrelating to the administering or taking of an oath or the \n\nadministering or making of an affirmation or the giving of false \n\nevidence or the making of a false statement in connection with \n\nsuch questions and answers, and in criminal proceedings \n\ncontemplated in section 139(1) relating to a failure to answer lawful \n\nquestions fully and satisfactorily.\" \n\n \n \n\n \n\n[97] Two recent Australian decisions, Pyne Board Pty. Ltd v. Trade Practises \n\nCommission142 and Sorby and Another v. The Commonwealth of Australia and \n\n \n142 [1983] 57 ALJR 236. \n\n\f \n \n\nOthers143, handed down on the same day by the High Court of Australia, may \n\n\u03a0\u03b1\u03b3\u03b5 120 \n\nACKERMANN J \n\ncast further light on the scope of the privilege against self-incrimination at \n\ncommon law. In both cases the majority of the High Court reached the \n\nconclusion that the privilege against self-incrimination is not inherently incapable \n\nof application in non-judicial proceedings, but that the availability of the privilege \n\ndepends on a construction of the statute in question.144 In Pyne Board the Court \n\nheld that the statute by implication excluded reliance on the privilege and in \n\nSorby the Court held that it did not. The reasoning of the Court in the latter case \n\nis of importance. In response to the argument that the provision of a \u201cuse \n\nimmunity\u201d excludes reliance on the privilege against self-incrimination the Court \n\nsaid, per Gibbs, CJ: \n\n \n143 [1983] 57 ALJR 248. \n\n144In Pyne Board, at 240 G. In Sorby, at 260. \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 121 \n\nACKERMANN J \n\n\u201cIn the absence of binding authority the matter must be \napproached from the standpoint of principle. If a witness is \ncompelled to answer questions which may show that he has \ncommitted a crime with which he may be charged, his answers \nmay place him in real and appreciable danger of conviction, \nnotwithstanding that the answers themselves may not be given in \nevidence. The traditional objection that exists to allowing the \nexecutive to compel a man to convict himself out of his own mouth \napplies even when the words of the witness may not be used as an \nadmission. It is a cardinal principle of our system of justice that the \nCrown must prove the guilt of an accused person, and the \nprotection which that principle affords to the liberty of the individual \nwill be weakened if power exists to compel a suspected person to \nconfess his guilt. Moreover, the existence of such power tends to \nlead to abuse and to 'the concomitant moral deterioration in \nmethods of obtaining evidence and in the general administration of \njustice\u2019. Validity of Section 92(4) of the Vehicles Act, 1957 [Sask.], \n[1958] S.C.R. 608, at p. 619. It is true that in some cases the \nlegislature may consider that it can only achieve the intended \npurpose of the statute by limiting or abrogating the privilege \nagainst self-incrimination, but, as I have said, if the legislature \nintends to render the privilege unavailable it must manifest clearly \nits intention to do so. To provide that the answers may not be used \nin evidence is not to reveal clearly an intention that the privilege \nshould be unavailable, although, if the legislature did intend to \nremove the privilege, it might, in fairness, at the same time prevent \nthe use in criminal proceedings of statements which otherwise \nwould have been privileged: cf. Rank Film Ltd. v. Video Information \nCentre, at p. 448, per Lord Russel of Killowen.\u201d145\n\nThe Court held that the privilege \n\n\"protects the witness not only from incriminating himself directly \n\nunder a compulsory process, but also from making a disclosure \n\nwhich may lead to incrimination or to the discovery of real evidence \n\nof an incriminating character.\"146\n\n \n\n145At 253. \n\n146At 260. See also the Court's dicta at 253 and 261. \n\n\fEqually firm, however, was the rejection by the Court of the argument that the \n\n\u03a0\u03b1\u03b3\u03b5 122 \n\nACKERMANN J \n\nprivilege against self-incrimination is constitutionally entrenched: \n\n\u201cIt was then submitted on behalf of the plaintiffs that s. 6A was not \n\nvalidly enacted. This argument cannot be accepted. The privilege \n\nagainst self-incrimination is not protected by the Constitution, and \n\nlike other rights and privileges of equal importance it may be taken \n\naway by legislative action. Counsel for the plaintiffs sought to find \n\nsome constitutional protection for the privilege in Ch III of the \n\nConstitution, and submitted that to remove the privilege would be \n\nto infringe the guarantee given by s. 80 and to interfere \n\nimpermissibly with federal judicial power. ....[T]he argument that \n\nthe compulsory examination of a suspected person is inconsistent \n\nwith the right to trial by jury was rejected unanimously by the \n\nmembers of this Court in Huddart Parker & Co Pty. Ltd. v. \n\nMoorehead (1909), 8 C.L.R 330; see particularly at pp. 358, 375, \n\n385-386, 418. With all respect, I agree with the view that the \n\nprivilege against self-incrimination is not a necessary part of a trial \n\nby jury.\u201d147\n\n \n \n\n \n\n\f \n \n[98] \n\nIn Canada, the courts have recognised the different nature and the consequently \n\n\u03a0\u03b1\u03b3\u03b5 123 \n\nACKERMANN J \n\nwider ambit of the privilege even before the adoption of the Canadian Charter of \n\nRights and Freedoms. In Solosky v R the Supreme Court remarked: \n\n\"Recent case law has taken the traditional doctrine of the \n\nprivilege and placed it on a new \n\nplane. Privilege is not longer \n\nregarded merely as a rule of \n\nevidence which acts as a shield \n\nto prevent privileged materials \n\nfrom \n\nbeing \n\ntendered \n\nin \n\nevidence in a courtroom. The \n\nCourts, unwilling to so restrict \n\nthe concept, have extended its \n\napplication well beyond these \n\nlimits\".148 \n\n \n\nMoreover, the position in Canada never quite corresponded to that in the English \n\ncommon law, because sections 4(1) and 5 of the Canada Evidence Act149 \n\n \n\n147At 255 A - C per Gibbs CJ. \n\n148 [1979] 105 D.L.R. (3d) 745 at 757. \n\n149 R.S.C. 1985, c. C-5. \n\n\f \n \n\neffected a change in the Canadian common law from 1893 onwards. Wilson J, \n\n\u03a0\u03b1\u03b3\u03b5 124 \n\nACKERMANN J \n\ndissenting in Thomson Newspapers, summarised the Canadian position as \n\nfollows: \n\n\"The effect of s. 4(1) was to maintain the common-law rule of non-\n\ncompellability at the investigatory stage, subject to the modification \n\nby the terms of a particular statute, and to make the accused at his \n\ntrial a competent witness for the defence but not a compellable \n\nwitness for the Crown. The effect of s. 5 was to abolish the \n\ncommon- law rule of allowing a witness to refuse to answer a \n\nquestion on the ground that it would tend to incriminate him and \n\nreplace it with the rule that the witness must answer the question \n\nbut the answer could not be used against him in a subsequent \n\ncriminal case. This legislation reflects the state\u2019s interest in having \n\nall available information before the tribunal so that a proper \n\ndetermination in that case can be made. This state interest is \n\nachieved in derogation of the common-law rule protecting a \n\nwitness from answering a question on the basis of the right against \n\nself-incrimination.\u201d150\n\nAfter stating that the right against compellability and the right against self-\n\n\fincrimination are \u201cfundamental precepts of democratic societies which respect \n\n\u03a0\u03b1\u03b3\u03b5 125 \n\nACKERMANN J \n\nindividual rights and freedoms\u201d, Wilson J went on to describe the rationale for the \n\nright against self-incrimination as follows: \n\n\u201cHaving reviewed the historical origins of the rights against \n\ncompellability and self-incrimination and the policy justifications \n\nadvanced in favour of their retention in more modern times, I \n\nconclude that their preservation is prompted by a concern that the \n\nprivacy and personal autonomy and dignity of the individual be \n\nrespected by the state. The state must have some justification for \n\ninterfering with the individual and cannot rely on the individual to \n\nproduce the justification out of his own mouth. Were it otherwise, \n\nour justice system would be on a slippery slope towards the \n\ncreation of a police state.\u201d151\n\n \n \n\n \n\n \n \n\n150Supra note 75 at 195 h - 196 a. \n\n151Id at 200 a - c. \n\n\f \n \n[99] The Fifth Amendment to the United States Constitution, which provides, inter \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 126 \n\nalia, that \u201c[n]o person... shall be compelled in any criminal case to be a witness \n\nagainst himself, nor be deprived of life, liberty, or property, without due process \n\nof law...\u201d was initially interpreted as affording protection to individuals from \n\nfederal authorities only. It was the passing of the Fourteenth Amendment in \n\n1868, especially its prohibition - \u201cnor shall any State deprive any person of life, \n\nliberty, or property, without due process of law...\u201d - which brought about the \n\ndecisive change in the protection of individual rights against the exercise of State \n\npower in that country. At first hesitantly and selectively, but from the beginning of \n\nthe 1960's with greater conviction, the Supreme Court began to apply the Bill of \n\nRights to the States via the Fourteenth Amendment.152 \n\n \n\n152White J explains this approach in Duncan v. Louisiana 391 US 145 (1968) at 147: \n\n\f \n \n \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 127 \n\n\"In resolving conflicting claims concerning the meaning of this spacious language \n[of due process], the Court has looked increasingly to the Bill of Rights for \nguidance; many of the rights guaranteed by the first eight Amendments to the \nConstitution have been held to be protected against state action by the Due \nProcess Clause of the Fourteenth Amendment. That clause now protects the \nright to compensation for property taken by the State; the rights of speech, press, \nand religion covered by the First Amendment; the Fourth Amendment rights to be \nfree from unreasonable searches and seizures and to have excluded from \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 128 \n\nACKERMANN J \n\n \n \n\n \n\ncriminal trials any evidence illegally seized; the right guaranteed by the Fifth \nAmendment to be free of compelled self-incrimination; and the Sixth Amendment \nrights to counsel, to a speedy and public trial, to confrontation of opposing \nwitnesses, and to compulsory process for obtaining witnesses. \n\nThe test for determining whether a right extended by the Fifth and Sixth \nAmendments with respect to federal criminal proceedings is also protected \nagainst state actions by the Fourteenth Amendment has been phrased in a \nvariety of ways in the opinions of this Court. The question has been asked \nwhether a right is among those 'fundamental principles of liberty and justice \nwhich lie at the base of all our civil and political institutions', Powell v. Alabama \n287 US 45, 67 (1932); whether it is 'basic in our system of jurisprudence,' In re \nOliver 333 US 257, 273 (1948; and whether it is \u201ca fundamental right, essential to \na fair trial,\u201d Gideon v Wainwright; ...\" (footnotes omitted). \n\n\f \n \n[100] The freedom against self-incrimination was effectively incorporated against the \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 129 \n\nstates in Malloy v. Hogan.153 The jurisprudence is important since it shows that \n\nthe US Supreme Court is prepared to utilise the Fourteenth Amendment to \n\nextend procedural guarantees, such as the protection against self-incrimination, \n\nto situations where it did not seem to apply textually. The question as to whether \n\nthe right against self-incrimination applies in extra-curial proceedings was not \n\nresolved, as one would have expected, in the context of the Fourteenth \n\nAmendment. Instead a broad and purposive interpretation of the Fifth \n\nAmendment\u2019s right against self-incrimination made a resort to the Fourteenth \n\nAmendment unnecessary. As early as 1892 Justice Blackford remarked in \n\nCounselman v. Hitchcock that the \u201c[privilege] is as broad as the mischief against \n\nwhich it seeks to guard\u201d.154 By the 1920's Justice Brandeis, writing for the Court, \n\ndeclared that \u201c[t]he privilege [against self-incrimination] is not ordinarily \n\ndependent on the nature of the proceedings in which the testimony is sought or \n\nis to be used. It applies alike to civil and criminal proceedings, wherever the \n\nanswer might tend to subject to criminal responsibility him who gives it.\u201d155 \n\n \n\n153 378 US 1 (1964). Previously the Supreme Court refused to apply the right against self-\n\nincrimination against the States. See Adamson v. California, 332 US 46 (1947). \n\n154142 US 547 (1892) at 562; 35 L Ed 1110 at 1114. \n\n155McCarthy v Arndstein 266 US 34 (1924) at 40, where the privilege was upheld in bankruptcy \n\nproceedings. \n\n\fFinally, in 1973 Justice White stated that \u201c[t]he [Fifth] Amendment not only \n\n\u03a0\u03b1\u03b3\u03b5 130 \n\nACKERMANN J \n\nprotects the individual from being involuntarily called as witness against himself \n\nin a criminal prosecution but also privileges him not to answer official questions \n\nput to him in any other proceeding, civil or criminal, formal or informal, where the \n\nanswers might incriminate him in future criminal proceedings.\u201d156 US Bankruptcy \n\nlaws nowadays explicitly recognise the constitutional right against self-\n\nincrimination.157 There can be little doubt that proceedings similar to the ones \n\nenvisaged by section 417 of the Companies Act would have been interpreted to \n\nconstitute a deprivation of liberty and that this would have triggered the due \n\nprocess clause, and more specifically, the right against self-incrimination which \n\nforms part of it. \n\n \n \n\n \n\n \n\nThe approach in the USA and Canada to resolving the tension between the privilege \n\n \n \n\n156Lefkowitz v Turley 414 US 70 (1973) at 77. \n\n157See section 344 of the Bankruptcy Code 11 USC. \n\n\f \n \nagainst self-incrimination and the interest of the State in investigative procedures of \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 131 \n\nvarious kinds \n\n[101] In seeking guidance from the jurisprudence of other countries it is well to heed \n\nthe warning that \n\n\"[e]ach legal system, intertwined with a particular legal tradition, is \n\npredicated on a number of integrated elements, and to look at \n\neach piece-meal through a magnifying glass cannot provide an \n\naccurate picture of the whole nor can such an exercise take into \n\naccount differences between the systems ... Fundamental justice \n\nmay take different forms in different societies, given their own legal \n\ntraditions.\"158\n\nNevertheless we are obliged, in construing and applying section 33(1), to give \n\ncontent to the phrase \"justifiable in an open and democratic society based on \n\nfreedom and equality\". At the same time it is necessary to recognise (gratefully) \n\nthat the roots of South African law draw sustenance from Western Europe, the \n\nUnited Kingdom (and derivatively from the other so-called \"common law\" \n\ncountries) and from indigenous sources. It is also a fact that since 1945 \n\nfundamental human rights are steadily becoming internationalised (albeit not \n\nalways or everywhere at the same pace and not without set-backs) at the \n\n\finternational, regional and domestic constitutional levels. \n\n\u03a0\u03b1\u03b3\u03b5 132 \n\nACKERMANN J \n\n \n \n\n \n\n[102] Both in the United States and Canada, and also elsewhere, legislatures have \n\nsought a legislative solution to the tension between the privilege against self-\n\nincrimination and the interest of the State in investigative procedures of various \n\nkinds. This has been achieved by compelling examinees to answer questions \n\neven though the answers thereto might tend to incriminate them and, at the \n\nsame, protecting the interests of the examinees by granting them either an \n\nindemnity against prosecution or conferring some form of use immunity in \n\nrespect of compelled testimony. What is important to note is that the privilege \n\nhas not, in most cases, simply been abolished by statute without providing some \n\nform of protection to the examinee. The somewhat fragmentary treatment in \n\nEngland has been alluded to above. \n\n \n\n \n \n\n158Thomson supra note 75 per L'Heureux-Dub\u00e9 J at 279 f - g. \n\n\f \n \n[103] Initially in the United States, this compromise was attempted by legislation which \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 133 \n\nexcluded use of the evidence given by the examinee, but which did not indemnify \n\nthe examinee against prosecution. The use immunity only applied to the \n\nevidence given by the examinee; it did not prevent the use of the examinee's \n\ntestimony to search out other evidence to be used against the examinee in a \n\ncriminal proceeding, which other evidence had not been gained by the \n\ncompulsion to testify and to give self-incriminating evidence. In Counselman v. \n\nHitchcock159 the Supreme Court considered the constitutional validity of such a \n\nuse immunity (a \"direct use immunity\") provided by section 860 of the Revised \n\nStatutes in the context of Grand Jury testimony and held that it was \n\nunconstitutional.160 Under Section 2486 (c) of the Immunity Act of 1954, 18 USC \n\nan indemnity against prosecution was accorded to grand jury witnesses.161 In \n\n \n\n159Supra note 154. \n\n160Id at 585-6 where Justice Blatchford, writing for the Court said: \n\n\"no statute which leaves the party or witness subject to prosecution after he \nanswers the criminating questions put to him, can have the effect of supplanting \nthe privilege conferred by the Constitution of the United States. Section 860 of \nthe Revised Statutes does not supply a complete protection from all the perils \nagainst which the constitutional prohibition was designed to guard, and is not a \nfull substitute for the prohibition. In view of the constitutional provision, a \nstatutory enactment, to be valid, must afford absolute immunity against future \nprosecution for the offence to which the question relates.\" \n\n161\"But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on \naccount of any transaction, matter, or thing concerning which he is compelled, after having claimed his \nprivilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be \nused as evidence in any criminal proceeding (except prosecution described in sub-section (d) hereof \n(essentially for perjury and contempt) against him in any court.\" \n\n\f \n \n\nUllmann v. United States162 Justice Frankfurter delivered the judgment of the \n\n\u03a0\u03b1\u03b3\u03b5 134 \n\nACKERMANN J \n\nmajority of the Court. While emphasising that \"the Fifth Amendment's privilege \n\nagainst self-incrimination ... registers an important advance in the development \n\nof our liberty\"163 and approaching the petitioner's claims \"in this spirit of strict, not \n\nlax, observance of the constitutional protection of the individual\",164 he \n\nreaffirmed165 the Court's earlier judgment in Brown v. Walker, decided some sixty \n\nyears earlier, that compulsion to testify under protection of a similar immunity \n\nwas constitutional: \n\n\"While the constitutional provision in question is justly regarded as \n\none of the most valuable prerogatives of the citizen, its object is \n\nfully accomplished by the statutory immunity, and we are, \n\ntherefore, of opinion that the witness was compellable to answer \n\n...\"166\n\n \n\n[104] In Kastigar v. United States167 the Supreme Court had to consider the \n\n \n\n162350 US 422 (1955). \n\n163Id at 426. \n\n164Id at 429. \n\n165Id at 439. \n\n166Brown v. Walker 161 US 591 (1896) at 610. \n\n167406 US 441 (1972). \n\n\f \n \n\n \n\nconstitutionality of the following use immunity in 18 U.S.C. section 6002, which \n\n\u03a0\u03b1\u03b3\u03b5 135 \n\nACKERMANN J \n\nwas afforded to a witness in a District Court when compelled to testify over a \n\nclaim of Fifth Amendment privilege against compulsory self-incrimination: \n\n\".... no testimony or other information compelled under the order \n\n(or any information directly or indirectly derived from such \n\ntestimony or other information) may be used against the witness in \n\nany criminal case, except a prosecution for perjury, giving a false \n\nstatement, or otherwise failing to comply with the order.\" \n\nAn exclusion of this nature will be referred to as \"a direct and derivative use \n\nimmunity\". The Court upheld the constitutionality of this provision on the basis \n\nthat it left the witness and the prosecutorial authorities in substantially the same \n\nposition as if the witness had claimed the Fifth Amendment privilege; \n\nconsequently the immunity was \"co-extensive with the privilege and suffices to \n\nsupplant it\".168 In the course of giving judgment for the majority, Justice Powell \n\nstated the following: \n\n\"This total prohibition on use provides a comprehensive safeguard, \nbarring the use of compelled testimony as an 'investigatory lead,' \nand also barring the use of any evidence obtained by focusing \ninvestigation on a witness as a result of his compelled disclosures. \n\nA person accorded this immunity under 18 U.S.C. \u00a7 6002, and \nsubsequently prosecuted, is not dependent for the preservation of \nhis rights upon the integrity and good faith of the prosecuting \n\n \n \n\n168Id at 462. \n\n\f \n \n\n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 136 \n\nACKERMANN J \n\nauthorities. As stated in Murphy: \n\n'Once a defendant demonstrates that he has \ntestified, under a state grant of immunity, to \nmatters related to the federal prosecution, the \nfederal authorities have \nthe burden of \nshowing that their evidence is not tainted by \nestablishing that they had an independent, \nlegitimate source for the disputed evidence. \n378 US at 79 n. 18.' \n\nThis burden of proof, which we reaffirm as appropriate, is not \nlimited to a negation of taint; rather, it imposes on the prosecution \nthe affirmative duty to prove that the evidence it proposes to use is \nderived from a legitimate source wholly independent of the \ncompelled testimony. \n\nThis is very substantial protection, commensurate with that \n\nresulting from invoking the privilege itself. The privilege assures \n\nthat a citizen is not compelled to incriminate himself by his own \n\ntestimony. It usually operates to allow a citizen to remain silent \n\nwhen asked a question requiring an incriminatory answer. This \n\nstatute, which operates after a witness has given incriminatory \n\ntestimony, affords the same protection by assuring that the \n\ncompelled testimony can in no way lead to the infliction of criminal \n\npenalties. The statute, like the Fifth Amendment, grants neither \n\npardon nor amnesty. Both the statute and the Fifth Amendment \n\nallow the government to prosecute using evidence from legitimate \n\n\f\u03a0\u03b1\u03b3\u03b5 137 \n\nACKERMANN J \n\nindependent sources.\"169 (Footnotes omitted) \n\n \n \n\n \n\n[105] The use immunity in section 20(2) of the CI Act which qualified the compulsion to \n\ntestify and was the subject of enquiry in Thomson Newspapers read as follows: \n\n\"... but no oral evidence so required shall be used or receivable \n\nagainst such person in any criminal proceedings thereafter \n\ninstituted against him, other than a prosecution under section 121 \n\nof the Criminal Code for perjury in giving such evidence or a \n\nprosecution under section 124 of the Criminal Code in respect of \n\nsuch evidence.\"170\n\nIt was a direct use immunity only and did not include a derivative use immunity \n\nsuch as was considered by the US Supreme Court in Kastigar. We are \n\nconcerned with the constitutionality of a statutory compulsion to testify and an \n\noverride of the privilege against self-incrimination with no indemnity against \n\nprosecution or use immunity of any nature. It is important, for our purposes, to \n\nconsider the way in which policy considerations relating to use immunity were \n\n \n\n169Id at 460 - 461. \n\n170Supra note 75 at 174, 183. \n\n\fdealt with in Thomson. This will emerge more clearly later. \n\n\u03a0\u03b1\u03b3\u03b5 138 \n\nACKERMANN J \n\n \n \n\n \n\n[106] As indicated above,171 it was only Wilson J and Sopinka J who came to the \n\nconclusion that the direct use immunity was insufficient to prevent section 17 of \n\nthe CI Act from violating the \"fundamental justice\" provision in section 7 of the \n\nCanadian Charter (which qualified the right to \"liberty and security of the \n\nperson\"). The purpose of the CI Act has authoritatively been stated to be the \n\nfollowing: \n\n\"From this overview of the Combines Investigation Act I have no \n\ndifficulty in concluding that the Act as a whole embodies a complex \n\nscheme of economic regulation. The purpose of the Act is to \n\neliminate activities that reduce competition in the market-place. \n\nThe entire Act is geared to achieving this objective. The Act \n\nidentifies and defines anti-competitive conduct. It establishes an \n\ninvestigatory mechanism for revealing prohibited activities and \n\nprovides an extensive range of criminal and administrative redress \n\nagainst companies engaging in behaviour that tends to reduce \n\ncompetition.\"172\n\n \n\n171Para 55. \n\n172General Motors of Canada Ltd. v. City National Leasing (1989) 58 D.L.R. (4th) 225 at 280, \n\n\f \n \n\nWilson J also pointed out that \n\n\u03a0\u03b1\u03b3\u03b5 139 \n\nACKERMANN J \n\n\"the Act contains numerous provisions enabling the Director to \n\ncollect information relating to anti-competitive behaviour. Once this \n\ninformation has been obtained a variety of uses can be made of it, \n\nincluding the referral of the matter to the Attorney-General of \n\nCanada for possible prosecution.\"173\n\nThe Attorney-General is empowered, in terms of section 15(2) of the CI Act, to \n\nexercise all the powers and functions conferred by the Criminal Code on the \n\nAttorney-General of a province in any ensuing prosecution. Section 13 of the \n\nCanadian Charter which provides that \n\n\"[a] witness who testifies in any proceedings has the right not to \n\nhave any incriminating evidence so given used to incriminate that \n\nwitness in any other proceedings, except in a prosecution for \n\nperjury or for the giving of contradictory evidence\" \n\nonly affords a limited protection against self-incrimination (I pause to point out \n\nthat the immunity in the section is only a direct use and not a derivative use \n\n \n \nquoted with approval in Thomson supra note 75 at 290 h and 223 h - 224 b. \n\n173Thomson, supra note 75 at 184 d - e. \n\n\fimmunity). Likewise section 11(c) of the Charter, which enacts that - \n\n\u03a0\u03b1\u03b3\u03b5 140 \n\nACKERMANN J \n\n\"Any person charged with an offence has the right ..... \n(c) \n\nnot to be compelled to be a witness in proceedings against \n\nthat person in respect of the offence;\" \n\nonly affords a limited right of non-compellability. \n\n \n \n\n \n\n[107] Wilson J held that the examinees could not avail themselves of either section 13 \n\nor 11(c) of the Charter. After reviewing the historical origins of the rights against \n\ncompellability and self-incrimination in a comparative perspective, Wilson J \n\nconcluded that their preservation was \n\n\"prompted by a concern that the privacy and personal autonomy \n\nand dignity of the individual be respected by the state. The state \n\nmust have some justification for interfering with the individual and \n\ncannot rely on the individual to produce the justification out of his \n\nown mouth. Were it otherwise, our justice system would be on a \n\nslippery slope towards the creation of a police state.\"174\n\nWhilst appreciating \n\n\"the importance of getting at the truth in any proceedings, criminal \n\nor otherwise ...[o]therwise our justice system might grind to a halt \n\n \n \n\n174Id per Wilson J at 200 b - c. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 141 \n\nACKERMANN J \n\nthrough important evidence not being brought forward\"175\n\nthe learned Judge nevertheless considered that this goal had to be subservient \n\nto the protection of the fundamental rights of the accused.176 Following the \n\nreasoning of the United States Supreme Court in Kastigar177, Wilson J concluded \n\nas follows: \n\n\"It seems to me that in order to prevent a suspect from being \n\nconscripted against himself in a criminal or quasi-criminal \n\nproceeding (which would clearly include a charge of predatory \n\npricing under the Combines Investigation Act), the suspect must be \n\nprotected against the use of evidence derived from testimony given \n\nat the earlier investigatory proceeding as well as against the use of \n\nthe \n\ntestimony \n\nitself. Otherwise \n\nthe suspect \n\nis convicted, \n\n \n\n175Id at 200 d - e. \n\n176Id. \n\n177406 US 441 (1972). \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 142 \n\nACKERMANN J \n\nmetaphorically if not literally, out of his own mouth. He has, as the \n\nUS Supreme Court put it, through the use of the derivative \n\nevidence been 'forced to give testimony leading to the infliction of \n\npenalties affixed to criminal acts'.\" \n\nand, \n\nand, \n\n\"The judge's discretion under S. 24(2)178 is no guarantee of \n\nprotection against the use of derivative evidence obtained as a \n\nresult of a witness's compelled testimony. It is merely a discretion \n\nand one which is required to be exercised on a very specific basis, \n\nnamely, whether or not the admission of the evidence would bring \n\nthe administration of justice into public disrepute.\" \n\n\"That exclusion must be a matter of principle and of right, not of \ndiscretion ..... \nI conclude, therefore, that s. 7 protects the witness in a subsequent \n\ncriminal proceeding against the use of evidence derived from \n\ntestimony given by him in an earlier proceeding, which protection is \n\nnot available under either s. 11(c) or s. 13. Where a person's right \n\n \n \n\n178Section 24(2) of the Canadian Charter reads as follows: \n\n\"(2) Where, in proceedings under subsection (1), a court concludes that \nevidence was obtained in a manner that infringed or denied any rights or \nfreedoms guaranteed by this Charter, the evidence shall be excluded if it is \nestablished that, having regard to all the circumstances, the admission of it in the \nproceedings would bring the administration of justice into disrepute.\" \n\n\f\u03a0\u03b1\u03b3\u03b5 143 \n\nACKERMANN J \n\nto life, liberty and security of the person is either violated or \n\nthreatened, the principles of fundamental justice require that such \n\nevidence not be used in order to conscript the person against \n\nhimself.\"179\n\n \n \n\n \n\n \n \n\n179Thomson supra note 75 at 202 c - e; 202 g - 203 a; 203 a - d. \n\n\f \n \n[108] In dealing with the section 1 limitation provisions of the Canadian Charter, Wilson \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 144 \n\nJ held that both the \"effective investigation of suspected criminal and quasi-\n\ncriminal activity\" and the opportunity \"to monitor economic activity in Canada so \n\nas to ensure that the government's economic objectives are met\" were each of \n\nsufficient importance to warrant infringement of individual rights and freedoms \n\nbecause \"[s]ociety has a very real interest both in controlling crime and in \n\nensuring the stability of the marketplace.\"180 The learned Judge found, however, \n\nthat, inasmuch as the legislation in question did not impair the right in question as \n\nlittle as possible, the limitation was not justified under section 1 of the Charter.181 \n\nIn this regard Wilson J stated the following: \n\n\"There is no evidence to suggest that the government's objective in \n\nthis case would be frustrated if individuals compelled to testify \n\nwere afforded derivative use protection. Certainly, the monitoring \n\nof the Canadian economy would not be injuriously affected by such \n\nprotection. Moreover, while there may be instances when the \n\ninvestigation of crime or the effective enforcement of legislation \n\nmay be hampered if suspects are not conscripted against \n\nthemselves, such a case has not been made out here. No \n\n \n\n180Thomson, supra note 75 at 206 a - c. \n\n181Id at 207 c - e. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 145 \n\nACKERMANN J \n\nevidence has been presented to the Court to show that the \n\nenforcement of the Combines Investigation Act will be drastically \n\nimpaired if derivative use protection is given to persons testifying \n\nunder s. 17\"182 (emphasis added) \n\nSopinka J held that, for the reasons given by Wilson J, section 17 of the CI Act \n\n\"violates s. 7 of the Canadian Charter of Rights and Freedoms, in particular, the \n\nprinciple of fundamental justice in which the right to remain silent is \n\nembodied.\"183 In this context he also expressed himself as follows: \n\n\"Obtaining evidence from suspects as a basis for commencing \n\ncriminal proceedings is not a merely incidental effect of s. 17 of the \n\nAct. In this field of anti-competitive crime the police work is carried \n\nout largely, if not exclusively, by the Director and his staff.\"184\n\n \n\n182Id. \n\n183Id at 290 e - f. \n\n184Id at 297 d - e. \n\n\fSopinka J also concluded, for the reasons expressed by Wilson J, that the \n\n\u03a0\u03b1\u03b3\u03b5 146 \n\nACKERMANN J \n\nviolation of section 7 could not be justified under section 1 of the Charter.185\n\n \n \n\n \n\n[109] I have referred somewhat extensively to the judgments of Wilson and Sopinka \n\nJJ, although their judgments were in dissent, because they represent the high-\n\nwater mark in the judgment for striking down a provision which compels self-\n\nincrimination and only affords a direct use immunity. The judgment of La Forest J \n\nis particularly instructive. La Forest J points to the difference in discovering and \n\ninvestigating ordinary crimes on the one hand and violations of combines \n\nlegislation on the other; in the former there is usually no question that an offence \n\nhas been committed and the concern is to establish who committed the offence, \n\nwhile in the latter the position is quite different and the difficulty relates equally to \n\nestablishing whether an offence has been committed.186 It has been emphasised \n\nthat \n\n \n\"economic crimes are far more complex than most other federal \noffences. The events in issue usually have occurred at a far more \nremote time and over a far more extensive period. The 'proof' \nconsists not merely of relatively few items of real evidence but of a \nlarge roomful of often obscure documents. In order to try the case \neffectively, the Assistant United States Attorney must sometimes \nmaster the intricacies of a sophisticated business venture. \nFurthermore, in the course of doing so, he, or the agents with \n\n \n\n185Id at 297 g. \n\n186Id at 232 - 233. \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 147 \n\nACKERMANN J \n\nwhom he works, often must resolve a threshold question that has \nalready been determined in most other cases: Was there a crime \nin the first place? To use the colloquial, it is not so much a matter \nof 'Whodunit' as 'what-was-done'.\"187 (Emphasis in original) \n\nI shall revert to this aspect of the problem later. La Forest J also observed that, \n\n \n\n187S.V. Wilson and A.H. Matz, \"Obtaining Evidence for Federal Economic Crime Prosecutions: An \nOverview and Analysis of Investigative Methods\" (1977), 14 Am. Crim. L. Rev. 651 at 651, quoted with \napproval by La Forest J in Thomson supra note 75 at 233 f - g. \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 148 \n\nACKERMANN J \n\n\"the community's interest is one of the factors that must be taken \ninto account in defining the content of the principles of fundamental \njustice.\"188\n\nIn this regard the learned Judge made the following point, which is also relevant \n\nin the context of this case: \n\n\"I see a significant difference between investigations that are truly \n\nadversarial, where the relationship between the investigated and \n\ninvestigator is akin to that between accused and prosecution in a \n\ncriminal trial, and the broader and more inquisitorial type of \n\ninvestigation that takes place under s. 17 of the Act. The lower \n\nprobability of prejudice the latter represents to any particular \n\nindividual who comes within its reach, together with the important \n\nrole such investigations play in the effective enforcement of anti-\n\ncombines and possibly other regulatory legislation, suggests that a \n\nmore appropriate balance between the interests of the individual \n\nand the state can be achieved by retention of the power to compel \n\ntestimony and the recognition of the right to object to the \n\nsubsequent use of so much of the compelled testimony as is self-\n\nincriminatory.\"189\n\n \n \n\n188Thomson supra note 75 at 246 e. \n\n189Id at 247 d - f. \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 149 \n\nACKERMANN J \n\n[110] In dealing with the difference between \"use immunity\" and \"derivative use \n\nimmunity\", the learned Judge observed that \n\n\"Simply because Parliament has provided for the inadmissibility of \n\ncertain evidence does not mean that it thereby intended that other \n\nevidence should be admitted, even when either at common law or \n\nunder the Charter, such evidence would be rejected on the ground \n\nthat admitting it would be unfair. It is quite reasonable for \n\nParliament to have dealt with the obvious case of unfairness \n\nresulting from the use of self-incriminating testimony, leaving more \n\nsubtle situations to be dealt with in the application of general \n\nprinciples.\"190 (emphasis added). \n\nand that \n\n \n\n190Id at 250 h - 251 a. \n\n\f\u03a0\u03b1\u03b3\u03b5 150 \n\nACKERMANN J \n\n\"The witness's oral testimony cannot, of course, be used against \n\nhim or her. Section 20(2) so provides and I have no doubt that this \n\nwould, in any event, be the case either under s. 7 or s. 11(d) of the \n\nCharter.191 (emphasis added). \n\n \n \n\n \n\n[111] In the following significant passages La Forest J points to a fundamental \n\ndistinction between the direct use of compelled testimony and derivative use: \n\n\"The fact that derivative evidence exists independently of the \ncompelled testimony means, as I have explained, that it could also \nhave been discovered independently of any reliance on the \ncompelled testimony. It also means that its quality as evidence \ndoes not depend on its past connection with the compelled \ntestimony. Its relevance to the issues with which the subsequent \ntrial is concerned, as well as the weight it is accorded by the trier of \nfact, are matters that can be determined independently of any \nconsideration of its connection with the testimony of the accused. If \nit were otherwise, it would not, in fact, be derivative evidence at all, \nbut part of the actual testimony itself. Taken together, these \naspects of derivative evidence indicate that it is self-sufficient, in \nthe sense that its status and quality as evidence is not dependent \non its relation to the testimony used to find it. In this regard, the \nvery phrase \"derivative evidence\" is somewhat misleading. \n\nSeen from this light, it becomes apparent that those parts of \nderivative evidence which are incriminatory are only self-\nincriminatory by virtue of the circumstances of their discovery in a \nparticular case. They differ in this respect from incriminatory \nportions of the compelled testimony itself, which are by definition \nself-incriminatory, since \nform of evidence \nis a \nnecessarily unique to the party who gives it. \n\ntestimony \n\n \n\n \n\n191Id at 252 c. \n\n\f\u03a0\u03b1\u03b3\u03b5 151 \n\nACKERMANN J \n\nI would think that this, without more, raises doubts as to whether \nwe should be as wary of prosecutorial use of derivative evidence \nas we undoubtedly must be of such use of pre-trial testimonial \nevidence. What prejudice can an accused be said to suffer from \nbeing forced to confront evidence 'derived' from his or her \ncompelled testimony, if that accused would have had to confront it \neven if the power to compel testimony had not been used against \nhim or her? I do not think it can be said that the use of such \nevidence would be equivalent to forcing the accused to speak \nagainst himself or herself; once the derivative evidence is found or \nidentified, its relevance and probative weight speak for themselves. \nThe fact that such evidence was found through the evidence of the \naccused in no way strengthens the bearing that it, taken by itself, \ncan have upon the questions before the trier of fact. In this respect, \nif reference to its origins was not precluded by an immunity such \nas that presently found in s. 5 of the Canada Evidence Act, it would \nin most cases be precluded by simple irrelevance.\"192\n\nand, \n\n\"This raises a question of crucial importance in understanding the \nCollins line of cases and their relevance to a determination of the \nscope of testimonial immunity required by the principles of \nfundamental justice; why is the prior existence of evidence \nregarded as relevant to the fairness of the trial in which it is \nintroduced? \n\n \n \n \n\n \n\n \n\n \n\nThere can be only one answer to this question. A breach of the \nCharter that forces the eventual accused to created evidence \nnecessarily has the effect of providing the Crown with evidence it \nwould not otherwise have had. It follows that the strength of its \ncase against the accused is necessarily enhanced as a result of \nthe breach. This is the very kind of prejudice that the right against \nself-incrimination, as well as rights such as that to counsel, are \nintended to prevent. In contrast, where the effect of a breach of the \nCharter is merely to locate or identify already existing evidence, \nthe case of the ultimate strength of the Crown's case is not \nnecessarily strengthened in this way. The fact that the evidence \nalready existed means that it could have been discovered anyway. \nWhere this is the case, the accused is not forced to confront any \nevidence at trial that he would not have been forced to confront if \nhis Charter rights had been respected. In such circumstances, it \nwould be the exclusion rather than the admission of evidence that \nwould bring the administration of justice into disrepute.\"193\n\n \n\n192Id at 253 f - 254 e. \n\n193Id at 256 a - e. \n\n\f \n \n \n[112] La Forest J, favouring a flexible approach to the question of derivative use \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 152 \n\nimmunity, stated: \n\n \n\n \n\n \n\n \n\n \n\n\"In this country, where the question of immunity falls to be \ndetermined under the principles of fundamental justice, I think we \ncan achieve a more flexible balance between the interests of the \nindividual and that of the state. In a case like this, where the \nstatute does not provide for the evidence to be admitted, there can \nreally be no breach of the Charter until unfair evidence is admitted. \nUntil that happens, there is no violation of the principles of \nfundamental justice and no denial of a fair trial. Since the proper \nadmission or rejection of derivative evidence does not admit of a \ngeneral rule, a flexible mechanism must be found to deal with the \nissue contextually. That can only be done by the trial judge.\" \n\nand, \n\n\"I see no reason why an approach like that in the now \nconstitutionalized rule adopted in the case of prejudicial evidence \nshould not be extended to derivative evidence which, like other \nprejudicial evidence within the rule, can only be dealt with having \ndue regard to the need to balance the right of the accused and that \nof the public in a specific context. In my view, derivative evidence \nthat could not have been found or appreciated except as a result of \nthe compelled testimony under the Act should in the exercise of \nthe trial judge's discretion be excluded since its admission would \nviolate the principles of fundamental justice. As will be evident from \nwhat I have stated earlier, I do not think such exclusion should take \nplace if the evidence would otherwise have been found and its \nrelevance understood. There is nothing unfair in admitting relevant \nevidence of this kind, a proposition consistent with the cases under \ns. 24(2) of the Charter. The touchstone for the exercise of the \ndiscretion is the fairness of the trial process.\"194\n\nThe learned Judge concluded by stating: \n\n\"I conclude, then, that the use of derivative evidence derived from \n\nthe use of the s. 17 power in subsequent trials for offences under \n\nthe Act does not automatically affect the fairness of those trials. It \n\nfollows that complete immunity against such use is not required by \n\n\f\u03a0\u03b1\u03b3\u03b5 153 \n\nACKERMANN J \n\nthe principles of fundamental justice. The immunity against use of \n\nactual testimony provided by s. 20(2) of the Act together with the \n\njudge's power to exclude derivative evidence where appropriate is \n\nall that is necessary to satisfy the requirements of the Charter.\"195 \n\n(emphasis added) \n\n \n \n\n \n\n[113] L'Heureux-Dub\u00e9 J, without commenting on whether or how derivative use of \n\ncompelled testimony should be controlled, also came to the conclusion that \n\n\"use immunity satisfies the requirements of fundamental justice \n\nunder s. 7 of the Charter. In the present appeal, such protection is \n\nafforded by s. 20(2) of the Act which was referred to earlier.\"196\n\n \n\nCan the limitation of the examinee's section 11(1) constitutional residual right against \n\nself-incrimination by section 417(2)(b) of the Companies Act be justified under section \n\n33(1) of the Constitution? \n\n \n\n194Id at 260 h - 261 a; 262 c - e. \n\n195Id at 264 d - e. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 154 \n\nACKERMANN J \n\n \n\n196Id at 281 a. \n\n\f \n \n[114] To meet the requirements of section 33(1) of the Constitution, any limitation of \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 155 \n\nthe section 11(1) right to freedom must: \n\n(a) \n(b) \n\n(c) \n(d) \n\nbe \"reasonable\"; \nbe \"justifiable in an open and democratic society based on freedom \nand equality\"; \n\"not negate the essential content of the right\"; \nbe \"necessary\". \n\n \n\n(i) \n\nThe legislative history of sections 417 and 418 of the Companies Act \n\n[115] In order to determine the nature, extent and weight of the state's interest in the \n\nlimitation in question, the legislative history and purpose of the investigation and \n\nexamination procedures embodied in sections 417 and 418 of the Companies \n\nAct need to be examined. South African statutory company law has followed \n\nclosely similar English legislation and drawn heavily on it, all the pre-Union \n\nstatutes being based on earlier English company legislation.197 The adoption of \n\nthe South African Companies, Act 61 of 1973 has, however, \"cut the umbilical \n\ncord between English and South African company law\" which \"though still based \n\non the general principles of English law ... goes in many respects its own way.\"198 \n\nNevertheless, South African courts have considered English decisions to be \n\n \n\n197See, generally, Joubert (ed) The Law of South Africa Vol. 4 at paras 3 - 7; Pretorius et al, \nHahlo's South African Company Law Through the Cases 5 ed (1991) at 1 - 3; Cilliers et al, Corporate Law \n2 ed (1992) at 18 - 24; De la Rey \"Aspekte van die vroe\u00eb Maatskappyereg: _ Vergelykende Oorsig\" (1986) \nCodicillus 4, 18. \n\n198Pretorius et al, supra note 197 at 2 - 3. \n\n\fauthoritative (though of course not binding) in interpreting statutory provisions \n\n\u03a0\u03b1\u03b3\u03b5 156 \n\nACKERMANN J \n\nwhich are substantially the same, this being particularly the case in interpreting \n\nsection 417 of the Companies Act and corresponding provisions.199 \n\n \n \n\n \n\n \n \n\n199See, for example, Partnership in Mining Bpk v. Federale Mynbou Bpk en Andere 1984 (1) SA \n175 (T) at 179 G - H; Kotze v. De Wet NO and Another 1977 (4) SA 368 (T) at 374 B - C and S v. Heller \n1969 (2) SA 361 (W) at 363 A - 366 A. \n\n\f \n \n[116] The concept of private examination was first introduced in England in the \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 157 \n\nCompanies Act of 1862. Section 115 of the English Companies Act of 1862 \n\nempowered the Court, after a winding-up order had been made, to summon \n\nbefore it any officer of the company or person known or suspected to have in his \n\npossession any of the estate or effects of the company or supposed to be \n\nindebted to the company or any person whom the Court might deem capable of \n\ngiving information concerning the trade, dealings, estate or effects of the \n\ncompany. The Court could require any such officer or person to produce \n\ndocuments and, under section 117, the Court was empowered to examine on \n\noath, either by word of mouth or upon written interrogatories, any person so \n\nappearing concerning the affairs, dealings, estate or effects of the company. The \n\nprovisions were continued in the English Companies (Consolidation) Act of 1908, \n\nthe Companies Act of 1929 and the Companies Act of 1948.200 These provisions \n\nwere repeated, without significant amendment, by sections of the 1985 \n\nCompanies Act. The Insolvency Acts of 1985 and 1986 introduced major reforms \n\nboth to the law of personal bankruptcy and to winding-up, the aim of these \n\nstatutes being to promote harmony between the systems of personal and \n\ncorporate insolvency. The result of the Insolvency Acts was to remove from the \n\n1985 Companies Act all provisions relating to winding-up and receiverships. The \n\n \n \n\n200The private examination provisions were contained in section 268 of this Act. \n\n\fEnglish private examination provisions are now contained in sections 236 and \n\n\u03a0\u03b1\u03b3\u03b5 158 \n\nACKERMANN J \n\n237 of the 1986 Insolvency Act. \n\n \n \n\n \n\n[117] The Joint Stock Companies Limited Liability Act 23 of 1861 of the Cape \n\ncontained no winding up or examination provisions. These were introduced by \n\nthe Cape Winding-Up Act, 12 of 1868, based on similar provisions in the English \n\nCompanies Act of 1862. Section 33 of the Cape Act (which was taken over \n\nverbatim from section 115 of the English Act) provided that the Court, after it had \n\nmade an order for winding up, could summon before it - \n\n\"any officer of the company or person known or suspected to have \n\nin his possession any of the estate or effects of the company, or \n\nsupposed to be indebted to the company, or any person whom the \n\ncourt may deem capable of giving information concerning the \n\ntrade, dealings, estate, or effects of the company ...\" \n\nSection 34 of the Cape Act, following closely the provisions of section 117 of the \n\nEnglish Act, authorised the Court to examine any person appearing or brought \n\nbefore it \"in manner aforesaid, or whom it may be desired to examine,\u201d \n\nconcerning \"the affairs, dealings, estate, or effects of the company...\". The \n\npassage emphasised above was an addition to the corresponding English \n\nprovision. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 159 \n\nACKERMANN J \n\n[118] The Transvaal Act, 31 of 1909, which borrowed heavily from the English \n\nCompanies (Consolidation) Act of 1908, served as a model for the first South \n\nAfrican Companies Act (46 of 1926).201 Section 151(1) of the Transvaal Act, 31 \n\nof 1909, (which was in terms identical to section 174(1) of the English \n\nCompanies (Consolidation) Act 1908 and closely resembled section 33 of the \n\nCape Winding-up Act, 12 of 1868, provided for the private examination of - \n\n\"any officer of the company or person known or suspected to have \n\nin his possession any property of the company or supposed to be \n\nindebted to the company, or any person whom the Court deems \n\ncapable of giving information concerning the trade, dealings, \n\naffairs, or property of the company.\" \n\nSection 152(1) (which in terms closely resembled section 175(1) of the \n\naforementioned English Act) provided for the public examination of the promoter, \n\ndirector or officer of a company who, in the opinion of the Master, had committed \n\na fraud in relation to the company. It should be noted that section 151(2) of the \n\n \n \n\n201See L.P. Pyemont \"The Companies Bill for the Union of South Africa\" 40 (1923) SALJ 389. \n\n\fTransvaal Act obliged the examinee to answer any question put to him or her in \n\n\u03a0\u03b1\u03b3\u03b5 160 \n\nACKERMANN J \n\nthe private examination \"notwithstanding that the answer might tend to \n\nincriminate him\", but that a direct use immunity was given in the following terms: \n\n\"Provided that any answer given to any such question shall not be \n\nused against him in any prosecution other than for perjury or for \n\nthe offence under this Act of giving false evidence.\" \n\nSection 152(5) contained a similar ouster of the examinee's privilege against self-\n\nincrimination in the public examination, without providing any indemnity against \n\nprosecution or use immunity. This appears to be the first occasion in South Africa \n\nwhere the privilege against self-incrimination has been ousted completely without \n\nprovision for use immunity in the context of an examination following on the \n\nwinding up of a company. \n\n \n \n\n \n\n[119] Section 155 of the Companies Act, 46 of 1926, made provision for private \n\nexaminations in terms identical to those in section 151(1) of the Transvaal Act \n\nmentioned above and section 156 provided for public examination before the \n\nCourt in terms very similar to that provided in section 152(1) of the Transvaal Act, \n\nsave that section 156(1) included any creditor of the company in the list of \n\npersons who could be examined. Both sections 155 and 156 ousted the \n\nexaminee's right against self-incrimination, but provided no indemnity or use \n\n\f \n \n\nimmunity to the examinee in either case. Section 194 introduced, for the first \n\n\u03a0\u03b1\u03b3\u03b5 161 \n\nACKERMANN J \n\ntime, a provision allowing the Court to appoint a commissioner for the purpose of \n\ntaking evidence or holding an enquiry under the Act, which provision was the \n\nforerunner of section 418 of the 1973 Companies Act. Sections 180 bis and 180 \n\nter were introduced into the 1926 Companies Act by section 105 of the \n\nCompanies Amendment Act of 1952.202 In terms of section 180 bis, all the \n\ndirectors, the manager and the secretary of a company in liquidation were to \n\nattend meetings of creditors. The Master, or other presiding officer at such a \n\nmeeting, could also, in terms of section 180 bis, subpoena to the meeting - \n\n\"any person who is known or on reasonable grounds believed to \n\nbe or to have been in possession of any property which belongs or \n\nbelonged to the company or to be indebted to the company, or any \n\nperson who in the opinion of the Master or such other officer may \n\nbe able to given any material information concerning the company \n\nor its affairs ...\"203\n\nSection 180 ter made provisions for the examination, at a meeting of creditors of \n\na company being wound up and unable to pay its debts, of a director or any other \n\n \n\n202Act 46 of 1952. This was an Act passed in consequence of the report of the Millin Commission. \n\n(Report of the Commission of Enquiry on the Amendment of the Companies Act (UG 69 of 1948)). \n\n203This section corresponded to section 64(1) of the Insolvency Act 24 of 1936. \n\n\fperson present at the meeting - \n\n\u03a0\u03b1\u03b3\u03b5 162 \n\nACKERMANN J \n\n\"concerning all matters relating to the company or its business or \n\naffairs ... and concerning any property belonging to the company \n\n...\"204\n\nSection 180 quat inter alia made the provisions of sections 64 to 68 of the \n\nInsolvency Act 1936 applicable to 180 bis and 180 ter. In terms of the proviso to \n\nsection 65(2) of the Insolvency Act 1936, as it existed at the time, a person \n\ninterrogated under subsection (1) was \"not entitled at such interrogation to refuse \n\nto answer any question upon the ground that the answer would tend to \n\nincriminate him\" and subsection (5) provided that any evidence given under \n\nsection 65 \"shall be admissible in any proceedings instituted against the person \n\nwho gave that evidence.\" \n\n \n \n\n \n\n \n \n\n204This section corresponded to section 65(1) of the Insolvency Act of 1936. \n\n\f \n \n[120] Sections 180 bis and 180 ter of the 1926 Companies Act have been repeated in \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 163 \n\nthe extant Companies Act, 1973, in sections 414 and 415 respectively. The \n\npresent Companies Act makes no provision for public examinations before the \n\nCourt.205 Section 417 of the present Act does, however, make provision for \n\nprivate examinations in terms not dissimilar to section 155 of the 1926 \n\nCompanies Act. It is to be noted that section 416 (1) of the Companies Act inter \n\nalia makes the provisions of section 65 of the Insolvency Act applicable to the \n\ninterrogation of any person under section 415, \"in so far as they can be applied \n\nand are not inconsistent with the provisions of this Act,\" as if such person were \n\nbeing interrogated under section 65 of the Insolvency Act 1936. In 1989 \n\nsubsection (2A) was inserted in section 65 of the Insolvency Act.206 It reads as \n\nfollows: \n\n \n\n205Section 156 of the 1926 Companies Act was not repeated in the Companies Act 1973. This was \non the recommendation of the Van Wyk de Vries Commission of Enquiry into the Companies Act: Main \nReport (1970) para 50.21. \n\n206By section 3(b) of Act No. 89 of 1989. \n\n\f \n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 164 \n\nACKERMANN J \n\n\"(2A) (a) Where any person gives evidence in terms of the \nprovisions of this section and is obliged to answer questions which \nmay incriminate him or, where he is to be tried on a criminal \ncharge, may prejudice him at such trial, the presiding officer shall, \nnotwithstanding the provisions of section 39(6), order that such \npart of the proceedings be held in camera and that no information \nregarding such questions and answers may be published in any \nmanner whatsoever. \n\n (b) No evidence regarding any questions and answers \ncontemplated in paragraph (a) shall be admissible in any criminal \nproceedings, except in criminal proceedings where the person \nconcerned stands trial on a charge relating to the administering or \ntaking of an oath or the administering or making of an affirmation \nor the giving of false evidence or the making of a false statement in \nconnection with such questions and answers, and in criminal \nproceedings contemplated in section 139(1) relating to a failure to \nanswer lawful questions fully and satisfactorily. \n\n (c) Any person who contravenes any provision of an order \n\ncontemplated in paragraph (a), shall be guilty of an offence and \n\nliable on conviction to the penalty mentioned in subsection (5) of \n\nsection 154 of the Criminal Procedure Act, 1977 (Act No. 51 of \n\n1977).\" \n\n \n\n[121] It has been suggested207 that the person interrogated in proceedings under \n\nsection 415 of the Companies Act enjoys the benefits of the direct use immunity \n\nprovided for in section 65(2A)(b) of the Insolvency Act, by virtue of the operation \n\nof the particular provision in section 416(1) of the Companies Act, referred to \n\nabove; and it has also been so held in Podlas v. Cohen and Bryden NNO and \n\n \n\n207For example, Meskin et al (eds) Henochsberg on the Companies Act 5 ed Vol 1 at 876 - 877. \n\n\f \n \n\nOthers,208 where Spoelstra J stated the following: \n\n\u03a0\u03b1\u03b3\u03b5 165 \n\nACKERMANN J \n\n \n\n2081994 (4) SA 662 (T) at 671 G - I. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 166 \n\nACKERMANN J \n\n\"I am not persuaded that the judgment of van Niekerk J209 is \n\ncorrect and that those of Goldblatt J210 and De Villiers J211 are \n\nclearly wrong. On the contrary, Van Niekerk J's judgment is open \n\nto criticism that it overlooked important considerations which, had \n\nthey been considered, might have resulted in a different \n\nconclusion. First, s. 416 of the Companies Act provides that S. 65 \n\nof the Insolvency Act shall be applied to interrogations under s. \n\n415 of the Companies Act. Section 65(2A) of the Insolvency Act \n\nprovides that incriminating evidence shall be ordered to be given in \n\ncamera and that no information regarding such questions and \n\nanswers may be published in any manner whatsoever. No \n\nevidence regarding incriminating questions and answers shall be \n\nadmissible \n\nin any criminal proceedings except \n\nin perjury \n\nproceedings. Had these provisions been brought to Van Niekerk \n\nJ's attention, it is very doubtful that he would have found that there \n\n \n\n209In Wehmeyer v. Lane NO and Others 1944 (4) SA 441 (C). \n\n210In Rudolph and Another v. Commissioner for Inland Revenue and Others NNO, 1994 (3) SA \n\n771 (W). \n\n211In De Kock en _ Ander v. Prokureur-Generaal, Transvaal, 1994 (3) SA 785 (T). We are not here \nconcerned with the central issue involved in Wehmeyer, Rudolph and De Kock, viz. whether a Provincial \nor Local Division of the Supreme Court had jurisdiction (as the law then stood) to grant a temporary \ninterdict on the basis that an Act of Parliament might be invalid, pending the decision of the issue of such \nvalidity by the Constitutional Court. Section 101(7) of the Constitution, as introduced by section 3 of the \nConstitution of the Republic of South African Second Amendment Act 44 of 1995 now provides expressly \nfor such jurisdiction. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 167 \n\nACKERMANN J \n\nwas any real prejudice to the applicant.\" (emphasis and footnotes \n\nadded). \n\nThe inescapable inference from the above is that Spoelstra J considered that the \n\ndirect use immunity provided for in section 65(2A)(b) of the Insolvency Act \n\napplied to incriminating evidence given by a person interrogated under section \n\n415 of the Companies Act. Spoelstra J has, in my view, overlooked the important \n\nqualification in section 416(1) itself, namely that the provisions of section 65 of \n\nthe Insolvency Act are only applicable to the interrogation of a person under \n\nsection 415 of the Companies Act \"in so far as they can be applied and are not \n\ninconsistent with the provisions\" of the Companies Act. Subsection (3) of section \n\n415 provides expressly that - \n\n\"No person interrogated under subsection (1) shall be entitled at \n\nsuch interrogation to refuse to answer any question upon the \n\nground that the answer would tend to incriminate him.\" \n\nand subsection (5) further expressly provides that - \n\n\"Any evidence given under this section shall be admissible in any \n\nproceedings instituted against the person who gave that evidence \n\nor the body corporate of which he is or was an officer.\" \n\nWhen these two provisions are read in conjunction with one another they leave \n\nopen no possible construction other than that the testimony of persons \n\ninterrogated under section 415, even though it might tend to incriminate them, is \n\n\fadmissible against such persons in subsequent proceedings against them, even \n\n\u03a0\u03b1\u03b3\u03b5 168 \n\nACKERMANN J \n\nin subsequent criminal prosecutions. The expression \"... admissible in any \n\nproceedings instituted against the person who gave that evidence\" is too wide \n\nand unqualified to admit of any other construction. The direct use immunity, \n\nprovided for in section 65(2A)(b) of the Insolvency Act, is therefore clearly \n\ninconsistent with the combined effect of these provisions in section 415 and to \n\nthat extent are inapplicable. I accordingly disagree with Spoelstra J's conclusion \n\nthat \"[n]o evidence regarding incriminating questions and answers shall be \n\nadmissible in any criminal proceedings except in perjury proceedings.\" \n\n \n \n\n \n\n(ii) \n\nThe statutory purpose of the section 417 and 418 procedures \n\n[122] The way is now clear to determine the statutory purpose of the interrogation and \n\nother procedures in the Companies Act 1973 and, in particular, those in section \n\n417 and 418. Some of the major statutory duties of the liquidator in any winding-\n\nup are: \n\n(i) \n\n(ii) \n\n \n\nto \"proceed forthwith to recover and reduce into possession \nall the assets and property of the company, movable and \nimmovable ...\"212\n\nto \"give the Master such information ... and generally such \naid as may be requisite for enabling that officer to perform \nhis duties under this Act.\"213\n\n \n\n212Section 391 of the Companies Act 61 of 1973. \n\n213Id section 392. \n\n\f\u03a0\u03b1\u03b3\u03b5 169 \n\nACKERMANN J \n\n(iii) \n\nto \"examine the affairs and transactions of the company \nbefore its winding-up in order to ascertain - \n\n(a) \n\n(b) \n\nwhether any of the directors and officers or past \ndirectors and officers of \nthe company have \ncontravened or appear to have contravened any \nprovision of this Act or have committed or appear to \nhave committed any other offence; and \n\nin respect of any of the persons referred to in \nparagraph (a), whether there are or appear to be any \ngrounds for an order by the Court under section 219 \ndisqualifying a director from office as such.\"214\n\n(iv) Except in the case of a members' voluntary winding-up, to \n\nreport to the general meeting of creditors and contributories \n\nof the company, the causes of the company's failure, if it \n\nhas failed.215\n\nIf the liquidator's report contains particulars of contraventions or offences \n\ncommitted or suspected to have been committed or of any of the grounds \n\nmentioned in (iii)(a) and (b) above, the Master must transmit a copy of the report \n\nto the Attorney-General. \n\n \n \n \n\n \n\n \n\n \n\n \n\n[123] The purpose of the enquiry under sections 417 and 418 is undoubtedly to assist \n\nliquidators in discharging these duties \n\n\"so that they may determine the most advantageous course to \n\n \n \n\n214Id section 400(1). \n\n215Id section 402(b). \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 170 \n\nACKERMANN J \n\nadopt in regard to the liquidation of the company\";216\n\nand \n\n\"to achieve his primary object, namely the ascertainment of the \n\nassets and liabilities of the company, the recovery of the one and \n\nthe payment of the other, according to law and in a way which will \n\nbest serve the interests of the company's creditors\".217\n\n \n \n\n666 F. \n\n216Per van Winsen J in Western Bank Ltd v. Thorne NO and Others NNO 1973 (3) SA 661 (C) at \n\n217Merchant Shippers SA (Pty) Ltd v. Millman NO and Others 1986 (1) SA 413 (C) at 417 D - E. \n\n\f \n \n\nAs was pointed out in Moolman v. Builders and Developers (Pty) Ltd (In \n\n\u03a0\u03b1\u03b3\u03b5 171 \n\nACKERMANN J \n\nProvisional Liquidation): Jooste Intervening218: \n\n\"Appellant's counsel is plainly correct in his submission that to \n\nenquire into the company's affairs forms part of a liquidator's \n\nfunctions just as much as reducing the assets of the company into \n\nhis possession and dealing with them in the prescribed manner \n\ndoes. In performing the former part of his functions he exercises an \n\nancillary power without which the second part cannot properly be \n\nperformed. It is only by enquiring that he is able to determine what \n\nis and what is not the property of the company, or who is and who \n\nis not a creditor or contributory. It is, moreover, obviously in the \n\ninterest of creditors that doubtful claims which the company may \n\nhave against outsiders be properly investigated before being \n\npursued and that claims against the company also be properly \n\ninvestigated before they are admitted or rejected. It is for such \n\nreasons that both the South African and the Transkeian \n\nCompanies Act contain elaborate provisions relating to the \n\ninterrogation of directors and other persons at meeting of creditors \n\nor by a commissioner...\" \n\n \n\n2181990 (1) SA 954 (A) at 960 G - I per Hefer JA. \n\n\fThe purpose of the interrogation may be directed exclusively at the general \n\n\u03a0\u03b1\u03b3\u03b5 172 \n\nACKERMANN J \n\ncredibility of an examinee, where the testing of such person's veracity is \n\nnecessary in order to decide whether to embark on a trial to obtain what is due to \n\nthe company being wound up.219\n\n \n \n\n \n\n[124] It happens not infrequentlythat the liquidation of a company is the result of \n\nmismanagement, indeed mismanagement involving fraud and theft, on the part \n\nof the directors and other officers of the company. Such persons are the only \n\neyes, ears and brains of the company and often the only persons who have \n\nknowledge of the workings of the company prior to liquidation. They are often, \n\nbecause of their part in the mismanagement, fraud and theft, reluctant to assist \n\nthe liquidators voluntarily in the discharge of their duties. This on occasion also \n\napplies to outsiders who, for reasons of their own, are reluctant to assist the \n\nliquidator voluntarily. That it is necessary, in the interest of creditors and indeed \n\nthe wider public interest, to compel them to assist, is widely recognised. In Lynn \n\nNO and Another v. Kreuger and Others the following was said: \n\n \n \n\n219Pretorius and Others v. Marais and Others 1981 (1) SA 1051 (A) at 1063 H - 1064 A. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 173 \n\nACKERMANN J \n\n\"In my view the procedure provided by sections 417 and 418 of the \n\nCompanies Act is not primarily concerned with the prosecution of \n\noffenders. The sections are aimed at assisting officers of the court \n\nin the performance of their duty to the creditors of companies in \n\nliquidation, the Master and the Court. It is very often of \n\nfundamental importance for the liquidator of a company to find out \n\nwhat has been done with the assets of that company and how the \n\ncompany's business has been run. Speed is of the essence of \n\neffectiveness in such an enquiry because, all too often the \n\nliquidator must take early and urgent action in order to recover \n\nmismanaged or misappropriated assets for the benefit of creditors. \n\nThe case under consideration seems to be an excellent example of \n\nthe importance of the need for full information, at a comparatively \n\nearly stage of the winding up. In this case, on the evidence which \n\nis before me, the probabilities indicate very strongly, if not \n\noverwhelmingly that the only person who can give the applicants \n\nthe information which they require is the first respondent. I think \n\nthat \n\nthe \n\nfirst \n\nrespondent's prospects of persuading \n\nthe \n\nConstitutional Court that the 'interrogation procedure' in respect of \n\npeople who have been involved in the dealings of a company \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 174 \n\nACKERMANN J \n\nbefore its liquidation is unconstitutional are remote indeed. I cannot \n\nconceive of any other procedure which would enable liquidators, \n\neffectively and efficiently, to fulfil their task.\"220\n\n In Cloverbay Ltd v. Bank of Credit and Commerce International SA221 Browne-\n\nWilkinson V-C, dealing with an examination under section 236 of the English \n\nInsolvency Act 1986, stated the following: \n\n\"[T]he reason for the inquisitorial jurisdiction contained in s. 236 is \n\nthat a liquidator or administrator comes into the company with no \n\nprevious knowledge and frequently finds that the company's \n\nrecords are missing or defective. The purpose of s. 236 is to \n\nenable him to get sufficient information to reconstitute the state of \n\nknowledge that the company should possess.\" (emphasis added.) \n\nAs explained by Buckley J in Re Rolls Razor, Ltd the position under section 236 \n\nof the Insolvency Act 1986 is broadly the same as that under section 268 of the \n\n \n\n2201995 (2) BCLR 167 (N) at 170 D - F per Hurt J. \n\n221[1991] 1 All ER 894 (CA) at 900 e. \n\n\f \n \n\nCompanies Act: \n\n\u03a0\u03b1\u03b3\u03b5 175 \n\nACKERMANN J \n\n\"The powers conferred by s. 268 are powers directed to enabling \n\nthe court to help a liquidator to discover the truth of the \n\ncircumstances connected with the affairs of the company, \n\ninformation of trading, dealings, and so forth, in order that the \n\nliquidator may be able, as effectively as possible and, I think, with \n\nas little expense as possible ... to complete his function as \n\nliquidator, to put the affairs of the company in order and to carry \n\nout the liquidation in all its various aspects, including, of course, \n\nthe getting in of any assets of the company available in the \n\nliquidation. It is, therefore, appropriate for the liquidator, when he \n\nthinks that he may be under a duty to try to recover something \n\nfrom some officer or employee of a company, or some other \n\nperson who is, in some way, concerned with the company's affairs, \n\nto be able to discover, with as little expense as possible and with \n\nas much ease as possible, the facts surrounding any such possible \n\nclaim.\"222\n\nThis passage was subsequently approved by the Court of Appeal.223 In Re Rolls \n\n \n\n222[1968] 3 All ER 698 (ChD) at 700. \n\n223In Re Esal (Commodities) Ltd [1989] BCLC 59 at 64. \n\n\f \n \n\nRazor Ltd (No. 2) Megarry J said the following: \n\n\u03a0\u03b1\u03b3\u03b5 176 \n\nACKERMANN J \n\n\"The process under s. 268 is needed because of the difficultly in \n\nwhich the liquidator in an insolvent company is necessarily placed. \n\nHe usually comes as a stranger to the affairs of a company which \n\nhas sunk to its financial doom. In that process, it may well be that \n\nsome of those concerned in the management of the company, and \n\nothers as well, have been guilty of some misconduct or impropriety \n\nwhich is of relevance to the liquidation. Even those who are wholly \n\ninnocent of any wrongdoing may have motives for concealing what \n\nwas done. In any case, there are almost certain to be many \n\ntransactions which are difficult to discover or to understand merely \n\nfrom the books and papers of the company. Accordingly, the \n\nlegislature has provided this extraordinary process so as to enable \n\nthe requisite information to be obtained. The examinees are not in \n\nany ordinary sense witnesses, and the ordinary standards of \n\nprocedure do not apply. There is here an extraordinary and secret \n\nmode of obtaining information necessary for the proper conduct of \n\nthe winding-up. The process, borrowed from the law of bankruptcy, \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 177 \n\nACKERMANN J \n\ncan only be described as being sui generis.\"224 \n\nIn British and Commonwealth Holdings plc v. Spicer and Oppenheim Lord Slynn, \n\nspeaking for the House of Lords, approved the passages from Rolls Razor and \n\nRolls Razor (2) quoted above and then said the following: \n\n \n \n\n224[1969] 3 All ER 1386 at 1396 - 1397. \n\n\f\u03a0\u03b1\u03b3\u03b5 178 \n\nACKERMANN J \n\n\"I am therefore of the opinion that the power of the Court to make \n\nan order under s. 236 is not limited to documents which can be \n\nsaid to be needed 'to reconstitute the state of the company's \n\nknowledge' even if that may be one of the purposes most clearly \n\njustifying the making of an order.\"225\n\n \n \n\n \n\n(iii) \n\nThe application of section 33(1) of the Constitution \n\n[125] In applying section 33(1) I propose adopting the approach followed in S v. \n\n \n\n225[1992] 4 All ER 876 (HL) at 884 b - h and 884 j. See also Anderson and Others v. Dickson and \n\nAnother NNO 1985 (1) SA 93 (N) at 111 F - G where Booysen J said the following: \n\n\"It seems that the object of an examination under ss 417 and 418 is similar to that of an \nexamination at a meeting of creditors under s 415 and that it is to gain information which \nthe creditors, or some of them, and the liquidator do not have or cannot otherwise \neffectively possess. It is a means of obtaining discovery of facts which may be of financial \nbenefit to creditors of the company with the important limitation that it should be of \nfinancial benefit to them qua creditors of the company.\" \n\n\f \n \n\nMakwanyane and Another226, where, as in the present case, the justification had \n\n\u03a0\u03b1\u03b3\u03b5 179 \n\nACKERMANN J \n\nto be necessary as well as reasonable and in which Chaskalson P formulated the \n\napproach as follows: \n\n \n\n226Supra note 24. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 180 \n\nACKERMANN J \n\n\"The limitation of constitutional rights for a purpose that is \n\nreasonable and necessary in a democratic society involves the \n\nweighing up of competing values, and ultimately an assessment \n\nbased on proportionality. This is implicit in the provisions of section \n\n33(1). The fact that different rights have different implications for \n\ndemocracy, and in the case of our Constitution, for 'an open and \n\ndemocratic society based on freedom and equality', means that \n\nthere is no absolute standard which can be laid down for \n\ndetermining reasonableness and necessity. Principles can be \n\nestablished, but the application of those principles to particular \n\ncircumstances can only be done on a case by case basis. This is \n\ninherent in the requirement of proportionality, which calls for the \n\nbalancing of different interests. In the balancing process, the \n\nrelevant considerations will include the nature of the right that is \n\nlimited, and its importance to an open and democratic society \n\nbased on freedom and equality; the purpose for which the right is \n\nlimited and the importance of that purpose to such a society; the \n\nextent of the limitation, its efficacy, and particularly where the \n\nlimitation has to be necessary, whether the desired ends could \n\nreasonably be achieved through other means less damaging to the \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 181 \n\nACKERMANN J \n\nright in question. In the process regard must be had to the \n\nprovisions of section 33(1), and the underlying values of the \n\nConstitution, bearing in mind that, as a Canadian Judge has said, \n\n'the role of the Court is not to second-guess the wisdom of policy \n\nchoices made by legislators'.\"227 (footnotes omitted) \n\n \n\n[126] Because of the statutory duties which liquidators have to discharge in the \n\nwinding-up of companies and the serious difficulties they face in recapturing the \n\nknowledge of the company prior to liquidation, in determining the cause of the \n\ncompany's failure and in establishing what assets (including claims) the company \n\nhas, it is clearly reasonable (in the sense of there being a rational connection \n\nbetween mischief and remedy) to compel persons to be interrogated in relation to \n\naffairs of the company which are relevant to the discharge by liquidators of their \n\nduties, even where the testimony given tends to incriminate the person giving it. \n\nIt is also necessary, in the sense that there is a pressing or compelling state \n\ninterest to ensure that assets (including claims) of the company are recovered, \n\nfor the benefit of creditors, especially from directors and officers of the company \n\nwho may have been responsible, even criminally so, for the failure of the \n\ncompany. It is also necessary, in this sense, to compel persons to answer all \n\n \n \n\n227Id at para 104. \n\n\frelevant questions put to them even when the answers might incriminate them, \n\n\u03a0\u03b1\u03b3\u03b5 182 \n\nACKERMANN J \n\nfor without this compulsion there would be a great reluctance by such persons to \n\nmake a full and frank disclosure of their knowledge of the affairs of the company \n\nand their dealings with it. \n\n \n \n\n \n\n[127] The real question is whether it is necessary in the sense that no other method \n\nexists which achieves the desired objective, but which is less intrusive of the \n\nexaminee's section 11(1) rights. Differently stated, is there an acceptable \n\nproportionality between the legitimate objective sought to be achieved and the \n\nmeans chosen? The answer must clearly be in the negative. The state interest in \n\nachieving full information must be just as compelling in the United States of \n\nAmerica, Canada and the United Kingdom. Yet these countries, more \n\nconsistently the United States and Canada, have achieved this objective by \n\nmeans which are less invasive of the examinee's rights, namely by conferring on \n\nthe examinee either a direct or both a direct and a derivative use immunity in \n\nrespect of self-incriminating evidence given at the enquiry. There is nothing to \n\nsuggest that in South Africa the objective cannot be fully achieved if some form \n\nof use immunity were to be appended to section 417(2)(b) of the Companies Act. \n\nSection 65(2A)(b) of the Insolvency Act provides for direct use immunity in \n\nrespect of enquiries held under that Act and, while there may be legitimate \n\n\freasons for distinguishing between enquiries held in respect of personal \n\n\u03a0\u03b1\u03b3\u03b5 183 \n\nACKERMANN J \n\nbankruptcies and those relating to company liquidations, I can think of no proper \n\njustification for providing direct use immunity in respect of the former but not the \n\nlatter. In the light of the aforegoing it is unnecessary to consider whether the \n\nessential content of the section 11(1) right has, within the meaning of section \n\n33(1)(b), been negated by this provision. The conclusion is therefore reached \n\nthat, as currently formulated, the provisions of section 417(2)(b) of the \n\nCompanies Act, which infringe the examinee's section 11(1) rights, cannot be \n\njustified under section 33(1) of the Constitution. These provisions are accordingly \n\nfound to be inconsistent with the section 11(1) right to freedom. \n\n \n \n\n \n\nThe attacks based on sections 8, 10, 13, 15, 22 or 24 of the Constitution \n\n[128] In view of the above finding it is unnecessary to consider whether the provisions \n\nof section 417(2)(b) of the Companies Act are inconsistent with any of the rights \n\nprotected in sections 8, 10, 13, 15, 22 or 24 of the Constitution. \n\n \n\nThe extent of the inconsistency of the provisions of section 417(2)(b) of the Companies \n\nAct with the section 11(1) right to freedom \n\n[129] Section 98(5) of the Constitution provides that: \n\n\"In the event of the Constitutional Court finding that any law or any \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 184 \n\nACKERMANN J \n\nprovision thereof is inconsistent with this Constitution, it shall \n\ndeclare such law or provision invalid to the extent of its \n\ninconsistency: Provided that the Constitutional Court may, in the \n\ninterests of justice and good government, require Parliament or \n\nany other competent authority, within a period specified by the \n\nCourt, to correct the defect in the law or provision, which shall then \n\nremain in force pending correction or the expiry of the period so \n\nspecified.\" \n\nThe above subsection enjoins this Court, on finding that any law or any provision \n\nthereof is inconsistent with this Constitution, to declare such law or provision \n\ninvalid \"to the extent of its inconsistency.\" This raises two issues, one of \n\nseverability and the other of judicial policy. We were urged on behalf of the \n\napplicants to strike down section 417(2)(b) in its entirety, leaving it to Parliament \n\nto decide whether to re-instate the obligation to give self-incriminating evidence, \n\nbut coupled this time with a suitable indemnity against prosecution or a suitable \n\nuse immunity (whether a direct or a direct and derivative use immunity). On \n\nbehalf of the applicants we were urged not to express our own views as to what \n\nan appropriate and constitutionally valid use immunity would be, under the guise \n\nof a section 98(5) declaration as to the extent of the inconsistency of section \n\n417(2)(b) with the Constitution. To do so would, it was submitted, be trespassing \n\n\f \n \n\non Parliament's legislative sphere. On behalf of the second respondents in the \n\n\u03a0\u03b1\u03b3\u03b5 185 \n\nACKERMANN J \n\nFerreira matter we were invited, in the alternative and in the event of finding \n\nsection 417(2)(b) to be inconsistent with the Constitution, to make a qualified \n\norder in the following terms: \n\n\"To the extent only that the words 'and any answer given to any \nsuch question may thereafter be used in evidence against him' in \nsection 417(of the Companies Act apply to the use of any such \nanswer by an accused against him or her in criminal proceedings \n(other than proceedings for common law or statutory perjury in \ngiving evidence under this section), the provisions are declared to \nbe invalid.\" \n\n \n\n[130] On the issue of severability it is unnecessary on the issue before us to do more \n\nthan apply the test which Kriegler J formulated for this Court in Coetzee v. \n\nGovernment of the Republic of South Africa and Others; Matiso and Others v. \n\nCommanding Officer, Port Elizabeth Prison and Others as follows: \n\n\"Although severability in the context of constitutional law may often \n\nrequire special treatment, in the present case the trite test can \n\nproperly be applied: if the good is not dependent on the bad and \n\ncan be separated from it, one gives effect to the good that remains \n\nafter the separation if it still gives effect to the main objective of the \n\nstatute. The test has two parts: first, is it possible to sever the \n\ninvalid provisions and second, if so, is what remains giving effect to \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 186 \n\nACKERMANN J \n\nthe purpose of the legislative scheme?\"228\n\nBoth tests are satisfied in the present case, whether the order takes the form \n\nsuggested by the applicants, or by second respondents in the Ferreira matter. \n\nOn the applicants' approach the remainder of the legislative scheme in sections \n\n417 and 418 is not dependent on the bad in section 417(2)(b). On the approach \n\nsuggested by the second respondent in the Ferreira matter a person examined \n\nwould still be obliged to answer all questions put, including those that might be \n\nself-incriminating, but the deletion of the words \"and any answer given to any \n\nsuch questions may thereafter be used in evidence against him\" would merely \n\nexclude the use of incriminating answers in all subsequent criminal proceedings \n\nagainst the examinee. The exclusion would be limited to criminal proceedings. \n\nSuch a deletion would not have any effect on the efficacy of the section 417 and \n\n418 proceedings; the removal of the bad would only affect subsequent use of the \n\nanswers. On the second leg of the test, that which will remain clearly still gives \n\n \n \n\n2281995 (10) BCLR 1382 (CC) at para 16. The footnote reference in the text quoted has been \nomitted but the footnote itself reads: \"Johannesburg City Council v. Chesterfield House 1952 (3) SA 809 \n(A) at 822 D - E. See also S v. Lasker 1991 (1) SA 558 (CPD) at 566.\" \n\n\feffect to the purpose of the legislative scheme, which has been analysed above. \n\n\u03a0\u03b1\u03b3\u03b5 187 \n\nACKERMANN J \n\n \n \n\n \n\n[131] The more difficult problem relates to the way in which the Court should declare \n\nthe extent of the inconsistency of section 417(2)(b) with the Constitution. There is \n\ngreat force in the warning that this Court ought not to prescribe or even suggest \n\nto Parliament how best it should legislate in order to address any statutory \n\nvacuum or deficiency caused by a declaration of invalidity. By doing this we \n\nmight be seen to be trespassing on Parliament's legislative terrain. At the same \n\ntime, however, the injunction in section 98(5) of the Constitution requires the \n\nCourt to indicate the \"extent\" of the inconsistency. This qualification was not \n\nessential. The injunction could merely have read \"it shall declare such law or \n\nprovision invalid.\" The Constitution therefore reflects a choice for a narrow \n\nstriking down. In certain cases such a narrow striking down is technically and \n\nlinguistically simple where the constitutional inconsistency is encapsulated in \n\n(and limited to) a discrete subsection or paragraph containing nothing but the \n\ninconsistent provision. However, the excision cannot always be so surgically \n\nneat. The Constitution seems to have foreseen this by using the expression \"to \n\nthe extent of its inconsistency\" as a qualification to the bald declaration of \n\ninvalidity of \"any law or any provision thereof.\" It permits the Court greater \n\nlatitude in formulating its declaration of invalidity. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 188 \n\nACKERMANN J \n\n[132] A not inconsiderable part of the argument was directed to the nature of (a) an \n\nindemnity against prosecution, or (b) a direct use immunity or (c) a derivative use \n\nimmunity which, if coupled with the compulsion to give self-incriminating \n\nevidence, might render such compulsion constitutionally unobjectionable. This \n\ndebate was an important feature in the judgments in Thomson's case.229 It is not \n\ninconceivable (in fact it seems likely) that, if we were simply to strike down \n\nsection 417(2)(b) in its entirety, Parliament would consider introducing more \n\nlimited provisions along the lines of the provisions of section 65(2A) of the \n\nInsolvency Act. In so doing, Parliament might decide to provide for a direct use \n\nimmunity only, which might very well give rise to another constitutional challenge, \n\nresulting in another suspension of the section 417 and 418 procedures, the \n\nhalting of liquidation enquiries and a hearing in this Court simply duplicating the \n\narguments that have been addressed to us in the present case. Such a course of \n\nevents would be both unnecessary and unfortunate, particularly if it could \n\nlegitimately be avoided. It can properly, in my view, be avoided. It would be \n\npermissible for us, in the process of determining the extent of the inconsistency \n\nof section 417(2)(b) with the Constitution, to decide whether, in the South African \n\ncontext, both a direct and a derivative use immunity is necessary to save such a \n\n\fprovision from being unconstitutional, or whether a direct use immunity would \n\n\u03a0\u03b1\u03b3\u03b5 189 \n\nACKERMANN J \n\nsuffice. Without doing so, it would be difficult, if not impossible to indicate \n\naccurately the extent of the inconsistency. I now proceed to address myself to \n\nthis question. \n\n \n \n\n \n\n[133] It has been pointed out above that, in the United States of America, both \n\nderivative and direct use immunity is necessary in order to escape constitutional \n\nchallenge to a statute which limits the right against self-incrimination. In Thomson \n\nNewspapers La Forest J pointed out, however, that \n\n \n\n \n\n\"the absolutist position the courts in the United States have \nadopted in this area is undoubtedly rooted in the explicit and \nseemingly absolute right against self-incrimination found in the \ncountry's constitution\"230\n\nand that \n\n\"one should not automatically accept that s. 7 comprises a broad \n\nright against self-incrimination on an abstract level or, for that \n\nmatter, on the American model, complete with all its residual \n\ndoctrines. If that had been intended, it would have been very easy \n\n \n\n229Supra note 75. \n\n\f \n \n\nto say so.\"231\n\n\u03a0\u03b1\u03b3\u03b5 190 \n\nACKERMANN J \n\n \n \n\n230Supra note 75 at 260 g. \n\n231Id at 244 a - b. \n\n\fIn embarking on this enquiry regarding derivative use immunity, it is salutary to \n\n\u03a0\u03b1\u03b3\u03b5 191 \n\nACKERMANN J \n\nbear in mind that the problem cannot be resolved in the abstract but must be \n\nconfronted in the context of South African conditions and resources - political, \n\nsocial, economic and human.232 The fact that a particular obligation may be \n\nplaced on the criminal investigative and prosecutorial authorities in one country \n\nwith vast resources, does not necessarily justify placing an identical burden on a \n\ncountry with significantly less resources. One appreciates the danger of \n\nrelativising criminal justice, but it would also be dangerous not to contextualise it. \n\nThe aphorism proclaims that it is better for ten guilty accused to go free than to \n\nhave one innocent accused wrongly convicted. Does the same hold true if the \n\nproportion is stretched to a hundred to one or to a thousand to one? And must a \n\nsystem, which only produces one in a hundred wrong acquittals in one country, \n\nbe maintained in another if it would consistently give rise to three in five wrong \n\nacquittals in the latter? \n\n \n \n\n \n\n[134] The distinction which La Forest J draws between the direct use of compelled \n\n \n \n\n232As La Forest J observed in Thomson Newspapers supra note 75 at 241 e: \n\n\"The courts in Canada ... cannot remain oblivious to the concrete social, \npolitical and economic realities within which our system of constitutional \nrights and guarantees must operate.\" \n\nThe learned Judge further pointed out at 245 e that, \n\n\"these principles [of natural justice] vary with the context,\" \n\nand at 245 g that the entitlement of an accused, \n\n\"to a fair hearing ... does not entitle him to the most favourable procedures that \ncould possibly be imagined\", \n\n\f \n \n\ntestimony and the use of evidence derived from compelled testimony is, in my \n\n\u03a0\u03b1\u03b3\u03b5 192 \n\nACKERMANN J \n\nview, important: \n\n(a) \n\nIn the case of the direct use of compelled testimony, \n\n\"[i]t is only when the testimony itself has to be relied on that the \n\naccused can be said to have been forced to actually create self-\n\nincriminatory evidence in his or her own trial. The compelled \n\ntestimony is evidence that simply would not have existed \n\nindependently of the exercise of the power to compel it; it is in this \n\nsense evidence that could have been obtained only from the \n\naccused.\"233\n\n(b) \n\nBy contrast, \n\n \n\nciting from R. v. Lyons (1987) 44 D.L.R. (4th) 193 at 237. \n\n233Id generally at 252 - 260 and specifically at 252 h. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 193 \n\nACKERMANN J \n\n\"evidence derived from compelled testimony is, by definition, \n\nevidence that existed independently of the compelled testimony ... \n\nAlthough such evidence may have gone undetected or \n\nunappreciated in the absence of the compelled clues ... [this] is not \n\nthe same thing as non-existence ... [which in turn means] that it \n\ncould have been found by some other means, however low the \n\nprobability of such discovery may have been.\"234\n\n \n\n[135] This last mentioned feature means that the relevance, quality and weight of \n\nderivative evidence can be determined independently of the testimony of the \n\naccused and is therefore self-sufficient.235 This distinguishing feature is \n\nsignificant. In Lam Chi-Ming v. R236, an appeal to the Privy Council from Hong \n\nKong, Lord Griffiths, in a passage quoted with approval by this Court in Zuma237, \n\nidentified three reasons for excluding confessions obtained by improper methods: \n\n(a) possible unreliability, (b) the privilege or principle against self-incrimination \n\nand (c) the desire to ensure proper behaviour by the police towards those in their \n\n \n\n234Id at 253 a. \n\n235Id at 252 f - h. \n\n236(1991) 2 AC 212 (PC). \n\n2371995 (4) BCLR 401 (SA) at para 31. \n\n\f \n \n\ncustody and then added: \n\n\u03a0\u03b1\u03b3\u03b5 194 \n\nACKERMANN J \n\n\"the more recent English cases established that the rejection of an \n\nimproperly obtained confession is not dependent only upon \n\npossible unreliability but also upon the principle that a man cannot \n\nbe compelled to incriminate himself and upon the importance that \n\nattaches in a civilised society to proper behaviour by the police \n\ntowards those in their custody.\"238\n\n \n \n\n238Id at 220. \n\n\f \n \n\nThe policy considerations (a) and (c) above do not apply at all to the admission \n\n\u03a0\u03b1\u03b3\u03b5 195 \n\nACKERMANN J \n\nof derivative evidence. For this reason alone, it is legitimate to approach the \n\nadmissibility of derivative evidence somewhat differently, the more so when \n\nregard is had to the independent existence of derivative evidence, quite apart \n\nform the testimony of the person disclosing it. In Thomson Newspapers, La \n\nForest J, in dealing with the admissibility of derivative evidence, drew an analogy \n\nto section 24(2) Charter jurisprudence.239 This subsection of the Charter has \n\nadopted an intermediate position with respect to the exclusion of evidence \n\nobtained in violation of the Charter. In R. v. Collins the Canadian Supreme Court \n\nexplained that - \n\n\"[S. 24(2)] rejected the American rule excluding all evidence \n\nobtained in violation of the Bill of Rights and the common law rule \n\nthat all relevant evidence was admissible regardless of the means \n\nby which it was obtained.\"240\n\nApart from the obvious statutory exceptions relating to confessions and \n\n \n\n239Supra note 75 at 255 e. Section 24(2) of the Canadian Charter reads: \n\n\"(2) Where, in proceedings under subsection (1), a court concludes that \nevidence was obtained in a manner that infringed or denied any rights or \nfreedoms guaranteed by this Charter, the evidence shall be excluded if it is \nestablished that, having regard to all the circumstances, the admission of it in the \nproceedings would bring the administration of justice into disrepute.\" \n\n240(1987) 38 D.L.R. (4th) 508 at 522 - 523 per Lamer J. \n\n\fadmissions, the English common law rule is applied in South Africa.241 No doubt \n\n\u03a0\u03b1\u03b3\u03b5 196 \n\nACKERMANN J \n\nthis rule will have to be reconsidered at some stage in the light of the provisions \n\nof Chapter 3 of the present Constitution. \n\n \n \n\n \n\n[136] In Collins, evidence had been discovered on the accused in pursuance to a \n\nsearch which was in breach of the accused's rights under section 8 of the \n\nCharter. Lamer J, in the course of considering whether the admission of such \n\nevidence would bring the administration of justice into disrepute, stated the \n\nfollowing: \n\n \n\n241The English rule is formulated in Kuruma v. R, [1995] AC 197 (PC) at 203; [1985] 1 All ER 236 \nat 239. See Ex Parte Minister of Justice: In re R. v. Matemba 1941 AD 75; S v. Nel 1987 (4) SA 950 (W) at \n953 E - J and see, generally, Hoffmann and Zeffert The South African Law of Evidence 4 ed (1988) 278 - \n281. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 197 \n\nACKERMANN J \n\n\"Real evidence that was obtained in a manner that violated the \n\nCharter will rarely operate unfairly for that reason alone. The real \n\nevidence existed irrespective of the violation of the Charter and its \n\nuse does not render the trial unfair. However, the situation is very \n\ndifferent with respect to cases where, after a violation of the \n\nCharter, the accused is conscripted against himself through a \n\nconfession or other evidence emanating from him. The use of such \n\nevidence would render the trial unfair, for it did not exist prior to the \n\nviolation and it strikes at one of the fundamental tenets of a fair \n\ntrial, the right against self-incrimination.\"242\n\nIn Thomson Newspapers, La Forest J pointed out that Lamer J had not, in \n\nCollins: \n\n\"intended to draw a hard-and-fast line between real evidence \n\nobtained in breach of the Charter and all other types of evidence \n\nthat could be so obtained. ... what Lamer J had in mind was the \n\nmuch broader distinction between evidence which the accused had \n\nbeen forced to create, and evidence which he or she has been \n\nforced to merely locate or identify. In other words, he had in mind \n\nthe kind of distinction which I have attempted to draw between \n\n \n242Supra note 240 at 526. \n\n\f\u03a0\u03b1\u03b3\u03b5 198 \n\nACKERMANN J \n\ncompelled testimony and evidence derived from compelled \n\ntestimony.\"243\n\n \n \n\n \n\n[137] La Forest J also drew attention to the fact that \n\n\"... the testimony of third parties obtained as a result of the pursuit \n\nof such clue facts is clearly evidence that exists regardless of \n\nwhether or not the person who provided the clue facts was \n\ncompelled to give testimony. As much as the murder weapon or \n\nthe stolen car, it is evidence that could have been found in the \n\nabsence of any assistance, compelled or otherwise, from the \n\nperson subsequently charged. I do not see why this factor should \n\nbe relevant to the admissibility of the murder weapon under s. \n\n24(2), but irrelevant to the admissibility of the third party's \n\ntestimony under the same section, or to the admissibility of either \n\n \n \n\n243Supra note 75 at 255 f - 256 a. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 199 \n\nACKERMANN J \n\npiece of evidence under s. 7 or s. 11(d).\"244\n\nThe learned Judge considered it \n\n \n \n\n244Id at 257 f - g. \n\n\f\u03a0\u03b1\u03b3\u03b5 200 \n\nACKERMANN J \n\n\"overly broad to say that there must be an absolute prohibition \n\nagainst the use at trial of all evidence derived from testimony \n\ncompelled before trial on the ground that the admission of such \n\nevidence can in some cases affect the fairness of the trial. ... [I]n \n\ndefining the scope of the immunity required by the Charter, we are \n\ncalled upon to balance the individual's right against self-\n\nincrimination against the state's legitimate need for information \n\nabout the commission of an offence.\"245\n\n \n \n\n \n\n[138] In outlining the advantages to the community as a whole (including the fact that \n\ninvestigation and detection is speeded up and the law's effectiveness as a \n\ndeterrent enhanced) if there was not a blanket exclusion of derivative evidence, \n\nLa Forest J made, to my mind, the important point, particularly for our context, \n\nthat \n\n\"[t]he limited resources that society has to spend on law \n\nenforcement activity in general will be utilised in a more cost-\n\neffective manner ... [which will mean] the effective investigation of \n\na greater proportion of offences ... [enhancing in turn] the law's \n\n \n\n245Id at 258 f - h. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 201 \n\nACKERMANN J \n\npotency as a deterrent to potential wrongdoers.\"246\n\nHe concluded that \n\n\"[a]ll of these benefits of a power to compel testimony would either \n\nbe lost or severely limited if the Constitution required that the \n\nlegislative grant of any such power must be accompanied by a \n\ngrant of full use and derivative use immunity.\"247\n\n \n\n[139] The learned Judge adopted a flexible approach to balancing the interests of the \n\nindividual and that of the state, which in his view could only be achieved by the \n\ntrial judge exercising a discretion.248 This discretion was, as La Forest formulated \n\nit in R. v. Corbett249 and confirmed it in Thomson Newspapers, \n\n \n\n246Id at 259 c. \n\n247Id at 259 d. \n\n248Id at 260 - 261. \n\n249(1988) 41 C.C.C. (3rd) 385 at 416. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 202 \n\nACKERMANN J \n\n\"to exclude matters that may unduly prejudice, mislead or confuse \n\nthe trier of fact, take up too much time, or that should \n\notherwise be excluded on clear grounds of law or \n\npolicy\".250 \n\n \n\nThis discretion \"is ultimately grounded in the trial judge's duty to ensure a fair \n\ntrial.\"251 A similar flexible approach could, La Forest J argued, be adopted in \n\nregard to the admissibility of derivative evidence, having due regard to the need \n\nto balance the right of the accused and that of the public in a specific context: \n\n\"... derivative evidence that could not have been found or \n\nappreciated except as a result of the compelled testimony under \n\nthe Act should in the exercise of the trial judge's discretion be \n\nexcluded since its admission would violate the principles of \n\nfundamental justice ... such exclusion should [not] take place if the \n\nevidence would otherwise have been found and its relevance \n\nunderstood ... The touchstone for the exercise of the discretion is \n\nthe fairness of the trial process.\"252\n\nLa Forest J concluded by holding that: \n\n \n250Supra note 75 at 261 C. \n\n251Thomson Newspapers supra note 75 at 261 F and see also R v. Potvin (1989) 47 C.C.C. (3d) \n\n289. \n\n252Id at 262 c - e. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 203 \n\nACKERMANN J \n\n\"... complete immunity against such use is not required by the \n\nprinciples of fundamental justice. The immunity against use of \n\nactual testimony provided by s. 20(2) of the Act together with the \n\njudge's power to exclude derivative evidence where appropriate is \n\nall that is necessary to satisfy the requirement of the Charter.\"253\n\n[140] I respectfully favour the approach adopted by La Forest J, for the reasons stated \n\nby him, rather than that preferred by Wilson J. Wilson J criticized La Forest J's \n\napproach on basically two grounds. Firstly because, \n\n \n \n\n253Id at 264 d - e. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 204 \n\nACKERMANN J \n\n\"[t]he public repute of justice is not the relevant consideration in \n\ndetermining whether derivative evidence should be excluded on \n\nthe ground that it was obtained as a direct result of testimonial \n\ncompulsion in violation of the principles of fundamental justice.\"254\n\nI do not understand La Forest J to have advanced such a proposition so rigidly. \n\nThe learned judge was arguing by way of analogy in an attempt (perfectly \n\npermissible in my view) to find an acceptable norm on the basis whereof the right \n\nof the individual could fairly be balanced against the interests of the state. This is \n\nencapsulated in the following observation the learned judge made: \n\n\"I find it difficult to imagine how the use of evidence which does not \n\nbring the administration of justice into disrepute can at the same \n\ntime be contrary to the principles of fundamental justice. The \n\nconsequence of the former finding is, in effect, to declare that the \n\nCharter breach by which evidence was obtained was non-\n\nprejudicial, and in a sense nominal. To argue that the same \n\nreasoning cannot be used to determine whether the use of \n\nderivative evidence constitutes a breach of the rights guaranteed \n\nunder s. 7 would be to take an unduly formalistic approach to the \n\ninterpretation of the Charter. As I mentioned earlier, the discussion \n\n \n \n\n254Id at 202 h. \n\n\f\u03a0\u03b1\u03b3\u03b5 205 \n\nACKERMANN J \n\nmight equally be framed in terms of the right to a fair trial under s. \n\n11(d) with similar results, a matter to which I shall return.\"255\n\nThe second criticism was to the effect that \n\n\"[the] exclusion [of derivative evidence] must be a matter of principle and \n\nof right, not of discretion.\"256\n\nIf, as a result of the proper exercise of a discretion, a fair trial is ensured, I fail to \n\nsee how principle is lacking, any more than when such evidence is admitted in a \n\nway which is \"in accordance with the principles of fundamental justice\", the \n\nqualification to section 7 of the Charter. \n\n \n \n\n \n\n \n \n\n255Id at 255 a - b. \n\n256Id at 203 a. \n\n\f \n \n[141] A recent decision in the Canadian Supreme Court, R.J.S. v. The Queen; \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 206 \n\nAttorney-General et al., Interveners257 (hereinafter \"R.v.S. (R.J.)\"), which bears \n\non the issue of derivative use immunity as a constitutional requirement, came to \n\nour attention after argument. It concerned two young offenders who were both \n\ncharged with the same offence of \"break, enter, and theft\" but, because of their \n\nage and by virtue of relevant Ontario legislation, were to be tried separately. At \n\nthe trial of the one young offender (\"the accused\"), the other young offender (\"the \n\nwitness\") was subpoenaed by the Crown to testify against the accused. On an \n\napplication brought by the witness's counsel, the subpoena against him was \n\nquashed on the basis that to require the witness to testify would violate section 7 \n\nof the Canadian Charter of Rights and Freedoms. Because of the resultant lack \n\nof evidence the accused was acquitted. On appeal by the Crown, the quashing of \n\nthe subpoena was set aside and a new trial ordered, a decision confirmed by the \n\nSupreme Court. It is necessary to point out the obvious, namely, that this \n\nparticular problem could not arise in our law because of the transactional \n\nindemnity which, in similar circumstances, would be available to the witness by \n\nvirtue of the provisions of section 204 of the Criminal Procedure Act.258 \n\n \n\n \n\n257(1995) 121 D.L.R. (4th) 589. \n\n258Act 51 of 1977. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 207 \n\nACKERMANN J \n\n[142] Nevertheless the decision is of significance for a number of reasons. First, it \n\nclearly affirms the principle that in all cases \"a statutory compulsion to testify \n\nengages the liberty interest of s. 7\" but that normally \"the liberty interest is \n\naffected in accordance with the principles of fundamental justice.\"259 Second, it \n\nconfirms that a \"deprivation of liberty may arise by virtue of a compulsion to \n\nspeak per se ...\"260 regardless of the character of the compelled speech. The \n\ncharacter of the speech which is compelled (for example, self-incriminatory \n\nspeech) may, however, depending on the particular construction of the Charter, \n\nbe determinative of the issue as to whether such deprivation of liberty is in \n\naccordance with the principles of fundamental justice or whether an infringement \n\nis justified under section 1 of the Charter.261 Third, it makes clear that the liberty \n\ninterest in section 7 of the Charter \"may be engaged although there is no \n\ncoincident deprivation in respect of the other s. 7 interests, life or security of the \n\n \n\nJudge further stated the following: \n\n259R.v.S. (R.J.) supra note 257, per Iacobucci J at 607 in fin - 608 b. At 612 e - g the learned \n\n\"[T]he encroachment upon liberty is complete at the moment of compelled speech, \nregardless of its character. David Stratas, in The Charter of Rights in Litigation: Direction \nfrom the Supreme Court of Canada, vol. 1 (Aurora, Ont: Canada Law Book Inc., \n1990)(loose-leaf [updated 1994]), has noted that an uncertainty which currently exists is \n'just how immediate a threatened deprivation of liberty must be' (at p. 17 - 2.1). Inasmuch \nas a statutory compulsion to give oral testimony engages the liberty interest, it is \nunnecessary to resolve this uncertainty today. When J.P.M. challenged the subpoena in \nthis case, he faced an imminent deprivation of liberty.\" \n\nLa Forest, Cory and Major JJ concurred fully in the entire judgment of Iacobucci J. L'Heureux-Dub\u00e9 J \n(Gonthier J concurring) did not differ with Iacobucci J on this part of his judgment see p. 677) and in fact \nspecifically confirmed his approach thus (at 692 a): \n\n\"The compulsion to testify subject to possible imprisonment for failure to comply is, itself, \na deprivation of liberty which brings the issue of witness compellability within the scope of \na s. 7 examination.\" \n\nNeither Lamer CJC, Sopinka J nor McLachlin J questioned the correctness of the aforegoing approach. \n\n260Id at 612 b - c. \n\n261Id. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 208 \n\nACKERMANN J \n\nperson\".262 Fourth, it holds, relying on earlier dicta, that not every restriction of \n\nabsolute freedom constitutes a deprivation of liberty. Fifth, the judgment also \n\nconfirms that, notwithstanding the provisions of sections 11(c)263 and 13264 of the \n\nCanadian Charter, section 7 of the Charter contains residual protections against \n\nself-incrimination extending beyond sections 11(c) and 13 and that this is \n\nnecessary, in part, to protect the section 11(c) right.265 Iacobucci J, highlighting \n\n\"the vigour of section 7\", held that there was \"a functional, unifying principle\" \n\nagainst self-incrimination and that pre-trial silence was no longer merely \"a \n\nparticular manifestation of the general freedom to do as one pleases\" but had \n\n\"been elevated to the status of a constitutional right.\"266 Lastly, it considers \n\nextensively the nature of derivative evidence and whether and to what extent a \n\nderivative use immunity is necessary in order to render compelled testimony in \n\naccordance with the principles of fundamental justice. I shall endeavour to deal \n\nas briefly as possible with this last aspect. \n\n \n\nD.L.R. (4th) 422. \n\n262Id at 608 h, relying on Singh v. Canada (Minister of Employment and Immigration) (9185), 17 \n\n263Which provides that \"[a]ny person charged with an offence has the right ... not to be compelled \n\nto be a witness in proceedings against that person in respect of the offence\". \n\n264Which provides that \"[a] witness who testifies in any proceedings has the right not to have any \nincriminating evidence so given used to incriminate that witness in any other proceedings, except in a \nprosecution for perjury or for the giving of contradictory evidence.\" \n\n265Id at 631 b - h. See also R v Hebert (1990) 57 C.C.C. (3d) at 33 where McLachlin J, recognising \nin section 7 of the Charter a residual protection against self-incriminated because of (in part) a need to \nprotect the section 11(c) right, states the following: \n\n\"From a practical point of view, the relationship between the privilege against self-\nincrimination and right to silence at the investigatory phase is equally clear. The \nprotection conferred by a legal system which grants the accused immunity from \nincriminating himself at trial but offers no protection with respect to pre-trial statements \nwould be illusory\". \n\nMcLachlin J at 34 also postulates a principle of fundamental justice involving \"the right of the individual to \nchoose whether to make a statement to the authorities or to remain silent, coupled with concern with the \nrepute and integrity of the judicial process.\" \n\n266Id at 632 b- e. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 209 \n\nACKERMANN J \n\n[143] The issue of derivative use evidence was considered on the basis that the \n\nprinciple of fundamental justice which operated in the case was the \"principle \n\nagainst self-incrimination\".267 It was pointed out that the Canada Evidence Act \n\nhad abolished the witness's (as opposed to the accused's) privilege and replaced \n\nit with a limited form of immunity, applicable in respect of subsequent \n\nproceedings and not at the moment of compelled testimony, in as much as \n\nsection 5(2) of the Canada Evidence Act currently provides that a witness's self-\n\nincriminatory answers cannot \"be used or admissible in evidence against [the \n\nwitness] in any criminal trial or other criminal proceeding against him thereafter \n\ntaking place, other than a prosecution for perjury\".268 Iacobucci J describes the \n\npolicy justification for the common law protections as resting \"on the idea that the \n\nCrown must establish a 'case to meet'\"269 and reflecting \"a basic distaste for self-\n\n \n \n\n267Id at 613 b. \n\n268Id at 620 c - e. \n\n269Id at 626 h. \n\n\f \n \n\n \n\nconscription\".270 \n\n\u03a0\u03b1\u03b3\u03b5 210 \n\nACKERMANN J \n\n \n \n\n270Id at 627 f. \n\n\f \n \n[144] The learned Judge's approach was to seek a compromise271 between, on the \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 211 \n\none hand, full transactional immunity if self-incriminating testimony is compelled \n\nand, on the other, mere direct use immunity where it is only the witness's direct \n\ncommunication which is protected against subsequent use. In the course of his \n\nenquiry, Iacobucci J agreed272 with the following statement by La Forest J in \n\nThomson Newspapers: \n\n\"A right to prevent the subsequent use of compelled self-\n\nincriminating \n\ntestimony protects \n\nthe \n\nindividual \n\nfrom being \n\n'conscripted against himself' without simultaneously denying an \n\ninvestigator's access to relevant information. It strikes a just and \n\nproper balance between the interests of the individual and the \n\nstate.\"273\n\nThe conclusion reached by Iacobucci J was that the Canadian Charter did not \n\ndemand absolute derivative use immunity.274 The learned judge approved275 of \n\nthe distinction drawn by La Forest J between compelled testimony and derivative \n\nevidence and stated succinctly that \n\n\"compelled testimony is evidence which has been created by the \n\nwitness, whereas derivative evidence is evidence which has \n\nindependent existence. It is only the class of created evidence \n\n \n\n271Id at 637-650. \n\n272Id at 649 e. \n\n273Supra note 75 at 246 e - f. \n\n274Supra note 257 at 659 a. \n\n275Id at 662 a - e. \n\n\f\u03a0\u03b1\u03b3\u03b5 212 \n\nACKERMANN J \n\nwhich is, by definition, self-incriminatory.\"276\n\n \n \n\n \n\n \n \n\n276Id at 662 f. \n\n\f \n \n[145] Of importance is the fact that Iacobucci J277, like La Forest J in Thomson \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 213 \n\nNewspapers278, drew heavily, by way of analogy, on Canadian Charter section \n\n24(2) jurisprudence in dealing with the question of the exclusion of derivative \n\nevidence. Nowhere in his judgment does Iacobucci J express disagreement with \n\nLa Forest J in Thomson Newspapers; in fact it is written in terms of general \n\napproval with and further explication of La Forest J's judgment. Iacobucci J \n\naccordingly concludes that \n\n\"derivative evidence which could not have been obtained, or the \n\nsignificance of which could not have been appreciated, but for the \n\ntestimony of a witness, ought generally to be excluded under s. 7 \n\nof the Charter in the interests of trial fairness.\"279\n\nThe qualification \"ought generally\" was introduced because the learned judge \n\nadvocated280 the same discretion on the part of the trial judge as is employed in \n\nthe case of section 24(2) Charter exclusion, namely, that the exercise of the \n\ndiscretion \"will depend on the probative effect of the evidence balanced against \n\nthe prejudice caused to the accused by its admission.\"281 In other words, there is \n\nno automatic rule of exclusion. Iacobucci J was, quite correctly in my view, \n\nhesitant to elaborate any further on the test and stated: \n\n\"Since this test for exclusion can only arise in the context of \n\n \n\n277Id at 661 - 669. \n\n278Supra note 75 and see also para [135] above. \n\n279R.v.S. (R.J.) supra note 257 at 669 d. \n\n280Id at 670 h - 671 a. \n\n281Iacobucci J quoted this passage with approval from R. v. Sweitzer (1982) 137 D.L.R. (3d) 702 at \n\n706. \n\n\f\u03a0\u03b1\u03b3\u03b5 214 \n\nACKERMANN J \n\nproceedings subsequent to a witness' testimony ... [i]ts form will \n\nbecome known, as it should, in the context of concrete factual \n\nsituations.\"282\n\n \n \n\n \n\n[146] There is, in my judgment, no reason why this approach cannot and ought not to \n\nbe adopted in regard to the enquiry concerning the admissibility of derivative \n\nevidence in the context of section 417(2)(b) of the Companies Act. I have little \n\ndoubt that two different but related areas concerning the law of evidence will, in \n\ndue course, have to be reconsidered fully in the light of Chapter 3 of the \n\nConstitution and section 25(3) in particular. The one relates to the way in which \n\nevidence, particularly in criminal proceedings, is obtained and the second to the \n\nquestion of when and to what extent a trial judge has a discretion to exclude \n\notherwise admissible evidence. \n\n \n\n \n \n\n282R.v.S.(R.J.) supra note 257 at 669 g. \n\n\f \n \n[147] Prior to the coming into operation of the Constitution, courts in South Africa were \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 215 \n\nnot particularly concerned with the way in which evidence was obtained. Notable \n\nexceptions of course related to admissions, confessions and, more recently, to \n\nacts of pointing out.283 In other cases, however, the general approach was that, \n\nprovided the evidence was relevant, it was admissible.284 It is unnecessary in the \n\npresent case to reconsider this issue beyond the very narrow area of the \n\nderivative use of compelled self-incriminating evidence. It can be noted, however, \n\nthat since the Constitution came into effect, a new approach is beginning to \n\nemerge in decisions of the Supreme Court.285 \n\n \n \n\n283See, particularly in the latter regard, S v. Sheehama 1991 (2) SA 860 (A). \n\n284See Kuruma v. R [1955] 1 All ER 236 (PC) at 239; R v. Uys and Uys 1940 TPD 405; S v. Nel \n1987 (4) SA 950 (W) at 953 G and Du Toit et al Commentary on the Criminal Procedure Act 24 - 98. In Nel \nvan der Walt J added, however, with reference to Ex Parte Minister of Justice in re R. v. Matemba 1941 \nAD 75, that evidence illegally obtained could be excluded on the basis that accused could not be \ncompelled to provide evidence against themselves and that evidence obtained under duress from an \naccused could not be used against such an accused. \n\n285In S v. Hammer and Others 1994 (2) SACR 496 (C) at 498 g, Farlam J held that, in the exercise \nof a general discretion to exclude improperly obtained evidence on the grounds of unfairness and public \npolicy, the Court should endeavour to strike a careful and credible balance, since although it was important \nfor a criminal court to maintain high standards of propriety in its own process, public confidence could be \nundermined by indiscriminate exclusions of improperly obtained evidence. Farlam J considered the \nfollowing factors to be useful in the exercise of the discretion (at 499 a - e): \n\n\"(a) \n\n (b) \n\n (c) \n\n (d) \n\n (f) \n\nsociety's right to insist that those who enforce the law themselves \nrespect it, so that a citizen's precious right to immunity from arbitrary and \nunlawful intrusion into the daily affairs of private life may remain \nunimpaired; \n whether the unlawful act was a mistaken act and whether in the case of \nmistake, the cogency of evidence is affected; \nthe ease with which the law might have been complied with in procuring \nthe evidence in question (a deliberate 'cutting of corners' would tend \ntowards the inadmissibility of the evidence illegally obtained); \nthe nature of the offence charged and the policy decision behind the \nenactment of the offence are also considerations; \n\n (e) unfairness to the accused should not be the only basis for the exercise \n\nof the discretion; \nwhether the administration of justice would be brought into disrepute if the \nevidence was admitted; \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 216 \n\nACKERMANN J \n\n \n\n (g) \n\n (h) \n (i) \n\nthere should be no presumption in favour of or against the reception of the \nevidence, the question of an onus should not be introduced; \nit should not be a direct intention to discipline the law enforcement officials; \nan untrammelled search for the truth should be balanced by discretionary \nmeasures, for in the words of Knight Bruce VC, 'Truth, like other good things, \nmay be loved unwisely - it may be pursued too keenly - may cost too much'.\" \n\n \nIn S v. Melani en Andere 1995 (2) SACR 141 (ECD) at 153 a Froneman J reaches the conclusion that a \njudge should have a discretion to exclude unlawfully obtained evidence on a case by case basis. The \nlearned judge considered (at 154 B) the Canadian criterion of \"bringing into disrepute the administration of \njustice\" as the appropriate guideline for exercising the discretion. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 217 \n\nACKERMANN J \n\n[148] As far as the discretion to exclude otherwise admissible evidence is concerned, \n\nthere appears to be little doubt that similar fact evidence may be excluded if the \n\nprobative value is outweighed by the prejudice it would cause.286 The existence \n\nof a general discretion to exclude admissible evidence is, however, disputed. As \n\nProfessor Zeffertt points out: \n\n\"There can be no more controversial an issue in the South African \n\nlaw of evidence than whether there is a judicial discretion, in \n\ncriminal proceedings, to exclude admissible evidence. Some \n\nauthorities say it exists; others deny it\".287\n\n \n \n\n286R v. Roets and Another 1954 (3) SA 512 (A) at 521 A. \n\n287Annual Survey of South African Law (1990) at 498 - 9. \n\n\f \n \n\nThose in favour288 of the existence of the general discretion to exclude \n\n\u03a0\u03b1\u03b3\u03b5 218 \n\nACKERMANN J \n\nadmissible evidence usually rely on an obiter dictum of Rumpff CJ in S v. \n\nMushimba289, who referred to the English case of R v. Kuruma,290 where it was \n\nstated that there could be no doubt that \"the judge always has a discretion to \n\ndisallow evidence if the strict rules of admissibility would operate unfairly against \n\nthe accused\"; but those opposed to the discretion point to the fact that the \n\nEnglish rule referred to in Kuruma has been narrowly construed in subsequent \n\ncases291 and has in England been affected by statute.292 In South Africa most \n\ndecisions of the Provincial and Local Divisions of the Supreme Court seem to \n\nconfirm the existence of such a discretion, but the decisions are divided as to the \n\nbasis for exercising the discretion.293 Some of the decisions merely recognise \n\n \n\n288See Hoffmann and Zeffertt The South African Law of Evidence 4 ed (1988) at 284 - 292; Du Toit \n\net al Commentary on the Criminal Procedure Act (1995) 24 - 98. \n\n289(1977) (2) SA 629 (A) at 840 E. \n\n290[1955] 1 All ER 236 at 239. \n\nthat \n\n291In particular the case of R v. Sang [1979] 2 All ER 1222 at 1231 where the House of Lords held \n\n\"[a] trial judge in a criminal case has always a discretion to refuse to admit evidence if in \nhis opinion its prejudicial effect outweighs its probative value.\" \n\nSee also C. Tapper Cross on Evidence 7 ed (1990) 180 - 193. \n\n292S. 78 of the Police and Criminal Evidence Act 1984 which provides that: \n\n\"(1) In any proceedings the court may refuse to allow evidence on which the \nprosecution proposes to rely to be given if it appears to the court that, having \nregard to all the circumstances in which the evidence was obtained, the \nadmission of the evidence would have such an adverse effect on the fairness of \nthe proceedings that the court ought not to admit it. \n (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude \nevidence.\" \n\n293I deliberately exclude the question as to whether the rule applies to an otherwise admissible \nconfession. See, in this regard S v. Mkanzi en _ Ander 1979 (2) SA 757 (T) at 759 E and on appeal 1982 \n\n\f \n \n\nthat the rule relating to similar fact evidence applies in other situations as well, for \n\n\u03a0\u03b1\u03b3\u03b5 219 \n\nACKERMANN J \n\nexample in criminal proceedings, where a judge has a general discretion to \n\nexclude evidence where its probative value is outweighed by its prejudicial \n\neffect.294 Others appear to support the existence of a discretion, along the lines \n\nsuggested by Lord Goddard in Kuruma's case, to exclude admissible evidence \n\nthat would operate unfairly against the accused.295 The more recent decisions, \n\nbefore the commencement of the Constitution, suggest that the discretion should \n\n \n(4) SA 509 (A) at 512 H - 513 E and S v. Zuma supra note 8 at para 28. \n\n294See S v Holshausen 1983 (2) SA 699 (D) at 704 F - H; S v Mbatha 1985 (2) SA 26 (D) at 30 - \n\n31. \n\n295See, apart from the obiter dictum in Mushimba referred to above, S v Lebea 1975 (4) SA 337 \n\n(W) at 339 D. \n\n\f \n \n\nbe based on considerations of public policy, rather than fairness.296\n\n\u03a0\u03b1\u03b3\u03b5 220 \n\nACKERMANN J \n\n \n \n\n296See S v Boesman 1990 (2) SACR 389 (E) at 399 J - 401 C; Shell SA (Edms) Bpk en Andere v \nVoorsitter, Dorperaad van die Oranje-Vrystaat en Andere 1992 (1) SA 906 (O) at 916; and the earlier \ndictum in S v Forbes and Another 1970 (2) SA 594 (C) at 598 H - 599 A. \n\n\f \n \n[149] In considering matters of evidential admissibility or inadmissibility we ought not to \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 221 \n\nlimit the focus of our attention exclusively on the state of the law of evidence \n\nwhich existed prior to the present Constitution coming into operation. Section \n\n25(3) of the Constitution guarantees to every accused person the broad right to a \n\nfair trial, which is not limited to the specific enumerated rights in paragraphs (a) - \n\n(j) of the subsection. In certain areas of criminal procedure, the specific \n\nprovisions of these paragraphs will settle debates concerning criminal procedure \n\nand criminal justice generally which previously were uncertain or controversial. \n\nThus, the application of section 25(3)(e) of the Constitution in S v. Vermaas; S v. \n\ndu Plessis297 settled the \n\n\"lively controversy in our law [as to] whether persons standing trial \n\non criminal charges who could not afford to pay for their legal \n\nrepresentation were entitled to be provided with it at public \n\nexpense once its lack amounted to a handicap so great that to try \n\nthem on their own lay beyond the pale of justice.\"298\n\n \n\n297Supra note 1. \n\n298Id at paragraph 1 per Didcott J and compare with S v. Khanyile and Another 1988 (3) SA 795 \n(N); S v. Davids; S v. Dladla 1989 (4) SA 172 (N) and S v. Rudman and Another; S v. Mthwana 1992 (1) \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 222 \n\nACKERMANN J \n\n \nSA 343 (A). \n\n\fThe general discretion to exclude evidence in a criminal trial is a principle \n\n\u03a0\u03b1\u03b3\u03b5 223 \n\nACKERMANN J \n\naccepted, for example, both in England and in Canada.299 As La Forest J pointed \n\nout in Thomson Newspapers, the discretion to exclude evidence which would \n\notherwise have been admissible, has been applied in various areas of criminal \n\nprocedure because this discretion is \"ultimately grounded in the trial judge's duty \n\nto ensure a fair trial.\"300 La Forest J had no hesitation in concluding that this \n\ndiscretion ought also to be exercised in the determination of when, and when not, \n\nderivative evidence relating to compelled self-incriminating testimony should be \n\nadmitted against an accused.301 This approach, subject to its passing the test of \n\nsection 33(1) of the Constitution, ought to apply in this country as well inasmuch \n\nas, just as in Canada, the right to a fair trial has been constitutionalised.302\n\n \n \n\n \n\n[150] In my view an approach whereby a blanket exclusion of derivative evidence is \n\nnot applied but where instead it is dealt with on the flexible basis of discretionary \n\nadmissibility, as outlined above, passes section 33(1) muster. We are not obliged \n\nto follow the absolutist United States approach which, as pointed out in Thomson \n\n \n\n299See R v. Sand [1980] AC 402 and Thomson Newspaper supra note 75 at 261, respectively. \n\n300Supra note 75 at 261 F. \n\n301Id at 262 c and 264 d - e. \n\n302In Canada under sections 7 and 11(d) of the Charter; see Thomson Newspapers supra note 75 \n\nat 261 h. In South Africa under section 25(3) of the Constitution. \n\n\fNewspapers in a passage already referred to \n\n\u03a0\u03b1\u03b3\u03b5 224 \n\nACKERMANN J \n\n\"is undoubtedly rooted in the explicit and seemingly absolute right \n\nagainst self-incrimination found in that country's Constitution.\"303\n\nThe holding of a section 417 enquiry is lawful and serves an important public \n\npurpose. Evidence obtained as a result of such an enquiry cannot be equated \n\nwith evidence obtained as a result of unlawful conduct. Where, for example, \n\nderivative evidence is obtained as a result of torture there might be compelling \n\nreasons of public policy for holding such evidence to be inadmissible even if it \n\ncan be proved independently of the accused. Otherwise, the ends might be \n\nallowed to justify the means. The admission of evidence in such circumstances \n\ncould easily bring the administration of justice into disrepute and undermine the \n\nsanctity of the constitutional right which has been trampled upon. The same \n\nconsiderations do not apply to derivative evidence obtained as a result of the \n\napplication of section 417(2)(b) at a section 417 enquiry. \n\n \n \n\n \n\n \n303Supra note 75 at 260 g. \n\n\f \n \n[151] Companies are used to raise money from the public and to conduct business on \n\nACKERMANN J \n\n\u03a0\u03b1\u03b3\u03b5 225 \n\nthe basis of limited liability. There are obvious advantages to doing so. But there \n\nare responsibilities which go with it. Part of the responsibility is to account to \n\nshareholders for the way in which the company conducts its affairs and, if the \n\ncompany goes insolvent, to account to shareholders and creditors for the failure \n\nof the business. These responsibilities are well known to all who participate in the \n\nrunning of public companies. Giving evidence at a section 417 enquiry is part of \n\nthe responsibility to account. It cannot simply be said that the administration of \n\njustice would necessarily be brought into disrepute by the subsequent use, even \n\nin criminal proceedings against the examinee, of derivative evidence obtained as \n\na result of the application of section 417(2)(b) of the Act. Indeed, the public, and \n\nespecially the victims of the crime, might find a denial of the right to use such \n\nevidence inexplicable. Although it has been held that an auditor is not an officer \n\nof the company within the meaning of that expression in section 184(1) of the \n\n1926 Act (corresponding to section 423(1) of the present Act)304 and it has been \n\nsuggested that there is no basis for regarding an auditor as being an officer of \n\nthe company for any purpose of the Act,305 in my view the same public policy \n\n \n\nG. \n\n304Lipschitz NO v. Wolpert and Abrahams 1977 (2) SA 732 (A) at 742 - 750 and particularly at 750 \n\n305 Meskin et al (eds) Henochsberg On the Companies Act 5ed Vol. 1 at 523. \n\n\f \n \n\nconsiderations apply to the use of derivative evidence of an auditor of the \n\n\u03a0\u03b1\u03b3\u03b5 226 \n\nACKERMANN J \n\ncompany compelled to testify under section 417(2)(b) of the Act. The auditor has, \n\ninter alia, many statutory duties under the Companies Act306 and the Public \n\nAccountants' and Auditors Act,307 the purpose of which duties is, inter alia, to \n\nprotect shareholders and creditors. The knowledge and expertise of the auditor is \n\nof particular importance in reconstructing the affairs of the company in liquidation \n\nand in achieving the other aims of the section 417 enquiry. An auditor is not \n\nobliged to become the auditor of a particular company nor to discharge the \n\nattendant duties without remuneration. In accepting appointment as an auditor of \n\nany particular company the auditor is aware of these duties. \n\n \n\n535 - 539 and 580 - 588. \n\n306For example, sections 282, 300 and 301 and see, generally, Henochsberg supra note 305 at \n\n307Act 80 of 1991. See in particular section 20(5) (a) which prescribes the action to be taken by an \nauditor when he or she is \"satisfied or has reason to believe that in the conduct of the affairs of such \nundertaking a material irregularity has taken place or is taking place which has caused or is likely to cause \nfinancial loss to the undertaking or to any of its members or creditors\". \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 227 \n\nACKERMANN J \n\n[152] Although no statistical or other material was placed before us, it is quite apparent \n\nthat the United States has vastly greater resources, in all respects and at all \n\nlevels, than this country when it comes to the investigation and prosecution of \n\ncrime, more particularly when regard is had to the particularly high crime rate, \n\nwhich one can take judicial notice of, currently prevalent in South Africa. This in \n\nmy view gives added weight to the considerations of efficiency, economy of time \n\nand the most prudent use of scare resources, highlighted by La Forest J in \n\nThomson Newspapers and to which I have already referred, and supporting the \n\nadoption of a flexible approach in dealing with the admissibility of derivative \n\nevidence. The flexible approach is narrowly tailored to meet important state \n\nobjectives flowing from the collapse and liquidation of companies and the \n\nresulting duties of liquidators to protect the interests of creditors and the public at \n\nlarge, while at the same time interfering as little as possible with the examinee's \n\nright against self-incrimination. It is balanced and proportional and, in my view, \n\nfully justifiable in an open and democratic society based on freedom and equality. \n\nTo the extent that this conclusion is in conflict with any of the general views \n\nexpressed in Park-Ross and Another v. The Director, Office of Serious Economic \n\n\f\u03a0\u03b1\u03b3\u03b5 228 \nOffences,308 I disagree with those views. \n\nACKERMANN J \n\n \n \n\n \n\n[153] A compulsion to give self-incriminating evidence, coupled with only a direct use \n\nimmunity along the lines indicated above, and subject to a judicial discretion to \n\nexclude derivative evidence at the criminal trial, would not negate the essential \n\ncontent of the section 11(1) right to freedom or the section 25(3) right to a fair \n\ntrial. Only a discrete and narrowly defined part of the broad right to freedom is \n\ninvolved which could not conceivably be described as a \"negation\" of its essential \n\ncontent. As far as section 25(3) is concerned, the trial judge is obliged to ensure \n\na \"fair trial\", if necessary by his or her discretion to exclude, in the appropriate \n\ncase, derivative evidence. Ultimately this is a question of fairness to the accused \n\nand is an issue which has to be decided on the facts of each case. The trial \n\njudge is the person best placed to take that decision. The development of the law \n\nof evidence in this regard is a matter for the Supreme Court. The essential \n\ncontent of the right is therefore not even touched. \n\n \n\nconcurring). \n\n3081995 (2) BCLR 198 (C) at 213 D - H; 1995 (2) SA 148 (C) at 165 D - J per Tebbutt J (Scott J \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 229 \n\nACKERMANN J \n\n[154] There is one further matter on the merits which needs to be mentioned. In the \n\napplicants' written argument and in the oral argument on their behalf in this \n\nCourt, fleeting reference was made to the fact that section 417(2)(b) was also \n\ninconsistent with the Constitution to the extent that it permitted incriminating \n\ntestimony to be used in a subsequent civil trial against the examinee. The \n\nargument was not pressed or developed and no authority, academic, judicial or \n\notherwise, from any jurisdiction, was cited in support of the contention. Nor was \n\nany specific provision in the Constitution relied upon in this regard. I am unaware \n\nof any authority which would support such a submission. It is therefore \n\nunnecessary to express any view on it at this stage, particularly since the issue \n\nwas raised and more fully argued in the Bernstein case supra. If there is any \n\nmerit in the argument it will be dealt with in the Bernstein judgment. \n\n \n\nCosts \n\n[155] Apart from a formal request for costs in the respective written arguments \n\ndelivered on their behalf, none of the parties developed further argument on this \n\nquestion in such written arguments. Nor was there any specific argument \n\naddressed to the Court relating to the principles which ought to apply to the \n\nquestion of costs in constitutional litigation before this Court. It does not \n\n\f \n \n\nobviously or necessarily follow that the rules as to costs which have been \n\n\u03a0\u03b1\u03b3\u03b5 230 \n\nACKERMANN J \n\ndeveloped in pre-constitutional litigation must apply to constitutional litigation. \n\nOne of the general rules is that, although an award of costs is in the discretion of \n\nthe Court, successful parties should usually be awarded their costs and that this \n\nrule should be departed from only where good grounds for doing so exist.309 One \n\ncan think off-hand of at least one reason why this general rule might not apply to \n\nconstitutional litigation, namely, that it could have a chilling effect on litigants, \n\nother than the wealthiest, desirous of enforcing their constitutional rights. It might \n\nalso not apply where the constitutionality of a statute is challenged, a matter \n\nwhich would usually be one of public interest. I think it inadvisable that we should \n\nexpress ourselves on this issue, without the benefit of comprehensive argument. \n\nUntil such time the issue should remain completely open. It therefore seems to \n\nme that the best course is to make no order as to costs. Should any of the \n\napplicants or respondents wish to pursue the matter of costs further, such party \n\nis at liberty to notify the Registrar in writing, within fourteen days of the order in \n\nthis matter and upon notice to all other parties, of an intention so to do, \n\nwhereupon further directions will be given. \n\n \n \n\n309See, generally, Cilliers Costs (1972) at 11 - 17. \n\n\f \n \n\n \n\nThe Order \n\n\u03a0\u03b1\u03b3\u03b5 231 \n\nACKERMANN J \n\n[156] I conclude that section 417(2)(b) of the Companies Act is inconsistent with the \n\nright to freedom protected in section 11(1) of the Constitution to the extent \n\nindicated above. It must therefore, pursuant to section 98(5) of the Constitution, \n\nbe declared invalid to the extent of such inconsistency. This is not a case where \n\nan order in terms of the proviso to section 98(5) ought to be made. The \n\ndeclaration of invalidity is very narrow. Its only effect will be to render \n\ninadmissible, in criminal proceedings against a person previously examined \n\npursuant to the provisions of section 417(2)(b), incriminating evidence given by \n\nsuch person under compulsion of the provisions of section 417(2)(b). Neither the \n\ninterests of justice nor good government require that these provisions should be \n\nkept in force any longer. A declaration of invalidity will not affect any of the other \n\nprovisions of sections 417 or 418 of the Companies Act and will have \n\ninsignificant, if any, impact on the purpose or efficacy of enquiries under these \n\nproceedings. \n\n \n\n[157] The following order is accordingly made: \n\n1. \n\nThe provisions of section 417(2)(b) of the Companies Act 1973 are, with \n\nimmediate effect declared invalid, to the extent only that the words \n\n\f \n \n\n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 232 \n\nACKERMANN J \n\n\"and any answer given to any such question may thereafter \n\nbe used in evidence against him\" \n\nin section 417(2)(b) apply to the use of any such answer against the \n\nperson who gave such answer, in criminal proceedings against such \n\nperson, other than proceedings where that person stands trial on a charge \n\nrelating to the administering or taking of an oath or the administering or \n\nmaking of an affirmation or the giving of false evidence or the making of a \n\nfalse statement in connection with such questions and answers or a \n\nfailure to answer lawful questions fully and satisfactorily. \n\n2. \n\nAs from the date of this order, no incriminating answer given pursuant to \n\nthe provisions of section 417(2)(b) of the Companies Act on or after 27 \n\nApril 1994 shall be used against the person who gave such answer, in \n\ncriminal proceedings against such person, other than proceedings \n\nexcepted in 1. above. \n\n3. \n\nNo order is now made as to costs, but should any of the applicants or \n\nrespondents in either matter wish to pursue the matter of costs further, \n\nsuch party is required to notify the Registrar in writing, within fourteen \n\ndays of this order and upon notice to all other parties, of an intention so to \n\n\f\u03a0\u03b1\u03b3\u03b5 233 \n\nCHASKALSON P \n\ndo, whereupon further directions will be given. \n\n \n \n\n \n\n[158] CHASKALSON P. \n\nI have read the meticulous judgment of Ackermann J. I agree with paragraphs \n\n[1] to [33] of his judgment. I also agree with his conclusion that section \n\n417(2)(b) of the Companies Act, 1973 is inconsistent with the Constitution and \n\nwith the order that he proposes as the remedy for that situation. I am, however, \n\nunable to agree with his analysis of the issue of standing and with his \n\ninterpretation of section 11(1) of the Constitution on which he ultimately relies for \n\nhis decision. In my view the matter is one in which the Applicants have standing \n\nand which can and should be dealt with under section 25(3) of the Constitution. \n\n \n\n[159] The finding that section 417(2)(b) of the Companies Act is inconsistent with the \n\nConstitution is in essence based on a finding that the section infringes the rule \n\nagainst self incrimination. This is apparent from the reasons given by \n\nAckermann J for holding the section to be inconsistent with the Constitution. The \n\nrule against self incrimination is not simply a rule of evidence. It is a right which \n\nby virtue of the provisions of section 25(3) is, as far as an accused person is \n\n\fconcerned, entitled to the status of a constitutional right.1 It is inextricably linked \n\n\u03a0\u03b1\u03b3\u03b5 234 \n\nCHASKALSON P \n\nto the right of an accused person to a fair trial. The rule exists to protect that \n\nright. If that right is not threatened the rule has no application. Thus a person \n\nwho has been indemnified against prosecution, or a person convicted of a crime \n\nwho is subsequently called to give evidence against a co-conspirator, would not \n\nbe entitled to claim the privilege in respect of evidence covered by the indemnity \n\nor the conviction.2 This connection between the unconstitutionality of section \n\n417(2)(b) and the privilege is recognised in the order made by Ackermann J \n\nwhich is designed to eliminate the conflict by ensuring that evidence given by a \n\nwitness at a section 417(2)(b) enquiry cannot be used against that witness if he \n\nor she is subsequently prosecuted. \n\n \n \n\n \n\n \n \n\njudgment at para. 79. \n\n1Compare: S v Zuma and Others 1995(4) BCLR 401(CC), para. 33; see also, Ackermann J's \n\n2R v Kuyper 1915 TPD 308; R v Hubbard 1921 TPD 433; Ramsay v Attorney General for the \n\nTransvaal 1937 WLD 70; HALSBURY\u2019S LAWS OF ENGLAND, vol. 17, para. 240 (4th ed. 1976). \n\n\f \n \n[160] A challenge to the constitutionality of section 417(2)(b) should therefore, in my \n\nCHASKALSON P \n\n\u03a0\u03b1\u03b3\u03b5 235 \n\nview, be characterised and dealt with as a challenge founded on the right to a fair \n\ncriminal trial. It is precisely because section 417(2)(b) is inconsistent with that \n\nright, that its validity can be impugned. It is also the basis upon which the \n\nApplicants launched their constitutional challenge in the present case. Although \n\nthey relied on various provisions of Chapter 3 to support their argument, at the \n\ncore of their complaint was the concern that they were required to answer \n\nquestions at the enquiry which might incriminate them, and which might \n\nthereafter be used in evidence against them. That they had such a fear was not \n\ndisputed in argument. Although the matter was initially dealt with as directed by \n\nthis Court on the basis of a referral of what was then an abstract question of law, \n\nthe Applicant in the Ferreira matter had previously lodged with the Court extracts \n\nfrom the record of the enquiry which showed that he was indeed being called \n\nupon to answer incriminating questions. Heher J pointed out in his judgment in \n\nthis case in the Witwatersrand Local Division3 that both Applicants had \n\nreasonable grounds for such an apprehension. As this was never disputed I see \n\nno need to delay the proceedings further by calling for the record in the Supreme \n\nCourt case to be lodged with us. The Applicants\u2019 desire to secure a ruling on the \n\n \n\n(1995) (4) BCLR 437(W) at 456C-G. \n\n3Reported as Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others \n\n\fconstitutionality of the section cannot be characterised as being hypothetical or \n\n\u03a0\u03b1\u03b3\u03b5 236 \n\nCHASKALSON P \n\nacademic. It raises a real and substantial issue as far as the Applicants are \n\nconcerned, and I have no doubt that they have an interest in having that issue \n\nresolved. Whether that interest is sufficient to give them standing to challenge \n\nthe constitutionality of section 417(2)(b) is the matter to which I now turn. \n\n \n \n\n \n\n[161] Section 4 of the Constitution provides that any law inconsistent with the \n\nprovisions of the Constitution shall \"be of no force and effect to the extent of the \n\ninconsistency\". Section 98(2)(c) of the Constitution gives this Court jurisdiction to \n\nenquire into \"the constitutionality of any law, including an Act of Parliament, \n\nirrespective of whether such law was passed or made before or after the \n\ncommencement of this Constitution.\" Under section 98(5) the Court is directed to \n\ndeclare such law or a provision thereof to be invalid if it is found to be \n\ninconsistent with the Constitution. Other provisions of sections 98(5) and 98(6) \n\nenable the Court to control the consequences of such a declaration of invalidity. \n\nWhat is clear, however, is that the Court has a general jurisdiction to enquire into \n\nand declare an Act of Parliament or any provision thereof to be invalid. \n\n \n\n[162] In the present case the Applicants allege that section 417(2)(b) is inconsistent \n\nwith section 25(3) of the Constitution. This is a matter which this Court has \n\n\fjurisdiction to enquire into, and it can do so in the present case if the Applicants \n\n\u03a0\u03b1\u03b3\u03b5 237 \n\nCHASKALSON P \n\nhave standing to seek such an order from it. Ordinarily a person whose rights \n\nare directly affected by an invalid law in a manner adverse to such person, has \n\nstanding to challenge the validity of that law in the courts.4 There can be no \n\nquestion that the Applicants have such an interest in the present case. Their \n\nright to refuse to answer questions that incriminate them is in issue and they \n\nseek to vindicate that right by challenging the only obstacle to their assertion of it. \n\n It was argued, however, that this does not apply to the present Applicants \n\nbecause section 7(4) of the Constitution limits constitutional challenges to \n\npersons whose constitutional rights have been impaired or threatened. And, so \n\nthe argument went, this could occur only if they are charged with a criminal \n\noffence and the evidence given by them at the enquiry is tendered against them \n\nat the criminal trial. \n\n \n \n\n \n\n[163] If there is a conflict between section 25(3) of the Constitution and section \n\n \n \n\n(Wessels, CJ, concurring). \n\n4 Roodepoort-Maraisburg Town Council v Eastern Properties (Prop.) Ltd. 1933 AD 87 at 101 \n\n\f417(2)(b) which, viewed objectively, renders section 417(2)(b) invalid to the \n\n\u03a0\u03b1\u03b3\u03b5 238 \n\nCHASKALSON P \n\nextent of that inconsistency, it seems to me to be highly technical to say that a \n\nwitness called to a section 417(2)(b) enquiry lacks standing to challenge the \n\nconstitutionality of the section. A witness who genuinely fears prosecution if he \n\nor she is called upon to give incriminating answers cannot be said to lack an \n\ninterest in the decision on the constitutionality of the section. To deny the witness \n\nthe right to challenge the constitutionality of the section in such circumstances is \n\nin effect to say to the witness: the only obstacle to your right to refuse to answer \n\nincriminating questions is an unconstitutional provision, but you cannot ask this \n\nCourt to declare the provision unconstitutional because you have not yet been \n\ncharged. What if the witness refuses to answer and is threatened with \n\nimprisonment? Surely the witness would then be entitled to challenge the \n\nconstitutionality of the section on which the prosecution is based. The fact that \n\nthe witness might be entitled to turn to section 11(1) of the Constitution to found \n\na constitutional challenge is not in my view an adequate answer to that dilemma. \n\n The right to challenge the constitutionality of a statute which affects you directly \n\ncannot be made dependent on the finding of some other constitutional right on \n\nwhich to base the challenge. What if there is no such right? \n\n \n \n\n \n\n[164] The objection to constitutional challenges brought by persons who have only a \n\n\f \n \n\nhypothetical or academic interest in the outcome of the litigation is referred to in \n\n\u03a0\u03b1\u03b3\u03b5 239 \n\nCHASKALSON P \n\nZantsi v Council of State, Ciskei and Others.5 The principal reasons for this \n\nobjection are that in an adversarial system decisions are best made when there \n\nis a genuine dispute in which each party has an interest to protect. There is \n\nmoreover the need to conserve scarce judicial resources and to apply them to \n\nreal and not hypothetical disputes. The United States courts also have regard to \n\n\"the proper role of the Courts in a democratic society\" which is to settle concrete \n\ndisputes, and to the need to prevent courts from being drawn into unnecessary \n\nconflict with coordinate branches of government.6 These objections do not apply \n\nto the present case. The Applicants have a real and not a hypothetical interest in \n\nthe decision. The decision will not be academic; on the contrary it is a decision \n\nwhich will have an effect on all section 417 enquiries and there is a pressing \n\npublic interest that the decision be given as soon as possible. All the \n\nrequirements ordinarily set by a court for the exercise of its jurisdiction to issue a \n\n \n\n51995(10) BCLR 1424 (CC), para. 7. \n\n6LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, at 109 (2d ed. 1988). \n\n\fdeclaration of rights are therefore present.7 The question is whether different \n\n\u03a0\u03b1\u03b3\u03b5 240 \n\nCHASKALSON P \n\nconsiderations apply in constitutional cases. \n\n \n \n\n \n\n \n \n\n7Ex Parte Nell 1963(1) SA 754 (A) at 759G-760A; Ex Parte Prokureur-General, Transvaal 1978(4) \nSA 15 (T) at 20B-D; Ex Parte Chief Immigration Officer, Zimbabwe 1994(1) SA 370 (ZSC) at 376B-377F. \n\n\f \n \n[165] Whilst it is important that this Court should not be required to deal with abstract \n\nCHASKALSON P \n\n\u03a0\u03b1\u03b3\u03b5 241 \n\nor hypothetical issues, and should devote its scarce resources to issues that are \n\nproperly before it, I can see no good reason for adopting a narrow approach to \n\nthe issue of standing in constitutional cases. On the contrary, it is my view that \n\nwe should rather adopt a broad approach to standing. This would be consistent \n\nwith the mandate given to this Court to uphold the Constitution and would serve \n\nto ensure that constitutional rights enjoy the full measure of the protection to \n\nwhich they are entitled.8 Such an approach would also be consistent in my view \n\nwith the provisions of section 7(4) of the Constitution on which counsel for the \n\nRespondents based his argument. I will deal later with the terms of this section \n\nand the purpose that it serves. \n\n \n\n[166] The Canadian courts accept that persons \n\nhave a standing to challenge unconstitutional law if they are liable to conviction \nfor an offence under the law even though the unconstitutional effects are not \ndirected against [them] per se.9 \n\n \n \n\n8See, e.g., R v McDonough [1989] 40 CRR 151 at 155. \n\n9Morgentaler, Smoling and Scott v R [1988] 31 CRR 1 at 26. \n\n\f \n \n\n \n\n\u03a0\u03b1\u03b3\u03b5 242 \n\nCHASKALSON P \n\nIt is sufficient for the accused to show that he or she is directly affected by the \n\nunconstitutional legislation. If this is shown \"...it matters not whether he is the \n\nvictim\".10 Thus in the Morgentaler case (cited above) a male doctor was entitled \n\nto challenge the constitutionality of legislation dealing with abortion under which \n\nhe was liable to be prosecuted, although the rights upon which the constitutional \n\nchallenge were based were the rights of pregnant women, which did not and \n\ncould not vest in the male doctor. Although corporations do not have rights \n\nunder the Canadian Charter and cannot institute Charter challenges in their own \n\nbehalf, they can challenge the constitutionality of a statutory provision at a \n\ncriminal trial on the grounds that it infringes the rights of human beings and is \n\naccordingly invalid.11 Where, as in the present case, the impugned section of \n\nthe Companies Act has a direct bearing on the Applicants\u2019 common law rights, \n\nand noncompliance with the section has possible criminal consequences, they \n\nhave sufficient standing in my view to secure a declaration from this Court as to \n\n \n\n10R v McDonough (supra) at 155 (citation omitted). \n\n11 R v Wholesale Travel Group Inc. [1992] 7 CRR (2d.) 36 at 84-86; R v Big M Drug Mart Ltd. 18 \n\nDLR (4th) 321; HOGG, CONSTITUTIONAL LAW OF CANADA, para. 37.2(d) (3rd ed 1992). \n\n\fthe constitutionality of the section. \n\n\u03a0\u03b1\u03b3\u03b5 243 \n\nCHASKALSON P \n\n \n \n\n \n\n[167] I do not read section 7(4) as denying the Applicants this right. The section deals \n\nwith the situation where \u201c...an infringement of or threat to any right entrenched in \n\nthis Chapter is alleged...\u201d It therefore applies specifically to the jurisdiction \n\nvested in the courts by section 98(2)(a) and 101(3)(a) of the Constitution to deal \n\nwith \"any alleged violation or threatened violation of any fundamental right \n\nentrenched in Chapter 3\". But section 98(2) vests a general jurisdiction in this \n\nCourt to interpret, protect and enforce the provisions of the Constitution. Section \n\n7(4) in dealing with the section 98(2)(a) jurisdiction provides that where an \n\ninfringement or threat to the infringement of a constitutional right is alleged, any \n\nof the persons referred to in section 7(4)(b) will have standing to bring the matter \n\nto \u201ca competent court of law\u201d. The category of persons empowered to do so is \n\nbroader than the category of persons who have hitherto been allowed standing in \n\ncases where it is alleged that a right has been infringed or threatened, and to that \n\nextent the section demonstrates a broad and not a narrow approach to \n\nstanding.12 Section 7(4) does not, however, deal specifically with the jurisdiction \n\nvested in this Court by the other subsections of section 98(2). Section 98(2)(c) \n\n \n \n\nactio popularis. \n\n12 Cf. Roodepoort Maraisburg Town Council (supra) and the comments there made concerning the \n\n\fvests in this Court the jurisdiction to enquire into \"the constitutionality of any law, \n\n\u03a0\u03b1\u03b3\u03b5 244 \n\nCHASKALSON P \n\nincluding an Act of Parliament, irrespective of whether such law was passed \n\nbefore or after the commencement of this Constitution.\" The constitutionality of a \n\nlaw may be challenged on the basis that it is inconsistent with provisions of the \n\nConstitution other than those contained in Chapter 3. Neither section 7(4) nor \n\nany other provision of the Constitution denies to the Applicants the right that a \n\nlitigant has to seek a declaration of rights in respect of the validity of a law which \n\ndirectly affects his or her interests adversely. \n\n \n \n\n \n\n[168] Once it is accepted, as Ackermann J has, that the issue of constitutionality has to \n\nbe tested objectively and not subjectively, there is no valid reason for denying \n\npersons in the position of the Applicants standing to secure a ruling on the \n\nvalidity of a law that directly affects their interests. Even if section 7(4) were to \n\nbe read extensively as applying by inference to all the subsections of section \n\n98(2), I would not see it as an obstacle to the Applicants\u2019 case. In that event it \n\nwould have to be read as meaning \"where an infringement of or threat to any \n\nright entrenched in this Chapter [or any dispute over the constitutionality of any \n\nexecutive or administrative act or conduct or threatened administrative act or \n\nconduct of any organ of the state, or any enquiry into the constitutionality of any \n\nlaw, including an Act of Parliament, irrespective of whether such law was passed \n\n\for made before or after the commencement of this Constitution...] is alleged\" the \n\n\u03a0\u03b1\u03b3\u03b5 245 \n\nCHASKALSON P \n\npersons referred to in paragraph (b) shall have standing. There would be no \n\nneed on this extensive interpretation of the section to construe section 7(4)(b)(i) \n\nas meaning that the person acting in his or her own interest must be a person \n\nwhose constitutional right has been infringed or threatened. This is not what the \n\nsection says. What the section requires is that the person concerned should \n\nmake the challenge in his or her own interest. It is for this Court to decide what \n\nis a sufficient interest in such circumstances. In my view, on the facts of the \n\npresent case, the Applicants have a sufficient interest to seek such a ruling. If \n\nthat is so they can rely on the argument that viewed objectively section 417(2)(b) \n\nis inconsistent with the Constitution because it infringes the right to a fair trial \n\nguaranteed by section 25(3). \n\n \n \n\n \n\n[169] Because of his analysis of the issue of standing Ackermann J was driven to base \n\nhis judgment on section 11(1) of the Constitution and not on section 25(3). In \n\ngiving the judgment of the majority of this Court in Coetzee v Government of the \n\nRepublic of South Africa,13 Kriegler J declined to examine \"...the philosophical \n\nfoundation or the precise content of the right\"14 to freedom under section 11(1) or \n\n \n\n131995(10) BCLR 1382 (CC). \n\n14Id. at para. 10. \n\n\f \n \n\nto attempt to \u201c...determine the outer boundaries of the right.\"15 Wilson J adopted \n\n\u03a0\u03b1\u03b3\u03b5 246 \n\nCHASKALSON P \n\na similar approach in her dissent in Thomson Newspapers v Canada,16 saying \n\nthat she did not consider it necessary in that case \"to attempt to determine the \n\nperimeters of \"liberty\" and \"security of the person\".\u201d17 This is a complex and \n\ndifficult undertaking which has previously been alluded to in the judgment of \n\nSachs J in Coetzee's case. The approach of the majority in Coetzee's case is in \n\naccordance with the principle laid down by this Court in Zantsi\u2019s case.18 If the \n\nsame approach had been followed in the present case I would not have entered \n\nthe debate on the meaning of \"freedom\" in section 11(1). In dealing with section \n\n11(1), however, Ackermann J proceeded on the basis that \"freedom\" should be \n\n\"defined as widely as possible\" and as embracing the right of individuals \"not to \n\nhave obstacles to possible choices and activities placed in their way by...the \n\nState\". I disagree with this approach and feel constrained in the circumstances \n\n \n\n15Id. \n\n16[1990] 67 DLR (4th) 161 (\u201cThomson\u201d). \n\n17Id. at 186. \n\n18Supra note 5, at para. 5. \n\n\fto express my disagreement and my reasons therefor. \n\n\u03a0\u03b1\u03b3\u03b5 247 \n\nCHASKALSON P \n\n \n \n\n \n\n[170] The primary, though not necessarily the only, purpose of section 11(1) of the \n\nConstitution is to ensure that the physical integrity of every person is protected. \n\nThis is how a guarantee of \"freedom (liberty) and security of the person\" would \n\nordinarily be understood. It is also the primary sense in which the phrase, \n\n\"freedom and security of the person\" is used in public international law. The \n\nAmerican Declaration of the Rights and Duties of Man, the International \n\nCovenant on Civil and Political Rights, the European Convention for the \n\nProtection of Human Rights and Fundamental Freedoms, and the African \n\nCharter on Human and People's Rights, all use the phrase \"liberty and security \n\nof the person\" in a context which shows that it relates to detention or other \n\nphysical constraints.19 Sieghart,20 notes that although \"...all the instruments \n\nprotect these two rights jointly in virtually identical terms, they have been \n\ninterpreted as being separate and independent rights\", and that the European \n\nCommission of Human Rights and The European Court of Human Rights have \n\nfound that what is protected is \"physical liberty\" and \"physical security\". There is \n\n \n \n\nEuropean Convention). \n\n19Guzzardi v Italy 3 EHRR 333 at 362, para. 92 (with respect to that wording in Article 5 of the \n\n20SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS, Clarendon Press, Oxford (1992) 139-142 \n(citing Guzzardi\u2019s case, supra; Arrowsmith v United Kingdom (7050/75) Report: DR 19,5; and X v United \nKingdom (5877/72) CD 45,90). \n\n\fnothing to suggest that the primary purpose of section 11(1) of our Constitution is \n\n\u03a0\u03b1\u03b3\u03b5 248 \n\nCHASKALSON P \n\ndifferent. It finds its place alongside prohibitions of \"detention without trial\", and \n\nof \"torture\" and \"cruel, inhuman or degrading treatment or punishment\" - all \n\nmatters concerned primarily with physical integrity. This does not mean that we \n\nmust construe section 11(1) as dealing only with physical integrity. Whether \n\n\"freedom\" has a broader meaning in section 11(1), and if so, how broad it should \n\nbe, does not depend on the construction of the section in isolation but on its \n\nconstruction in the context of Chapter 3 of the Constitution. \n\n \n \n\n \n\n[171] Chapter 3 is an extensive charter of freedoms. It guarantees and gives \n\nprotection in specific terms to equality, life, human dignity, privacy, religion, \n\nbelief, opinion (including academic freedom in institutes of higher learning), \n\nfreedom of expression, freedom of assembly, freedom of demonstration and \n\npetition, freedom of association, freedom of movement, freedom of residence, \n\nfreedom to enter, remain in and leave the Republic of South Africa, political \n\nrights, access to court, access to information, and administrative justice. Chapter \n\n3 also provides guarantees and protection in respect of fair arrest, detention and \n\ntrial procedures, economic activity, labour relations, property, the environment, \n\nlanguage and culture, education and the rights of children. \n\n \n\n\f \n \n[172] This Court has adopted a purposive interpretation of the Constitution,21 and as \n\nCHASKALSON P \n\n\u03a0\u03b1\u03b3\u03b5 249 \n\nAckermann J points out, it has also held that section 11: \n\nmust not be construed in isolation, but in its context, which includes the history \nand background to the adoption of the Constitution, other provisions of the \nConstitution itself and, in particular, the provisions of Chapter 3 of which it is part. \n It must also be construed in a way which secures for \"individuals the full \nmeasure\" of its protection.22 \n\nThese considerations must be borne in mind in construing section 11(1). I agree \n\nwith Ackermann J that the mechanical application of the expressio unius \n\nprinciple is not appropriate to an interpretation of Chapter 3. This does not \n\nmean, however, that the structure of Chapter 3, the detailed formulation of the \n\ndifferent rights, and the language of section 11 can be ignored.23\n\n \n\n \n\n \n \n\n21 S v Zuma 1995 (4) BCLR 401 (CC), para. 15; S v Makwanyane 1995 (6) BCLR 655 (CC), para. \n\n9; and S v Mhlungu 1995 (7) BCLR 793 (CC), para. 8. \n\n22S v Makwanyane 1995 (6) BCLR 655 (CC), para. 10. \n\n23See in this regard the comments of L\u2019Heureux-Dub\u00e9 J in the Thomson case, supra, at p.269-\n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 250 \n\nCHASKALSON P \n\n \n270. \n\n\f \n \n[173] Chapter 3 of the Constitution enumerates the wide range of fundamental \n\nCHASKALSON P \n\n\u03a0\u03b1\u03b3\u03b5 251 \n\nfreedoms to which I have referred. All are subject to section 33, the limitations \n\nclause. The criteria according to which Chapter 3 rights may be limited are \n\nreferred to in paragraph 125 of Ackermann J's judgment. Some grounds are \n\ncommon to all rights, but a distinction is drawn between those rights in respect of \n\nwhich a limitation must also be shown to be \"reasonable\" and those which \n\nrequire the limitation to be both \"reasonable\" and \"necessary\". The differentiation \n\npointedly made in section 33 of the Constitution between different categories of \n\nfreedom has a bearing on the meaning to be given to section 11(1). Limitations \n\nof section 11(1) are subject to the \"necessary\" test, which is an indication that the \n\nsection is concerned with a freedom of a \"higher order\" than those enumerated \n\nfreedoms which are not subjected to such an onerous test. A guarantee of the \n\nphysical integrity of all persons is a freedom of the highest order which calls for \n\nthe more onerous test of limitation. I am not persuaded, however, that this could \n\nbe said of section 11(1) generally if it is given as wide a meaning as Ackermann \n\nJ gives it in paragraph 54 of his judgment. I have found nothing in the legislative \n\nhistory to suggest that the framers of the Constitution intended section 11(1) to \n\nhave such a meaning; nor do I consider it necessary, as Ackerman J has \n\nsuggested that it may be, to adopt such a construction in order to give substance \n\nto the right to human dignity. In the context of the multiplicity of rights with which \n\n\fit is associated in Chapter 3, human dignity can and will flourish without such an \n\n\u03a0\u03b1\u03b3\u03b5 252 \n\nCHASKALSON P \n\nextensive interpretation being given to section 11(1). \n\n \n \n\n \n\n[174] It would in my view be highly anomalous to give to unenumerated rights forming \n\na \"residue\" in section 11(1) a higher status, subject to closer scrutiny, than a right \n\nso important to freedom as privacy, which is subject only to the \"reasonable' test. \n\n If there are residual freedom rights within section 11(1), that residue should be \n\nconfined to freedoms which, though not enumerated elsewhere in Chapter 3, are \n\nentitled to be characterised as fundamental freedoms and thus properly \n\nclaimable under section 11(1). If freedom were to be given the wide meaning \n\nsuggested by Ackermann J.24 all regulatory laws, which are a feature of any \n\nmodern society, would have to be justified as being necessary. In my view this \n\nis not what is contemplated by the provisions of section 11(1), nor is it a \n\nconclusion to which we need be driven. It would require courts to sit in judgment \n\non what are essentially political decisions, and in doing so to require the \n\nlegislature to justify such decisions as being necessary. This is not something \n\nthat is required either by the words or the context of the section. If the intention \n\nhad been to vest the control of freedom in that sense in the courts, I would have \n\n \n\n24I.e., \u201cthe right not to have \u201cobstacles to possible choices and activities\u201d placed in [the way of any \n\nperson] by ... the State\u201d, para. 54 (citation omitted). \n\n\fexpected this to have been clearly stated and not left to be inferred from an \n\n\u03a0\u03b1\u03b3\u03b5 253 \n\nCHASKALSON P \n\nextensive interpretation of the section. \n\n \n \n\n \n\n[175] Reference is made in the judgment of Ackermann J to the manner in which the \n\ncourts have construed the Constitutions of the United States of America, Canada \n\nand Germany. It is important to appreciate - as Ackermann J is at pains to point \n\nout - that these Constitutions are formulated in different terms, and the rights \n\nprotected under them are not dealt with in the same way as the rights protected \n\nin Chapter 3 of our Constitution are. \n\n \n\n[176] In the United States of America the courts have given a wide meaning to the \n\nprovisions of the Fifth and Fourteenth amendments which contain prohibitions \n\nagainst the deprivation of \"life or personal liberty or property without due process \n\nof law\". The jurisprudence on the Fourteenth amendment has been of particular \n\nimportance in this regard; it has also been extremely contentious. The \n\nFourteenth Amendment is the means through which the courts have extended \n\nthe Bill of Rights to provide protection against State action. In doing so they \n\nhave held explicitly that \"...that term [liberty] is not confined to mere freedom from \n\n\fbodily restraint...\".25 The United States Constitution, however, contains none of \n\n\u03a0\u03b1\u03b3\u03b5 254 \n\nCHASKALSON P \n\nthe detail found in Chapter 3 of our Constitution. The Fourteenth amendment is \n\nthe only provision of the Constitution that protects individuals against the \n\nlegislative power of the States. This protection has had to be spelt out of the \n\nterse injunction of section 1 of the Fourteenth amendment that: \"No State shall \n\nmake or enforce any law which shall abridge the privileges or immunities of \n\ncitizens of the United States; nor shall any State deprive any person of life, \n\nliberty, or property without due process of law; nor deny to any person within its \n\njurisdiction the equal protection of the laws.\" \n\n \n \n\n \n\n[177] The Fourteenth Amendment guarantees of \"privileges\" and \"immunities\" of \" life, \n\nliberty, or property\" and the \"equal protection of the laws\" have been the basis of \n\nthe jurisprudence of freedom in the United States. They are the source of \n\nunenumerated rights of personal freedom which have been identified and \n\nenforced by the courts in judgments, some of which have been the subject of \n\ngreat controversy. \n\n \n \n\n25Bolling v Sharpe 347 US 497 (1954) at 499; Board of Regents v Roth 408 US 564 (1972) at \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 255 \n\nCHASKALSON P \n\n[178] The jurisprudence of the United States is influenced by the fact that the \n\nConstitution is 200 years old. To give effect to the aspiration set out in the \n\npreamble to the Constitution to \"secure the Blessings of Liberty to ourselves and \n\nto our Posterity\" the courts have construed the notion of liberty in the Fifth and \n\nFourteenth amendments in the light of the needs of a changing society. They \n\nhave given a broad meaning to \"liberty\" to enable them to do so. At the same \n\ntime they have adopted different levels of scrutiny as a means of addressing \n\ninstitutional conflict which might otherwise have existed between the courts and \n\nthe Federal and State legislatures. In some instances, particularly in the field of \n\neconomic regulation, all that is required is that there should be a rational basis \n\nfor the legislation that infringes the right. At the other extreme, infringements of \n\ncertain unenumerated rights such as privacy - characterised as fundamental - \n\nare subjected to strict scrutiny, whilst in between, infringements of other rights \n\nare subjected to \"intermediate\" scrutiny. \n\n \n\n \n \n572. \n\n\f \n \n[179] The passages from the judgment of Wilson J in the Canadian Supreme Court \n\nCHASKALSON P \n\n\u03a0\u03b1\u03b3\u03b5 256 \n\nreferred to by Ackermann J in para 76 of his judgment, describe the situation \n\nconfronting a witness at an enquiry such as that conducted under section \n\n417(2)(b) and characterise it as being one touching \"upon the physical integrity of \n\nthe individual as well as the individual's reasonable expectation of privacy.\" The \n\ndecision in this case cannot be relied upon for the proposition that freedom \n\nshould be \"defined as widely as possible\" and as far as I am aware the Canadian \n\nSupreme Court has not suggested that this is how liberty should be construed in \n\nsection 7 of the Charter.26 Wilson J, a vigorous upholder of liberty, found it \n\nnecessary to say in the Thomson case that \"liberty\" and \"personal security\" as \n\nused in section 7 of the Canadian Charter must \"[c]learly be subject to some \n\nlimits; otherwise any tenuous restriction placed on an individual would constitute \n\na violation of liberty and security of the person.\"27 She declined, however, to \n\nattempt to determine those limits. It is also important to bear in mind that the \n\nguarantee of \"liberty\" and \"security of the person \" in section 7 of the Canadian \n\nCharter is subject to the qualification that it may be encroached upon in \n\naccordance with the principles of fundamental justice\". Liberty is implicated by \n\n \n\n26See, in this regard, the judgment of Lamer J in Reference Re Criminal Code s. 192 and 195 \n\n(1)(c) [1990] 48 CRR 1 at 46, and HOGG, supra, para. 44.7 and 44.8 (3rd ed 1992). \n\n27 Thomson, supra, at 186 (Wilson J, dissenting); see also, Edward Brooks and Art v The Queen \n\n35 DLR (4th) 1 at 54 (per Dickson, CJC). \n\n\flaws which impose imprisonment as a penalty for their non-observance, but \n\n\u03a0\u03b1\u03b3\u03b5 257 \n\nCHASKALSON P \n\nunder Canadian law a person objecting to the constitutionality of the law on these \n\ngrounds has the onus of showing that it is not in accordance with the \n\nfundamental principle of justice Reference Re Criminal Code,28 and to discharge \n\nthis onus it must be established that the legislative scheme is so unfair as to \n\nviolate that principle Reference Re Criminal Code.29 Even if this is done it is still \n\nopen to the prosecution to justify the law under section 1 of the Charter.30 \n\nSection 7 of the Charter is therefore both in substance and form materially \n\ndifferent to section 11(1) of our Constitution. \n\n \n \n\n \n\n[180] Liberty is dealt with in article 2 of the German Constitution The wording of this \n\narticle is also different to the wording of section 11 of our Constitution. The \n\n \n\n28Supra, at 46. \n\n29Supra, at 17. \n\n30Morgentaler, Smoling and Scott v R [1988] 31 CRR 1 at 33. \n\n\fprovision closest to section 11(1) is article 2(2) which provides: \n\n\u03a0\u03b1\u03b3\u03b5 258 \n\nCHASKALSON P \n\nEveryone shall have the right to life and to the inviolability of his person. The \nliberty of the individual shall be inviolable. These rights may be encroached \nupon pursuant to law.31 \n\n \n \n\n \n\n \n \n\nof the Federal Republic of Germany (1977). \n\n31THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY, Press and Info. Office of the Government \n\n\f \n \n\nAs Ackermann J points out in paragraph 83 of his judgment \"liberty\" in the \n\n\u03a0\u03b1\u03b3\u03b5 259 \n\nCHASKALSON P \n\ncontext of article 2(2) is construed as referring to freedom from physical \n\nconstraint. The fact that it is found alongside a provision which explicitly lays \n\ndown that \"everyone shall have the right to the free development of his \n\npersonality\" which in turn has been construed by the German Federal \n\nConstitutional Court as protection of a general freedom to act,32 is no reason for \n\nus to give that meaning to \"freedom\" in section 11(1) of our Constitution. Currie \n\nindicates that the extensive interpretation of the right to free development of the \n\npersonality by the German Federal Constitutional Court was influenced by the \n\nlegislative history of the provision.33 He also points out that in Elfe's case,34 \n\nreferred to in paragraph 86 of Ackermann J's judgment, the court held that the \n\ngeneral right to freedom of action is limited \u201c...both by the Basic Law itself and \u2018by \n\nevery legal norm that conforms procedurally and substantively with the \n\nConstitution.\u2019\"35 That apparently requires laws to conform with \"the principles of \n\nthe rule of law and the social welfare state.\"36 Implicit in the social welfare state \n\n \n\nChicago Press 1994). \n\n32DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY, at 316 (Univ. of \n\n33Id. \n\n346 BverfGE 32. \n\n35Supra note 32 at 317-318 (citation omitted). \n\n36Supra note 32 at 318 (citation omitted). \n\n\fis the acceptance of regulation and redistribution in the public interest. If in the \n\n\u03a0\u03b1\u03b3\u03b5 260 \n\nCHASKALSON P \n\ncontext of our Constitution freedom is given the wide meaning that Ackermann J \n\nsuggest it should have, the result might be to impede such policies. Whether or \n\nnot there should be regulation and redistribution is essentially a political question \n\nwhich falls within the domain of the legislature and not the court. It is not for the \n\ncourts to approve or disapprove of such policies. What the courts must ensure is \n\nthat the implementation of any political decision to undertake such policies \n\nconforms with the Constitution. It should not, however, require the legislature to \n\nshow that they are necessary if the Constitution does not specifically require that \n\nthis be done. \n\n \n \n\n \n\n[181] In terms of our Constitution we are enjoined to protect the freedom guaranteed \n\nby section 11(1) against all governmental action that cannot be justified as being \n\nnecessary. If we define freedom in the context of section 11(1) in sweeping \n\nterms we will be called upon to scrutinise every infringement of freedom in this \n\nbroad sense as being \"necessary\". We cannot regulate this power by \n\nmechanisms of different levels of scrutiny as the courts of the United States do, \n\nnor can we control it through the application of the principle that freedom is \n\nsubject to laws that are consistent with the principles of \"fundamental justice\", as \n\nthe Canadian courts do. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 261 \n\nCHASKALSON P \n\n[182] We should be careful to avoid the pitfall of Lochner v New York37 which has \n\nbeen described by Professor Tribe in his seminal work on American \n\nConstitutional Law, as being \"not in judicial intervention to protect \"liberty\" but in \n\na misguided understanding of what liberty actually required in the industrial \n\nage.\"38 The Lochner era gave rise to serious questions about judicial review and \n\nthe relationship between the court and the legislature, and as Professor Tribe \n\npoints out, the collapse of Lochner gave \"credence to the notion that the \n\nlegislative process should be completely wilful and self-controlled, with absolutely \n\nno judicial interference except where constitutional provisions much more explicit \n\nthan due process were in jeopardy\".39 \n\n \n\n[183] The protection of fundamental freedoms is pre-eminently a function of the court. \n\nWe should not, however, construe section 11 so broadly that we overshoot the \n\nmark and trespass upon terrain that is not rightly ours. In a famous dissent in \n\nLochner's case, Holmes J said: \n\n \n\n \n\n37198 US 45 (1905). \n\n38Supra note 6, at 769. \n\n39Id. at 582. \n\n\f\u03a0\u03b1\u03b3\u03b5 262 \n\nCHASKALSON P \n\nI think that the word liberty in the Fourteenth Amendment is perverted when it is \nheld to prevent the natural outcome of a dominant opinion, unless it can be said \nthat a rational and fair man necessarily would admit that the statute proposed \nwould infringe fundamental principles as they have been understood by the \ntraditions of our people and our law.40\n\nThe fundamental principles to which we must look for guidance in this regard are \n\nthose laid down by our Constitution. They are the principles of an open and \n\ndemocratic society based on freedom and equality. In a democratic society the \n\nrole of the legislature as a body reflecting the dominant opinion should be \n\nacknowledged. It is important that we bear in mind that there are functions that \n\nare properly the concern of the courts and others that are properly the concern of \n\nthe legislature. At times these functions may overlap. But the terrains are in the \n\nmain separate, and should be kept separate. \n\n \n \n\n \n\n \n\n[184] This does not mean that we must necessarily confine the application of section \n\n11(1) to the protection of physical integrity. Freedom involves much more than \n\nthat, and we should not hesitate to say so if the occasion demands it. But, \n\nbecause of the detailed provisions of Chapter 3, such occasions are likely to be \n\nrare. If despite the detailed provisions of Chapter 3 a freedom of a fundamental \n\n \n \n\n40Supra note 37 at 76. \n\n\fnature which calls for protection is identified, and if it cannot find adequate \n\n\u03a0\u03b1\u03b3\u03b5 263 \n\nCHASKALSON P \n\nprotection under any of the other provisions in Chapter 3, there may be a reason \n\nto look to section 11(1) to protect such a right. But to secure such protection, the \n\notherwise unprotected freedom should at least be fundamental and of a \n\ncharacter appropriate to the strict scrutiny to which all limitations of section 11 \n\nare subjected. \n\n \n \n\n \n\n[185] Against this background I can see no objection to accepting provisionally that \n\nsection 11(1) is not confined to the protection of physical integrity and that in a \n\nproper case it may be relied upon to support a fundamental freedom that is not \n\notherwise protected adequately under Chapter 3. This, however, is not such a \n\ncase. The reason why the Canadian Courts have dealt with this issue under \n\nsection 7 of the Charter is that the requirement of \u201cfundamental justice\u201d which is \n\npart of that section has been construed as \u201c...obviously requir[ing] that a person \n\naccused of a crime receive a fair trial.\u201d41 Section 11(1) of our Constitution \n\ncontains no comparable provision. In the context of our Constitution, and having \n\nregard to the specific wording of the section itself, and the fact that the right to a \n\nfair trial is dealt with specifically and in detail under section 25(3), I cannot read \n\nsection 11(1) as including a residual fair trial right. \n\n\f \n \n \n\n\u03a0\u03b1\u03b3\u03b5 264 \n\nCHASKALSON P \n\nIn paragraph 3 of this judgment I indicated that \u201ca challenge to the \n\nconstitutionality of section 417(2)(b) should...be characterised and dealt with as a \n\nchallenge founded on the right to a fair criminal trial.\u201d It is precisely because \n\nsection 417(2)(b) is inconsistent with this right that its validity can be impugned. \n\nAs long as incriminating evidence is not admissible at the criminal trial and the \n\nuse of \u201cderivative evidence\u201d at such trial is made dependant on such use being \n\nsubject to \u201cfair criminal trial\u201d standards, the rule against self incrimination is \n\nadequately protected. If this is so, the first of the two requirements which would \n\nhave to be established in order to invoke section 11(1) to protect a residual right \n\nof freedom, i.e., that the right is not otherwise protected adequately by Chapter 3, \n\nhas not been met, and it is not necessary to consider the second requirement, \n\ni.e., whether the \u201cresidual right\u201d claimed is of a character appropriate for \n\nprotection under section 11(1). \n\n \n \n\n41HOGG, supra note 11, at 44.16. \n\n\f \n \n[186] Ackermann J has demonstrated that the rule against being compelled to answer \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 265 \n\nincriminating questions is inherent in the right to a fair trial guaranteed by section \n\n25(3).42 Because he held that the Applicants could not rely on section 25(3) he \n\nanalysed the issues in the present case in terms of section 11(1). The reasoning \n\nthat led him to conclude that section 417(2)(b) is inconsistent with section 11(1) \n\nwould also have led him to conclude that it is inconsistent with section 25(3). It \n\nseems to me to be clear that this is so. To some extent his reasons are shaped \n\nby the fact that the issue is treated as one implicating freedom and not the right \n\nto a fair trial. In substance, however, they can be applied to a section 25(3) \n\nanalysis and I have nothing to add to them, nor to his reasons for the conclusion \n\nthat the issue of derivative evidence is one that ought properly to be decided by a \n\ntrial court. I agree, therefore, with the order proposed by him. \n\n \n\nMahomed DP, Didcott J, Langa J, Madala J and Trengove AJ concur in the judgment of \n\nChaskalson P. \n\n \n\n[187] KRIEGLER J: \n\nRegretfully I cannot agree with the conclusions of any one of my four colleagues \n\n \n \n\n42See paragraph 79 of his judgment. \n\n\f(Chaskalson P and Ackermann, O'Regan and Sachs JJ) whose draft judgments I \n\n\u03a0\u03b1\u03b3\u03b5 266 \n\nKRIEGLER J \n\nhave had the privilege of considering. Notwithstanding the erudition and \n\npersuasive force of their two distinct lines of reasoning, I cannot subscribe to \n\ntheir joint conclusion. I also dissent from the order they unanimously propose. \n\n \n \n\n \n\n[188] In essence Ackermann and Sachs JJ conclude that the applicants do not have \n\nstanding to seek relief under the fair trial protection of the Constitution,1 against a \n\nprovision in the Companies Act2 relating to the admissibility of evidence.3 They \n\ndo not non-suit the applicants, however, holding that they qualify for assistance \n\nunder section 11(1) of the Constitution, which guards personal liberty. \n\nChaskalson P and O'Regan J do not see the applicants' complaint as falling \n\nunder section 11(1) of the Constitution. They nevertheless agree that the \n\napplicants are entitled to an order invalidating the qualification in section \n\n417(2)(b) of the Companies Act on the basis of its irredeemable conflict with \n\nrights protected in the Constitution. They analyse the standing provisions of the \n\nConstitution4 and hold that witnesses at a section 417 enquiry have locus standi \n\n \n \n\n1Section 25(3) of the Constitution of the Republic of South Africa No. 200 of 1993. \n\n2Companies Act No. 61 of 1973. \n\n3The qualification to section 417(b) of the Companies Act which renders admissible at a subsequent criminal trial evidence \n\ncompulsorily obtained from persons at an enquiry into the affairs of an insolvent company. \n\n4Contained in section 7(4). \n\n\fto raise the alleged unconstitutionality of the qualification under the fair trial \n\n\u03a0\u03b1\u03b3\u03b5 267 \n\nKRIEGLER J \n\nrubric. \n\n \n \n\n \n\n[189] I both agree and disagree with those views - up to point. I agree with Ackermann \n\nand Sachs JJ that witnesses at a section 417 enquiry cannot be brought within \n\nthe ambit of the fair trial procedures of section 25(3). At the same time however I \n\nagree with Chaskalson P and O'Regan J that section 11(1) is inapposite in these \n\ncases. \n\n \n\n[190] In my view, therefore, no invalidation of section 417(2)(b) of the Companies Act, \n\nor any part of that subsection, is warranted in either of these cases. This Court is \n\nneither called upon nor empowered to consider the constitutionality of section \n\n417(2)(b) now. And if and when that issue does arise, I would urge a much \n\ncloser consideration of its possible saving under section 33(1) of the Constitution \n\nthan that conducted by my colleagues in the present cases. In particular I would \n\nrequire to be persuaded that the differences between South Africa on the one \n\nhand, and the foreign jurisdictions used as lodestars, on the other, are not so \n\ngreat that a local departure is not warranted. That will entail, inter alia, a \n\ncomparison of the safeguards against corporate fraud in the countries concerned \n\nand the relative competence of the supervisory, investigatory and prosecuting \n\n\fauthorities in the particular countries compared with what is available in this \n\n\u03a0\u03b1\u03b3\u03b5 268 \n\nKRIEGLER J \n\ncountry. I would also want to be persuaded that it is apt to equate the \n\nadmissibility provisions of the Insolvency Act5 with those under scrutiny here. \n\nThat debate would embrace the question whether the materially greater scope of \n\nactivities conducted under the shield of corporate anonymity and limited liability \n\ndoes not justify a distinction. Because of my view that a cost/benefit analysis of \n\nthat kind can not arise in the present circumstances, no more need be said on \n\nthe topic. \n\n \n \n\n \n\n[191] My line of thinking is relatively straightforward and I hope to make it plain in a few \n\npages. That is possible, primarily because the issues have been so crisply \n\nidentified by Ackermann J. \n\n \n\n \n \n5Insolvency Act No. 24 of 1936. \n\n\f \n \n[192] The cases do not belong here, neither as referrals under section 102(1) of the \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 269 \n\nConstitution, nor as instances of direct access under section 100, read with \n\nConstitutional Court Rule 17. Ackermann J's discussion of section 102(1)6 omits \n\nany reference to the proviso to the subsection, namely: \n\nProvided that, if it is necessary for evidence to be heard for the purposes of deciding \n\nsuch issue, the provincial or local division concerned shall hear such evidence and \n\nmake a finding thereon, before referring the matter to the Constitutional Court. \n\nThe words are quite unequivocal - cases dependent upon particular evidence \n\ncannot be referred to this Court unless and until such evidence has been heard \n\nand a finding thereon has been made. \n\n \n\n \n\n \n\n \n \n\n6Especially in paragraph [6] of his judgment. \n\n\f \n \n[193] Therefore, although I am in respectful agreement with the view of Ackermann J,7 \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 270 \n\nconcurred in by Chaskalson P and O'Regan and Sachs JJ, that the dismissal of \n\nthe applications in the Court a quo rendered referrals under section 102(1) legally \n\nincompetent, there was, however, in my view, an even more fundamental ground \n\nfor this Court rejecting them. As I will try to show, the question whether any \n\nconstitutionally protected right of the applicants had been infringed (or could be \n\nsaid to have been threatened) merely by a subpoena to attend an inquiry in \n\nterms of section 417 of the Companies Act for the purposes of interrogation \n\nconcerning the trade, dealing, affairs or property of the company,8 cannot \n\nconceivably be answered on any tenable allegation that could be made at this \n\nstage by the applicants in the instant cases. \n\n \n\n[194] In terms of the proviso to section 102(1) that would be an insurmountable \n\nobstacle to a referral of the kind - and at the time - in issue here. One simply \n\ncannot be heard to say: \"I do not know what they want to ask me; I do not know \n\nwhat my answers will be; because of my guilty knowledge, however, I am afraid \n\nthat such answers may turn out to evidence some offence on my part; I do not \n\nknow whether it is so, but I may be prosecuted for such offence; I do not know \n\n \n \n\n7At Paragraph [9] of his judgment. \n\n8See section 417(1) of the Companies Act. \n\n\fwhether such evidence will be used against me by the prosecution; nor do I know \n\n\u03a0\u03b1\u03b3\u03b5 271 \n\nKRIEGLER J \n\nwhat its cogency will be; I do not know whether the trial court will uphold or reject \n\nan objection on my behalf to such evidence; I do not know what the weight of the \n\nother evidence will be; I do not know if I will be convicted. But this I do know - I \n\nmay be convicted on the strength of what I am obliged to disclose at an enquiry \n\ninstituted at the instance of the Supreme Court or the Master concerning an \n\ninsolvent company's affairs. Therefore, please declare, at this juncture already, \n\nthat I need not answer questions that may reveal my deeds.\"9 \n\n \n \n\n \n\n[195] But the substantive point to be made is not directed at the formal obstacle \n\nconstituted by the proviso to section 102(1). The crucial point is that no witness \n\nsubpoenaed to testify at a section 417 enquiry can at that stage possibly \n\nformulate allegations essential for relief based on fair trial provisions. And if the \n\nwitness cannot bring the case within those provisions, I see nothing in the \n\nConstitution that avails. There simply is no general prohibition against self-\n\nincrimination to be found anywhere in the Constitution, nothing express and \n\n9I do not overlook but regard as remote the kind of case where the witness is not sure whether the particular conduct does \n\n \n \nor does not constitute a crime. \n\n\fnothing implicit. It is only if and when the production of evidence obtained \n\n\u03a0\u03b1\u03b3\u03b5 272 \n\nKRIEGLER J \n\npursuant to a section 417 enquiry jeopardizes the fairness of the trial that the \n\nConstitution can be invoked. \n\n \n \n\n \n\n[196] I do not wish to be misunderstood. I am not distinguishing between evidence of \n\nwhat the accused said qua section 417 witness (i.e. direct evidence) and \n\nevidence based on such disclosures (i.e. derivative evidence). That is a thicket \n\nthat we may have to penetrate at some stage; but not now. Nor am I referring to \n\nany possible proceeding against the witness for non-compliance with the duty to \n\ntestify at the section 417 enquiry. It is the production at a subsequent criminal \n\ntrial of evidence (directly or derivatively) elicited at such an enquiry that may \n\nrender the trial unfair, and then a breach of the provisions of Chapter 3 of the \n\nConstitution may arise. It is only then that a court would have to decide whether \n\nthe unfairness of producing the involuntarily extracted evidence in question can \n\nbe saved under section 33(1). It will be a value judgment based on all the data \n\nthen available. Previously an accused had no general right to demand a fair trial. \n\n Now such a right exists under section 25(3) and may be invoked where section \n\n417(2)(b) works an injustice. \n\n \n\n[197] I am also satisfied that a prayer for direct access under section 100(2) of the \n\n\fConstitution and Rule 17, founded on such allegations as the applicants can \n\n\u03a0\u03b1\u03b3\u03b5 273 \n\nKRIEGLER J \n\npossibly make, should receive short shrift from this Court. The subsection \n\npostulates that such access must be \"in the interest of justice\" and the Rule \n\nexplains that an applicant must ordinarily establish exceptional circumstances \n\nprejudicing the ends of justice and good government. I cannot accept that the \n\ncase of an applicant who, on his own showing, has done things for which he \n\nfears prosecution if the truth be revealed, can ordinarily be brought within those \n\nstrict criteria. \n\n \n \n\n \n\n[198] I wish to emphasize that I am saying nothing about the propriety of using \n\ninvoluntarily elicited evidence to convict the person from whom it was obtained. \n\nThat aspect does not arise here. All we are discussing now is whether, at the \n\nstage when the evidence is being elicited, the witness can be heard to complain \n\nabout its possible use later. If the applicants were accused persons against \n\nwhom the prosecution had adduced or had indicated that it intended adducing \n\nsuch evidence, other considerations would be in issue. Those issues do not \n\narise here. The current discussion focuses exclusively on the right of audience \n\nof a probable criminal at the stage of the enquiry contemplated by section \n\n417(2)(b) of the Companies Act. \n\n \n\n\f \n \n[199] The essential flaw in the applicants' cases is one of timing or, as the Americans \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 274 \n\nand, occasionally, the Canadians call it, \"ripeness\". That term has a particular \n\nconnotation in the constitutional jurisprudence of those countries which need not \n\nbe analysed now. Suffice it to say that the doctrine of ripeness serves the useful \n\npurpose of highlighting that the business of a court is generally retrospective; it \n\ndeals with situations or problems that have already ripened or crystallized, and \n\nnot with prospective or hypothetical ones.10 Although, as Professor Sharpe \n\npoints out11 and our Constitution acknowledges,12 the criteria for hearing a \n\nconstitutional case are more generous than for ordinary suits, even cases for \n\nrelief on constitutional grounds are not decided in the air. And the present cases \n\nseem to me, as I have tried to show in the parody above, to be pre-eminent \n\nexamples of speculative cases. The time of this Court is too valuable to be \n\nfrittered away on hypothetical fears of corporate skeletons being discovered. \n\n \n\n \n \nLAW OF CANADA paragraphs 56.4 and 56.17 (1992); Robert J. Sharpe, CHARTER LITIGATION 340-2 (1987). \n\n10See Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 78 - 82, paragraph 3.10 (1988); Peter W. Hogg, CONSTITUTIONAL \n\n11Supra note 10, at 328 et. seq. \n\n12See section 7(4) and the analysis of the section in the judgment of Chaskalson P, at paragraphs [166] to [169]. See also \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 275 \n\nKRIEGLER J \n\n \nZantsi v Council of State, Ciskei and Others, 1995 (10) BCLR 1424 (CC) at paragraph 7. \n\n\f \n \n[200] The challenge to the relevant provision of section 417(2)(b) of the Companies \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 276 \n\nAct arises from the conflict it engenders between two interests. On the one hand \n\nsociety at large has a material interest in ascertaining as fully and reliably as \n\npossible why a defunct company went under. A company is not a live human \n\nbeing from whom one can enquire what went wrong in the business, or where its \n\nbooks of account, records and assets are. It is a legal fiction. Over time human \n\ningenuity devised and developed the limited liability company as a vehicle for \n\namassing venture capital, while limiting the risk involved. It worked wonderfully \n\nand served as the blueprint for the growth of commerce and industry around the \n\nworld. \n\n \n\n[201] But there were risks, one of which was that the size and anonymity of \n\ncorporations rendered it more difficult to conduct post-mortems when they \n\ncollapsed. Obviously those characteristics could also serve as a shield for \n\ndishonesty. Consequently special safeguards were evolved to protect the \n\ninterests of outsiders (i.e. creditors and ordinary investors) against those involved \n\nin the running of a company. Section 417 of the Companies Act is an example. \n\nWithout a mechanism of this kind the danger to creditors would be materially \n\nincreased, their protection attenuated. \n\n \n\n\f \n \n[202] The other interest involved lies at a more atavistic level. In open and democratic \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 277 \n\nsocieties based on freedom and equality,13 it is regarded as impermissible for the \n\nstate to use incriminating evidence extorted from an accused person in order to \n\nprocure his or her conviction. This so-called privilege against self-incrimination \n\nhas proved a powerful bulwark against governmental excesses, as Ackermann J \n\nso lucidly illustrates in his extensive and instructive survey of comparable foreign \n\njurisprudence.14 The survey demonstrates that different societies have at \n\ndifferent times devised a variety of subsidiary rules to ensure that the prosecution \n\nmust make out its case without any claim to assistance by an accused person. \n\n \n\n \n \n\n13The values of which we and the other courts of land are enjoined by section 35(1) of the Constitution to promote. \n\n14See paragraphs [72] to [113] of his judgment in the course of which he reviews on an array of relevant Canadian, \n\nAmerican, English, German and European Union sources. \n\n\f \n \n[203] To that end South African common law honours the principle that one should not \n\nKRIEGLER J \n\n\u03a0\u03b1\u03b3\u03b5 278 \n\nbe compelled to produce evidence against oneself.15 Conformably rules of \n\nevidence and of criminal procedure were evolved to give practical effect to the \n\nprinciple. Those rules and the various statutory endorsements thereof fall \n\noutside the scope of this discussion. We are not being asked to intervene \n\nbecause any rule of the common law or of statute law is being, or is about to be, \n\nbreached to the irreparable detriment of the applicants. Had that been the prayer \n\nbefore us, we would have been obliged to dismiss it for lack of jurisdiction, \n\nbecause that is not a constitutional issue. What we are concerned with here is \n\nan invocation of, specifically, the Constitution. Chapter 3 thereof, as Chaskalson \n\nP points out,16 is an extensive and detailed charter of freedoms. Yet nowhere is \n\nthere any mention of a general - or independent - right against self-incrimination. \n\n What one does find, is the right referred to in section 25(3)(c) and (d), i.e. as a \n\nsubsidiary part of the right to a fair trial, to maintain silence and not to be a \n\ncompellable witness against oneself. Those provisions, on the clear wording and \n\nself-evident context thereof, relate to the proceedings during a criminal trial - and \n\nto nothing else. To my mind it is not possible to read those provisions as \n\nembodying the general privilege against self-incrimination. Nor can I read them \n\n \n \n\n15The maxim \"nemo pro se prodere tenetur\" of ancient lineage, encapsulates the principle. \n\n16In paragraphs [171] and [184] of his judgment. \n\n\fas referring to any process so far removed from, and antecedent to, a trial as an \n\n\u03a0\u03b1\u03b3\u03b5 279 \n\nKRIEGLER J \n\nenquiry under section 417 of the Companies Act. \n\n \n \n\n \n\n[204] Indeed, where the Constitution wants to refer to proceedings related to but \n\npreceding a criminal trial, it does so quite explicitly and clearly in section 25(2). \n\nIn that subsection, dealing with arrested persons, paragraph (a) lays down that \n\none is to be warned of the right to silence. That right of course is one of the main \n\nsupporting struts of the privilege against self-incrimination. \n\n \n\n[205] I do not believe that these cases can be entertained on any reading of section \n\n7(4) of the Constitution. However widely one may read the provisions of that \n\nsubsection, and I agree that they should be read generously and purposively, \n\nthey cannot extend to persons in the position of the applicants. Paragraph (a) of \n\nsection 7(4) speaks of both an alleged infringement of a right and a \"threat to any \n\nright.\" That is not surprising. The concept of an anticipated invasion of rights is \n\nwell known in our law and forms the cornerstone of our system of interdictory \n\nrelief. But a threat to a right, or a tenable allegation of such a threat, does not \n\ninclude and can never include someone as remote from a possible consequence \n\nas the applicants are removed from the use of their involuntary evidence against \n\nthem here. Put differently, it is only when there is an actual criminal trial at which \n\n\fevidence, tainted by compulsion under section 417, and harmful to the accused \n\n\u03a0\u03b1\u03b3\u03b5 280 \n\nKRIEGLER J \n\nand quondam witness is produced (or at least sought to be produced) that any \n\nthreat arises. That is a threat to the right of the accused to be tried fairly. \n\n \n\n \n\n[206] In the circumstances it is of no consequence to seek to slot the applicants into \n\none or other of the categories of standing enumerated in subparagraph (i) to (v) \n\nof subsection 7(4)(b). At present they cannot be fitted into any of those \n\ncategories. If it should transpire that the one or other of them is confronted at a \n\ncriminal trial with evidence he or she had to give at a section 417 enquiry, that \n\nmight be the time to consider a resort to section 25(3)(c) or (d) of the \n\nConstitution. Unless and until that comes to pass this Court should adopt the \n\nattitude that their case is not ripe. \n\n \n\n[207] I would therefore dismiss both applications. \n\n \n\n[208] MOKGORO J. \n\nI have had the opportunity of reading the judgments of Chaskalson P. And \n\nAckermann J. I agree with Ackermann J. that section 417(2)(b) is \n\nunconstitutional and the order that he proposes. I however, agree with \n\nChaskalson P. that the Applicants do have standing to secure a ruling on the \n\n\fvalidity of section 417(2) (b) of the said Act. I therefore concur in his judgment for \n\n\u03a0\u03b1\u03b3\u03b5 281 \n\nMOKGORO J \n\nthe reasons that he gives. Although I am in agreement with him regarding the \n\nmeaning of \u201cfreedom\u201d in section 11(1) of the Constitution, this brief concurring \n\nnote reflects the difference I have with him regarding his interpretation of \n\n\u201cfreedom\u201d in section 11(1) of the Constitution. \n\n \n\n \n\n[209] Section 11(1) is entitled \u201cFreedom and security of the person\u201d. Textually, this \n\nsection, in my view, protects the two related rights of \u201cfreedom of the person\u201d \n\nand \u201csecurity of the person\u201d, as opposed to \u201cfreedom\u201d on the one hand and \n\n\u201csecurity of the person\u201d on the other. The conjunctive \u201cand\u201d in this section serves \n\n to connect \u201cfreedom\u201d to \u201cof the person\u201d. Once \u201cfreedom\u201d in section 11(1) is \n\ntextually separated from \u201csecurity of the person\u201d, we run the risk of giving it a \n\nconstruction of an all-embracing \u201cright to freedom\u201d, which it certainly is not. \n\nAttributing so broad a meaning to \u201cfreedom\u201d in this section, has the effect of \n\nextending it too far beyond the perimeters of physical integrity. That \u201cfreedom\u201d in \n\nsection 11(1) means freedom in the sense of physical integrity emerges from the \n\nplain meaning of the text and not from the narrowing of an all-embracing freedom \n\nright. This, however, does not mean that section 11(1) cannot be given a broad \n\nmeaning sufficient to provide protection to an unenumerated right akin to \n\nfreedom of the person, within the context of the rest of Chapter 3. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 282 \n\nMOKGORO J \n\n[210] Section 11(1) provides for the \u201cright to freedom and security of the person\u201d and \n\nsection 11(2) protects persons against \u201ctorture\u201d and \u201ccruel, inhuman and \n\ndegrading treatment and punishment\u201d. Therefore, viewed within the context of \n\nthe whole of section 11, \u201cfreedom\u201d in section 11(1) undoubtedly points toward \n\nphysical integrity and not a broad, all-embracing right to freedom. This \n\nperspective is confirmed in various international human rights instruments, as \n\nhas already been pointed out by Chaskalson P. in his judgment.1 \n\n \n\n[211] For the aforesaid reasons, I have no doubt in my mind that section 11(1) is not a \n\nresort for unenumerated residual freedom rights, which do not find adequate \n\nprotection under any other provision of Chapter 3 of the Constitution. \n\n \n\n \n \n\n1See paragraph 170 of the judgment of Chaskalson P. \n\n\f \n[212] Chapter 3 makes detailed provision for the protection of a variety of enumerated \n\n\u03a0\u03b1\u03b3\u03b5 283 \n\nMOKGORO J \n\nfreedom rights2 . As the President of this Court so correctly points out, there is \n\ntherefore a rare likelihood that we may find occasion to protect an unenumerated \n\nfreedom which calls for protection.3 While it is his view that we may have to look \n\nto section 11(1) to protect such rights, I respectfully do not share this view with \n\nhim. As pointed out earlier4, section 11(1) does not provide protection for \n\nunenumerated freedom rights. If occasion for the protection of such an \n\nunenumerated right arises, that right may have to be classified under a Chapter \n\n3 right to which it is most akin and or give that Chapter 3 right a generous and full \n\nbenefit construction to embrace that unenumerated right. \n\n \n\n \n \n\n2See paragraph 171 of the judgment of Chaskalson P. \n\n3See paragraph 184 of the judgment of Chaskalson P. \n\n4See paragraph 211. \n\n\f \n[213] The generous, full benefit and purposive approach to constitutional interpretation \n\n\u03a0\u03b1\u03b3\u03b5 284 \n\nO\u2019REGAN J \n\nhas already been adopted in previous decisions of this Court (S v Zuma 1995(4) \n\nBCLR 410 (CC), para. 15; S v Makwanyane 1995 (6) BCLR 655 (CC), para 9; \n\nand S v Mhlungu 1995(7) BCLR 793 (CC), para. 8). Although section 11(1) \n\nshould also be generously construed, there would be no need to give it such a \n\nstrained construction5 to accommodate an outcome which we may nevertheless \n\nreach by invoking a generous, full-benefit and purposive construction of one or \n\nother enumerated right in Chapter 3. In this way, the limitations tests in section \n\n33 would apply appropriately, without any undue elevation or downgrading of an \n\nenumerated freedom right vis a vis any unenumerated freedom right, in Chapter \n\n3 of the Constitution. \n\n \n\n[214] O'REGAN J: \n\nI have had the opportunity of reading the judgments of Chaskalson P, \n\nAckermann J and Sachs J. I concur in the order proposed by Ackermann J for \n\nthe reasons given in this judgment. \n\n \n\n[215] The following five issues were referred to this court by the Transvaal Provincial \n\n \n \n\n5S v Mhlungu (supra) at para.108. \n\n\f \n\n \n\n \n\n \n\nDivision of the Supreme Court in terms of section 102(1) of the Republic of South \n\n\u03a0\u03b1\u03b3\u03b5 285 \n\nO\u2019REGAN J \n\nAfrica Constitution Act, 200 of 1993 (' the Constitution'): \n\n1. Whether section 417(2)(b) of the Companies Act, 61 of 1973 as \n\namended, ('the Act'), is unconstitutional in that it compels a person \n\nsummoned to an enquiry to testify and produce documents, even though \n\nsuch person seeks to invoke the privilege against self-incrimination. \n\n2. Whether evidence given by a person at an enquiry in terms of section \n\n417 of the Act falls to be excluded in any subsequent criminal proceedings \n\nbrought against such person where the evidence may be incriminating \n\nand was extracted without recognition of such person's privilege against \n\nself-incrimination. \n\n3. Whether a person appearing at an enquiry in terms of section 417 of \n\nthe Act is entitled to have prior access to: \n\n3.1 a copy of the record of the examination of all other persons \n\nexamined at the enquiry ; \n\n3.2 all documents in the possession of the liquidator or those \n\nprosecuting the enquiry relevant to the interrogation of such \n\n\f\u03a0\u03b1\u03b3\u03b5 286 \n\nO\u2019REGAN J \n\nperson. \n\n4. Whether a person is required to give testimony at an enquiry in terms of \n\nsection 417 which testimony may tend or have the effect of supporting a \n\ncivil claim against such person. \n\n5. Whether a person who has given testimony at an enquiry in terms of \n\nsection 417, which testimony tends to support a civil claim against such \n\nperson, may have such testimony excluded in any subsequent civil \n\nproceedings. \n\n \n\n \n\n \n\n \n\n[216] As Ackermann J has stated (at para 6), section 102(1) contemplates only the \n\nreferral of issues which fall within this court's exclusive jurisdiction. Of the five \n\nissues referred, only the first falls within that exclusive jurisdiction and the referral \n\nof the four other issues was therefore not competent in terms of section 102(1). \n\nAt the hearing of this case, Mr Levin, for the applicants, requested that direct \n\naccess be granted in respect of those four issues. The propriety of the referral of \n\nthe first issue was not questioned at the hearing and no direct access application \n\nwas made in that regard. However I agree with Ackermann J that the referral was \n\nalso incompetent in relation to that issue (at paragraphs 5 - 10 of his judgment). \n\n\fBecause the application had been disposed of by the provincial division, the \n\n\u03a0\u03b1\u03b3\u03b5 287 \n\nO\u2019REGAN J \n\nconstitutionality of section 417(2)(b) of the Companies Act, 61 of 1973 ('the Act') \n\ncould not be decisive of any matter before that court and could not be referred to \n\nthis court in terms of section 102(1) of the Constitution. \n\n \n\n \n\n[217] In terms of section 100(2) of the Constitution, it is provided that: \n\n'The rules of the Constitutional Court may make provision for direct \n\naccess to the Court where it is in the interest of justice to do so in respect \n\nof any matter over which it has jurisdiction.' \n\nRule 17 of the Rules of the Constitutional Court provide that: \n\n'(1) The Court shall allow direct access in terms of section 100(2) of the \n\nConstitution in exceptional circumstances only, which will ordinarily exist \n\nonly where the matter is of such urgency, or otherwise of such public \n\nimportance, that the delay necessitated by the use of the ordinary \n\nprocedures would prejudice the public interest or prejudice the ends of \n\njustice and good government.' \n\n[218] In S v Zuma 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), the question of \n\nthe \n\nconstitutio\n\nnality \n\nof \n\n\f \n\n\u03a0\u03b1\u03b3\u03b5 288 \n\nO\u2019REGAN J \n\nsection \n\n217(1)(b)(i\n\ni) of \n\nthe \n\nCriminal \n\nProcedure \n\nAct, 51 of \n\n1977, was \n\nreferred to \n\nthis court \n\nby \n\nthe \n\nNatal \n\nProvincial \n\nDivision of \n\nthe \n\nSupreme \n\nCourt. \n\nIt \n\nbecame \n\nclear \n\nat \n\nthe \n\nhearing of \n\n\f \n\n\u03a0\u03b1\u03b3\u03b5 289 \n\nO\u2019REGAN J \n\nthe matter \n\nthat \n\nthe \n\nreferral \n\nwas \n\nincompete\n\nnt \n\nand \n\naccordingl\n\ny, \n\nthe \n\nAttorney-\n\nGeneral \n\nmade \n\napplication \n\nfor direct \n\naccess to \n\nthe court \n\nin terms of \n\nRule 17. \n\nIn \n\nhis \n\njudgment, \n\nKentridge \n\n\f \n\n\u03a0\u03b1\u03b3\u03b5 290 \n\nO\u2019REGAN J \n\nAJ, \n\nspeaking \n\nfor \n\nthe \n\ncourt held:\n\n \n\n \n\n'The Attorney-General of Natal submits in his supporting affidavit that if \n\nthe matter is sent back to the trial court without our deciding the issue it \n\nwould have to be referred again to this Court at the end of the trial. More \n\nimportantly, he informs us that prevailing uncertainty as to the \n\nconstitutionality of section 217(1)(b)(ii) has resulted in inconsistency in \n\npractice in Natal and elsewhere in the Republic. That uncertainty would \n\nremain unresolved until a suitable case came properly before this Court. \n\nWe agree with the Attorney-General of Natal and with Mr d'Oliveira SC, \n\nthe Attorney-General of the Transvaal, who appeared for the State, that \n\nthis state of affairs must seriously prejudice the general administration of \n\njustice as well as the interests of the numerous accused persons affected. \n\nThe admissibility of confessions is a question which arises daily in our \n\ncriminal courts and prolonged uncertainty would be quite unacceptable. \n\nAs appears from the terms of Rule 17, direct access is contemplated in \n\nonly the most exceptional cases, and it is certainly not intended to be \n\n\f\u03a0\u03b1\u03b3\u03b5 291 \n\nO\u2019REGAN J \n\nused to legitimate an incompetent reference. But in the special \n\ncircumstances set out in the affidavit the application under Rule 17 was \n\nfully justified.' (At para 11.) \n\nThe application for direct access was granted. Similarly, in Executive Council of \n\nthe Western Cape Legislature and others v The President of the Republic of \n\nSouth Africa CCT 27/1995, an unreported judgment of the Constitutional Court \n\nhanded down on 22 September 1995, direct access was granted to the \n\nApplicants to challenge the validity of certain proclamations relevant to \n\nimpending local government elections. In the light of the imminence of those \n\nelections, Chaskalson P held that 'urgent and direct access to this Court is \n\nwarranted' (at para 17). \n\n \n\n \n\n[219] I agree with Ackermann J that, had the propriety of the referral on the first issue \n\nbeen disputed at the hearing, Mr Levin would have made application for direct \n\naccess in terms of Rule 17 in regard to that issue as well. Subsequently, in \n\nresponse to a written enquiry by this court, all the parties in this case have \n\nindicated that they have no objection to the grant of an application for direct \n\naccess in relation to the first issue, should the referral of that issue be held to be \n\nincompetent. \n\n \n\n\f \n[220] There are two considerations relevant to the grant of direct access: exceptional \n\n\u03a0\u03b1\u03b3\u03b5 292 \n\nO\u2019REGAN J \n\ncircumstances must be shown as contemplated by the terms of rule 17; and the \n\napplicant must demonstrate that he or she has standing to seek the relevant \n\nrelief from this court. There are overlapping considerations relevant to these \n\nenquiries, but it appears to me that reliance on rule 17 will not relieve an \n\napplicant of the need to establish standing sufficient to seek the relief sought and \n\nthat, therefore, standing and the requirements of rule 17 must both be \n\nconsidered. The relief sought in this case is a declaration of the invalidity of \n\nsection 417(2)(b) of the Act on the grounds that it 'compels a person summoned \n\nto an enquiry to testify and produce documents, even though such person seeks \n\nto invoke the privilege against self-incrimination.' \n\n \n\n[221] The uncertainty caused by doubts concerning the constitutionality of section 417 \n\nmust seriously hamper the procedures in terms of that section, which in turn will \n\nmaterially disrupt the administration of insolvent companies. In many cases, \n\ninquiries will have been suspended pending a determination by this court and \n\ncreditors and other interested parties will be awaiting anxiously a determination \n\non the constitutionality of the section, so that proceedings may be finalised. \n\nProlonging this situation is highly undesirable. It is clearly in the public interest \n\nthat certainty be reached. Often this court will be reluctant to grant direct access \n\n\fin cases where the referral is shown to be incompetent. However, in this case, \n\n\u03a0\u03b1\u03b3\u03b5 293 \n\nO\u2019REGAN J \n\nthe uncertainty that surrounds section 417 procedures, and the need to clarify \n\nthe constitutional status of section 417(2)(b) in particular, are sufficiently cogent \n\ngrounds for the grant of direct access. \n\n \n\n \n\n[222] The urgent need to obtain clarity on the constitutionality of a statutory provision \n\nwas also the reason for the grant of direct access in Zuma's case. In the \n\ncircumstances of the political transition in South Africa, it is not surprising that a \n\nconsiderable number of statutory provisions have come under constitutional \n\nchallenge and that this process is leading to uncertainty and dislocation in the \n\nbroader community. The transition that has occurred in South Africa is from a \n\npolitical system not based on the democratic values of openness, freedom and \n\nequality, to a constitutional state premised upon them. (See S v Makwanyane \n\n1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paragraphs 262, 310 and \n\n322.) Legislation adopted under the old constitutional order was drafted without \n\nconsideration of those values and may, accordingly, be in conflict with the \n\nprovisions of chapter 3 of the Constitution. Uncertainty surrounding the \n\nconstitutionality of such legislation may cause considerable disruption in our \n\nsociety. As a result, it may well be that resort to Rule 17 and direct access \n\napplications will be considerably more common in the early years of our \n\n\fconstitutional democracy. New legislation will be drafted and adopted by \n\n\u03a0\u03b1\u03b3\u03b5 294 \n\nO\u2019REGAN J \n\nParliament in full knowledge of the values upon which the Constitution is based \n\nand will be less likely therefore to require urgent constitutional scrutiny. \n\n \n\n \n\n[223] The second question then is whether these applicants have sufficient standing to \n\nseek relief by way of direct access. The grounds on which the constitutionality of \n\nsection 417(2)(b) is challenged are that it constitutes an infringement of rights \n\nenshrined in chapter 3 of the Constitution. As such, the question of standing is \n\ngoverned by section 7(4). I respectfully disagree with Chaskalson P (at para \n\n168) when he states that, because the issue before the court concerns the \n\nconstitutionality of an Act of Parliament, the rules for standing contained in \n\nsection 7(4) do not apply in this case. In my view, section 7(4) governs any \n\nconstitutional challenge where the grounds for the challenge arise out of an \n\ninfringement or threatened infringement of a right contained in chapter 3, \n\nwhether it be a matter which falls within the court's jurisdiction under section \n\n98(2)(a), 98(2)(b) or 98(2)(c). Constitutional challenges based on grounds other \n\nthan alleged violations of chapter 3 are, on a straightforward reading of section \n\n7(4), not governed by its terms. In this case, the constitutional attack is based on \n\nthe provisions of chapter 3 and section 7(4) is accordingly applicable. \n\n \n\n\f \n[224] The applicants allege that section 417(2)(b) constitutes a breach of the rights of \n\n\u03a0\u03b1\u03b3\u03b5 295 \n\nO\u2019REGAN J \n\naccused persons, in that it permits the admission of evidence in a criminal trial \n\nwhich has been compelled from those accused persons in a section 417 enquiry. \n\nThe difficulty the applicants face is that they have not yet been charged, nor is \n\nthere any allegation on the record to suggest that they consider that there is a \n\nthreat that a prosecution may be launched against them, after they have given \n\nevidence at the section 417 enquiry, in which that evidence will be used against \n\nthem. \n\n \n\n[225] Section 7(4) of the Constitution provides that: \n\n'(a) When an infringement of or threat to any right entrenched in this \n\nChapter is alleged, any person referred to in paragraph (b) shall be \n\nentitled to apply to a competent court of law for appropriate relief, which \n\nmay include a declaration of rights. \n\n(b) The relief referred to in paragraph (a) may be sought by - \n\n(i) \n\na person acting in his or her own interest; \n\n(ii) \n\nan association acting in the interest of its members; \n\n(iii) \n\na person acting on behalf of another person who is not in a \n\nposition to seek such relief in his or her own name; \n\n(iv) \n\na person acting as a member of or in the interest of a group \n\n\f\u03a0\u03b1\u03b3\u03b5 296 \n\nO\u2019REGAN J \n\nor class of persons; or \n\n \n\n(v) \n\na person acting in the public interest. \n\n \n\n \n\n[226] Ackermann J (at para 38) finds that persons acting in their own interest (as \n\ncontemplated by section 7(4)(b)(i)) may only seek relief from the court where \n\ntheir rights, and not the rights of others, are infringed. I respectfully disagree with \n\nthis approach. It seems clear to me from the text of section 7(4) that a person \n\nmay have an interest in the infringement or threatened infringement of the right of \n\nanother which would afford such a person the standing to seek constitutional \n\nrelief. In addition, such an interpretation fits best contextually with the overall \n\napproach adopted in section 7(4). \n\n \n\n[227] There are many circumstances where it may be alleged that an individual has an \n\ninterest in the infringement or threatened infringement of the right of another. \n\nSeveral such cases have come before the Canadian courts. In R v Big M Drug \n\nMart Ltd [1985] 13 CRR 64, a corporation was charged in terms of a statute \n\nwhich prohibited trading on Sundays. The corporation did not have a right to \n\nreligious freedom, but nevertheless it was permitted to raise the constitutionality \n\nof the statute which was held to be in breach of the Charter. A similar issue arose \n\nin Morgentaler, Smoling and Scott v R [1988] 31 CRR 1 in which male doctors, \n\n\fprosecuted under anti-abortion provisions, successfully challenged \n\nthe \n\n\u03a0\u03b1\u03b3\u03b5 297 \n\nO\u2019REGAN J \n\nconstitutionality of the legislation in terms of which they were prosecuted. In both \n\nof these cases, the prosecution was based on a provision which itself directly \n\ninfringed the rights of people other than the accused. The Canadian \n\njurisprudence on standing is not directly comparable to ours, however, for their \n\nconstitutional provisions governing standing are different, but the fact that \n\nsituations of this nature arise is instructive of the need for a broad approach to \n\nstanding. \n\n \n\n \n\n[228] In this case, however, although the challenge is section 417(2)(b) in its entirety, \n\nthe constitutional objection lies in the condition that evidence given under \n\ncompulsion in an enquiry, whether incriminating or not, may be used in a \n\nsubsequent prosecution. There is no allegation on the record of any actual or \n\nthreatened prosecution in which such evidence is to be led. \n\n \n\n[229] There can be little doubt that section 7(4) provides for a generous and expanded \n\napproach to standing in the constitutional context. The categories of persons who \n\nare granted standing to seek relief are far broader than our common law has \n\never permitted. (See, for a discussion, Erasmus Superior Court Practice (1994) \n\nA2-17 to A2-33.) In this respect, I agree with Chaskalson P (at paras 165 - 166). \n\n\f \n\nThis expanded approach to standing is quite appropriate for constitutional \n\n\u03a0\u03b1\u03b3\u03b5 298 \n\nO\u2019REGAN J \n\nlitigation. Existing common law rules of standing have often developed in the \n\ncontext of private litigation. As a general rule, private litigation is concerned with \n\nthe determination of a dispute between two individuals, in which relief will be \n\nspecific and, often, retrospective, in that it applies to a set of past events. Such \n\nlitigation will generally not directly affect people who are not parties to the \n\nlitigation. In such cases, the plaintiff is both the victim of the harm and the \n\nbeneficiary of the relief. In litigation of a public character, however, that nexus is \n\nrarely so intimate. The relief sought is generally forward-looking and general in its \n\napplication, so that it may directly affect a wide range of people. In addition, the \n\nharm alleged may often be quite diffuse or amorphous. Of course, these \n\ncategories are ideal types: no bright line can be drawn between private litigation \n\nand litigation of a public or constitutional nature. Not all non-constitutional \n\nlitigation is private in nature. Nor can it be said that all constitutional challenges \n\ninvolve litigation of a purely public character: a challenge to a particular \n\nadministrative act or decision may be of a private rather than a public character. \n\nBut it is clear that in litigation of a public character, different considerations may \n\nbe appropriate to determine who should have standing to launch litigation. In \n\nrecognition of this, section 7(4) casts a wider net for standing than has \n\ntraditionally been cast by the common law. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 299 \n\nO\u2019REGAN J \n\n[230] Section 7(4) is a recognition too of the particular role played by the courts in a \n\nconstitutional democracy. As the arm of government which is entrusted primarily \n\nwith the interpretation and enforcement of constitutional rights, it carries a \n\nparticular democratic responsibility to ensure that those rights are honoured in \n\nour society. This role requires that access to the courts in constitutional matters \n\nshould not be precluded by rules of standing developed in a different \n\nconstitutional environment \n\nin which a different model of adjudication \n\npredominated. In particular, it is important that it is not only those with vested \n\ninterests who should be afforded standing in constitutional challenges, where \n\nremedies may have a wide impact. \n\n \n\n[231] However, standing remains a factual question. In each case, applicants must \n\ndemonstrate that they have the necessary interest in an infringement or \n\nthreatened infringement of a right. The facts necessary to establish standing \n\nshould appear from the record before the court. As I have said, there is no \n\nevidence on the record in this case which would meet the requirements of \n\nsection 7(4)(b)(i). The applicants have alleged neither a threat of a prosecution in \n\nwhich compelled evidence may be led against them, nor an interest in the \n\ninfringement or threatened infringement of the rights of other persons. This \n\n\fsituation, may have arisen because the case was referred by Van Schalkwyk J in \n\n\u03a0\u03b1\u03b3\u03b5 300 \n\nO\u2019REGAN J \n\nterms of section 102(1); it did not arise originally as an application for direct \n\naccess. Accordingly, there are no affidavits before the court in support of a direct \n\naccess application. The only document on the record in this court was the \n\ndecision of Van Schalkwyk J. \n\n \n\n \n\n[232] In his judgment, Chaskalson P has noted that, in the appeal from the judgment of \n\nVan Schalkwyk J to the Full Bench of the Transvaal Provincial Division of the \n\nSupreme Court, a majority of the court found that the applicants had \n\ndemonstrated on the affidavits before that court a reasonable apprehension of \n\nharm sufficient to warrant the issue of an interim interdict. These affidavits upon \n\nwhich those findings were made were not before this court as part of the record, \n\nnor was the judgment of that court. It may well be that, if we had called for the \n\nrecord from the court a quo, it would have been sufficient to establish standing \n\nfor the applicants on the basis of section 7(4)(b)(i). In my respectful view, \n\nhowever, this court cannot make factual findings required by section 7(4)(a) by \n\nrelying on that judgment. In any event, I do not think it is necessary. \n\n \n\n[233] In the special circumstances of this case, it appears to me that the applicants \n\nmay rely upon section 7(4)(b)(v), as applicants acting in the public interest. The \n\n\fpossibility that applicants may be granted standing on the grounds that they are \n\n\u03a0\u03b1\u03b3\u03b5 301 \n\nO\u2019REGAN J \n\nacting in the public interest is a new departure in our law. Even the old actiones \n\npopulares of Roman Law afforded a right to act in the public interest only in \n\nnarrowly circumscribed causes of action. Section 7(4)(b)(v) is the provision in \n\nwhich the expansion of the ordinary rules of standing is most obvious and it \n\nneeds to be interpreted in the light of the special role that the courts now play in \n\nour constitutional democracy. \n\n \n\n \n\n[234] This court will be circumspect in affording applicants standing by way of section \n\n7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting \n\nin the public interest. Factors relevant to determining whether a person is \n\ngenuinely acting in the public interest will include considerations such as: \n\nwhether there is another reasonable and effective manner in which the challenge \n\ncan be brought; the nature of the relief sought, and the extent to which it is of \n\ngeneral and prospective application; and the range of persons or groups who \n\nmay be directly or indirectly affected by any order made by the court and the \n\nopportunity that those persons or groups have had to present evidence and \n\nargument to the court. These factors will need to be considered in the light of the \n\nfacts and circumstances of each case. \n\n[235] Although in this case too, section 7(4)(a) requires applicants to allege an \n\n\finfringement of or threat to a right contained in chapter 3, applicants under \n\n\u03a0\u03b1\u03b3\u03b5 302 \n\nO\u2019REGAN J \n\nsection 7(4)(b)(v) need not point to an infringement of or threat to the right of a \n\nparticular person. They need to allege that, objectively speaking, the challenged \n\nrule or conduct is in breach of a right enshrined in chapter 3. This flows from the \n\nnotion of acting in the public interest. The public will ordinarily have an interest in \n\nthe infringement of rights generally, not particularly. \n\n \n\n \n\n[236] In this case, it is clear from the referral that the applicants consider that section \n\n417(2)(b) is, objectively speaking, in breach of chapter 3. Although the challenge \n\ncould be brought by other persons, a considerable delay may result if this court \n\nwere to wait for such a challenge. It is also clear that the challenge is to the \n\nconstitutionality of a provision contained in an Act of Parliament and that the \n\nrelief sought is a declaration of invalidity. It is relief which falls exclusively within \n\nthe jurisdiction of this court and it is of a general, not particular, nature. In \n\naddition, adequate notice of the constitutional challenge has been given and a \n\nwide range of different individuals and organisations have lodged memoranda \n\nand amicus curiae briefs in the matter. At the hearing also, the matter of the \n\nconstitutionality of section 417 was thoroughly argued. There can be little doubt \n\nthat those directly interested in the constitutionality of section 417 have had an \n\nopportunity to place their views before the court. \n\n\f \n \n\n\u03a0\u03b1\u03b3\u03b5 303 \n\nO\u2019REGAN J \n\n[237] In these special circumstances, it seems to me that the applicants have \n\nestablished standing to act in the public interest to challenge the constitutionality \n\nof section 417(2)(b). It is also clear that the exceptional circumstances necessary \n\nto warrant a grant of direct access exist. Accordingly, I agree with Ackermann J \n\nthat the applicants should be granted direct access in respect of the first issue \n\nreferred to this court by the Transvaal Provincial Division of the Supreme Court. \n\nIn my view, however, the application for direct access on the other issues \n\nreferred to this court should fail. None of these issues fall within the exclusive \n\njurisdiction of this court. They are best dealt with by the Supreme Court, as they \n\narise in litigation before it. \n\n \n\n[238] Once the court has considered and granted direct access, it must then decide \n\nthe issue upon which it has granted direct access. No further considerations of \n\nstanding arise. To that extent, I respectfully disagree with Ackermann J who, \n\nafter granting direct access to the applicants, finds that they have no standing to \n\nchallenge section 417(2)(b) on the grounds that it is in breach of section 25 (at \n\nparas 34 - 41). He does of course find that they have standing to challenge the \n\nsection on the grounds that it is in breach of section 11(1). \n\n \n\n\f \n[239] It is now necessary to consider whether section 417(2)(b) of the Act is \n\n\u03a0\u03b1\u03b3\u03b5 304 \n\nO\u2019REGAN J \n\nunconstitutional. Section 417(2)(b) provides that, where a person has been \n\nsummoned to an enquiry in connection with an investigation into the insolvency \n\nof a company, \n\n'Any such person may be required to answer any question put to him at \n\nthe examination, notwithstanding that the answer might tend to \n\nincriminate him, and any answer given to any such question may \n\nthereafter be used in evidence against him.' \n\n \n\n[240] Section 25(3) of the Constitution provides that: \n\n'Every accused person shall have the right to a fair trial, which shall \n\ninclude the right - \n\n... \n\n(d) to adduce and challenge evidence, and not to be a compellable \n\nwitness against himself or herself;' \n\nThe clear consequence of section 417(2)(b) is that incriminating evidence given \n\nin a section 417 enquiry is admissible in the subsequent criminal trial of such \n\nperson. In effect, that person has been compelled to give evidence against \n\nhimself or herself. In S v Zuma, supra, Kentridge AJ noted that the rule that \n\naccused persons should not be compelled to give evidence in a criminal trial is a \n\n\f \n\nlong-standing rule of the common law. He cited R v Camane and Others 1925 \n\n\u03a0\u03b1\u03b3\u03b5 305 \n\nO\u2019REGAN J \n\nAD 570 at 575 where Innes CJ held that: \n\n'Now, it is an established principle of our law that no one can be \n\ncompelled to give evidence incriminating himself. He cannot be forced to \n\ndo that either before the trial, or during the trial. The principle comes to us \n\nthrough the English law, and its roots go far back in history.' \n\n[241] It seems clear to me that the purpose of section 25(3)(d) is to give this common \n\nlaw principle constitutional force. Any departure from it will constitute a breach of \n\nsection 25(3) which will have to be justified in terms of section 33. Section 33(1) \n\nrequires that any limitation of a right entrenched in section 25 must be shown to \n\nbe reasonable, necessary and justifiable in an open and democratic society \n\nbased on freedom and equality. If the limitation passes this test, it must also be \n\nshown not to be a negation of the essential content of the right. In S v \n\nMakwanyane, supra, Chaskalson P held that section 33 requires that the \n\npurpose and importance of the infringing rule be measured against the nature \n\nand effect of the infringement (at para 104). \n\n \n\n[242] There can be little doubt that the provisions of section 417(2)(b) constitute a \n\ngrave inroad on an accused person's right to a fair trial. As such the infringement \n\ncaused by the subsection is a substantial one which would require substantial \n\n\f\u03a0\u03b1\u03b3\u03b5 306 \n\nO\u2019REGAN J \n\njustification. \n\n \n\n \n\n[243] I agree with Ackermann J (at paras 123 - 124) that the primary purpose of \n\nsection 417 is to assist a liquidator in identifying the assets and liabilities of the \n\ncompany in the best interests of creditors. This task is greatly facilitated by the \n\nobligation imposed upon persons who have knowledge of the company to \n\nanswer questions in connection with the company's affairs. However, it does not \n\nseem central to this purpose to require that any such answers be admissible in \n\nsubsequent criminal proceedings. Even if the legislation had as a secondary \n\npurpose the facilitation of the prosecution of white collar offenders, I am not \n\npersuaded that this purpose could not be achieved by less invasive means as \n\noutlined by Ackermann J at para 127. \n\n \n\n[244] It is my view, after weighing these considerations, that section 417(2)(b) \n\nconstitutes an unjustifiable breach of section 25. In the light of this finding, it is \n\nunnecessary for me to consider whether section 417(2)(b) constitutes a breach \n\nof any of the other rights entrenched in chapter 3. In particular, I do not find it \n\nnecessary to consider whether it constitutes a breach of section 11 and I decline \n\nto express any view at all on that question. For the above reasons, I concur in \n\nthe order proposed by Ackermann J. \n\n\f\u03a0\u03b1\u03b3\u03b5 307 \n\nSACHS J \n\n \n \n\n[245] SACHS J: \n\nI have had the advantage, and, I might say, the pleasure of reading the \n\njudgments of Ackermann J and Chaskalson P respectively. I concur in their \n\nconclusions, but since I agree with the critique each makes or implies of the \n\nother, I will advance my own reasons. In essence, I accept Ackermann J\u2019s \n\ncontention that the issue engaged is a freedom one and not a fair trial one, and \n\nChaskalson P\u2019s argument that the concept of constitutionally protected freedom \n\nas advanced by Ackermann J is too broad. \n\n \n\n[246] It is not difficult to establish that in our system of criminal justice, the introduction \n\nof enforced confessions into criminal trials is as a general rule1 not reasonable, \n\njustifiable or necessary; the right to silence, the right not to be a compellable \n\nwitness against oneself, the right to be presumed innocent until proven guilty and \n\nthe refusal to permit evidence of admissions that were not made freely and \n\nvoluntarily, are all composite and mutually re-enforcing parts of the adversarial \n\nsystem of criminal justice that is deeply implanted in our country2 and resolutely \n\n \n \n\n1I say \u2018as a general rule\u2019 because special attention has to be given to the question whether \nanswers elicited in a Companies Act enquiry constitute an exception, the tendering of which can be \njustified in terms of section 33(1) of our Constitution. \n\n2It could have been different. Had Dutch overlordship in the Cape not been replaced by that of the \nBritish, we could well be extolling the virtues of the inquisitorial system of criminal justice, in terms of which \n\n\f\u03a0\u03b1\u03b3\u03b5 308 \n\nSACHS J \n\n \n \nthe interrogation of potential accused persons is normal. See H R Hahlo and Ellison Kahn: The South \nAfrican Legal System and its Background,Juta & Co 1968 at p576; also Jonathan Burchell and John \nMilton, Principles of Criminal Law, Juta & Co. 1991 at pp20-21, and CJR Dugard, South African Criminal \nLaw and Procedure Vol IV Introduction to Criminal Procedure, Juta and Co. 1977 p26 where he says \n\n ...a welcome innovation of English origin was the abolition of the judicial practice \nof interrogating an accused. The accused was now warned that he was not \nobliged to make a statement which might incriminate him, and no confession was \nadmissible in evidence against him unless it was shown to have been freely and \nvoluntarily made (s.28 of Ordinance 72 of 1830). \n\n Hoffmann and Zeffert in South African Law of Evidence (4th ed) at p7, point out that this \nOrdinance formed a model from which virtually all subsequent South African legislation on the \nsubject was taken. See also S v Sesetse \u2018n Ander 1981 (3) SA353(A) at 355 F, where the court \nstated that our criminal law is based on two principles, the first being that \n\nwe have an accusatorial system where an accused is considered to be innocent \nuntil he is found guilty. \n\n\f \n\naffirmed by the Constitution.3 \n\n\u03a0\u03b1\u03b3\u03b5 309 \n\nSACHS J \n\n \n \n\n3(d). \n\n3See the fair trial guarantees contained in section 25, especially in subparagraphs 2(c), 3(c) and \n\n\f \n[247] What is more complex is to decide the question which logically should be \n\n\u03a0\u03b1\u03b3\u03b5 310 \n\nSACHS J \n\nanterior, namely, precisely what constitutional right, if any, would such an \n\nenforced confession unjustifiably limit? More particularly, what protected right, if \n\nany, would be violated if a potentially punishable confession were compulsorily \n\nextracted outside the context of detention or trial? By not including in the South \n\nAfrican Constitution a general and free-floating Fifth Amendment-type prohibition \n\nagainst self-incrimination, the framers presumably did not intend to establish a \n\nright as powerful and generalized as that contained in the US Constitution.4 Yet \n\nthe mere fact that in South Africa the right against self-incrimination is located \n\nexpressly in the context of a criminal trial,5 does not mean that it was by \n\nimplication excluded from other areas. Section 33(3) clearly rules out such an \n\nimplication.6 At the same time, the existence of such a common law principle \n\noutside of but not inconsistent with Chapter 3, as recognized by section 33(3), \n\n \n \n\n4R v S (RJ) ]121 D.L.R. (4th) 589 at p620 where Iacobucci J points out that in the United States \nboth the accused person and the witness benefit from a constitutionalised version of the common law \nprivilege against self-incrimination. Later he says (at p657) \n\n.....what should be obvious in the American context... is that a statute in that \ncountry which purports to abrogate a testimonial privilege is in direct violation of \nthe Fifth Amendment. As a general rule, a statute which purports to do the same \nthing in Canada is in direct violation of nothing at all. \n\n The same could be said for this country. \n\n5Section 25(2): Every person arrested for the alleged commission of an offence shall ...... have the \nright - ( c) not to be compelled to make a confession or admission which could be used in evidence against \nhim or her. \n\n25(3): Every accused person shall have the right to a fair trial which shall include the right - ( c) to \nbe pressumed innocent and to remain silent during plea proceedings or trial and not to testify during trial; \n(d) ...... not to be a compellable witness against himself or herself ..... \n\n6Section 33(3): The entrenchment of the rights in terms of this Chapter shall not be construed as \ndenying the existence of any other rights or freedoms recognised or conferred by common law, customary \n\n\f \n\nwould not in itself provide the basis for invalidating a statute. However long and \n\n\u03a0\u03b1\u03b3\u03b5 311 \n\nSACHS J \n\nhonourable the pedigree of such a common law principle might be, without \n\nembodiment in a specific constitutional text, it could not render a statute \n\nunconstitutional; we deal not with rights in the air, but with rights anchored in the \n\nwording of the Constitution. Furthermore, we are concerned not with invasion of \n\nrights in abstract but with infringements of rights at a particular time and in a \n\nconcrete factual setting. \n\n[248] The specific question we have to decide is not what constitutional rights of the \n\nexaminee could be violated as a matter of abstract reasoning, nor what rights \n\ncould be infringed at a subsequent criminal trial, but, rather, what rights, if any, \n\nare violated at the moment that he or she is summoned to answer questions \n\nabout the company\u2019s affairs, or, more particularly, when the potentially \n\nincriminating questions are put. I have difficulty in accepting that the examinee\u2019s \n\nright to a fair trial as guaranteed by section 25 of the Constitution is trespassed \n\nupon at that moment. It may be that the examinee\u2019s right to have a fair trial at \n\n \n \nlaw or legislation to the extent that they are not inconsistent with this Chapter. \n\n\f \n\nsome time in the future is threatened, and in a manner far from academic, \n\n\u03a0\u03b1\u03b3\u03b5 312 \n\nSACHS J \n\nnamely, by the express provision that the answers may indeed by used against \n\nhim or her at a subsequent criminal trial. What might have been fair compulsion \n\nin the context of reconstituting information about the affairs of the company, \n\ncould cease to be fair when it becomes a forced confession, actually tendered for \n\nthe purposes of a criminal trial. Yet even if the examinee\u2019s right to a fair trial in \n\nthe future is being threatened, the examinee is still not an \u2018arrested\u2019 or an \n\n\u2018accused\u2019 person as contemplated by section 25, and might never become such. \n\n The time to assert a fair trial right would be when a trial was pending or \n\nimminent, and the use of the incriminating answers actually threatened. In the \n\nabsence of imminent prosecution, the jeopardy in which the examinee is placed \n\nrelates to the potentially unconscionable and concrete pressures of the moment, \n\nrather than the hypothetical, even if grave, possibility of future penalisation. What \n\nis in issue, then, is a right to a fair examination, not a right to a fair trial. \n\n[249] In this connection, I find myself in agreement with Ackermann J that the answer \n\nto the problem before us is to be found in a recognition of the existence of a \n\nresiduary and unenumerated right protected by section 11(1).7 At the same \n\n \n \n\n7Virtually all the judges in R v S (RJ) and Thomson Newspapers v Canada, 67 DLR (4th) 161, \nlocated the right against self-incrimination in a residual protection against self-incrimination under section 7 \nof the Canadian Charter, which deals with life, liberty and personal security, rather than in a penumbra \n\n\f \n\ntime, I am far from convinced that the concept of freedom contained in section \n\n\u03a0\u03b1\u03b3\u03b5 313 \n\nSACHS J \n\n \n \nrelating to the specific Charter provisions dealing with protections accorded to an accused in the course of \na trial. Freedom comes from two barrels of our Constitution, the protected freedom interest in section 11, \nand the interpretive freedom value in section 35(1). One might say that freedom is squared. In my view, \nthe case before us lends itself readily to treatment in terms of the freedom interest contained in section 11, \nas interpreted by the freedom value urged upon us by section 35(1). I accordingly do not find it necessary \nto offer a definitive opinion in the the present case as to whether or not a fair trial right can be said actually \nto be threatened. \n\n\f \n\n11(1) should be given as expansive a treatment as Ackermann J suggests,8 or \n\n\u03a0\u03b1\u03b3\u03b5 314 \n\nSACHS J \n\nthat the residual space is as large as he indicates. I accordingly offer the \n\nfollowing tentative observations to indicate where I differ. \n\n \n \n\n8To replicate the broad American approach to liberty in the context of the structure of our \nConstitution, would mean that just about every law would, simply by virtue of its compulsory character, \nrepresent an invasion of freedom and as such have to be justified by section 33(1) criteria. The two-stage \nenquiry which our Court normally adopts - see S v Zuma 1995 (4) BCLR 401; S v Makwanyane and \nanother 1995 (6) BCLR 665 (CC); S v Williams and others 1995 (7) BCLR 861 (CC) - would in effect be \nreduced to a one-stage enquiry. The further consequence would be to over-extend the judicial power by \nallowing this Court to review virtually all legislation in terms of its \u2018necessity\u2019. In addition, there is the \ndanger of many of the remaining provisions of Chapter 3 being subsumed under the right to freedom and \nbecoming redundant, with consequent impoverishment of the texture of the Chapter and a weakening of its \ninternal balance. Sometimes less is more - a narrowly defined concept of freedom can be more easily \ndefended against invasion than a broad one - see Peter W Hogg - Constitutional Law of Canada, 3ed \n(1992) Carswell Chapter 4. \n\n\f \n[250] To equate freedom simply with autonomy or the right to be left alone does not \n\n\u03a0\u03b1\u03b3\u03b5 315 \n\nSACHS J \n\naccord with the reality of life in a modern, industrialized society.9 Far from \n\nviolating freedom, the normal rules regulating human interaction and securing the \n\npeace are preconditions for its enjoyment. Without traffic regulation, it would be \n\nimpossible to exercise freedom of movement in a meaningful sense; absent \n\ngovernment compulsion to pay taxes, the expenditure necessary for elections to \n\nbe held, for Parliament to pass legislation, or for this court itself to uphold \n\nfundamental rights, would not be guaranteed. The rechtsstaat, as I understand \n\nit, is not simply a state in which government is regulated by law and forbidden to \n\nencroach on a constitutionally protected private realm. It is one where \n\ngovernment is required to establish a lawfully regulated regime outside of itself in \n\n \n \n\n9Thomson Newspapers v Canada supra note 7 per La Forest J. at p220 \n\n.....in a modern industrialised society it is generally accepted that many activities \nin which individuals can engage must never the less to a greater or lesser extent \nbe regulated by the state to ensure that the individual's pursuit of his or her self-\ninterest is compatible with the community's interest in the realization of collective \ngoals and aspirations. \n\nHe goes on to point out at 228 that \n\n..... the ultimate justification for a constitutional guarantee of the right to privacy is \nour belief...that it is for the individual to determine the manner in which he or she \nwill order his or her private life.....to decide what persons or groups he or she will \nassociate with. One does not have to look far in history to find examples of how \nthe mere possibility of the intervention of the eyes and ears of the state can \nundermine the security and confidence that are essential to the meaningful \nexercise of the right to make such choices. But where the possibility of such \nintervention is confined to business records and documents, the situation is \nentirely different. These records and documents do not normally contain \ninformation about one's lifestyle, intimate relations or political or religious \nopinions. They do not, in short, deal with those aspects of individual identity \nwhich the right of privacy is intended to protect from the overbearing influence of \nthe state. On the contrary...... it is imperative that the state have power to \nregulate business and the market both for economic reasons and for the \nprotection of the individual against private power. Given this, state demands \nconcerning the activities and internal operations of business have become a \nregular and predictable part of doing business. (My emphasis.) \n\n\f \n\nwhich people can go about their business, develop their personalities and pursue \n\n\u03a0\u03b1\u03b3\u03b5 316 \n\nSACHS J \n\nindividual and collective destinies with a reasonable degree of confidence and \n\nsecurity.10 I accordingly cannot accept that the laws that guarantee my freedom - \n\nfor example, my right to vote, or to litigate, or to receive education - represent \n\ninvasions of my freedom, simply because they are subject to governmentally \n\nenforced rules and contain penal clauses. We should ever be mindful of the fact \n\nthat the review powers of this Court are not concerned with maintaining good \n\n \n \n\n10See Dennis Davis, Matthew Chaskalson and Johan de Waal, The Role of Constitutional \n\nInterpretation in Rights and Constitutionalism Van Wyk et al eds, Juta 1994 at p88 \n\nThe classical approach sees rights as the protection of those historically \nvulnerable areas of individual and societal freedom against state interference. \nThe individual's dependence on the state for the realisation of his/her rights and \nthe individual's need for protection from societal infringements of his/her rights is \naddressed by the objective dimension. \n\nThe state must therefore establish the necessary social preconditions for the \nexercise of Grundrechte. \n\n And at p100: \n\n\f \n\ngovernment, or correcting governmental error, but with keeping government \n\n\u03a0\u03b1\u03b3\u03b5 317 \n\nSACHS J \n\nwithin constitutional limits. \n\n[251] The reality is that meaningful personal interventions and abstinences in modern \n\nsociety depend not only on the state refraining from interfering with individual \n\nchoice, but on the state helping to create conditions within which individuals can \n\neffectively make such choices. Freedom and personal security are thus \n\nachieved both by protecting human autonomy on the one hand, and by \n\nacknowledging human interdependence on the other.11 The interdependence is \n\nnot a limitation on freedom, but an element of it. It follows that the definition of \n\nfreedom requires not the exclusion of inter-dependence, but its embodiment, \n\nbearing in mind that such incorporation should be accomplished in a manner \n\nwhich reinforces rather than undermines autonomy and upholds rather than \n\n \n \n\np461, \n\n11Dawn Oliver, The Changing Constitution, 3rd ed, Jowell and Oliver eds, Clarendon Press (1994) \n\nTo define people as autonomous individuals is to underestimate the extent to \nwhich we are, inevitably and indeed beneficially, dependent on one another. \n\nLawrence Tribe, American Constitutional Law, 2nd ed, p1305, \n\nMeaningful freedom cannot be protected simply by placing identified realms of \nthought or spheres of action beyond the reach of government, anymore than it \ncan be defended entirely by establishing minimum levels of specific services for \ngovernment to provide. \n\nNedelsky, Reconceiving Rights as Relationships, p7, paper delivered at the Centre for Applied \nLegal Studies, University of Witwatersrand (1993), quoted in van Wyk et al p63 \n\ndependence is no longer the antithesis of autonomy, but a pre-condition in the \nrelationships - between parent and child, student and teacher, state and citizen - \nwhich provide the security, education, nurturing and support that make the \ndevelopment of autonomy possible ... the collective is a source of autonomy as \nwell as a threat to it. \n\nSee also, Nedelsky, Private Property and the Limits of American Constitutionalism, University of \nChicago Press (1990). \n\n\f \n\nreduces the value of maximising effective personal choice. \n\n\u03a0\u03b1\u03b3\u03b5 318 \n\nSACHS J \n\n[252] In my view, the values of an open and democratic society require an application \n\nof Chapter 3 which is centred on what - in a culture dedicated to freedom and \n\nequality - have come to be regarded as real issues of fundamental rights.12 \n\nOrdinary rights are protected by the common law and statute;13 only fundamental \n\nrights are safeguarded by the Constitution.14 The Constitution accordingly \n\nrequires this Court to focus its attention on real and substantial infringements15 of \n\n \n \n\n(4th) 385 at p493 per McIntyre J (dissenting) \n\n12For a Canadian example of this kind of reasoning see Morgantaler v Queen (1988) 44 D.L.R. \n\nto invade the s.7 right of security of the person, there would have to be more \nthan state-imposed stress or strain. A breach of the right would have to be based \nupon an infringement of some interest which would be of such nature and such \nimportance as to warrant constitutional protection. \n\nThe majority of the court in that case, which dealt with abortion, felt that the physical and \npsychological integrity of the pregnant woman did engage such an interest. \n\n13In terms of section 35(3), \n\nin the interpretation of any law and the application and development of common \nlaw and customary law, a court shall have due regard to the spirit, purport and \nobjects of Chapter 3. \n\nChapter 3 is headed \u2018Fundamental Rights\u2019. Guarding the fundamental rights framework is the \nfunction of this Court; interpreting and developing the law within this framework is the task of the \nordinary courts. \n\n14If one looks at other rights entrenched in our Constitution, then the need to impose sensible \nfunctional restrictions on the circumstances where proof of reasonable limitation is required, becomes \neven clearer. Thus, the right to dignity is expressed in a totally unqualified manner in section 10. Could \nthis mean that every statute and each and every action by a state official causing embarrassment, \ndiscomfort or a loss of composure to any person, would have to be justified in terms of section 33(1) \ncriteria? Could it be appropriate to regard the right to dignity as being so wide as to catch the fragments of \nstate-induced inconvenience that escape even the residuary net said to be provided by the right to \nfreedom? To carry the matter even further, could the right to privacy be the ultimate barrier, requiring \njustification of any state action whatsoever? \n\n15In R v Edwards Books and Art Ltd (1986) 35 D.L.R. (4th) 1 at p55 Dixon CJC wrote \nin my opinion \u2018liberty\u2019 in s.7 of the Charter is not synonymous with unconstrained \nfreedom. \n\nIn another case, Reference re s.94(2) of Motor Vehicle Act (1985), 24 D.L.R. (4th) 536 at 565 \nWilson J observed: \n\nIndeed, all regulatory offences impose some restriction on liberty broadly \n\n\f \n\nfundamental rights, and not to risk dispersing energies, losing its sharp critical \n\n\u03a0\u03b1\u03b3\u03b5 319 \n\nSACHS J \n\ngaze and over-extending its legitimate functioning, by being drawn into testing \n\nthe reasonableness or necessity for each and every piece of regulation \n\nundertaken by the State. \n\n[253] For the purposes of the present case, I accordingly regard Ackermann J\u2019s \n\nvaluable analysis as providing a broad framework within which to approach the \n\nquestion of freedom, rather than as establishing a focused and operational \n\ndefinition of the concept. I find his approach particularly useful as a guide to what \n \n \n\nconstrued. But I think it will trivialize the Charter to sweep all those offences into \ns.7 as violations of the right to life, liberty and security of the person even if they \ncan be sustained under s.1. \n\nSee also her remarks in Operation Dismantle Inc (1985) 1SCR 441 at pp489-91; Patrice Garant in \nThe Canadian Charter of Rights and Freedom, Beaudoin and Ratushny eds, (1989) Carswell 2nd \ned at p352: \n\nCountless standards, provisions and measures which affect the security of \nindividual citizens are established by public authorities. Would it be necessary to \nsee in each case an interference with or threat to the security of the individual? \n\n\f \n\nis meant by the values of freedom and equality which the Constitution requires \n\n\u03a0\u03b1\u03b3\u03b5 320 \n\nSACHS J \n\nus to promote. Freedom and equality are at one and the same time in tension \n\nwith each other, and mutually supportive; in the context in which the Constitution \n\nhas to be interpreted, the quest for equality should not be used as a justification \n\nfor suppressing freedom, just as the need to protect freedom should not become \n\na means for denying equality. \n\n[254] In relation to the definition of what is meant by the words \u2018freedom and personal \n\nsecurity\u2019 in section 11(1), I therefore believe that something more is required than \n\na broad philosophical framework allied to a concept of residual, constitutionally \n\nprotected liberty. My view is that it is not necessary for the purposes of this case \n\nto go beyond treating freedom and personal security as two elements of a single \n\nbasic right which encompasses protection from interferences, of a substantial \n\nrather than a trivial kind, with the basic freedoms known to our legal culture, of \n\nwhich freedom from physical restraint is the most pungent example, but not the \n\n\f \n\nonly one.16 \n\n\u03a0\u03b1\u03b3\u03b5 321 \n\nSACHS J \n\n \n \n\n16The definition which I propose, is, unavoidably I believe, the result of a certain degree of circular \nreasoning. In my view, it is inevitable that the definitional ambit of section 11 should be influenced by a \nconsidered evaluation, structured by the text and the overall purposive design of the Constitution, as to \nthe kinds of state intervention that by their nature are so potentially injurious to fundamental rights, that \nthey can only be condoned if they meet the strict justificatory requirements of section 33. For a forceful \ncritique of this kind of \u2018definitional balancing\u2019, however, see David Beatty, Constitutional Law in Theory \nand Practice, Toronto (1995) at p84 et seq. \n\n\f \n[255] The text of section 11, which includes a prohibition against detention without trial, \n\n\u03a0\u03b1\u03b3\u03b5 322 \n\nSACHS J \n\nas well as the exclusion of torture and other forms of physical and emotional ill-\n\ntreatment, indicates a narrow concern with the theme of bodily restraint or \n\nabuse, rather than a sweeping repudiation of any impediment whatsoever to the \n\norderly pursuit of happiness. On the other hand, the express acknowledgement \n\nof the rights to dignity and privacy in sections 10 and 13 respectively, read \n\ntogether with the preamble and the afterword, establish a setting which allows for \n\na more expansive role for the word freedom. Similarly, the general injunction to \n\ninterpret Chapter 3 in such a way as to promote the values which underlie an \n\nopen and democratic society based on freedom and equality, also encourages a \n\nbroad rather than a narrow interpretation of the concept of freedom. Where the \n\ntext permits, the different provisions should be read together in such a way as to \n\nmaintain rather than reduce hard-won freedoms.17 The antiquity of an institution \n\nis, of course, no guarantee in itself of its constitutional virtue.18 Yet tried and \n\n \n \n\nhe said at para 33, \n\n17This is consistent with the approach adopted by Kentridge AJ in S v Zuma supra note 8, where \n\nI therefore consider that the common law rule on the burden of proof is inherent \nin the rights specifically mentioned in section 25(2) and 3( c) and 3(d), and forms \npart of a right to a fair trial. In so interpreting these provisions of the Constitution I \nhave taken account of the historical background, and comparable foreign case \nlaw. I believe too that this interpretation promotes the values which underlie an \nopen and democratic society and is entirely consistent with the language of \nsection 25. \n\n18Garant supra note 15 at p344 points out that in Canada certain fundamental legal traditions, \nsuch as those associated with patriarchy and the treatment of aboriginal people, were in fact in \ncontradiction with the Charter. Quoting Tanya Lee in Section 7 of the Charter: An Overview (1985) 43 U.T. \nFac. L. Rev. 1 at p8 where she states \n\n .....the traditions of a society are not necessarily admirable. \n\n\f \n\ntested principles generally associated with fundamental fairness and manifestly \n\n\u03a0\u03b1\u03b3\u03b5 323 \n\nSACHS J \n\nin harmony with the Constitution, should, if the text so allows, be subsumed into \n\nrather than blotted out from the Constitution. \n\n \n \nThe afterword to our Constitution speaks unequivocally of a past characterised by untold suffering \nand injustice and gross violations of human rights. \n\n\f\u03a0\u03b1\u03b3\u03b5 324 \n\nSACHS J \n\n \n[256] The question arises whether or not a violation of the privilege against self-\nincrimination could enter into this penumbra of protected liberties. I think it would \nbe incorrect to regard the express inclusion of protections against self-\nincrimination in section 25(2) and 25(3) in favour of detained or accused persons, \nas representing an intention by the framers to restrict the right purely to the pre-\ntrial and trial situations. I feel it is more appropriate to regard these provisions as \nconstituting evidence in a particularly pungent and impermeable form of a wider \nunderlying and unifying principle, that which in Canada has been summed up as \n\u2018the case to meet\u2019.19 One\u2019s right to freedom and personal security is jeopardised \nwhen any part of this inter-related structure is touched. In the celebrated words \nof Mr Justice Frankfurter; \n\nthe history of liberty has largely been the history of procedural observance of \nsafeguards.20 \n\nFreedom and procedural safeguards are closely inter-related, and the principal \n\nfocus of this Court's activity should accordingly not \"lie in the realm of general \n\npublic policy but in the inherent domain of the judiciary as guardian of the justice \n\n \n \n\n19See Iacobucci J in R v S (RJ) supra note 7 at p632. In Thomson Newspapers supra note 7 at \np195 Wilson J quotes Stephen\u2019s classic statement of what is meant by the phrase \u2018criminating himself\u2019, \n\nIt is not that a man must be guilty of an offence and say substantially, \u2018I am guilty \nof the offence, but am not going to furnish evidence of it.\u2019 I do not think the \nprivilege is so narrow as that, for then it would be illusory. The extent of the \nprivilege is I think this: the man may say \u2018if you are going to bring a criminal \ncharge, or if I have reason to think a criminal charge is going to be brought \nagainst me, I will hold my tongue. Prove what you can, but I am protected from \nfurnishing evidence against myself out of my own mouth\u2019. \n\n20McNabb v. United States 318 U.S. 332 at 347 (1943). \n\n\f \n\nsystem\"21 . \n\n\u03a0\u03b1\u03b3\u03b5 325 \n\nSACHS J \n\n \n \n\n21Per Lamer J, as he then was, in Reference re s.94(2) of Motor Vehicle Act, supra note 15 at \n\np549-50. He was dealing with the 'principles of fundamental justice' in the Canadian Charter. \n\n\f \n[257] Adopting this approach, which I do, allows for an amplified interpretation of the \n\n\u03a0\u03b1\u03b3\u03b5 326 \n\nSACHS J \n\nconcept of freedom and personal security, one capable of giving shelter under its \n\nwing to protections which have evolved over the ages against abusive state \n\npower while recognising that such protections will be primarily, but by no means \n\nexclusively, related to freedom from physical restraint. The words of section 11 \n\nshould then be construed in such a manner as to provide constitutionally \n\ndefensible space against invasions of freedom of a kind analogous in character \n\nand intensity to the imposition of physical restraint. Legal traditions, both positive \n\nand negative, would help to define what this analogous or penumbral area would \n\ninclude: legal institutions developed and applied in the past with a view to \n\ncurtailing abusive State action, would readily fit; similarly, negative memories of \n\npast oppressive State behaviour in our country and elsewhere, would help define \n\nwhether or not a freedom issue is being raised.22 The first step is to establish the \n\nexistence of what is a real or substantial invasion of freedom, and not a normal \n\nregulatory act;23 only when this is done should the need to justify the \n\ninfringement arise. Once a substantial breach of this kind has been shown to \n\n \n \n\n22The \u2018never again\u2019 principle as in the USA after Independence and Germany after the Second \nWorld War, has particular relevance in respect of interpreting our Constitution. In the present context, \nissues such as banning orders and abusive use of Commissions of Enquiry, come to mind. Professor \nDugard, supra note 2 at p86, writing contemporaneously, shows how the fairness of trials in security \nmatters was jeopardized by pre-trial interrogations of witnesses and potential accused in solitary \nconfinement, even where their statements were not directly used in evidence at subsequent trials. \n\n23See discussion in paras 250 - 252. \n\n\f \n\nexist, however, the scrutiny for justification required by section 33(1) can be truly \n\n\u03a0\u03b1\u03b3\u03b5 327 \n\nSACHS J \n\nstringent.24 \n\n \n \n24See Hogg supra note 8. \n\n\f \n[258] In my view, a breach of the long-standing right not to be compelled to incriminate \n\n\u03a0\u03b1\u03b3\u03b5 328 \n\nSACHS J \n\noneself out of one\u2019s own mouth would, in any context, raise a question of \n\nfundamental freedom. At the same time, the absence of an explicitly stated \n\ngeneralized right against self-incrimination in the Constitution, indicates that the \n\noperation of the principle outside of a trial situation is weaker than within. The \n\nprivilege against self incrimination should therefore neither be reduced to a \n\nrestricted immunity confined to the trial situation, nor be enlarged so as to \n\nbecome an absolute right to be used on all occasions. Its application depends \n\non time, place and context.25 The closer to a trial situation, the more powerful \n\nthe principle; the more remote from a trial, the weaker it will be. Thus there \n\nwould be little scope, if any at all, for possible weakening of the right of a \n\ndetained or accused person [so firmly protected by sections 25(2) and 25(3)] not \n\nto be compelled to testify. The interests of shareholders and creditors, however \n\naggrieved they may feel, would not even be put into the balance in this context, \n\n \n \n\n25Per Iacobucci J in R v S (RJ) supra note 7 at p636: \n\nthe principle against self-incrimination may mean different things at different \ntimes and in different context [It] admits of many rules. \n\nSee also Lord Mustill\u2019s reference in Reg. v Director of Serious Fraud Office, Ex p. Smith [H.L.(E)] \n1993 A.C. p1 at p24G, to what is \n\ncompendiously, albeit inaccurately, called the \u2018right of silence\u2019. \n\nA term which \n\n \n\narouses strong but unfocused feelings (but) does not denote any single right, but \nrather refers to a disparate group of immunities, which differ in nature, origin, \nincidence and importance \nat p30F. One of these motives is \n\nthe instinct that it is contrary to fair play to put the accused in a position where he \nis exposed to punishment whatever he does. If he answers, he may condemn \nhimself out of his own mouth: if he refuses he may be punished for his refusal \n...... \n\n\f \n\nlet alone weighed. Their very real concerns are subsumed into the general \n\n\u03a0\u03b1\u03b3\u03b5 329 \n\nSACHS J \n\ninterest of the community in ensuring that crime does not pay and criminals are \n\nduly punished. The further away from the trial situation one gets, however, and \n\nthe more residual rather than primary the application of the privilege, the more \n\ndoes it submit itself to countervailing interests. Accordingly, the claims of \n\nshareholders and creditors would firmly enter the scales at a section 417 enquiry, \n\nto be balanced against the principle that people should not be compelled to \n\ncondemn themselves out of their own mouths. \n\n \n \n\nat p32B. \n\n\f \n[259] Similarly, the more that self-incrimination takes the form of oral communication, \n\n\u03a0\u03b1\u03b3\u03b5 330 \n\nSACHS J \n\nthe more compelling will the protection be; the more objective or real the \n\nexistence of the incriminating material, on the other hand, the more attenuated. \n\nAccordingly, pre-trial procedures of a non-communicative or non-testimonial kind, \n\nsuch as compulsory fingerprinting, blood tests, blood-alcohol tests, attendance at \n\nidentity parades, DNA and other tests of an objective nature,26 or, in company \n\nfraud matters, hand-writing tests, all of which would seem to fall directly under \n\nthe concept of freedom and personal security, have become well-established \n\nprocesses regarded in many parts of the world as being consistent with the \n\n \n \n\n26L'Heureux-Dube J in R v S (RJ) supra note 7 at p702-3 mentions that all these activities enlist \n\nthe individual's co-operation in his or her own investigation. \n\nThe dignity of the individual, \n\n she says, \n\nis a fundamental value underlying both the common law and the Charter. \nAlthough the search of an individual's home is an invasion of privacy, and \nalthough the taking of fingerprints, breath samples or bodily fluids are even more \nprivate, there is no doubt that the mind is the individual's most private sanctum. \nAlthough the state may legitimately invade many of these spheres for valid and \njustifiable investigatory purposes vis-a-vis the accused, it is fundamental to \njustice that the state not be able to invade the sanctum of the mind for the \npurpose of incriminating that individual. This fundamental tenet is preserved, in \nits entirety, by the principle against self-incrimination.' I would support this \napproach. \n\n\f \n\nvalues of an open and democratic society based on freedom and equality, and in \n\n\u03a0\u03b1\u03b3\u03b5 331 \n\nSACHS J \n\nsuitably controlled conditions, would have far less difficulty in passing section 33 \n\nscrutiny in terms of our Constitution. \n\n[260] Section 417 procedures involve both oral and documentary elements, and cover \n\nareas that are both far removed from the context of a criminal trial and quite \n\nproximate to it. Its most remote aspect in relation to the privilege against self-\n\nincrimination is the summons to appear at the enquiry. In my view, applying the \n\nreasoning advanced in the earlier part of this judgment, this obligation to attend \n\nthe enquiry and submit to questions does not raise a question of fundamental \n\nfreedom as envisaged by section 11. The holding of an enquiry is an integral \n\npart of regulating companies. The duty to attend such an enquiry after the \n\ncompany has failed, flows not from intrusive State action, but from the need to \n\nwind up the company in an orderly way and protect the interests of creditors and \n\nshareholders. As far as the company director or other official is concerned, it \n\ngoes with the job, and does not require section 33(1) justification. Similarly, I \n\nwould hold that the compulsion to answer non-incriminating questions does not \n\nconstitute an infringement of section 11 rights of sufficient substance to require \n\nspecial sanction in terms of section 33(1). \n\n\f \n\n\u03a0\u03b1\u03b3\u03b5 332 \n\nSACHS J \n\n[261] Section 417 read with section 424 goes further, however. The examinee is \n\nobliged to answer questions which may be incriminating;27 and the answers may \n\nbe used in subsequent criminal proceedings.28 Once one enters the zone of \n\npossible self-incrimination and potential punishment, a freedom interest is clearly \n\nengaged, and section 33(1) justification is required. In my opinion, the \n\ncompulsion to answer all questions dealing with stewardship of the company, \n\nwhether incriminating or not, can be justified in terms of section 33 criteria with \n\nrelative ease. The whole purpose of getting to the bottom of the collapse so as to \n\ninform and reimburse as much as possible those who invested or traded in good \n\nfaith, would be defeated if the director could shield him or herself behind the right \n\nnot to answer incriminating questions. It is precisely in areas where assets have \n\nbeen fraudulently disposed of, that specially penetrative investigations for their \n\nrecovery might be required. Company directors and other officials who appeal to \n\nthe public for funds and engage in public commercial activity with the benefit of \n\nnot being personally liable for company debts, cannot complain if they are \n\n \n \n\n27Section 417(2)b, first part. \n\n28Section 417(2)b, latter part. In terms of section 424(1) and (3) concerning liability of directors \n\nand others for fraudulent conduct of business \n\nevery person who was knowingly a party to the carrying on of the business in the \nmanner aforesaid, shall be guilty of an offence. \n\n\f \n\nsubsequently called upon to account for their stewardship, at least, for the \n\n\u03a0\u03b1\u03b3\u03b5 333 \n\nSACHS J \n\npurposes of discovering all assets so as to minimize the loss to creditors and \n\ngive full information to shareholders. When raising funds and trading with the \n\nprotection of not being personally liable for company debts, the company officials \n\nimplicitly undertake to submit to such enquiry, and effectively waive in advance \n\nany claim not to answer questions of an incriminating kind that relate to their \n\nmanagement of the company\u2019s affairs. Indeed, it would be ironical if crooked \n\ndirectors were more able to avoid submitting themselves to enquiry than honest \n\nones.29 The problem therefore lies not in the interrogation per se, however, \n\ndiscomfiting to the examinee it might be, but in the knowledge that the answers \n\ncan be used in subsequent criminal proceedings. It is this that gives rise to the \n\nconstitutionally questionable situation of being damned with prison if you do, and \n\ndamned with prison if you don\u2019t. Hence the examinee\u2019s quadrilemma: confess to \n\na crime, refuse to answer, commit perjury, or seek refuge in the Constitutional \n\nCourt.30 Justification in terms of section 33(1) for using state compulsion to \n\n \n \n\n \n\n29MacKenna J in Regina v Harris (Richard) and another, 1970 (1) WLR 1252 G. \n\n30Iacobucci J in R v S (RJ) supra note 7 at p635 quotes Wigmore as referring to the \n\n3 horns of the triceratops - harmful disclosure, contempt, perjury. \n\nMr Justice Goldberg converted this into \n\nthe cruel trilemma of self-accusation, perjury or contempt. \n\nMurphy v Waterfront Com. of New York Harbor 378 U.S. 52 (1964) 678 at 681. The full quotation \nbears repetition: \n\nThe privilege against self-incrimination ..... reflects many of our fundamental \nvalues and most noble aspirations: Our unwillingness to subject those suspected \n\n\f \n\ncreate such a situation is accordingly far more difficult to achieve. \n\n\u03a0\u03b1\u03b3\u03b5 334 \n\nSACHS J \n\n[262] This is not to say that no case can be made out for justifying interrogatory \n\nprocedures not only to collect information but also to help secure the conviction \n\nof fraudulent company officials, that is, for elements of the inquisitorial system of \n\ncriminal justice to be used in our procedures for the specific purpose of \n\ncombatting company fraud. This would not constitute a startling innovation but, \n\nrather, represent the continuation of an established practice. In the well known \n\nEnglish case of Reg. v Scott,31 Lord Campbell said that the interpolation of an \n\nimplied clause to the effect that the examination should not be used as evidence \n\n \n \n\nof crime to the cruel trilemma of self-accusation, perjury or contempt; our \npreference for an accusatorial rather than an inquisitorial system of criminal \njustice; our fear that self-incriminating statements will be elicited by inhumane \ntreatment and abuses; our sense of fair-play which dictates \u2018a fair state-individual \nbalance by requiring the government to leave individual alone until good cause is \nshown for disturbing him and by requiring the government in its contest with the \nindividual to shoulder the entire load\u2019; our respect for the inviolability of the \nhuman personality and of the right of each individual \u2018to a private enclave where \nhe may lead a private life\u2019; our distrust of self-deprecatory statements; and our \nrealisation that the privilege, while sometimes \u2018a shelter to the guilty\u2019 is often \u2018a \nprotection to the innocent\u2019. \n\n\f \n\nagainst the bankrupt on any criminal charge, would be more likely to defeat than \n\n\u03a0\u03b1\u03b3\u03b5 335 \n\nSACHS J \n\nto further the intention of the legislature. \n\nConsidering the enormous frauds practised by bankrupts upon their creditors, \n\nhe observed, \n\nthe object may have been, in an exceptional instance, to allow a procedure in \nEngland universally allowed in many highly civilised countries. \n\nThis was in 1856. More recently, Lord Mustill has pointed out that the statutory \n\ninterference with the right against self-incrimination is almost as old as the right \n\nitself. Since the 16th century, he says \n\n \n \n\n31(1856) Dears. & B. 47 at p58. \n\n\f \n\n\u03a0\u03b1\u03b3\u03b5 336 \n\nSACHS J \n\nlegislation has established an inquisitorial form of investigation into the dealings \nand assets of bankrupts which is calculated to yield potentially incriminating \nmaterial, and in more recent times there have been many other examples in \nwidely separated fields, which are probably more numerous than is generally \nappreciated.32 \n\n[263] The question must, however, still be asked: does the fact that the exception is a \n\nlongstanding one mean that it would constitute a reasonable, justifiable, and \n\nnecessary \n\nlimitation of \n\nthe general protection accorded against self-\n\nincrimination? It is, of course, not for the Constitution to conform to legislation, \n\nhowever antique the latter may be, but for legislation to be consistent with the \n\nConstitution.33 Nevertheless, the well-established nature of the legislative \n\n \n \n\n32Reg. v Director of Serious Fraud Office, Ex p. Smith supra note 25 at p40 D-E. It should be \nborne in mind that these remarks were made in the context of the interpretation of a statute where \nparliamentary supremacy prevailed and no issue of constitutionally inviolable fundamental rights could be \nraised. Furthermore, the statute in question expressly excluded the use of answers in a subsequent \ncriminal trial. Nevertheless, the passage does indicate that the common law privilege against self-\nincrimination has, as far as company officials are concerned, been honoured as much in the breach as in \nthe observance. \n\n33Section 4(1) of the Constitution reads \n\nThis Constitution shall be the supreme law of the Republic and any law or act \ninconsistent with its provisions shall, unless otherwise provided expressly or by \n\n\f \n\nexception, both in our country34 and abroad, when measured against the \n\n\u03a0\u03b1\u03b3\u03b5 337 \n\nSACHS J \n\nrelatively inchoate and adaptive nature of the common-law principle, indicates \n\nthat it could well pass the test at least of reasonableness and justifiability. In S v \n\nZuma, supra, Kentridge AJ asked \n\nwhy it should be thought reasonable to undermine a long-established and now \nentrenched right. \n\nIn the present case, however, the limitation itself is almost as ancient as the right \n\nit impinges on, and furthermore the right is not directly and robustly entrenched, \n\nbut only subsumed in a residuary manner into a broader right. This would, of \n\n \n \n\nnecessary implication in this Constitution, be of no force or effect to the extent of \nthe inconsistency. \n\nSee the remarks by Wilson J on a similar provision in the Canadian Charter, in the Thomson \nNewspapers case supra note 7 at p203. \n\n34As Ackermann J points out in paras 118 - 119, legislation in the Transvaal, the commercial hub \nof the country, has, at least since 1926, expressly authorised the use of incriminating answers in \nsubsequent criminal proceedings. \n\n\f \n\ncourse, not make it a \u2018lesser right\u2019 as such, but would affect its intensity and \n\n\u03a0\u03b1\u03b3\u03b5 338 \n\nSACHS J \n\nweight in the balancing process. \n\n[264] In South Africa today, \u2018enormous fraud\u2019 is unfortunately a continuing occurrence. \n\n As I have said, it might well be reasonable and justifiable to continue with \n\ninquisitorial procedures against officials of failed companies. The public interest \n\nundoubtedly requires both that fraudulent dealings be exposed and set aside \n\nwhere possible, and that those responsible be punished. The corporate veil \n\nfunctions not only at the legal level to promote corporate identity and create the \n\nconditions for limited liability, but also at the evidential level to hide the doings of \n\ndishonest company officials. Front companies and nominee holdings can \n\nobscure the true economic nature of transactions. Frauds can be intricate, take \n\nplace over a long period of time, and depend on the effect of activities which in \n\ntheir separate detail appear lawful, but in their cumulative conjunction are \n\nfraudulent. There is no \u2018smoking gun\u2019 to be detected by ordinary police enquiry \n\nmethods. Yet, even allowing for the fact that special procedures of ancient \n\nprovenance, designed to pierce the corporate veil and ensure that fraud is \n\nproperly uncovered and punished, may pass the tests of reasonableness and \n\njustifiability, do they as well overcome the third hurdle provided by section 33(1) \n\nin relation to section 11, namely, that they are necessary? \n\n\f\u03a0\u03b1\u03b3\u03b5 339 \n\nSACHS J \n\n \n[265] The concept of necessity gives central place to the proportionality of the means \nused to achieve a pressing and legitimate public purpose.35 In positive terms, \nthe public interest served by the challenged provisions would have to be so \ncompelling as clearly to outweigh the questionable pressure to which the \nexaminees would be put at the time of their interrogation, and the consequent \nsense of unfairness that would flow from their being obliged to convict \nthemselves out of their own mouths. Expressed negatively, the burden imposed \nshould not go beyond what would be strictly required to meet the legitimate \ninterests both of shareholders and creditors and of society as a whole. The \nmeans adopted by Parliament should thus be shown to fall within the range of \noptions which would not be unduly burdensome, overbroad or excessive, \nconsidering all the reasonable alternatives. In making this assessment of \nproportionality, a structured value judgment, taking account of all the established \nelements, is required. Applying what I consider the wise counsel of Dickson CJC \nof the Canadian Supreme Court to focus on \n\nthe synergetic relation between the values underlying the Charter and the \ncircumstances of the particular case,36 \n\nI have grave doubts as to whether the materials placed before us indicate that \n\nthe test of necessity has been met. \n\n \n \n\n35In Coetzee v Government of the Republic of South Africa and Matiso and others v Commanding \nOfficer Port Elizabeth Prison and others 1995 (10) BCLR 1382 at paras 55 - 60, I had occasion to cite a \nlarge number of international instruments and commentaries on the subject, and I will not repeat them \nhere. \n\n36R v Keegstra (1990) 3 C.R.R. (2d) 193 at p221. \n\n\f \n[266] The Serious Economics Offences Act,37 which, with the sole objective of \n\n\u03a0\u03b1\u03b3\u03b5 340 \n\nSACHS J \n\ninvestigating economic crimes, establishes inquisitorial procedures not dissimilar \n\nto those contained in section 417, expressly immunises answers from \n\nsubsequent use at a criminal trial.38 There is nothing before us to show why the \n\nlegislature can balance the securing of effective investigatory capacity, and the \n\nmaintenance of sensitivity to basic rights, when it comes to fraud investigated as \n\nsuch in terms of the Serious Economic Offences Act, and not manage to do so in \n\nrespect of fraud discovered as a result of a broader enquiry in terms of section \n\n417 of the Companies Act. Similarly, the Insolvency Act provides that no \n\nevidence regarding questions and answers at an Insolvency Enquiry shall be \n\nadmissible in subsequent criminal proceedings.39 Far from being manifestly \n\nnecessary, therefore, the provisions of section 417(2)(b) appear to be out of step \n\nwith what is considered appropriate in sibling statutory material. \n\n[267] I would add that unfortunate experiences in the past suggest that we should \n\n \n \n37Act No. 117 of 1991. \n\n38See section 5(b); \n\nNo evidence regarding any questions and answers contemplated in paragraph \n(a) shall be admissible in any criminal proceedings, except in criminal \nproceedings where the person concerned stands trial on a charge contemplated \nin subsection (10) (b) or (c), or in section 319 (3) of the Criminal Procedure Act, \n1955 (Act No. 56 of 1955). \n\nThese latter exceptions refer essentially to perjury and making contradictory statements on oath. \n\n39Act No. 24 of 1936 section 65(2A)(b); the only exceptions relate to the giving of false evidence or \n\nthe failure to answer lawful questions fully and satisfactorily. \n\n\f \n\nexercise great caution in accepting any departure from the \u2018case to meet\u2019 \n\n\u03a0\u03b1\u03b3\u03b5 341 \n\nSACHS J \n\nprinciple. Failure to do so could open up the way to justifying pre-trial \n\ninterrogations of persons suspected of treason or sedition, and the wheel could \n\nthen turn full circle, with the Star Chamber - type inquisition which gave rise to \n\nthe right against self-incrimination in the first place, ending up being legitimized \n\nby the very chapter in the Constitution designed to protect fundamental rights. In \n\nthe words, once more, of Mr Justice Frankfurter,40 \n\nNo doubt the constitutional privilege (against self-incrimination), may, on \noccasion, save a guilty man from his just deserts. It was aimed at a more far-\nreaching evil - a recurrence of the Inquisition and the Star Chamber, even if not \nin their stark brutality. Prevention of the greater evil was deemed of more \nimportance than occurrence of the lesser evil. Having had much experience with \na tendency in human nature to abuse power, the Founders sought to close the \ndoors against like future abuses by law enforcing-agencies. \n\n \n \n\n40In Ullman v United States, 350 U.S. 422 (1956) at p428. \n\n\f \n\nThe framers of our Constitution no doubt had more recent South African \n\n\u03a0\u03b1\u03b3\u03b5 342 \n\nSACHS J \n\nexperience in mind when they drafted Chapter 3.41 \n\n \n \n\n41Writing in 1977, Professor Dugard supra note 2 points out supra at p86, \n\nWhile the Criminal Procedure Act introduces a procedure with slight \nresemblances to the inquisitorial system, \u2018the drastic process\u2019 has produced a \nprocedure with striking similarities to the inquisitorial method. The 90 day \ndetention law (section 17 of Act No. 37 of 1963), the 14 day detention \nlaw(section 22 of Act No. 62 of 1966), section 6 of the Terrorism Act and section \n13 of the Abuse of Dependence-producing Substances and Rehabilitation \nCentres Act all authorise police interrogation in solitary confinement before the \narrested person is brought to trial .....Thus as an example of the inquisitorial \nmethod it is closer to the Roman-Dutch extra-ordinary procedure than it is to \nmodern continental inquisitorial methods where the person subjected to \ninterrogation is assured all the guarantees normally accorded to a person under \nthe accusatorial system. \n\n(Original emphasis). \n\n\f \n[268] To sum up: I agree with the implications of Ackermann J\u2019s judgment that section \n\n\u03a0\u03b1\u03b3\u03b5 343 \n\nSACHS J \n\n417 should not be seen as a piece of criminal procedure legislation deliberately \n\ntargeting company officials for specially harsh treatment, but rather as an integral \n\npart of an Act designed to consolidate the law relating to companies. If \n\nmeaningful regulation of companies requires compulsory disclosure of \n\ninformation to interested persons while the company is in existence, such a duty \n\nto \u2018come clean\u2019, or in modern parlance to manifest transparency, should not \n\ncease, but if anything become stronger, when the company enters its demise. \n\nThe duty to disclose does not entirely eliminate the right against self-\n\nincrimination, but does attenuate it. When the principle of the duty to reveal all \n\nmaterial information is balanced against the privilege against self-incrimination, \n\nthe scales come to rest in such a way as to compel the production of the \n\ntestimony, while ensuring that it is not used in evidence at a criminal trial.42 The \n\ngranting of use immunity thus saves the authorities from being put to an invidious \n\n(and not necessary) election between the option of examining and recovering, on \n\nthe one hand, and that of prosecuting and punishing, on the other. The public \n\n \n \n\n42The judges in both Thomson Newspapers case supra note 7 and R v S (RJ) supra note 7 were \nall agreed that use immunity should be co-extensive with the oral testimony given. They disagreed on the \nquestion of derivative immunity. The coupling of compellability with protection in the form of evidentiary \nimmunity, was regarded as a unique Canadian balancing of individual and societal interests. See \nIacobucci J in R v S (RJ) at p649. In Thomson Newspapers case at p246 La Forest J said \n\n A right to prevent the subsequent use of compelled self-incriminating testimony \nprotects the individual from being \u2018conscripted against himself\u2019 without \nsimultaneously denying an investigator's access to relevant information. It \nstrikes a just and proper balance between the interests of the individual and the \n\n\f \n\ninterest requires that both possibilities remain open, subject to the former not \n\n\u03a0\u03b1\u03b3\u03b5 344 \n\nSACHS J \n\ntrespassing unduly on the latter.43 Once the provision authorizing the admission \n\nof the answers at a subsequent criminal trial is removed, and use immunity is \n\n \n \n\nstate. \n\n43I agree with Ackermann J that at this stage that we are not called upon to make a definitive \nfinding on whether the use of derivative evidence, or so called \u2018clue facts\u2019, should at the subsequent \ncriminal trial automatically be regarded as either permissible or impermissible. The trial court would, at \nthat stage, not be dealing with the \u2018fruits of a poisoned tree\u2019, but rather with the product of a legitimate and \nlegally controlled enquiry. Nor would it be concerned with evidence existing solely of words used by the \naccused, but instead with objective evidence existing independently of any oral communication. In \naddition, if all incriminating evidence possibly derived from the examinee\u2019s answers were automatically to \nbe excluded in the same way as the incriminating answers themselves, then a subtle and crooked \nexaminee could gain effective immunity from prosecution by answering questions in such a manner as to \ncover all possible sources of evidence at a subsequent criminal trial. In Thomson Newspapers case supra \nnote 7 at 260 Le Forest J says that \n\na general requirement of derivative use immunity would mean that in many cases \nthe use of the power to compel testimony would furnish wrongdoers with the type \nof \u2018immunity baths\u2019 that were characteristic of the transaction immunity formerly \navailable in the United States: \n\n \nSopinka J in R v S (RJ) supra note 7 at p721 expresses the further fear that even challenges to \nderivative use could lead to interminable admissibility proceedings resulting in virtual transactional \nimmunity. I feel, however, that there could well be circumstances where it would manifestly not be \nfair to admit such derivative evidence. These are matters, which, in my view, should be \ndetermined by the trial court, using a voir dire if necessary. \n\n\f \n\ngranted, as Ackermann J proposes, the dilemma that remains is the \n\n\u03a0\u03b1\u03b3\u03b5 345 \n\nSACHS J \n\nconstitutionally non-problematic one which faces any witness in any proceedings: \n\nwhether or not to tell the truth. \n\n[269] Subject to these observations, I agree with the conclusions of Ackermann J and \n\nthe order he proposes. \n\n \n\n \n \nCounsel for the Applicants: \n\n \n\nR.D. Levin S.C. \nD. Unterhalter \n\nMoss-Morris Inc. \n\n \n\n \n\n \n\n \nInstructed by: \n \n \n \nCounsel for the 2nd Respondents in the \nFerreira Matter: \n \nR. Strydom \n\n \n\n \n\n \n\n \n\nS.A. Cilliers S.C. \n\n \n\n \n\n \n\n \nInstructed by: \n \n \n \nCounsel for the 3rd Respondent in the \nVryenhoek Matter: \n \nInstructed by: \n \n \n \nCounsel for the Amicus Curiae - \nFourie, J.S.N. and Others: \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\nHofmeyr Van Der Merwe Inc. \n\nC. Edeling \n\n \n\nAllan Levin & Associates \n\nW.H. Trengove S.C. \n\n \nG.J. Marcus \n\n \nInstructed by: \n\n \n\n \n\n \n\n \n\nDeneys Reitz \n\n\f"}, "id": "2ce82338-d4b6-4665-97f5-f755174da32d", "update_date": "2021-03-15 17:08:56.815670", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: FERREIRA, CLIVE and LEVIN, ALLAN NO WILKENS, ANDREW DAVID COOPER, BRIAN ST CLAIR VAN DER MERWE, SCHALK WILLEM NO In their capacities as the joint provisional liquidators of Prima Bank Holdings Limited THE MASTER OF THE SUPREME COURT and VRYENHOEK, ANN VRYENHOEK, LUKE JOHN VRYENHOEK, ANDREW and POWELL, OLIVER NO BRETT, JJ NO CASE NUMBER: CCT 5/95 Applicant Respondent 1st Respondents 2nd Respondent 3rd 1st Applicant 2nd Applicant 3rd Applicant Respondent 1st 2nd \fAVFIN INDUSTRIAL FINANCE (PTY) LTD Respondent 3rd Respondent 9 May 1995 Heard on: Delivered on: 6 December 1995 ______________________________________________________________________ _____ ______________________________________________________________________ _____ Ackermann J. The issues JUDGMENT", "The two referrals before us (the \"Ferreira referral\" and the \"Vryenhoek referral\") were heard together for the sake of convenience (as they were in the Witwatersrand Local Division of the Supreme Court by Van Schalkwyk J) because identical issues arise in both cases. These issues concern the alleged inconsistency of certain provisions in section 417 of the Companies Act, No. 61 of 1973, as amended (\"the Act\") relating to the examination of persons in winding-up proceedings, with the Constitution of the Republic of South Africa, 1993 (\"the Constitution\" or \"the transitional Constitution\"). Section 417 of the Act provides as follows - \"417. Summoning and examination of persons as to affairs of company. (1) In any winding-up of a company unable to pay its debts, the Master or the \f \u03a0\u03b1\u03b3\u03b5 3 ACKERMANN J in after Court may, at any time a winding-up order has been made, summon before him or it any director or officer of the company or person known or suspected to have his possession any the property of company or believed to be indebted to the company, or any person whom the the Master or Court deems capable of giving information concerning the trade, dealings, affairs or property of the company. (1A) Any person summoned under subsection (1) may be represented at his attendance before the Master or the Court by an attorney with or without counsel. (2)(a) The Master or the Court may examine any person summoned under sub-section (1) on oath or affirmation concerning any matter referred to in that subsection, either orally or on written interrogatories, and may reduce his answers to writing and require him to sign them. (b) Any such person may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him. (3) The Master or the Court may require any \f \u03a0\u03b1\u03b3\u03b5 4 ACKERMANN J (4) such person to produce any books or papers in his custody or under his control relating to the company but without prejudice to any lien claimed with regard to any such books or papers, and the Court shall have power to determine all questions relating to any such lien. If any person who has been duly summoned under subsection (1) and to whom a reasonable sum for his expenses has been tendered, fails to attend before the Master or the Court at the time appointed by the summons without lawful excuse made known to the Master or the Court at the time of the sitting and accepted by the Master or the Court, the Master or the Court may cause him to be apprehended and brought before him or it for examination. (5) Any person summoned by the Master under subsection (1) shall be entitled to such witness fees as he would have been entitled to if he were a witness in civil proceedings in a magistrate's court. (6) Any person who applies for an examination or enquiry in terms of this section or section 418 shall be liable for the payment of the costs and expenses incidental thereto, unless the Master or the Court directs that the whole or any part of such costs and expenses shall be paid out of the assets of the company concerned. (7) Any examination or enquiry under this section or section 418 and any application therefore shall be private and confidential, unless the Master or the Court, either generally or in respect of any particular person, directs otherwise.\" Although the matters before us are referrals, and not appeals or applications in the ordinary sense, the parties will be referred to (and described) as they were in the Court below.", "In the winding-up of two companies unable to pay their debts, the applicants \fwere summoned for examination (\"the section 417 examination\" or \"the section \u03a0\u03b1\u03b3\u03b5 5 ACKERMANN J 417 enquiry\") pursuant to the provisions of sub-sections (1) and (2) of section 417 of the Act. During the course of their examination, the applicants in both the Ferreira and the Vryenhoek cases objected to being compelled, by virtue of the provisions of section 417(2)(b), to answer questions put to them which might tend to incriminate them. They applied to the Witwatersrand Local Division of the Supreme Court for a temporary interdict against the respondents, prohibiting the further interrogation of the applicants pending the determination of the constitutionality of section 417(2)(b) of the Act.", "On 28 November 1994 Van Schalkwyk J dismissed both the applications for interim relief, granted leave to appeal against such dismissal to the full bench of the Transvaal Provincial Division or the Witwatersrand Local Division, if the Judge President so directed, and referred the following matters to the Constitutional Court in terms of section 102(1) of the Constitution - \"1. Whether section 417(2)(b) of the Companies Act 68 of 1973, as amended (\"the Act\"), is unconstitutional in that it compels a person summoned to an enquiry to testify and produce documents, even though such person seeks to invoke the privilege against self- incrimination. 2. Whether evidence given by a person at an enquiry in terms of section 417 of the Act falls to be excluded in any subsequent criminal proceedings brought against such person where the evidence may be \f\u03a0\u03b1\u03b3\u03b5 6 ACKERMANN J incriminating and was extracted without recognition of such person's privilege against self-incrimination. 3. Whether a person appearing at an enquiry in terms of section 417 of the Act is entitled to have prior access to: 3.1 3.2 a copy of the record of the examination of all other persons examined at the inquiry; all documents in the possession of the liquidator or those prosecuting the inquiry relevant to the interrogation of such person. 4. Whether a person is required to give testimony at an inquiry in terms of section 417 which testimony may tend or have the effect of supporting a civil claim against such person. 5. Whether a person who has given testimony at an enquiry in terms of section 417, which testimony tends to support a civil claim against such person, may have such testimony excluded in any subsequent civil proceedings.\" The referral took place before the current rules of the Constitutional Court were promulgated on 6 January 1995.", "Of the respondents in the two matters, only the second respondent in the Ferreira application and the third respondent in the Vryenhoek application opposed the relief sought and were represented at the hearing in this Court. The third respondent in the Ferreira application (the Master) lodged a memorandum in the form of an affidavit but did not oppose the relief sought. Certain of the partners and employees of Coopers and Lybrand, the auditors of Prima Bank \fHoldings Ltd. (one of the companies in liquidation) were granted leave to \u03a0\u03b1\u03b3\u03b5 7 ACKERMANN J intervene as amici curiae in terms of Constitutional Court rule 9 and to present viva voce argument as well. Written memoranda were invited and accepted from the Association of Law Societies, the Public Accountants' and Auditors' Board, the South African Institute of Chartered Accountants and the Association of Insolvency Practitioners of Southern Africa. We are at the beginning stages of utilising the amicus curiae intervention procedures for which provision is made in Constitutional Court rule 9. We wish to acknowledge the valuable assistance derived by this Court from the argument on behalf of the amici curiae, JSN Fourie and others, as well as from the memoranda filed by the above mentioned professional bodies.", "All parties were in agreement (expressly or tacitly) that the matter in paragraph 1 of the order of referral had been properly referred to this Court by Van Schalkwyk J in terms of the provisions of section 102(1) of the Constitution. The correctness of this agreement (or assumption) was not questioned at the hearing of the matter before us. On reflection, the assumption appears to be wrong in law and the correctness of it, inasmuch as it involves a matter of law (constitutional law in fact), must be considered by this Court. In so doing it is necessary to say something about the meaning and use of section 102(1) in general. \f \u03a0\u03b1\u03b3\u03b5 8 ACKERMANN J", "For present purposes the relevant part of section 102(1) provides that - \"If, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court in terms of section 98(2) and (3), the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court decision: .......................................................................................................... .......\". for its Section 102(1) does not confer a general discretion on the Court in question to refer matters to the Constitutional Court. The referral is mandatory (\"the provincial or local division concerned shall ... refer\") and the power and duty to refer only arises when the following three conditions are fulfilled: (a) there is an issue in the matter before the Court in question which may be decisive for the case; (b) such issue falls within the exclusive jurisdiction of the Constitutional Court; and, (c) the Court in question considers it to be in the interests of justice to refer such issue to the Constitutional Court. (I use the word \"issue\" in paragraph (c) above instead of the word \"matter\", which appears in the text of section 102(1), because this is the construction which \fDidcott J, writing for the Court in S v. Vermaas; S v. du Plessis1 gave to the word \u03a0\u03b1\u03b3\u03b5 9 ACKERMANN J \"matter\" where it appears for the second time in section 102(1)). These conditions are conjunctive and all have to be fulfilled before the Court has the power to refer an issue to the Constitutional Court in terms of section 102(1). It is true that the fulfilment of conditions (a) and (c) depends upon the Court in question reaching particular conclusions on the basis of the criteria there stated, but these conclusions have to be reached (and condition (b) must exist) before the Court is empowered and obliged to refer the issue. 11995 (3) SA 292 (CC); 1995 (7) BCLR 851 (CC) at para 10. \f [7] Section 103(4) of the Constitution deals inter alia with the referral by a Provincial \u03a0\u03b1\u03b3\u03b5 10 ACKERMANN J or Local division of the Supreme Court to this Court of issues originating in Courts other than Provincial or Local divisions of the Supreme Court and, in particular, with the referral to this Court of an issue regarding the validity of a law falling within the exclusive jurisdiction of this Court. In addition to stipulating other conditions precedent for such referral, the sub-section requires the Povincial or Local Division of the Supreme Court to be of the opinion \"that there is a reasonable prospect that the relevant law or provision will be held to be invalid.\" Although there is no such express requirement in section 102(1), Kentridge AJ, in Mhlungu and Others v. The State2, held that \"it was implicit therein\".3 He further explained that \"[t]he reasonable prospect of success is, of course, to be understood as a sine qua non of a referral, not as in itself sufficient ground. It is not always in the interests of justice to make a reference as soon as the relevant issue has been raised\".4 (It is clear from the context of the above passage, that Kentridge AJ was dealing only with condition (c) of my above analysis.) He explained why it was not always in the interests of justice to make a referral immediately (an exposition which I need not repeat here) and laid down \"as a general principle\" that \"where it is 21995 (7) BCLR 793 (CC). 3At para 59. \fpossible to decide any case, civil or criminal, without reaching a constitutional \u03a0\u03b1\u03b3\u03b5 11 ACKERMANN J issue, that is the course which should be followed\".5 Although the Court was divided in Mhlungu as to the construction and application of section 241(8), there was unanimous agreement with Kentridge AJ's construction and application of section 102(1).", "I round off this general discussion of section 102(1) by pointing out that Constitutional Court rule 22(2) obliges the judge or judges referring an issue in terms of section 102(1) to \"formulate in writing .... the reason why he or she or they consider it to be in the interest of justice that the matter be referred.\" On the construction which this Court in Mhlungu placed on the third pre-condition for referral (i.e. that it must be in the interest of justice to do so), it therefore follows that the judge or judges referring to the Constitutional Court the issue of the constitutionality of an Act of Parliament are obliged to furnish written reasons 4Id. 5Id. \f\u03a0\u03b1\u03b3\u03b5 12 ACKERMANN J why it is considered that (a) there is a reasonable prospect that the Act of Parliament in question will be held to be invalid; and (b) the interest of justice requires this issue to be referred at this particular stage. (I hasten to add that when Van Schalkwyk J referred the matter to this Court the judgment in Mhlungu had not been delivered and rule 22(2) had not been promulgated).", "These principles have to be applied to the referral in the present case. The only matters before Van Schalkwyk J were the applications for interim interdicts against the relevant respondents to prohibit further interrogation of the applicants. In dismissing both applications for interdicts Van Schalkwyk J in fact disposed of all (and the only) matters properly before him. At this stage the issue of the validity of section 417(2)(b) had become irrelevant. He had decided, on the view he took of the law, that the issue of the validity of section 417(2)(b) was not relevant to the matter before him. He could not, on his view of the law, even consider the validity issue as part of the interdict enquiry. In adopting this approach he in fact decided (albeit implicitly) that the matter before him could and should be decided without reference to the validity issue, in other words, that \fthe validity issue could not be decisive for the case. The implication of this is that \u03a0\u03b1\u03b3\u03b5 13 ACKERMANN J the first condition for a section 102(1) referral, mentioned in paragraph [6](a) above, has not been fulfilled. Accordingly the learned judge was precluded from referring the constitutional validity of section 417(2)(b) of the Act to this Court. He in fact precluded the operation of section 102(1) by deciding the \"case\" or the \"matter\" before him.", "The possibility that the referral of the paragraph (1) issue might be incompetent was not alluded to during argument nor raised by the Court with counsel. When, however, the question of the competence of the referrals of the issues in paragraphs (2) - (5) of the referral order was raised with Mr. Levine, he requested the Court to grant the applicants direct access on these issues in terms of section 100(2) of the Constitution. I have no doubt that, if the incompetence of the referral of the paragraph (1) issue had been raised with him, Mr. Levine would likewise have urged the Court to grant direct access on this issue as well. The matter has been fully argued before us and all the parties are clamant for a decision from the Court. We were informed that many section 417 enquiries were being held up because the issue of the constitutionality of section 417(2)(b) had been raised in such enquiries. This is substantially hampering the proper liquidation of companies and is therefore a matter of such urgency and \fpublic importance that a ruling should be given thereon. Under the exceptional \u03a0\u03b1\u03b3\u03b5 14 ACKERMANN J circumstances of this case it would be surrendering to the merest formalism if we did not deal with the paragraph (1) issue as one which was before us by way of direct access in terms of section 100(2) of the Constitution. It should therefore be treated as such. The interested parties are amenable to the issue being dealt with on this basis.", "It was contended on behalf of the respondents that the referral to this Court of the issues in paragraphs (2) - (5) of the referral order were not competent in terms of section 102(1) of the Constitution because none of these issues falls within the exclusive jurisdiction of the Constitutional Court and, consequently, a condition precedent to referral has not been fulfilled.", "It is not immediately apparent whether the issue referred in paragraph (2) of the referral order is premised on the finding that section 417(2)(b) of the Companies Act is inconsistent with the Constitution by this Court or premised on the finding that it is consistent. On either premise it is difficult to see how it can be contended that this issue was properly referred. The only issue before van Schalkwyk J was the interdict sought by the applicants \"to prohibit their further interrogation pending the determination of the constitutionality of section \f417(2)(b) of the Companies Act, by the Constitutional Court.\"6 The matter \u03a0\u03b1\u03b3\u03b5 15 ACKERMANN J detailed in paragraph (2) of the referral order, namely the admissibility of testimony given pursuant to the provision of section 417(2)(b) of the Act in subsequent criminal proceedings, was simply not an issue before Van Schalkwyk J. The wording of section 102(1) of the Constitution is perfectly clear. The only issue which can be referred to the Constitutional Court is one \"in any matter before a provincial or local division of the Supreme Court.\" Van Schalkwyk J did not therefore have the power to refer the paragraph (2) issue to this Court.", "Even if the question of admissibility had been an issue before Van Schalkwyk J, for example by way of an application for a declaratory order, it ought not to have been be referred to us, because it does not fall within our exclusive jurisdiction. Although section 101(3) nowhere expressly confers power on the Provincial or Local Divisions of the Supreme Court to construe the Constitution, this is an implied power, as found by Kentridge AJ in S v. Mhlungu and Four Others.7 These Courts are obliged to decide constitutional questions within their jurisdiction, together with discharging their customary duties of construing 6At p. 2 - 3 of Van Schalkwyk J's judgment. 7Supra note 2 at para 55. Although the judgment of Kentridge AJ was the minority judgment, there was no disagreement on this issue. \fstatutes and applying them, as well as the common law, under the ever present \u03a0\u03b1\u03b3\u03b5 16 ACKERMANN J influence of the Constitution. These are the Courts which must, in the first instance, construe the Constitution and statutory law, even (or perhaps especially) when portions of a statute have been declared to be invalid. In this context the following remarks of Kentridge AJ, in S v. Zuma and Others bear repeating: \"The jurisdiction conferred on judges of the Provincial and Local Divisions of the Supreme Court under section 101(3) is not an optional jurisdiction. The jurisdiction was conferred in order to be exercised.\"8", "The issue in paragraph (2) relates exclusively to the admissibility of evidence in subsequent criminal proceedings against persons who have testified pursuant to the provisions of section 417 and given evidence which tends to incriminate them. The question of the admissibility of evidence is, in the first instance, a matter for the Court dealing with the criminal proceedings in question. Should evidence be admitted incorrectly, and this raises a constitutional issue, the Constitutional Court may ultimately be called upon to decide the issue, but not before; unless the issue is one falling within its exclusive constitutional 81995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 10. \f jurisdiction. \u03a0\u03b1\u03b3\u03b5 17 ACKERMANN J", "We were pressed in argument to deal with such other issues because they are ancillary to the issue of the invalidity of section 417(2)(b) of the Act. Neither the context, wording nor purpose of the sections in the Constitution dealing with this Court's jurisdiction gives this Court jurisdiction to deal with matters of evidential admissibility on the basis that they are ancillary to a section 98(5) declaration of invalidity. It was certainly not the purpose of the institution of the Constitutional Court, or the framing of its jurisdiction, to require it to give an advisory opinion (for this is in essence what the applicants seek) as to the admissibility of evidence in some future criminal proceedings which might be brought against the applicants. The admissibility of evidence is traditionally, and for very good reasons, a matter which the trial Court must in the first instance always decide. There is no contextual or teleological indication that the framers of the Constitution wished to depart from this fundamental and self-evident rule. We are not here dealing with a case where a criminal trial Court (on a proper application of section 102(1) of the Constitution as explained above9) has referred to us an issue regarding the validity of a provision in an Act of Parliament which directly or indirectly bears on the admissibility of evidence. I accordingly conclude that the \fmatter set forth in paragraph (2) of the referral order was incorrectly referred to \u03a0\u03b1\u03b3\u03b5 18 ACKERMANN J this Court.", "The matters referred to in paragraph 3 of the referral order relate to the construction of section 417 of the Act and the conduct of proceedings pursuant to it. These were not, for the reasons previously mentioned, issues before van Schalkwyk, J. If examinees feel aggrieved by the way a section 417 enquiry is being conducted, they have their ordinary remedies (including review remedies) in the Supreme Court.10 Had these issues been properly before van Schalkwyk J he would have had the jurisdiction to deal with them. They do not fall within the exclusive jurisdiction of the Constitutional Court. I conclude that these issues were also incorrectly referred.", "The issue in paragraph (4) of the referral order is formulated as follows: \"Whether a person is required to give testimony at an enquiry in 9At paras 6 - 8. 10See Ferreira v Levin NO and Others 1995(2) SA 813 (W) at 843 H. \f\u03a0\u03b1\u03b3\u03b5 19 ACKERMANN J terms of section 417 which testimony may tend or have the effect of supporting a civil claim against such person.\" This issue does not raise the constitutional validity of section 417(2)(b) or any other statutory provision. In essence it seeks a ruling from this Court as to whether the examinee has a privilege to refuse to answer a question which might tend to support or have the effect of supporting a civil claim against such person. This was not an issue before van Schalkwyk J and could not therefore have been referred to this Court. If it had been an issue, it would have been one within his jurisdiction and with which he was competent to deal. For both these reasons, it ought not to have been referred to this Court.", "The issue referred in terms of paragraph 5 of the referral order relates to the admissibility in subsequent civil proceedings of testimony given pursuant to the provisions of section 417 of the Act. For the reasons set forth, above this too is an issue which could not competently be referred to this Court.", "The applicants, in their written argument handed in at the hearing (as distinct from their heads of argument lodged pursuant to Constitutional Court rule 19), sought to counter the problems relating to the competence of paragraph 3 of the referral order by submitting that: \f \u03a0\u03b1\u03b3\u03b5 20 ACKERMANN J \"The proper exercise of this court's jurisdiction under section 98(5) would ... be to declare under such section as follows: ............. Section 417(2) of the Companies Act is declared to be inconsistent with the Constitution of the Republic of South Africa Act, no. 200 of 1993, to the extent that it provides that a person summoned to give evidence under section 417(1) of the Companies Act is not entitled, as of right, to prior access to - (a) (b) all documents in the possession of the liquidator for an examination or inquiry under section 417 or 418 of the Companies Act, in so far as it relates to such person and the reason or purpose of requiring him to give evidence at, and to produce any books or papers in his custody or under his control relating to the company under winding-up; A copy of the record of the examination of all other persons examined at the enquiry, in so far as it relates to such person and the reason or purpose of requiring him to give evidence at, and to produce any books or papers in his custody or under his control relating to the company under winding-up.\"11 This contention cannot prevail. The invalidity of section 417 of the Act on this ground was not an issue before Van Schalkwyk J and was not referred to this Court in the order of referral. In any event, section 417(2) simply does not contain the provision imputed to it in the above quoted passage. What applicants are seeking to obtain from this Court, under the guise of an attack on the validity of section 417(2), is a declaration of rights concerning the proper conduct of a section 417 hearing. This they cannot expect to achieve and will not be permitted to achieve under a referral pursuant to section 102(1) of the Constitution, because it was not an issue before Van Schalkwyk J and is not an issue within \fthe exclusive jurisdiction of the Constitutional Court. \u03a0\u03b1\u03b3\u03b5 21 ACKERMANN J The Constitutional validity of section 417(2)(b) of the Companies Act", "The way is now open to consider the only issue properly before this Court, namely, the constitutional validity of section 417(2)(b) of the Companies Act. The grounds of constitutional inconsistency were formulated as follows in the referral order: \".... it compels a person summoned to an enquiry to testify and produce documents even though such person seeks to invoke the privilege against self-incrimination.\" Section 417(2)(b) does not compel the production of documents; section 417(3) does. The constitutionality of section 417(3) was not referred to this Court and no amendment of the referral order was sought to incorporate an attack on section 417(3). This ground for the invalidation of section 417(2)(b) is unfounded. Appreciating this difficulty, the applicants limited their attack to seeking an invalidation of section 417(2)(b) \".... to the extent that it requires a person examined under section 417(2) of the Act to answer questions which might tend to 11In para 37 thereof. \f\u03a0\u03b1\u03b3\u03b5 22 ACKERMANN J incriminate him and provides that any answers given to any such question may thereafter be used in evidence against him.\" The issue properly before this Court is therefore a relatively narrow one. In the case of Bernstein and Others v. L.V.W. Bester NO and Others, CCT 23/95, heard subsequent to this case on 19 September 1995, a broader attack was launched against sections 417 and 418 of the Companies Act. Nothing contained in the present judgment is to be interpreted as a prejudgment in any way of this broader attack. The attack based on section 25(3) of the Constitution", "The main attack which Mr. Levine, on behalf of the applicants, launched on the constitutionality of section 417(2)(b) of the Act was that its provisions were inconsistent with an accused's rights \"to a fair trial\" as provided in section 25(3) of the Constitution. For the sake of brevity these rights will be referred to as \"the section 25(3) rights\" or \"an accused's section 25(3) rights.\" It was submitted that the right against self-incrimination is not limited to detained, arrested or accused persons (which are the classes of persons to which the section 25 rights apply) but that \"the right against self-incrimination is a right recognised under the Constitution in extra-curial proceedings including proceedings at an enquiry constituted in terms of section 417 of the Companies Act.\" \f \u03a0\u03b1\u03b3\u03b5 23 ACKERMANN J", "Mr. Levine submitted that, properly construed, the issue before this Court relating to the constitutionality of section 417(2)(b) of the Companies Act, was whether: (a) the statutory duty to give answers which might tend to incriminate the person examined; and (b) the statutory provision that such answers may thereafter be used in evidence against the examinee, limit any right entrenched in Chapter 3 of the Constitution. Mr. Cilliers, on behalf of second respondents in the Ferreira referral, submitted that the attack based on section 25 of the Constitution was, on the clear and unambiguous wording of the Constitution, fundamentally flawed. As to (a), Mr. Cilliers submitted that there was no general right against self-incrimination expressly enumerated in Chapter 3. Mr. Cilliers rightly conceded that some protection against self-incrimination was extended by section 25(2) of the Constitution to \"[e]very person arrested for the alleged commission of an offence\" and in terms of section 25(3)(c) and (d) to \"[e]very accused person\" as part of such person's right to a fair trial. However, the rights enumerated in section 25(2)(a) to (d) only apply to arrested persons and the rights enumerated in section 25(3)(c) and (d) only to an accused person while such person is on trial.", "As to (b), Mr. Cilliers submitted that \"the right to a fair trial\" enacted in section 5(3) would, unless the context otherwise indicates, require self-incriminating \u03a0\u03b1\u03b3\u03b5 24 ACKERMANN J evidence, involuntarily given, to be excluded in the criminal trial of an accused. That is the rule of our common law. In R v. Camana,12 Innes CJ observed as follows: \"Now, it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial.\"13 Mr. Cilliers also submitted that, unless the context of section 25(3) otherwise indicated, the provisions of section 417(2)(b) of the Act, which enable the State to use self-incriminating evidence obtained under the legal compulsion of the latter section during a criminal trial, limit the accused's section 25(3) right to a fair trial. On this approach it is no answer to contend that, at the time of the 12R v. Camana 1925 AD 570 at 575. 13Id at 575. See also S v. Zuma supra note 8 at para 31; S v. Mabaso and Another 1990 (3) SA 185 (A) at 208 G; S v. Shangase and Another 1995 (1) SA 425 (D) at 431 D; Nkosi v. Barlow NO en Andere 1984 (3) SA 148 (T) at 151 I; S v. Evans 1981 (4) SA 52 (C) 56 A; S v. Robinson 1975 (4) SA 438 (RA). \fexamination under section 417 of the Act, the examinee is not yet an accused \u03a0\u03b1\u03b3\u03b5 25 ACKERMANN J person. The concluding words of section 417(2)(b) of the Act \"and any answer given to such question may thereafter be used in evidence against him\" do refer to and find application, inter alia, during a subsequent criminal trial. On the other hand, the mere statutory obligation to answer self-incriminating questions in extra-curial proceedings is not inconsistent with the \"right to a fair trial\" (for the examinee is not an accused and therefore not entitled to invoke the section 25(3) rights); only the subsequent use of such answers at any criminal trial against the examinee would fall within the purview of section 25(3). The applicants are not accused nor is there any suggestion that they will be accused. Accordingly they cannot, at the time of their examination under section 417(2)(b) of the Act, rely on the section 25(3) rights.", "The correctness of this attack by Mr. Cilliers on the applicants' argument from section 25(3) of the Constitution needs to be considered first, before dealing with his other submissions. It seems to me that the only line of reasoning which might counter Mr. Cilliers' objection would be along the following lines. There is authority in Australia and Canada for the proposition that the common law privilege against extra-curial self-incrimination is a substantive right and not \f merely a rule of evidence;14 that, without being able to invoke such a right at trial, \u03a0\u03b1\u03b3\u03b5 26 ACKERMANN J an accused cannot obtain a fair trial, and therefore reliance upon such right must be regarded as an unenumerated section 25(3) right.15 When the examinee at a section 417 of the Act enquiry is asked a question which might tend to incriminate the examinee, he or she objects and raises the common law right against self-incrimination. In so doing, the examinee is not invoking a section 25(3) right, but a substantive common law right. The examiner counters this objection by pointing to the repeal of this common law right, in the context of section 417 enquiries, by section 417(2)(b) of the Act. The rejoinder of the examinee is that such purported repeal is invalid on the grounds that section 417(2)(b) is unconstitutional by virtue of the fact that it is inconsistent with the section 25(3) rights of an accused. The objection that the examinee is not an accused in a criminal trial, and cannot therefore rely on a section 25(3) right which only accrues to an accused, is met by appealing to section 4(1) and 7(4)(b) of the Constitution. Section 4(1) provides in part that - \"This Constitution shall be the supreme law of the Republic and any law inconsistent with [the Constitution's] provisions shall, unless otherwise provided expressly or by necessary implication in this 14See Pyne Board Pty. Ltd. v. Trade Practices Commission (1983) ALJR 236 at 240 G; Sorby and Another v. The Commonwealth of Australia and Others (1983) ALJR 248 at 260 and Solsky v. R. (1979) 105 D.L.R. (3d) 745 at 757. 15This is of course challenged, but its correctness is assumed for purposes of this part of the argument. \f\u03a0\u03b1\u03b3\u03b5 27 ACKERMANN J Constitution, be of no force and effect to the extent of this inconsistency.\" This provision came into operation on 27 April 1994. Section 7(4)(b) provides, inter alia, that the relief referred to in section 7(4)(a) (which includes a declaration of rights) may be sought by - \"(i) (ii) (iii) (iv) (v) a person acting in his or her own interest; ........... ........... ........... a person acting in the public interest.\"", "There are four parts to the above line of reasoning. The first relates to the question whether the invalidity (being of \"no force and effect\") of a statute (as a species of \"law\") is determined by an objective or a subjective enquiry. The second relates to the question of the time at which such invalidity occurs. The third relates to the circumstances under which an appeal to invalidity may be made (the question of justiciability) and the fourth to the question as to who may invoke the invalidity (locus standi in the narrower sense).", "The answer to the first question is that the enquiry is an objective one. A statute is either valid or \u201cof no force and effect to the extent of its inconsistency\u201d. The subjective positions in which parties to a dispute may find themselves cannot have a bearing on the status of the provisions of a statute under attack. The \fConstitutional Court, or any other competent Court for that matter, ought not to \u03a0\u03b1\u03b3\u03b5 28 ACKERMANN J restrict its enquiry to the position of one of the parties to a dispute in order to determine the validity of a law. The consequence of such a (subjective) approach would be to recognise the validity of a statute in respect of one litigant, only to deny it to another. Besides resulting in a denial of equal protection of the law, considerations of legal certainty, being a central consideration in a constitutional state, militate against the adoption of the subjective approach. This also follows from the wording of section 4(1). The words \"shall be\" do not refer to a date beyond 27th April 1994. On 27 April 1994, and subject to the qualification in the text of section 4(1) (\"unless otherwise provided expressly or by necessary implication in this Constitution\"), a law which is inconsistent with the Constitution ceases to have legal effect. For this reason, it was necessary to enact a provision such as section 98(6)(a) of the Constitution which provides that, unless the Constitutional Court otherwise orders - \"... the declaration of invalidity of a law or a provision thereof - (a) Existing at the commencement of this Constitution, shall not invalidate anything done or permitted in terms thereof before the coming into effect of such declaration of invalidity;\"", "The Court's order does not invalidate the law; it merely declares it to be invalid. It is very seldom patent, and in most cases is disputed, that pre-constitutional laws \fare inconsistent with the provisions of the Constitution. It is one of this Court's \u03a0\u03b1\u03b3\u03b5 29 ACKERMANN J functions to determine and pronounce on the invalidity of laws, including Acts of Parliament. This does not detract from the reality that pre-existing laws either remained valid or became invalid upon the provisions of the Constitution coming into operation. In this sense laws are objectively valid or invalid depending on whether they are or are not inconsistent with the Constitution. The fact that a dispute concerning inconsistency may only be decided years afterwards, does not affect the objective nature of the invalidity. The issue of whether a law is invalid or not does not in theory therefore depend on whether, at the moment when the issue is being considered, a particular person's rights are threatened or infringed by the offending law or not.", "A pre-existing law which was inconsistent with the provisions of the Constitution became invalid the moment the relevant provisions of the Constitution came into effect. The fact that this Court has the power in terms of section 98(5) of the Constitution to postpone the operation of invalidity and, in terms of section 98(6), to regulate the consequences of the invalidity, does not detract from the conclusion that the test for invalidity is an objective one and that the inception of invalidity of a pre-existing law occurs when the relevant provision of the Constitution came into operation. The provisions of sections 98(5) and (6), which \fpermit the Court to control the result of a declaration of invalidity, may give \u03a0\u03b1\u03b3\u03b5 30 ACKERMANN J temporary validity to the law and require it to be obeyed and persons who ignore statutes that are inconsistent with the Constitution may not always be able to do so with impunity.", "There is also Canadian authority for such an objective approach.16 Peter Hogg describes the position in that country as follows: \"This practice of \u2018prospective overruling' is difficult to justify in theory, however attractive it may be in practice, and it has never been accepted by Canadian Courts. For a Canadian Court, a constitutional restriction operates of its own force, even if judicial recognition of the fact has been delayed. Once the Supreme Court of Canada has held that a law is unconstitutional, there can be no doubt about the status of the law: it is invalid, and need not be obeyed.\u201d17 (Emphasis added) 16See Re Edward v. Edward (1987) 39 D.L.R. (4th) 654 (Sask. C.A.) at 661 - 664 and R v. Big M Drug Mart Ltd. (1985) 13 C.R.R. 64 at 80 where the following was stated: \"Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect. .............................................................................................................................................. ............ The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue.\" 17 Constitutional Law of Canada 3ed (1992) 1242. \f\u03a0\u03b1\u03b3\u03b5 31 ACKERMANN J The German Federal Constitutional Court follows a similar approach. Klaus Schlaich puts it as follows: \"Das verfassungswidrige Gesetz ist, wie das BverfG formuliert, 'mit dem Grundgesetz unvereinbar und daher nichtig'. Das verfassungswidrige Gesetz ist von Anfang an (ex tunc) und dies ohne weiteren gestaltenden Akt (ipso iure) unwirksam....Nach deutscher Auffassung hebt das BverfG verfassungswidrige Gesetze nicht auf, es vernichtet sie nicht: Es stellt die Nichtigkeit nur (deklaratorisch) fest....\u201d (An unconstitutional law is, as the Federal Constitutional Court puts it, 'inconsistent with the Basic Law and therefore invalid'. An unconstitutional law is from its inception (ex tunc) and without need for any further constitutive act (ipso iure) inoperative... The German view is that the Federal Constitutional Court does not annul a statute, [the Court] does not invalidate: it merely establishes the invalidity (in a declaratory way)).18", "The second question has really been resolved in the course of answering the first. The pre-constitutional law becomes invalid when the relevant provision of the Constitution came into operation (i.e. 27 April 1994), notwithstanding the fact that this Court declares it to be invalid at a later date and has, in terms of section 98(5) and 98(6) of the Constitution, the power to postpone and regulate the operation of invalidity. 18 Das Bundesverfassungsgericht 3ed (1994) 220 - 1. See 1 BVerfGE 14 at 37. \f [31] For the sake of convenience, the fourth question (locus standi in the narrower ACKERMANN J \u03a0\u03b1\u03b3\u03b5 32 sense) will be addressed next. The question in the present case is whether the applicants, as examinees, are acting in their own interest. Few, if any, countries have at all times allowed all persons to invoke the jurisdiction of Courts to solve all legal problems. Some restrictions have always been placed on the locus standi of a complainant. Section 7(4)(b) of the Constitution determines which persons are entitled to apply to a competent Court of law for appropriate relief. They are: \"(i) (ii) (iii) (v) a person acting in his or her own interest; an association acting in the interest of its members; a person acting on behalf of another person who is not in a position to seek such relief in his or her own name; (iv) a person acting as a member of or in the interest of a group or class of persons; or a person acting in the public interest.\"", "When an examinee at a section 417 enquiry attacks the validity of section 417(2)(b) on the grounds that it conflicts with the implied residual rights of an accused in terms of section 25(3) of the Constitution, the examinee's contention (properly understood) is not that the examinee is entitled, as an accused, to invoke the implied right against extra-judicial self-incrimination in section 25(3) of the Constitution, but rather that section 417(2)(b) of the Companies Act is, as an abstract and objective proposition, inconsistent with the aforementioned constitutional right and the examinee is entitled to a ruling thereon. The real \fquestion which must therefore be posed is whether an examinee who has \u03a0\u03b1\u03b3\u03b5 33 ACKERMANN J previously been compelled under section 417(2)(b) to give answers which incriminate him or her may, at a subsequent criminal trial of the examinee, successfully attack the introduction of such incriminating answers on the basis that section 417(2)(b) conflicts with the unenumerated right against self- incrimination in section 25(3). If the answer is in the affirmative, the only remaining question is whether the examinee may raise the issue of the unconstitutionality of section 417(2)(b) of the Act at the stage when a question, the answer to which might tend to incriminate him or her, is put to the examinee in the section 417 examination.", "In terms of section 418(5)(b)(iii) of the Companies Act, any person who has been duly summoned under section 417(1) of the Companies Act and who \"fails, without sufficient cause - ... to answer fully and satisfactorily any question lawfully put to him in terms of section 417(2) ...\" is guilty of an offence and, in terms of section 441(1)(f), liable upon conviction to a fine not exceeding R2000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. The witness is surely entitled to know whether a question, the answer to which might tend to incriminate him or her, is a \"question lawfully put\" and whether the witness has \f\"sufficient cause\" to refuse to answer it. This is dependant on whether section \u03a0\u03b1\u03b3\u03b5 34 ACKERMANN J 417(2)(b) is constitutionally valid. If it is not, the witness can with equanimity refuse to answer. If it is valid, the choice arises between refusing to answer and being punished, possibly with a prison sentence, or answering and possibly prejudicing the witness's defence in a subsequent criminal trial. This dilemma, with the possible adverse consequences on either choice the witness makes, gives the witness sufficient interest of \"his or her own\" to entitle the witness \"to apply to a competent court of law for appropriate relief, which may include a declaration of rights\" in terms of section 7(4)(a) of the Constitution.", "It seems to me, however, that the suggested line of reasoning fails to meet the third requirement, namely that of justiciability. Section 7(4)(a) of the Constitution is introduced by the phrase - \"When an infringement of or threat to any right entrenched in this Chapter [Chapter 3] is alleged ...\" It is only when this condition is fulfilled that the persons referred to in paragraph (b) \"shall be entitled to apply to a competent court of law for appropriate relief.\" The crucial question is whether, when an examinee is compelled by section 417(2)(b) to answer a question which might tend to incriminate him or her and the section further provides that \"any answer given to such question may \fthereafter be used in evidence against him\", a section 25(3) right to a fair criminal \u03a0\u03b1\u03b3\u03b5 35 ACKERMANN J trial is being infringed or threatened with infringement.", "Textually, the relevant wording of section 7(4)(a) is clear. It is only when a Chapter 3 right is actually infringed or threatened with infringement that the prescribed persons are entitled to seek relief from a competent Court of law. The purpose seems clear. However widely the framers extended locus standi in section 7(4)(b), they did not wish abstract questions of constitutionality to be pursued in the Courts; the only exceptions being those specifically enacted in the Constitution, such as sections 98(2)(d) and 101(3)(e) of the Constitution, which, respectively, confer jurisdiction on the Constitutional Court over any dispute over the constitutionality of any Bill before Parliament or a provincial legislature and, in the case of a Provincial or Local Division of the Supreme Court, over any dispute as to the constitutionality of a Bill before a provincial legislature.", "The locus standi of all persons referred to in subparagraphs (i) - (v) of subsection (4)(b) is governed by the introductory phrase: \u201c (b) The relief referred to in paragraph (a) may be sought by - ...\u201d. In my view the whole of subsection (4)(b) of section 7 must be read as being subject to the qualification in subsection (4)(a). Subsection 4(a) expressly \frenders the right \u201cto apply to a competent court\u201d conditional upon \u201cwhen an \u03a0\u03b1\u03b3\u03b5 36 ACKERMANN J infringement of or threat to any right entrenched in this Chapter is alleged.\u201d The purpose of the introductory phrase in subsection (4)(b), \u201c[t]he relief referred to in paragraph (a) may be sought by\u201d, is to indicate by whom such relief may be sought. It neither textually, contextually nor teleologically alters the condition stipulated in subsection (4)(a); in particular it does not in any way affect the impact of the words \u201cwhen an infringement of or threat to any rights entrenched in this Chapter is alleged\u201d.", "Against this background, the provisions of subparagraph (4)(b)(iii) become clear and lend further weight to the above construction. This subparagraph refers to \u201ca person acting on behalf of another person who is not in a position to seek such relief in his or her own name.\u201d The words \u201csuch relief\u201d can only refer to the \u201crelief referred to in paragraph (a)\u201d mentioned in the introductory words of paragraph (b), i.e. the relief which may be sought \u201cwhen an infringement of or threat to any right entrenched in this Chapter is alleged.\" Subparagraph (4)(b)(iii) means that when it is alleged that a Chapter 3 right of A has been infringed or threatened and A is not in a position to seek relief, B may do so on behalf of A.", "Under these circumstances the provisions of subparagraph (4)(b)(i), namely - \f \u03a0\u03b1\u03b3\u03b5 37 ACKERMANN J \u201cThe relief referred to in paragraph (a) may be sought by - (i) a person acting in his or her own interest\u201d can only mean that there must be an \u201cinfringement of or threat to\u201d a Chapter 3 right of the \u201cperson acting in his or her own interest\u201d, for the \u201crelief referred to in paragraph (a)\u201d only becomes available when there is \u201can infringement of or threat to\u201d a Chapter 3 right. In terms of subparagraph (4)(b)(iii) B acts for A when A\u2019s Chapter 3 right is infringed or threatened with infringement and A is not in a position to seek such relief in his or her own name. In terms of subparagraph (4)(b)(i) A acts for himself or herself when A\u2019s Chapter 3 right is infringed or threatened with infringement and A is in a position to seek such relief in his or her own name. Paragraph (4)(a) determines when the right to invoke the aid of a Court arises; subsection (4)(b) determines by whom that right (when it accrues) may be exercised. The locus standi of all categories of persons in paragraph (4)(b) is qualified by paragraph (4)(a).", "It was not suggested that such limitation of justiciability was contrary to the values mentioned in section 35(1). The contrary was not argued. Neither was it suggested that such limitation of justiciability was contrary to the values mentioned in section 35(1), namely, \"the values which underlie an open and democratic society based on freedom and equality\"; nor that public international \flaw or foreign law would lead one to a different answer. The jurisdictions of the \u03a0\u03b1\u03b3\u03b5 38 ACKERMANN J United States of America,19 Canada20 and Germany21 all have \"case and controversy\" and locus standi provisions which limit justiciability. There being no other justification for not doing so, the aforementioned words in section 7(4)(a) must therefore be given their plain, ordinary, grammatical meaning.22", "To my mind the inescapable construction of subsection 7(4) leads to the conclusion that, if section 25(3) of the Constitution is to be relied upon, there must be an \u201cinfringement of or threat to\u201d a section 25(3) right, whether the right accrues to the person seeking the relief (subparagraph (4)(b)(i)), or a person on 19See in general Tribe American Constitutional Law 2ed (1988) 67 - 155. 20See in general Hogg Constitutional Law of Canada 3ed (1992) 1263 - 1278. 21See in general Umbach and Clemens Bundesverfassungsgerichtsgesetz (1992) 1039 - 46. 22See S v. Zuma and Others supra note 8 at paras 17-18, per Kentridge AJ. \fwhose behalf someone else seeks relief (subparagraph (4)(b)(iii)) or for whom a \u03a0\u03b1\u03b3\u03b5 39 ACKERMANN J person acts in the public interest (subparagraph (4)(b)(v)). This all follows from the express qualification in paragraph (4)(a) which is incorporated by reference in paragraph (4)(b) in the manner referred to above.", "The section 25(3) rights accrue, textually, only to \"every accused person\". They are rights which accrue, in the subjective sense, when a person becomes an \"accused person\" in a criminal prosecution. The examinee is not such an \"accused person\". It is a matter of pure speculation whether the applicants will ever become accused persons. Even should they become accused persons, their rights against extra-curial self-incrimination (assuming for the moment that such a right is an implied right in the larger category \"right to a fair trial\") are not automatically infringed when they become accused persons. It will depend upon whether self-incriminating evidence given by the applicants at the section 417 enquiry is tendered in evidence against them. At that moment, for the first time, there is a threat to any section 25(3) right against extra-curial self-incrimination. The inescapable conclusion, therefore, is that section 417(2)(b) does not constitute an infringement or threat of infringement of any section 25(3) rights of the applicants and that their attack on section 417(2)(b) on this basis can accordingly not succeed. This was in fact the prima facie conclusion reached in \fLynn NO and Another v. Kreuger and Others.23 \u03a0\u03b1\u03b3\u03b5 40 ACKERMANN J", "In the alternative, the applicants, for their constitutional challenge to section 417(2)(b) of the Act, relied with differing degrees of enthusiasm and persistence on the rights protected in sections 8, 10, 11, 13, 15, 22 and 24 of the Constitution. The main alternative argument was, however, based on the rights to \"freedom and security of the person\" and \"personal privacy\", respectively entrenched in sections 11(1) and 13.", "Section 7(4)(a) of the Constitution does not present any difficulty to the applicants in so far as they seek to rely on such rights, since these rights are not limited to any category of persons nor restricted to any particular factual context. Such reliance does not raise mere \"academic\" questions of law, but ones which become justiciable the moment the applicants invoke these rights. 231955 (2) BCLR 167 (N) per Hurt J at 169 I - 170 A. \f [44] The task of determining whether the provisions of section 417(2)(b) of the Act are ACKERMANN J \u03a0\u03b1\u03b3\u03b5 41 invalid because they are inconsistent with the guaranteed rights here under discussion involves two stages24 first, an enquiry as to whether there has been an infringement of the section 11(1) or 13 guaranteed right; if so, a further enquiry as to whether such infringement is justified under section 33(1), the limitation clause. The task of interpreting the Chapter 3 fundamental rights rests, of course, with the Courts, but it is for the applicants to prove the facts upon which they rely for their claim of infringement of the particular right in question. Concerning the second stage, \"[it] is for the legislature, or the party relying on the legislation, to establish this justification (in terms of section 33(1) of the Constitution), and not for the party challenging it, to show that it was not justified.\"25 The infringement of the section 11(1) right to freedom and security of the person", "In order to determine, at the first stage of the enquiry, whether the provisions of section 417(2)(b) of the Act are inconsistent with the section 11(1) right to freedom and security of the person, it is necessary, as a matter of construction, 24See generally S v. Zuma and Others supra note 8 at para 21 and S v. Makwanyane and Another 1995(6) BCLR 665(CC); 1995 (3) SA 391 (CC) at paras 100 - 102. 25S v. Makwanyane and Another supra note 24 at para 102. \fto define or circumscribe the section 11(1) right to the extent necessary for \u03a0\u03b1\u03b3\u03b5 42 ACKERMANN J purposes of this decision. It is obviously unwise and undesirable (if not impossible) even to attempt an exhaustive or comprehensive definition or circumscription of the right designed to hold good indefinitely and for all further cases. Yet, even if the exact nature and boundaries of the right are to be defined on a case to case basis, some attempt must be made at this stage to determine the meaning, nature and extent of the right. As part of this enquiry it is also necessary to determine more precisely what it is about the nature and operation of the provisions of section 417(2)(b) of the Act, and their impact upon the examinee, which can be said to be inconsistent with the right to freedom.", "This Court has given its approval to an interpretive approach \"which, whilst paying due regard to the language that has been used, is 'generous' and 'purposive' and gives expression to the underlying values of the Constitution\"26 as well as to that expressed in the following passage in the Canadian case of R v. Big M Drug Mart Ltd.: \"The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect. In my view this analysis is to be undertaken, and the purpose of 26Id at para 9. \f \u03a0\u03b1\u03b3\u03b5 43 ACKERMANN J the right or freedom in question is to be sought by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be ... a generous rather than legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.\"27 In the words of Chaskalson P, the provisions of Chapter 3 \"must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter 3 of which it is part. It must also be construed in a way which secures for 'individuals the full measure' of its protection.\"28 I would, in the first place, read \"freedom\" disjunctively from \"security of the person\" in section 11(1). The legislative history of the section would seem to confirm this. It was only in the Sixth Report of the Technical Committee on Fundamental Rights During the Transition that the right to \"personal liberty\" was combined with the right to \"security of the person\".29 The right \"to freedom\" must be construed as a separate and independent right, albeit related to the right to 27(1985) 13 C.R.R. 64 at 103. 28Id at para 10. \f \"security of the person.\" \u03a0\u03b1\u03b3\u03b5 44 ACKERMANN J", "Conceptually, individual freedom is a core right in the panoply of human rights. The right to human dignity (\"menswaardigheid\") is specifically entrenched in section 10 and has been categorised by this Court, together with the right to life, as 29Compare p. 6 of the Fifth Report with p. 6 of the Sixth Report. \f\u03a0\u03b1\u03b3\u03b5 45 ACKERMANN J \"the most important of all human rights ... .\"30", "In Makwanyane O'Regan J pointed out that \"without dignity, human life is substantially diminished\"31 and pronounced the prime value of dignity in the following terms: \"The importance of dignity as a founding value of the new Constitution cannot be overemphasised. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. This right therefore is the foundation of many of the other rights that are specifically entrenched in 30S v. Makwanyane and Another supra note 24 at para 144. 31Id at para 327. \f\u03a0\u03b1\u03b3\u03b5 46 ACKERMANN J Chapter 3.\"32 I agree with these views. O'Regan J also pointed out, rightly in my view, that \"[the] recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.\"33 32Id at para 328. 33Id at para 329. \f [49] Human dignity cannot be fully valued or respected unless individuals are able to ACKERMANN J \u03a0\u03b1\u03b3\u03b5 47 develop their humanity, their \"humanness\" to the full extent of its potential. Each human being is uniquely talented. Part of the dignity of every human being is the fact and awareness of this uniqueness. An individual's human dignity cannot be fully respected or valued unless the individual is permitted to develop his or her unique talents optimally. Human dignity has little value without freedom; for without freedom personal development and fulfilment are not possible. Without freedom, human dignity is little more than an abstraction. Freedom and dignity are inseparably linked. To deny people their freedom is to deny them their dignity. Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of its own.34 It is likewise the foundation of many of the other rights that are specifically entrenched.35 Viewed from this perspective, the starting point must be that an individual's right to freedom must be defined as widely as possible, consonant with a similar breadth of freedom for others. 34\"[T]hose who have ever valued liberty for its own sake believed that to be free to choose, and not to be chosen for, is an inalienable ingredient in what makes human beings human.\" Isaiah Berlin \"Introduction\" in Four Essays on Liberty Oxford University Press (1969) lx. 35Amongst others, the rights entrenched in sections 12, 14, 15, 16, 17, 18, 19, 20, 21, 25(2)(c) and (d), 25(3)(c) and (d), 27, 28, 30(1)(e), 30(2) and 31. \f \u03a0\u03b1\u03b3\u03b5 48 ACKERMANN J", "There are other and more specific indications in the Constitution that the right to freedom is to be extensively interpreted. Section 35(1) embodies an injunction that, generally, in interpreting the Chapter 3 provisions, a Court of law must promote the values which underlie an \"open\" and democratic society \"based on freedom and equality\". An \"open society\" most certainly enhances the argument that individual freedom must be generously defined. It is a society in which persons are free to develop their personalities and skills, to seek out their own ultimate fulfilment, to fulfill their own humanness and to question all received wisdom without limitations placed on them by the State. The \"open society\" suggests that individuals are free, individually and in association with others, to pursue broadly their own personal development and fulfilment and their own conception of the \"good life\".36", "A teleological approach also requires that the right to freedom be construed generously and extensively. In Makwanyane O'Regan J, adopting such a teleological approach, correctly observed as follows: \"Respect for the dignity of all human beings is particularly society\" as: 36Karl Popper in The Open Society and its Enemies 4 ed (1962) Vol. I at 173 refers to the \"open \"the society in which individuals are confronted with personal decisions\" and the \"closed \f \u03a0\u03b1\u03b3\u03b5 49 ACKERMANN J important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.\"37 society\" as \"the magical or tribal or collectivist society\". 37Supra note 24 at para 329. \f In my view exactly the same approach needs to be adopted in the case of the \u03a0\u03b1\u03b3\u03b5 50 ACKERMANN J right to freedom. This is not the place to enumerate or elaborate on the vast number of limitations which, in the recent past and prior to the Constitution, had been placed on personal freedom, nor on the extent or variety of such limitations.38 No right minded person in any society which claimed to be democratic and based on freedom and equality would today even try to justify these limitations. They started at birth and continued relentlessly until death. For the purposes of illustration, the most selective outline of such restrictions must suffice. The Population Registration Act and associated legislation eliminated or severely restricted the freedom to identify one's child39 and hospitalise40 or educate41 one's child. As an adult the curtailments of freedom related, amongst other things, to where one could reside42, work43 or own property44; what work 38Some of the most egregious are catalogued in Dugard Human Rights and the South African Legal Order (1978) 107 - 145 and Matthews Law, Order and Liberty in South Africa (1971) and Freedom, State Security and the Rule of Law (1988). 39Sections 4 - 7 of the Population Registration Act 30 of 1950. 40The old provinces had original legislative powers i.t.o. s 84(1) of the Constitution of the Republic of South Africa Act 32 of 1961 to deal with, inter alia, public health. This power was used to segregate the provision of health services. See, for example, Section 20(2)(A) of Ordinance 8 of 1971 of the Orange Free State in its original version. 41Bantu Education Act 47 of 53; Indians Education Act 60 of 1965; Coloured Persons Education Act 47 of 1963; Extension of University Education Act 45 of 1959. 42Section 4 of the Group Areas Act 41 of 1950. 43Section 5 of the Natives (Urban Areas) Act 21 of 1923; Section 10 - 15 of the Black (Urban Areas) Consolidation Act 25 of 1945. 44Section 1 of the Natives Land Act 27 of 1913, section 2 of the Asiatic Land Tenure and Indian Representation Act 28 of 1946, Section 5 of the Group Areas Act 41 of 1950; Section 7 of the Black \f one could do45; who one could marry46; how one could express47 or organise \u03a0\u03b1\u03b3\u03b5 51 ACKERMANN J oneself politically48 or where one could be buried.49 A feature common to all or many of these denials of freedom was a denial of the freedom to choose or develop one's own identity, a denial of the freedom to be fully human. One of the main objects of the Constitution is to eradicate such denial or restriction of freedom, not in a casuistic way but as a profound constitutional commitment. In Makwanyane I had occasion to emphasise \"the importance, in our new constitutional state, of reason and justification when rights are sought to be curtailed\"50 and to refer to the fact that the Constitution is, in the words of Prof E Mureinik, \"... a bridge to ... a culture of justification\".51 This further supports an extensive definition of freedom at the first stage of the enquiry. It may, in the State's interest, be necessary to limit the right to freedom, but then it is for the (Urban) Areas Consolidation Act 25 of 1945. 45Section 4 of Act 12 of 1911; Section 14 of the Black Building Workers Act 27 of 1951; Bantu Labour Act 67 of 1964; Section 15(1) of Occupational Diseases in Mines and Works Act 78 of 1973. 46Section 1 of the Prohibition of Mixed Marriages Act 55 of 1949. 47Section 47(2) of the Publications Act 42 of 1974; Section 29 of the Black Administration Act 38 of 1927; Section 15 of the Internal Security Act 74 of 1982. 48Section 2 of the Suppression of Communism Act 44 of 1950; Section (1) of the Unlawful Organisations Act 34 of 1960; Prohibition of Political Interference Act 51 of 1968; Affected Organisations Act 31 of 1974; Section 4(1) of the Internal Security Act 74 of 1982. 49Local government structures were specifically authorised to segregate burial grounds through passing appropriate by-laws. See, for example, Section 146(1) of Orange Free State Ordinance 8 of 1962 in its original form. 50Supra note 24 at para 156. \fbody or person relying upon such limitation to establish in terms of section 33(1) \u03a0\u03b1\u03b3\u03b5 52 ACKERMANN J inter alia, in the case of the limitation of a section 11(1) right, that such limitation is reasonable, justifiable in an open and democratic society based on freedom and equality, and necessary.", "I do not think that, in the context of the Constitution as a whole, there is any difference between freedom and liberty.52 In the negative sense freedom is, as pointed out by Isaiah Berlin, \"involved in the answer to the question 'What is the area within which the subject - a person or a group of persons - is or should be left to do or be what he is able to do or be, without interference by other persons?'\"53 In the positive sense freedom, so contends Berlin, \"is involved in the answer to the question 'What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?'\"54 51Id at para 156 note 1. 52Isaiah Berlin \"Two Concepts of Liberty\" in Four Essays on Liberty Oxford University Press (1969) at 121. 53Id at 121-122. 54Id at 122. \f\u03a0\u03b1\u03b3\u03b5 53 ACKERMANN J Section 11(1) is concerned with freedom in the negative sense and that is the sense in which I shall hereafter use it. It is essential to distinguish between freedom (liberty) and the conditions of its exercise. It could be dangerous to conflate the two concepts. \"If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated. The obligation to promote education, health, justice, to raise standards of living, to provide opportunity for the growth of the arts and the sciences, to prevent reactionary political or social or legal policies or arbitrary inequalities, is not made less stringent because it is not necessarily directed to the promotion of liberty itself, but to conditions in which alone its possession is of value, or to values which may be independent of it. And still, liberty is one thing, and the conditions for it another .... . Useless freedoms should be made usable, but they are not identical with the conditions indispensable for their utility. This is not a merely pedantic distinction, for if it is ignored, the meaning and value of freedom of choice is apt to be downgraded. In their zeal to create social and economic conditions in which alone freedom is of genuine value, men tend to forget freedom itself; and if it is remembered, it is liable to be pushed aside to make room for these other values with which the reformers or revolutionaries have become pre-occupied ..... . To provide for material needs, for education, for such equality and security as, say, children have at school or laymen in a theocracy, is not to expand liberty. We live in a world characterized by r\u00e9gimes (both right- and left-wing) which have done, or are seeking to do, precisely this; and when they call it freedom, this can be as great a fraud as the freedom of the pauper who has a legal right to purchase luxuries. Indeed, one of the things that Dostoevsky's celebrated fable of the Grand Inquisitor in The Brothers Karamazov is designed to show is precisely that paternalism can provide the conditions of freedom, yet withhold freedom itself.\"55 \f \u03a0\u03b1\u03b3\u03b5 54 ACKERMANN J 55Berlin \"Introduction\" in Four Essays on Liberty supra note 52 at Iiii to Iv. \f The fact that the right to freedom must, in my view, be given a broad and \u03a0\u03b1\u03b3\u03b5 55 ACKERMANN J generous interpretation at the first stage of the enquiry, must therefore not be thought to be premised on a concept of the individual as being in heroic and atomistic isolation from the rest of humanity, or the environment, for that matter. I wish to emphasise quite explicitly that a broad and generous interpretation of freedom does not deny or preclude the constitutionally valid, and indeed essential, role of state intervention in the economic as well as the civil and political spheres. On the contrary, state intervention is essential to resolve the paradox of unlimited freedom (where freedom ultimately destroys itself) in all these spheres.56 But legitimate limitations on freedom must occur through and be its Enemies 4 ed (1962) Vol. II at 124 -- 5: 56The solution to this paradox is eloquently stated by Popper as follows in The Open Society and \"Freedom, we have seen, defeats itself, if it is unlimited. Unlimited freedom means that a strong man is free to bully one who is weak and to rob him of his freedom. This is why we demand that the state should limit freedom to a certain extent, so that everyone's freedom is protected by law. Nobody should be at the mercy of others, but all should have a right to be protected by the state. Now I believe that these considerations, originally meant to apply to the realm of brute force, of physical intimidation, must be applied to the economic realm also. Even if the state protects its citizens from being bullied by physical violence (as it does, in principle, under the system of unrestrained capitalism), it may defeat our ends by its failure to protect them from the misuse of economic power. In such a state, the economically strong is still free to bully one who is economically weak, and to rob him of his freedom. Under these circumstances, unlimited economic freedom can be just as self-defeating as unlimited physical freedom, and economic power may be nearly as dangerous as physical violence; for those who possess a surplus of food can force those who are starving into a 'freely' accepted servitude, without using violence. And assuming that the state limits its activities to the suppression of violence (and to the protection of property), a minority which is economically strong may in this way exploit the majority of those who are economically weak. If this analysis is correct, then the nature of the remedy is clear. It must be a political remedy - a remedy similar to the one which we use against physical violence. We must construct social institutions, enforced by the power of the state, for the protection of the economically weak from the economically strong. \fjustified under the principles formulated in section 33(1), not by giving a restricted \u03a0\u03b1\u03b3\u03b5 56 ACKERMANN J definition of the right to freedom in section 11(1). Kant luminously conceptualises freedom as the \"only one innate right\" in the following terms: \"Freedom (independence from the constraint of another's will), insofar as it is compatible with the freedom of everyone else in accordance with a universal law, is the one sole and original right that belongs to every human being by virtue of his humanity.\"57", "I also accept that it is not possible in all circumstances to fully harmonise all the Chapter 3 rights with one another and that, in a given case, one right will have to be limited in favour of another. As Berlin points out: The state must see to it that nobody need enter into an inequitable arrangement out of fear of starvation, or economic ruin.\" 57The Metaphysical Elements of Justice (tr. John Ladd) Macmillan (1985) at 43. \f\u03a0\u03b1\u03b3\u03b5 57 ACKERMANN J \"... since some values may conflict intrinsically, the very notion that a pattern must in principle be discoverable in which they are all rendered harmonious is founded on a false a priori view of what the world is like. If ... the human condition is such that men cannot always avoid choices ... [this is] for one central reason ... namely, that ends collide; that one cannot have everything ... The need to choose, to sacrifice some ultimate values to others, turns out to be a permanent characteristic of the human predicament\";58 and further comments: \"If we wish to live in the light of reason, we must follow rules and principles; for that is what being rational is. When these rules or principles conflict in concrete cases, to be rational is to follow the course of conduct which least obstructs the general pattern of life in which we believe. ... [E]ven those who are aware of the complex texture of experience, of what is not reducible to generalisation or capable of computation, can, in the end, justify their decisions only by their coherence with some over-all pattern of a desirable form of personal or social life, of which they may become fully conscious only, it may be, when faced with the need to resolve conflicts of this kind. If this seems vague, it is so of necessity.\"59 58Supra note 52 \"Introduction\" at Ii. 59Id at Iv. \f Although Berlin's views pertain to the field of political and moral philosophy, they \u03a0\u03b1\u03b3\u03b5 58 ACKERMANN J are in my view equally applicable, mutatis mutandis, to constitutional interpretation and adjudication, where for the touchstone of \"some over-all pattern of a desirable form of personal or social life\" one could substitute \"some over-all pattern of the norms and values of the Constitution.\" Section 35(1) of our Constitution points to the norms and values \"which underlie an open and democratic society based on freedom and equality.\" As a prerequisite for the limitation of rights entrenched in Chapter 3 of the Constitution, section 33(1)(a)(ii) provides that such limitation shall be permissible only to the extent that it is \"justifiable in an open and democratic society based on freedom and equality\". However, rights of freedom and equality are not always reconcilable and in concrete situations difficult choices may have to be made, because section 33(1)(a)(ii) does not provide an obvious answer to the choice between freedom and equality. Nor does section 35(1). It is, however, neither necessary nor desirable, for purposes of this case, to pursue this aspect of the matter any further.60 60I would, however, refer in passing to the analysis and suggested resolution by Prof Louis Henkin of the clash, in constitutional law, between freedom and privacy on the one hand and equality on the other, in his seminal article, \"Shelley v. Kraemer: Notes for a Revised Opinion\" (1962) 110 U Pa L Rev 473 \f \u03a0\u03b1\u03b3\u03b5 59 ACKERMANN J particularly at 487-492 and 494-496. \f [54] In the light of all the aforegoing I would, at this stage, define the right to freedom \u03a0\u03b1\u03b3\u03b5 60 ACKERMANN J negatively as the right of individuals not to have \"obstacles to possible choices and activities\"61 placed in their way by (for present purposes we need go no further) the State. I am indeed mindful of the fact that, as alluded to in paragraph", "above, specific \u201cfreedom rights\u201d are separately protected in Chapter 3. So, for example, the freedom to choose one\u2019s place of residence is specifically protected in section 19, as is the right to enter, remain in and leave the Republic in section 20. The meaning and ambit of these specifically and separately protected freedom rights must of course, in my view, be construed in the context of their specific entrenchment with due regard to the rules of constitutional construction and, in particular, the purpose they were intended to serve. It is also important to bear in mind that, when considering possible limitations on these section 19 and 20 rights in terms of the provisions of section 33(1) of the Constitution, such limitations do not, in addition to being reasonable, also have to be \u201cnecessary\u201d for purposes of the provisos in subparagraphs (aa) or (bb) of 61Berlin supra note 52 \"Introduction\" at xxxix. See also R v. Big M Drug Mart supra note 27 at 97, where Dickson CJC, in the context of the freedom of conscience and religion guaranteed in section 2(a) of the Canadian Charter, characterised freedom \"primarily ... by the absence of coercion or constraint\" and stated that, \"[i]f a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.\" \f subsection 33(1). \u03a0\u03b1\u03b3\u03b5 61 ACKERMANN J", "Similarly the freedoms of expression, assembly, demonstration and petition, association, and movement, are dealt with separately and specifically in sections 15 to 18 respectively. These rights, too, have to be construed and defined separately, as indicated above. Legitimate limitations on these rights are not subject to the additional requirement of being \u201cnecessary\u201d in terms of proviso (bb) to section 33(1) unless and insofar as any such right \u201crelates to free and fair political activity\u201d.", "There are also specifically enumerated freedom rights where any limitation, in addition to being reasonable, must under all circumstances also be necessary in order to pass section 33(1) scrutiny. Such rights include the section 14(1) rights to freedom of conscience, religion, thought, belief and opinion and the section 21 political rights.", "The implication of this separate enumeration and independent protection of specific freedom rights is of course that the freedom rights protected by section 11(1) should more properly be designated \u201cresidual freedom rights\u201d. Consequently, when it is alleged that any freedom right has been infringed, the \fproper methodology would be first to determine whether the right infringed is a \u03a0\u03b1\u03b3\u03b5 62 ACKERMANN J specifically enumerated freedom right. This will be done by analysis and construction of the specific section entrenching the right in question and applying it to the case at hand. If any limitation of such right is relied upon, regard will then be had to the specific provision in section 33(1) relating to such enumerated freedom right. If the alleged infringement is not of an enumerated freedom right, then the enquiry will be directed to determining whether a residual freedom right protected by section 11(1) has been infringed. If so, any limitation of such residual freedom right must, in addition to being reasonable, also be necessary because section 11 is included in proviso (aa) to section 33(1). I have had the benefit of reading the President's judgment in draft. I fully agree with his view that the ambit of the section 11(1) freedom right \"does not depend on the construction of the section in isolation but on its construction in the context of Chapter 3 of the Constitution.\" It is, in fact, such an approach which has led me to the conclusion that it is a residual freedom right. I also agree, and have indeed adopted this approach, that in considering a constitutional challenge based on an alleged denial or limitation of freedom the first step is to enquire whether the impugned act falls within the freedoms elsewhere protected in Chapter 3.", "It might be suggested that, because the legislature has sought fit to subject any \f limitation of a residual freedom right to stricter scrutiny, that such residual \u03a0\u03b1\u03b3\u03b5 63 ACKERMANN J freedom rights ought to be more narrowly construed. In my view there is no warrant for such an approach, for at least two reasons. First, it would constitute an unjustified \u201csecond-guessing\u201d of the framers\u2019 intention. They must have been only too well aware that at least some of the section 11(1) rights were residual freedom rights in view of the fact that so many freedom rights were specifically enumerated in other sections of the Constitution. Despite this awareness, they chose to confer the higher level of protection on these rights in proviso (aa) to section 33(1). In my view, this decision, which is quite unambiguous, must be respected by this Court. It is not our function to cut down artificially the patent protection afforded by section 11(1) to residual freedom rights by giving a limited construction, and a strained one at that, to these residual freedom rights. Second, such a construction would be in conflict with the \u201cgenerous\u201d and \u201cfull benefit\u201d interpretative approach unanimously approved by this Court in S v Zuma and Others62 and in particular the following quotation approved of by Kentridge AJ: \u201cConstitutional rights conferred without express limitation should not be cut down by reading implicit restrictions into them, so as to 621995 (4) BCLR 401 (SA); 1995 (2) SA 642 (CC); at paras 14-15. \f \u03a0\u03b1\u03b3\u03b5 64 ACKERMANN J bring them into line with the common law.\u201d63 63Id at para 15. \f I respectfully disagree with the President's view that those freedoms (and by \u03a0\u03b1\u03b3\u03b5 65 ACKERMANN J implication other rights) whose limitation is made subject to the \"necessary\" test by section 33 of the Constitution are necessarily of a \"higher order\" than those freedoms which are not subjected to such an onerous test. A limitation of the section 8 equality right, for example, is not made subject to the more stringent \"necessary\" test, yet in my view it could scarcely be said that this right is of a \"lower\" order. I therefore consider it unhelpful to focus, as the President does, on the fact that a limitation of the section 13 right to privacy is only subject to the \"reasonable\" test. I certainly disagree, with respect, that this is anomalous. Even if it were anomalous, I do not believe that the anomaly assists this Court in construing the section 11(1) right to freedom. It certainly does not call for what I would consider a strained and limited construction. There may well be good reason why the limitation of a section 13 right is only subject to the \"reasonable\" test. It may be because of the natural tension between this right and the right to freedom, or for some other reason, about which it is unprofitable to speculate. The fact that the guarantee against \"torture\" in section 11(2) is made subject to any limitation at all (particularly when regard is had to the fact that both the International Covenant on Civil and Political Rights and the European Convention on Human Rights outlaw any derogation from this right even in times of war64 or 64European Convention on Human Rights articles 3 and 15(2). \fpublic emergency threatening the life of the nation65) I find far more anomalous, \u03a0\u03b1\u03b3\u03b5 66 ACKERMANN J but I do not consider such anomaly useful in construing other provisions of Chapter 3.", "It needs to be emphasised that what is being contended for in this judgment is not an unlimited right to freedom or that the section 11(1) residual freedom rights are unlimited. What is being postulated is a broad and generous construction of these rights, which is quite different from contending that they are unlimited. These rights are indeed subject to limitation, but limitation justified in terms of section 33(1) of the Constitution.", "It might be contended that, by giving a broad and generous construction to the section 11(1) residual freedom rights, the Court will, in the fields of criminal law and general regulatory provisions for example, be dragged into what are essentially legislative functions, because the state will be called upon to show in Political Rights articles 4(2) and 7. 65European Convention on Human Rights articles 3 and 15(2); International Covenant on Civil and \fall these cases that the limitations imposed are necessary. I cannot, however, \u03a0\u03b1\u03b3\u03b5 67 ACKERMANN J see that this differs in any principled way from the task which the Court has to discharge when it tests any legislative or regulatory provision against the provisions of the Constitution in order to determine the validity of the former. Provisos (aa) and (bb) to section 33(1) embody an extensive array of Constitutional rights which, if infringed by any criminal statute or regulatory provision, would require the state (when rights enumerated in proviso (aa) are infringed and, in certain circumstances, when rights enumerated in proviso (bb) are infringed) to establish that limitations are, in addition to any other requirement, also necessary.", "It might also be contended that, by giving such a broad and generous construction to the section 11(1) residual freedom rights, the Court will be inviting an intolerable workload because it will be obliged to test a multitude of criminal and other statutory provisions which are challenged on the grounds, inter alia, that the limitations thus placed on residual freedom rights are not necessary. Such an argument could proceed on the following basis: (a) that the majority of these statutory provisions will only be attacked if the right to freedom in section 11(1) is not narrowly construed; (b) that the court will be flooded with frivolous complaints; and \f \u03a0\u03b1\u03b3\u03b5 68 ACKERMANN J (c) that the court is powerless to prevent this. In my view none of these premises can be assumed and all are unfounded.", "Depending on the nature of the criminal or other regulatory statutes involved, there are likely to be many other Chapter 3 rights which are facially involved. It cannot simply be postulated that an internally unlimited residual freedom right will open the floodgates.", "It is patent that the overwhelming substance of criminal and other regulatory legislative provisions constitute constitutionally justified limitations on rights, a fact which I believe is well recognised even by the lay public. It is unduly pessimistic to expect a deluge of frivolous challenges to legislation based simply on a broad reading of the section 11(1) right to freedom. In any event it is reasonable to suppose that most challenges will arise either in the Provincial and Local Divisions of the Supreme Court or in other Courts. In both cases the Supreme Courts (either through section 102(1) of the Constitution or section 103(4), in the case of matters originating in other Courts) are well able, by a proper application of these provisions in the Constitution, to dispose of challenges where there is not a reasonable prospect that the law or provision is invalid. \f \u03a0\u03b1\u03b3\u03b5 69 ACKERMANN J", "This Court itself controls direct access through the provisions of section 100(2) of the Constitution and the Constitutional Court rules, in particular rule 17. The United States and German courts of equivalent jurisdiction have devised effective means of preventing docket overload and there is no reason to believe that this Court is not able to do likewise. If a frivolous or vexatious matter does succeed in slipping through the net there are appropriate ways (including an appropriate punitive order as to costs) by which this Court could discourage such matters from being brought before it.", "There may also be the anxiety that, unless freedom is given a more restricted meaning, this Court will inevitably be drawn into matters which are the concern of the Legislature rather than the Courts and could stand accused of what Tribe has described as being the error in decisions such as Lochner v New York66 which was \u201ca misguided understanding of what liberty actually required in the industrial age.\u201d67 I believe this fear to be unfounded. Lochner, a case in which the United States Supreme Court invalidated maximum hour work laws as violative of contractual liberties protected by the Constitution, was decided in 1905 at a time 66198 US 45 (1905). 67Tribe American Constitutional Law 2ed (1988) at 769. \fand in a socio-economic context completely different from ours in 1995. I do not \u03a0\u03b1\u03b3\u03b5 70 ACKERMANN J believe that we ought to allow ourselves to be haunted by the Lochner ghost. It is to me inconceivable that the broad sweep of labour legislation in this country68 could be struck down because of an argument that it infringed rights of contractual freedom protected by the Constitution. This is so for a number of reasons. 68One is not here concerned with discrete provisions which might give rise to constitutional controversy even with a narrowly construed right to freedom. \f [66] First, the interventionist role of the state is no longer seen, in broad terms, as ACKERMANN J \u03a0\u03b1\u03b3\u03b5 71 being limited to protecting its citizens against brute physical force and intimidation from others only, but is seen as extending to the economic and social realm as well.69 Second, there are specific provisions in the Constitution itself which will ensure that appropriate labour and other social legislation will not be invalidated because of a \u201cmisguided understanding\u201d of what liberty requires.70 Third, statutory limitations on contractual freedom will (quite apart from the 69See Popper's analysis supra note 56. The German Basic Law emphasises the social as well as the democratic character of the state (article 20(1)) and that property imposes duties and should serve the public weal (article 14(2)): In fact a very considerable jurisprudence has been built up around the concept of the social responsibility of the state, as to which, in general, see the comprehensive list of literature on the topic in Maunz-D\u00fcrig Grundgesetz Kommentar (1994) Vol. II, commentary on article 20 at 295-302. 70The section 8 right to equality before the law and the freedom from unfair discrimination is qualified in subsection (3) as follows: \u201c(3)(a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms. (b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123.\u201d The section 26 right to free economic activity is qualified in subsection (2) as follows: \u201c(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.\u201d \u201c(1) Section 27 is to the following effect: (2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers\u2019 organisations. Every person shall have the right to fair labour practices. (3) Workers and employers shall have the right to organise and bargain collectively. (4) Workers shall have the right to strike for the purpose of collective bargaining. (5) Employers' recourse to the lock-out for the purpose of collective bargaining shall \fimportance in this field of the provisions of section 26(2) of the Constitution)71 be \u03a0\u03b1\u03b3\u03b5 72 ACKERMANN J justified under section 33(1), assuming the other requirements for limitation to have been fulfilled, if they are, in terms of section 33(1)(a)(ii), \u201cjustifiable in an open and democratic society based on freedom and equality\u201d. As a general proposition it is difficult to see how labour and other social legislation would be struck down where such legislation easily passes constitutional scrutiny in countries such as the United States of America, Canada and Germany.", "It has been suggested that the \u201cdue process\u201d provisions of section 25, the prohibition against cruel, inhuman or degrading punishment in section 11(2) and the fact that substantive criminal law must not be inconsistent with the provisions of Chapter 3, provide accused persons with all the protection that one expects in an \u201copen and democratic society based on freedom and equality\u201d and that this is a strong reason for holding that \u201cfreedom and security of the person\" in section not be impaired subject to section 33(1).\" 71See previous note 70. \f11(1) should not be construed as including freedom from criminal prosecution \u03a0\u03b1\u03b3\u03b5 73 ACKERMANN J and imprisonment in accordance with the laws of the land. This is a very broad proposition which would, in my view, require for its justification a very detailed examination of our criminal law and the possible abuses to which it could be put. It is a proposition with which I am in any event unable to agree. One can think offhand of many prohibitions (such as an unqualified prohibition against the possession of any fire-arm, the possession of liquor in any form, the playing of sport on Sunday, and the proscription of various activities or where or when they may be carried out) which might be difficult to challenge under provisions of Chapter 3 other than the section 11(1) residual freedom rights, but would be unacceptable in an \u201copen and democratic society based on freedom and equality\u201d.", "A major difficulty with reading a limitation into section 11(1) where the framers have not seen fit to do so is the absence of any neutral principle or norm for doing so. Neither the text, context nor purpose of Chapter 3 requires it. To read a limitation into the subsection in these circumstances is to run the risk of injecting subjective values into the text at the expense of a proper interpretation of the Constitution. \f [69] Even though the freedom rights in section 11(1) are residual freedom rights, \u03a0\u03b1\u03b3\u03b5 74 ACKERMANN J there is no justification for not giving these residual freedom rights the broad and generous interpretation I have suggested. They constitute the residual rights of individuals (where such or similar rights are not protected elsewhere in Chapter 3) not to have \u201cobstacles to possible choices and activities\u201d placed in their way by (for present purposes we need not, as already indicated, go any further) the State.72", "What is it about the nature and operation of the provisions of section 417(2)(b) of the Act, and their impact upon the examinee, which can be said to be inconsistent with the right in question? Although it is section 417(2)(b) of the Act which is under attack, it must be analysed in the full context of its operation with other relevant provisions of the Act. In the first place, the examinees, if they fall within the classes of persons referred to in sub-section (1) of section 417 of the Act (which all the applicants do) appear at the examination under compulsion, for if they are duly summoned and fail to attend voluntarily, the Master or the Court 72See supra paragraph [49] and note 61. \f may, by virtue of the provisions of sub-section (4) cause them to be apprehended \u03a0\u03b1\u03b3\u03b5 75 ACKERMANN J and brought before the Master or Court for examination. The examinee has no choice but to attend. The examinee is, in terms of sub-section (2) obliged to submit to examination. Moreover, any examinee who fails, without sufficient cause, to answer fully any question lawfully put to the examinee in terms of sub- section (2) is, in terms of the provisions of section 418(5)(b)(iii) of the Act, guilty of an offence and, in terms of section 441(1)(f), liable upon conviction to a fine not exceeding R2000 or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment. Section 417 obliges the examinee to answer all questions even though the answer given to any such question may tend to incriminate him or her. Examinees thus have a very restricted choice if they have in the past acted in a way which might make them liable to criminal prosecution in connection with the trade, dealings, affairs or property of the company and they are examined in connection with such acts. If they refuse to answer, they face conviction and sentence to a fine or imprisonment (or both). If they answer, they run the risk of prosecution and conviction under circumstances where they might not have been prosecuted or convicted but for their answers at the examination, because section 417(2)(b) explicitly provides that even an answer which tends to incriminate the examinee may thereafter be used in evidence against him or her. \f \u03a0\u03b1\u03b3\u03b5 76 ACKERMANN J", "It must be remembered that this stage of the enquiry is not concerned with whether any infringement of an examinee's section 11(1) right is justified in terms of section 33(1) but merely whether the right has been infringed. On the basis of the general principles set forth above, I would conclude that, prima facie, the restrictions placed by section 417(2)(b) on an examinee's choices and activities constitute an infringement of section 11(1).", "It is appropriate to consider whether comparable foreign case law would lead to a different conclusion. Direct comparison is of course difficult and needs to be done with circumspection because the right to personal freedom is formulated differently in the constitutions of other countries and in the international and regional instruments. Nevertheless, section 33(1) of our Constitution enjoins us to consider, inter alia, what would be \u201cjustifiable in an open and democratic society based on freedom and equality\u201d and section 35(1) obliges us to promote the values underlying such a society when we interpret Chapter 3 and encourages us to have regard to comparable case law. In construing and applying our Constitution, we are dealing with fundamental legal norms which are steadily becoming more universal in character. When, for example, the United States Supreme Court finds that a statutory provision is or is not in accordance \fwith the \u201cdue process of law\u201d or when the Canadian Supreme Court decides that \u03a0\u03b1\u03b3\u03b5 77 ACKERMANN J a deprivation of liberty is not \u201cin accordance with the principles of fundamental justice\u201d (concepts which will be dealt with later) we have regard to these findings, not in order to draw direct analogies, but to identify the underlying reasoning with a view to establishing the norms that apply in other open and democratic societies based on freedom and equality.", "Section 7 of the Canadian Charter entrenches the right to liberty and security of the person in terms narrower than section 11(1) of our Constitution. It provides: \"7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.\" (Emphasis added). Section 8 of the Charter is to the following effect: \"8. Everyone has the right to be secure against unreasonable search and seizure.\" In Canada the general approach of the Courts is that there is a deprivation of liberty within the meaning of section 7 of the Charter where conduct is prescribed or proscribed by law, and imprisonment is a possible consequence of disobeying \f the law in question.73 In Reference Re ss 193 and 195.1(C) of the Criminal Code \u03a0\u03b1\u03b3\u03b5 78 ACKERMANN J Dickson CJC, writing for three of the six Justices, held that \"... there is a clear infringement of liberty in this case given the possibility of imprisonment contemplated by the impugned provisions.\"74 73Hogg Constitutional Law of Canada 3 ed (1992) at 1026 - 1027 states that, \"'Liberty' certainly includes freedom from physical restraint. Any law that imposes the penalty of imprisonment, whether the sentence is mandatory or discretionary, is by virtue of that penalty a deprivation of liberty and must conform to the principles of fundamental justice.\" 74[1990] 48 C.R.R. 1 at 15. \f [74] The decision of the Supreme Court of Canada in Thomson Newspapers Ltd. et ACKERMANN J \u03a0\u03b1\u03b3\u03b5 79 al. v. Director of Investigation and Research et al75 is particularly instructive. The Canadian Combines Investigation Act76 (the \"CI Act\") provided for a system of investigation and research which allowed the Director to determine facts relevant to particular issues of market behaviour, including breaches of prescribed guidelines set forth in the Act. Section 17 of the Act allowed the Director of Investigation and Research, in the course of carrying out an investigation under the Act, to apply for an order requiring any person to be examined under oath and to produce business records. Section 20(2) of the Act protected examinees who were compelled to testify against subsequent use of their oral testimony in criminal proceedings against them, but not against the subsequent use of evidence derived from that testimony. Officers of Thomson Newspapers were served with orders to appear before the Restrictive Trade Practices Commission to be examined under oath and to make production of certain documents. They attacked section 17 of the CI Act on the grounds of its violation of sections 7 and 75[1990] 67 D.L.R. (4th) 161. 76R.S.C. 1970, c. C-23. \f8 of the Canadian Charter. The Supreme Court of Canada ultimately held, Lamer \u03a0\u03b1\u03b3\u03b5 80 ACKERMANN J and Sopinka JJ dissenting in part, and Wilson J dissenting, that section 17 of the CI Act violated neither section 7 or section 8 of the Charter.", "Each member of the Supreme Court (Lamer, Wilson, La Forest, L'Heureux-Dub\u00e9 and Sopinka JJ) gave a separate judgment. The reasons for all the judgments are not readily amenable to brief, accurate summary. They are, however, instructive both on the issue of the ambit of the right to liberty in section 7 of the Charter (the right to freedom in section 11(1) of our Constitution) and the possible limitation of such right in terms of section 1 of the Charter (section 33(1) of our Constitution). For the present part of this judgment I refer only to the former.", "Section 17(1) of the CI Act makes provision, inter alia, for the examination on oath of persons before a member of the Commission who may make orders for securing the attendance of witnesses and their examination and \"may otherwise exercise, for the enforcement of such orders or punishment for disobedience \f thereof, all the powers that are exercised by any superior Court in Canada for the \u03a0\u03b1\u03b3\u03b5 81 ACKERMANN J enforcement of subpoenas to witnesses or punishment of disobedience thereof.\" Lamer J, without pronouncing on the section 7 issue, dismissed the section 7 challenge on the basis that the wrong section of the CI Act had been challenged, section 20(2) thereof and section 5(1) of the Canadian Evidence Act being the relevant statutory provisions which had to be challenged in order for the applicants to succeed.77 Wilson J held that section 17 of the CI Act violated a person's right to liberty and security of the person within the meaning of section 7 of the Charter78, stating that: \"There is, however, in my view a vast difference between a general regulatory scheme (such as the rules of the road for motorists) designed to give some order to human behaviour and a state- imposed compulsion on an individual to appear at proceedings against his will and testify on pain of punishment if he refuses. The difference is even greater, in my view, where the compelled testimony given by the individual may be used to build a case 77Thomson supra note 75 at 175 a - b. 78Id at 186 h. \f \u03a0\u03b1\u03b3\u03b5 82 ACKERMANN J against him in what is, in effect, a subsequent criminal prosecution. It is my opinion that this compulsion, linked as it is to the criminal process, touches upon the physical integrity of the individual as well as that individual's reasonable expectation of privacy. The fact that the s. 17 procedure is in itself 'investigatory' as opposed to 'prosecutorial' seems to me to be irrelevant when a criminal prosecution is a potential consequence of the s. 17 enquiry.\"79 The learned Judge also found that the infringement by section 17 of the appellants' section 7 rights was not \"in accordance with the principles of fundamental justice\"80 (the phrase qualifying the section 7 right to \"liberty and security of the person\"), stating that: \"Although s. 20(2) of the Act protects a witness who testifies under s. 17 from use of the testimonial evidence in a subsequent prosecution if one takes place, it does not protect the witness against use of the derivative evidence. Accordingly, s.17 violates the residual s.7 right of an individual not to be compelled to testify in an investigatory proceeding with a view to possible subsequent prosecution absent legislative assurance that any derivative 79Id at 186 d - f. 80Id at 204 e - h. \f \u03a0\u03b1\u03b3\u03b5 83 ACKERMANN J evidence obtained as a result of his testimony cannot be used against him in such prosecution.\"81 81Id at 204 f - h. \f Section 11(1) of the South African Constitution of course contains no such \u03a0\u03b1\u03b3\u03b5 84 ACKERMANN J limitation to the \"right to freedom and security of the person\"; but the possible significance of this aspect of the Thomson judgment for the present enquiry will be dealt with later. La Forest J also found that section 17 of the CI Act constituted a deprivation of liberty within the meaning of section 7,82 but concluded that it did so in accordance with the principles of fundamental justice, holding that \".... complete immunity against such use [of derivative evidence] is not required by the principles of fundamental justice. The immunity against use of actual testimony provided by s. 20(2) of the Act together with the judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirements of the Charter.\"83 L'Heureux-Dub\u00e9 J came to a similar conclusion.84 Sopinka J, concurring with Wilson J in this respect, held that section 17 of the CI Act violated section 7 of the Canadian Charter, \"in particular, the principle of fundamental justice in which the right to remain silent is embodied\" to the extent that the provisions of section 17 compelled testimony.85 The learned Judge's reasons for concluding that section 17 violated this principle of fundamental justice will be considered in due course, but it is clear that he considered that \"the right of a suspect to remain 82Id at 242 c. 83Id at 264 d - e. 84Id at 271 g and 281 e - f. \fsilent during the investigative stage\" had the \"status of a principle of fundamental \u03a0\u03b1\u03b3\u03b5 85 ACKERMANN J justice\" and that it was included in section 7, \"the repository of many of our basic rights which are not otherwise specifically enumerated.\"86", "The Fifth Amendment to the United States Constitution provides in part that - \"[No person] ... shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty, or property, without due process of law\". 85Id at 290 e - f. 86Id at 294 a. \f In dealing with the Fifth Amendment it must of course be borne in mind, as \u03a0\u03b1\u03b3\u03b5 86 ACKERMANN J pointed out by Wilson J in Thomson Newspapers87, that the United States Constitution has no limitation clause (such as section 1 in the Canadian Charter or section 33(1) of our Constitution) and that, accordingly, any limitation on a constitutional right has to be read into the right itself. Nevertheless it is significant that the United States Fifth Amendment right not to be so compelled \"has consistently been accorded a liberal construction\"88 and \"is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.\"89 It is regarded as a right in the broad panoply of freedom rights which were added to the original Constitution \"in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society 87Id at 206 h - 207 a. 88Miranda v. Arizona 384 US 436 (1965) at 461. 89Id at 467. \f should not be sacrificed.\"90 It is viewed as one of the fruits of \"[t]he battle for \u03a0\u03b1\u03b3\u03b5 87 ACKERMANN J personal liberty\".91 In defining explicitly the spirit in which this privilege against self-incrimination should be approached, Frankfurter J stated that 479 (1950) at 486. 90Feldman v. United States 322 US 487 (1944) 489. See also Hoffman v .United States 341 US 91United States v. James 60 F. 257 (1894) at 264 - 265 and Ullmann v. United States 350 US 422 (1955) at 454. \f\u03a0\u03b1\u03b3\u03b5 88 ACKERMANN J \"[t]his command of the Fifth Amendment ... registers an important advance in the development of our liberty - 'one of the great landmarks in man's struggle to make himself civilized.'\"92", "As far as the breadth of our present Constitution's section 11(1) right to freedom and security of the person is concerned, Thomson's case93 provides some useful guidance. Reference has already been made94 to the fact that the right to freedom is the foundation of many of the other rights that are specifically entrenched in the present Constitution. The existence of these other freedom- 92Ullmann v. United States supra note 91 at 426. In Bolling v. Sharpe 347 US 497 (1953) (a school segregation case) Chief Justice Warren pointed out the following at 499 - 500: \"Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.\" Generally speaking the right to liberty is given a broad definition by the United States Supreme Court, even in modern times and it is certainly not limited to mere freedom from bodily restraint. In Board of Regents of State College v. Roth 408 US 564 (1972) at 572, Stewart J explained the broad reach of the concept of liberty as embodied in the Fourteenth Amendment by quoting with approval the following passage from Meyer v. Nebraska 262 US 390 (1923) at 399: \"While this Court has not attempted to define with exactness the liberty ... guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.\" \"In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed.\" The learned Judge then added: 93Supra note 75. 94Para 44 above. \f based or freedom-inspired rights does not warrant a restrictive interpretation \u03a0\u03b1\u03b3\u03b5 89 ACKERMANN J being given to the section 11(1) rights. Section 13 of the Canadian Charter provides an individual with a limited protection against self-incrimination in the following terms: \"13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.\" Section 11(c) embodies a limited right of non-compellability: \"11. Any person charged with an offence has the right ........ (c) not to be compelled to be a witness in proceedings against that person in respect of the offence.\" In Thomson's case the appellants could not take advantage of either section 13 or section 11(c) but contended that section 7 protects similar rights in contexts other than those to which section 13, and section 11(c) relate. This contention was upheld by Wilson J who stated the following: \"The principle of statutory construction, expressio unius, is ill-suited to meet the needs of Charter interpretation. It is inconsistent with the purposive approach to Charter interpretation which has been endorsed by this court and which focuses on the broad purposes for which rights were designed and not on mechanical rules which have traditionally been employed in interpreting detailed provisions \f \u03a0\u03b1\u03b3\u03b5 90 ACKERMANN J of ordinary statutes in order to discern legislative intent\", and, \"Sections 8 to 14 of the Charter are illustrative, but not exhaustive, of deprivations of life, liberty and security of the person which are not in accord with the principles of fundamental justice. Otherwise, s. 7 would have no role to play. I conclude therefore that the specific enumerations in ss.11(c) and 13 do not prevent residual content being given to s.7.\"95 95Thompson's case supra note 75 at 192 h - 193 and 193 c - d. \f This part of Wilson J's judgment was concurred in by Lamer J,96 La Forest J,97 \u03a0\u03b1\u03b3\u03b5 91 ACKERMANN J L'Heureux-Dub\u00e9 J98 and Sopinka J (but only in regard to the section 11(c) right to remain silent).99 For the reasons advanced by Wilson J, I would hold that the fact that many other freedom rights are entrenched in our present Constitution does not for that reason mean that the section 11(1) right to freedom does not protect similar rights in contexts other than those to which the more particular freedom rights in the Constitution relate; the Court is not thereby precluded from giving \"residual content\" to section 11(1). The same considerations also do not warrant giving this residual freedom right a narrow construction. In Thomson, Wilson J construed the words \"life, liberty and security of the person\" disjunctively, holding that: \"it is not necessary for the citizen to show that his right to life, his right to liberty and his right to security of the person have all been violated in order to constitute a breach of the section. It is sufficient that one of them has been violated: see Singh v. Can. (Minister of Employment & Immigration) (1985), 17 D.L.R. (4th) 422, [1985] 1 96Id at 172 f. 97Id at 243 g - 244 c. 98Id at 277 f, 278 a - b and 280 a. 99Id at 293 g - 294 a. \f\u03a0\u03b1\u03b3\u03b5 92 ACKERMANN J S.C.R. 177, 14 C.R.R. 13.\"100 This is further support for the disjunctive reading of \"freedom and security of the person\" which I have favoured in para [41] above. 100Id at 185 c - d. \f [79] I would, more specifically and in the context of this case, apply the above \u03a0\u03b1\u03b3\u03b5 93 ACKERMANN J interpretative approach to the rights enumerated in section 25(3)(c) and (d) respectively of the Constitution, namely the right of an accused person \"to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial\" and \"not to be a compellable witness against himself or herself\". In Zuma101 Kentridge AJ, writing for the Constitutional Court, pointed out that South African courts have over the years recognised the origins and the importance of the common law rule placing the onus of proving the voluntariness of a confession on the prosecution.102 In this context he quoted with approval the following passage from R v. Camane 1925 AD 570 at 575: \"Now, it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial. The principle comes to us through the English law, and its roots go far back in history. Wigmore, in his book on Evidence (Volume 4, section 2250) traces very accurately the genesis, and indicates the limits of the privilege. And he shows that however important the doctrine may be, it is necessary to confine it within its proper limits. 101Supra note 8. 102Id at para 31. \f \u03a0\u03b1\u03b3\u03b5 94 ACKERMANN J What the rule forbids is compelling a man to give evidence which incriminates himself\"103 (Emphasis added). After tracing the history of the embodiment of this rule in South African legislation, Kentridge AJ concluded that: \"the common law rule in regard to the burden of proving that a confession was voluntary has not been a fortuitous but an integral and essential part of the right to remain silent after arrest, the right not to be compelled to make a confession and the right not to be a compellable witness against oneself. These rights, in turn, are the necessary reinforcement of Viscount Sankey's 'golden thread' - that it is for the prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington's case (supra)). Reverse the burden of proof and all these rights are seriously compromised and undermined. I therefore consider that the common law rule on the burden of proof is inherent in the rights specifically mentioned in section 25(2) and 3(c) and (d), and forms part of the right to a 103Id. \f\u03a0\u03b1\u03b3\u03b5 95 ACKERMANN J fair trial.\"104 Even if it were not otherwise sufficiently clear from the wording of section 25(3)(c) or (d) that these rights include the right of accused not to be compelled to give evidence which incriminates themselves, the aforementioned approach unquestionably does. I conclude that the right of a person not to be compelled to give evidence which incriminates such person is inherent in the rights mentioned in section 25(2) and (3)(c) and (d). The fact that such rights are, in respect of an accused person, included (implicitly or otherwise) in section 25(3) of the Constitution, does not for that reason preclude the Court from giving residual content to section 11(1) and holding that section 11(1) protects rights similar to those in section 25(3)(c) or (d) in contexts and in respect of persons other than those there mentioned.", "For this reason, the contention advanced by Mr. Cilliers that, because the section 25(3) rights were enumerated in such detail, it was not possible, on the proper construction of the Constitution as a whole, to interpret the section 11(1) right to 104Id at para 33. \ffreedom in such a way as to include a residual right not to be compelled to give \u03a0\u03b1\u03b3\u03b5 96 ACKERMANN J evidence against oneself in a section 417 enquiry, cannot be sustained.", "In Reference re s.94(2) of Motor Vehicle Act Wilson J observed: \"Indeed, all regulatory offences impose some restrictions on liberty broadly construed. But I think it will trivialize the Charter to sweep all those offences into s. 7 as violations of the right to life, liberty and security of the person even if they can be sustained under s. 1.\"105 I cannot, with due respect to so distinguished a Judge, comprehend why an extensive construction of freedom would \"trivialize\" the Charter, either in theory or in practice, or, more relevantly for our purposes, our present Constitution. It might trivialise a constitution (it would indeed cause chaos) if it resulted in the regulating measures being struck down. But that is not the consequence. An extensive construction merely requires the party relying thereon to justify it in terms of a limitation clause. It does not trivialise a constitution in theory; in fact it 105 (1985) 24 D.L.R. (4th) 536 at 565. \fhas the reverse effect by emphasising the necessity for justifying intrusion into \u03a0\u03b1\u03b3\u03b5 97 ACKERMANN J freedom. It does not trivialise a constitution in practice because in the vast majority of cases dealing with regulatory matters, the justification is so obviously incontestable that it is taken for granted and never becomes a live issue. In the borderline cases (and even in mundane regulatory statutes such cases may arise) there is no pragmatic reason why the person relying on the measure ought not to justify it.", "Section 11(1) of the transitional Constitution contains no internal limitation such as is found in section 7 of the Canadian Charter. There seems to be no reason in principle why the limitation of the right should not consistently be sought for and justified under section 33(1). The drafters of section 11(1) were undoubtedly well aware of the provisions of section 7 of the Canadian Charter, yet they decided not to place any limitation in section 11(1). Instead a detailed limitation clause has been crafted. It would seem to further the norms of the rule of law and of constitutionalism better for Courts, in applying the Constitution, to seek for any limitation to section 11(1) rights in section 33(1), where the Constitution lays down criteria for limitation, than to seek limits in section 11(1) by means of an interpretative approach which must of necessity, having regard to the nature of the right to freedom, be more subjective, more uncertain and more \f constitutionally undefined. In Zuma106 this Court recognised the difference \u03a0\u03b1\u03b3\u03b5 98 ACKERMANN J between the \"single stage\" approach and the \"two-stage\" approach to determining whether there has been an unconstitutional infringement of an entrenched right. It was further recognised that - \"The single stage approach (as in the United States constitution or the Hong Kong Bill of Rights) may call for a more flexible approach to the construction of the fundamental right, whereas the two-stage approach may call for a broader interpretation of the fundamental right, qualified only at the second stage.\"107 The fact that such a \"two-stage\" approach is prescribed by the Constitution, and that section 33(1) prescribes fully the criteria that have to be met before an entrenched right can be limited, in my view lends constitutional and policy support to an interpretative approach which requires that the broadest interpretation be given to the entrenched right. If a limitation is sought to be made at the first stage of the enquiry, it requires, at best, an uncertain, somewhat subjective and generally constitutionally unguided normative judicial judgment to be made. The temptation to, and danger of, judicial subjectivity is great. This 106Supra note 8 at para 21. 107Id. \fCourt would, in my view, be discharging its interpretative function best, most \u03a0\u03b1\u03b3\u03b5 99 ACKERMANN J securely and most constitutionally, if, as far as is judicially possible, it seeks for any limitation of an entrenched right through section 33(1). It may well be that the Constitution itself, either because of the descriptive ambit of one or more of the many other rights entrenched in Chapter 3, or in some other way, expressly or by clear implication, indicates a limitation of an entrenched right at the first stage of the enquiry. Absent such an indication, the Court would be on safer constitutional ground if it were to find any limitation on the basis of the prescribed criteria in section 33(1). This approach will afford a better guarantee against the Court, however unwittingly, reading its own subjective views into the Constitution.", "Article 2 of the German Basic Law deals with the right to freedom in two separate sub-paragraphs, namely: \"(1) Everybody has the right to self-fulfilment in so far as they do not violate the rights of others or offend against the constitutional order or morality. (2) Everybody has the right to life and physical integrity. Personal freedom is inviolable. These rights may not be encroached upon save pursuant to a law.\" The formulation is patently different from that in section 11(1) of the transitional Constitution. The purpose of alluding to its provisions is not to attempt a direct \fcomparison, but to illustrate that a Constitution can operate effectively where the \u03a0\u03b1\u03b3\u03b5 100 ACKERMANN J widest possible construction is given to a freedom right. Article 2(2) is, it is generally agreed, given a very narrow construction which limits \"personal freedom\" to freedom from physical restraint.108 Article 104 contains detailed rights applying to detention and arrest. The legislative history of article 2(2), the systematic structure of the fundamental rights and the existence of article 104 are used to support a narrow construction of article 2(2).109 BVerfGE 302 at 318. 108Maunz-D\u00fcrig Grundgesetz Kommentar (1944) Vol. I, commentary on article 2 at 110 - 111; 10 109Maunz-D\u00fcrig supra note 108 at 110 - 111; 10 BVerfGE 302 at 322 - 323. \f [84] By contrast Article 2(1) of the Basic Law has been interpreted so broadly by the ACKERMANN J \u03a0\u03b1\u03b3\u03b5 101 Federal Constitutional Court that it presently allows the Court to subject any legislative norm (statutory instrument) to constitutional scrutiny, the culmination of a process the basis for which was laid in the late 1950's when the Court interpreted the right to self-fulfilment as a protection of the general \"freedom to act\".110 The freedom to act is guaranteed to the extent that it does not offend against the constitutional order, which includes all statutory instruments111, but, in order to pass constitutional scrutiny, all statutes must conform formally and substantively with the Basic Law. Formally the Court may, for example, examine whether the legislative provision was passed by the appropriate Legislature, but the substantive content of all legislative provisions are tested against the principle of proportionality.112 The Federal Constitutional Court requires the principle of proportionality to be respected even if a special limitation to the right, such as the \"constitutional order\" is invoked by the Legislature.113 The consequences of the extremely wide interpretation given to Article 2(1) is that, in effect, all legislative provisions must be tested for compliance with the principle of 152 - 3. 1106 BVerfGE 32 at 36 - 37; 55 BVerfGE 159 at 165; 74 BVerfGE 129 at 151; 80 BVerfGE 137 at 1116 BVerfGE 32 at 37 - 38. 11255 BVerfGE 159 at 165; 75 BVerfGE 108 at 155; 80 BVerfGE 137 at 153. 11380 BVerfGE 137 at 153. \f proportionality.114 \u03a0\u03b1\u03b3\u03b5 102 ACKERMANN J", "The phrase \u201cin so far as they do not violate the rights of others or offend against the constitutional order or morality\u201d which qualifies the \u201cright to self-fulfilment\u201d in article 2(1) of the German Basic Law is not an internal qualification of this right for, as indicated above, the German Constitutional Court requires that all statutory provisions which prima facie limit this right be tested for compliance with the principle of proportionality. This is the equivalent of requiring all prima facie infringements of the residual freedom rights in section 11(1) of our Constitution to pass section 33(1) scrutiny. The German Constitutional Court has insisted on such justification according to the principles of proportionality in many cases. 114Isensee and Kirchhof Handbuch des Staatsrechts (1988) Vol. vi at 1192. \f [86] In Elfes115, the decision which laid the basis for the German Constitutional \u03a0\u03b1\u03b3\u03b5 103 ACKERMANN J Court\u2019s approach to section 2(1) as the general and residual freedom right (\u201cAuffanggrundrecht\u201d), the Court was concerned with the denial of an application for thepassport renewal of a leading member of a political party which opposed the West German government\u2019s re-armament policy in the 1950s. Having rejected the petitioner\u2019s reliance on the right to freedom of movement (section 11 of the Basic Law), on the basis that the right only guaranteed the right to move freely within the boundaries of the Federal Republic of Germany, the Court proceeded to consider the state\u2019s justification for the legislation with reference to section 2(1) and the principle of proportionality. In casu the Court found that considerations of national security justified the law limiting the issuing of passports. Similarly, in 1980 the Court held that a government prohibition on the feeding of doves in a particular city passed constitutional muster.116 The Court accepted that section 2(1) of the Basic Law had been infringed, but held that the prohibition related to the public\u2019s interest in keeping the city clean and protecting property from damage caused by the doves. The public\u2019s interest, the Court stated, had to be balanced against the relatively minor infringement of individuals\u2019 section 2(1) right to express their affection for animals. In the same 1156 BVerfGE 32. 11654 BVerfGE 143. \f year, however, the Constitutional Court invalidated a requirement in Federal \u03a0\u03b1\u03b3\u03b5 104 ACKERMANN J hunting laws which compelled those who sought to hunt with falcons to demonstrate their competence in the use of firearms117. Again none of the specific freedoms entrenched in the Basic Law applied to the situation, but the applicants successfully relied on the disproportionate infringement of section 2(1). The Court held that the required skill had no connection with the practice of falconry; in fact, the Court stated, falconers who discharged a firearm during the hunt would merely distract or even frighten their falcons. Other examples which illustrate the effect of the residual content found by the German Court in section 2(1) are those decisions dealing with the freedom not to be compelled to join public - as opposed to private - associations. In a long line of decisions118 the Court has excluded the possibility of relying on the freedom of association (section 9(1)) against this form of compulsion. The reasoning is that, since individuals may not invoke the right of freedom of association to establish public associations (the state retains a discretion whether or not to confer public status on an association), individuals may also not rely on the right of freedom of association to refrain from joining such public associations. While excluding 11755 BVerfGE 159. 1184 BVerfGE 7 at 26; 10 BVerfGE 89 at 102; 10 BVerfGE 354 at 361; 11 BVerfGE 105 at 126; 12 BVerfGE 319 at 323; 38 BVerfGE 281 at 297. \freliance on the right to freedom of association, the Court has acknowledged that \u03a0\u03b1\u03b3\u03b5 105 ACKERMANN J the individual is protected from state compulsion to join public associations through the residual protection afforded by section 2(1) of the Basic Law.", "One's sense is that the German Federal Constitutional Court seldom strikes down laws on the basis of section 2(1) - the general freedom of action. The reason seems to be that the Court shows deference to the legislature in many of the areas protected by the freedom and not because it is not prepared to test legislation against the principles of proportionality or because it subjects the legislation to a different type of limitation test. The German Court is more inclined to exercise a stricter form of scrutiny on the basis of section 2(1) when the infringement is somehow analogous to the infringement of another right or freedom, not dissimilar to the heightened scrutiny the US Supreme Court employs through the \"fundamental rights\" strand of jurisprudence under that part of the 14th Amendment that deals with due process.119 In other words, when the other rights or freedoms, for some reason or another, do not apply, section 2(1) is activated. This is the situation with which we are dealing here. It is important to define section 11(1) broadly in the first stage of the enquiry because it cannot at 786. 119See Gunther Constitutional Law 12ed (1992) at 433; Stone et al Constitutional Law 2ed (1991) \ffunction as a residual freedom right if narrowly defined at this stage. If a broad \u03a0\u03b1\u03b3\u03b5 106 ACKERMANN J residual freedom right is not acknowledged by the Court, the Court will not be able to develop any form of due process jurisprudence - procedural or substantive. There may be concerns about substantive due process and Lochner, but in the absence of a broad interpretation of section 11(1) we will not have a general procedural due process right either. In the present case we are concerned with process as much as with substance. We are not creating a right, we are asking the state to be consistent - procedurally - when it denies individuals their rights.", "Article 9(1) of the International Covenant on Civil and Political Rights provides that- \u201cEveryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.\u201d The other sub-articles ((2) to (5)) of Article 9 deal with arrest and detention. In any event the last sentence in article 9(1) does not constitute an internal limitation of the right but provides scope for statutory limitation and it is not any ground or any procedure, even though established by law, which will justify \f deprivation of liberty. \u03a0\u03b1\u03b3\u03b5 107 ACKERMANN J", "Article 5(1) of the European Convention of Human Rights provides that- \u201cEveryone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.\u201d The remaining provisions of article 5 (paragraphs 5(1)(a) - (f) and sub-articles 5(2) - 5(5)) deal exclusively with arrest and detention. The structure of the Convention is determinative of the interpretation of article 5. The Convention contains no general limitation provision, but special limitations are enumerated in relation to virtually all the protected rights and freedoms. The specialized order of limitation is of particular importance for the interpretation of article 5 since the exceptions enumerated in article 5(1)(a) - (f) constitute the only form of limitation to the right to freedom and security of the person. The exceptions merely recognise the legitimacy of arrest and detention in certain circumstances. The Commission and the Court, responsible for the interpretation of the Convention, are therefore confronted with the problem that it is not possible to assign a wide meaning to the terms \u201cliberty\u201d and \u201csecurity\u201d of the person in article 5(1) since the special limitation provisions deal exclusively with arrest and detention. If forms of conduct, other than the activity of being arrested or detained, were to be brought \f under the protection afforded by the right to liberty, those forms of conduct would \u03a0\u03b1\u03b3\u03b5 108 ACKERMANN J in effect be insulated from state regulation altogether. A narrow definition of \u201cliberty\u201d also follows from the fact that the rights mentioned in sub-articles 5(2) - 5(5) only accrue to \u201carrested and detained\u201d persons and not to persons who are deprived of their freedom in other respects. In this context it comes as no surprise that the Commission has held that: \u201cThe term \u2018liberty\u2019 and \u2018security\u2019 must be read as a whole and, in view of its context, as referring only to physical liberty and security. \u2018Liberty of person\u2019 in Article 5(1) thus means freedom from arrest and detention and \u2018security of person\u2019 the protection against arbitrary interference with this liberty.\u201d 120 (emphasis added) 120In applications 5573/72 and 5670/72, Adler and Bivas v. Federal Republic of Germany, Yearbook XX (1977) 102 at 146, as cited in Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2ed (1990) at 252. The same learned authors point out at 252-253 that the case-law \u201cseems to share Fawcett\u2019s view when he says: \u2018liberty and security are the two sides of the same \f \u03a0\u03b1\u03b3\u03b5 109 ACKERMANN J This narrow definition also flows from the fact that the exceptions dealt with in paragraphs (a)-(f) of sub-article 5(1) deal only with deprivation of liberty, and only in the context of arrest or detention. The context of section 11(1) in our Constitution is quite different, inasmuch as arrest and detention are dealt with in section 25(1) and (2) and the concluding phrase \u201cwhich shall include the right not to be detained without trial\u201d in section 11(1) indicates quite clearly that the preceding rights to freedom and security of the person do not constitute a numerus clausus. coin; if personal liberty spells actual freedom of movement of the person, security is the condition of being protected by law in that freedom\u2019.\u201d \f \u03a0\u03b1\u03b3\u03b5 110 ACKERMANN J", "In the end result there appears to me to be no good reason for not giving section 11(1) the broad construction which I have suggested and requiring an infringement of its provisions to be justified under 33(1). The examinee, facing compulsion under section 417(2)(b) of the Companies Act to give self- incriminating testimony, is subjected \"to the cruel trilemma of self-accusation, perjury or contempt\".121 On the basis of the considerations mentioned by Wilson J in Thomson's case, to which I have already referred, I have no doubt that the provisions of section 417(2)(b) of the Companies Act, which require an examinee summoned under sub-section (1) to answer, under pain of fine or imprisonment, or both, any question put to the examinee, notwithstanding that the answer might tend to incriminate the examinee and notwithstanding that any answer to any such question may thereafter be used in evidence against the examinee, infringe the examinee's section 11(1) right to freedom, more particularly the residual section 11(1) right of an examinee at a section 417 enquiry not to be compelled to incriminate himself or herself. 2nd 678 at 681 - 2. 121Murphy et al v. Waterfront Commission of New York Harbor 378 US 52 (1964) at 55; 12 L Ed \f \u03a0\u03b1\u03b3\u03b5 111 ACKERMANN J The right against self-incrimination.", "Before dealing with the actual application of the provisions of section 33(1) to the infringement of the section 11(1) right in question, it is necessary to examine our own common law as well as the common law in other jurisdictions relating to provisions of the kind with which we are here dealing. This is necessary for general jurisprudential and constitutional reasons122, but particularly so because section 33(1)(a) (ii) requires any limitation of a right to be justified in the context of an \"open and democratic society based on freedom and equality\" and section 35(1) mandates us, in interpreting Chapter 3, to \"promote the values which underlie\" precisely such a society.", "In Zuma123 Kentridge AJ briefly traced the history of the privilege against self- incrimination in English law. I propose to say nothing further on that score, save to suggest that it may at some future occasion become necessary in the light of recent research,124 to reconsider the received wisdom (for which Wigmore has 122See also the concluding phrase in section 35(1) of the Constitution. 123Supra note 8 at paras 29 - 30. 124E.g. Prof JH Langbein of Yale Law School \"The Historical Origins of the Privilege against Self- incrimination at Common Law\" in 92 (1994) Michigan Law Review 1047 and Prof. E Moglen of Columbia \fgenerally been credited125) that the privilege developed in response to the \u03a0\u03b1\u03b3\u03b5 112 ACKERMANN J oppressive and often barbaric methods of the Star Chamber. Law School \"Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege against Self- incrimination\" in 92 (1994) Michigan Law Review 1086. Both learned authors conclude that the privilege did not develop in the way commonly suggested but that it became functional only because of the fact that the advent of defence counsel and adversary criminal procedure substantially changed the nature of the criminal trial. 125See, for example, Thompson's case, supra note 75 at 193 g - 194 f and Bishopsgate Investment Management Ltd (In Provisional Liquidation) v. Maxwell and Another (1993) Ch 1 (CA) at 17 D - H. \f [93] That the \"privilege\" or \"immunity\" against self-incrimination applies generally in ACKERMANN J \u03a0\u03b1\u03b3\u03b5 113 the English common law in extra-judicial settings is beyond doubt. In Regina v. Director of Serious Fraud Office, Ex Parte Smith126 Lord Mustill regarded it as a general immunity in \"a disparate group of immunities, which differ in nature, origin, incidence and importance\" which he categorised collectively as \"the right of silence\" and which he described as: \"A general immunity, possessed by all persons and bodies, from being compelled on pain of punishment to answer questions the answers to which may incriminate them.\"127 126(1993) AC 1. 127Id at 30 F - G. \f [94] This also emerges clearly from the fact that, in a wide variety of situations, ACKERMANN J \u03a0\u03b1\u03b3\u03b5 114 reliance on the immunity could only be rejected on the ground that it had been expressly or by implication abrogated by statute. In In re London United Investments Plc128 it was held that the privilege against self-incrimination was not available to persons who were being examined by inspectors appointed by the Department of Trade and Industry under section 432 of the Companies Act 1985, because sections 434, 436 and 452(1) of the Act excluded the privilege by necessary implication. In Bank of England v. Riley and Another129 it was held that it was not available to persons who were being examined by inspectors of the Bank of England under the Banking Act 1987, because it had been excluded by necessary implication. A relevant consideration in the latter judgment, however, was the fact that section 31(1) of the Theft Act 1968 provided that no information or documents produced in consequence of the order in question would be admissible in the prosecution pending against the respondent or in any further prosecution under the Theft Act 1968. Bishopsgate Investment Management Ltd. (In Provisional Liquidation) v. Maxwell and Others130 was concerned with sections 235 and 236 of the Insolvency Act 1986, the purpose whereof was to 128(1992) Ch 578 (CA). 129(1992) Ch 475. 130(1993) Ch 1 (CA). \fbring together the law as to personal and corporate insolvency and, in the public \u03a0\u03b1\u03b3\u03b5 115 ACKERMANN J interest, to provide a statutory framework in which the law could deal adequately with dishonesty and malpractice on the part of the bankrupt individual or the officers of a company. It was held that it would be contrary to the purposes of the Act if company directors, unlike an individual bankrupt, could rely on the privilege against self-incrimination to defeat the statutory right of the liquidator or other office-holder to obtain the necessary information required to manage the affairs of the company and that, accordingly, sections 235 and 236 of the Act had abrogated the privilege.131 131At 46 D - H; 48 B. \f [95] In England, therefore, Parliament may abrogate the privilege against self- \u03a0\u03b1\u03b3\u03b5 116 ACKERMANN J incrimination by statute. In doing so Parliament sometimes provides that a person may be compelled to answer questions which tend to incriminate but limits the use that may be made of his or her answers in any subsequent prosecution. There are other examples of this approach. In Rank Film Distributors Ltd. and Others v. Video Information Centre and Others132 the House of Lords held that the privilege against self-incrimination applied in the context of two respondents against whom certain \"Anton Piller\" orders133 had been granted in connection with alleged acts of piracy of video tapes of films and which orders inter alia required them to furnish information concerning the video tapes.134 In consequence of this judgment135, section 72(1) of the Supreme Court Act 1981 was enacted to abrogate the privilege in intellectual property infringement or passing off proceedings; but it also provided that a statement or admission made by a person in answering questions put in such proceedings could not be used in a prosecution against such person for any related offence, or for the recovery of any related penalty, save in proceedings for perjury or contempt of court. The 132(1982) AC 380. 133See Anton Piller KG v. Manufacturing Processes Ltd. (1976) Ch 55 (CA). 134Rank Film Distributors, supra note 114 at 438 H - 439 H; 443 H. 135See the invitation to legislate by Lord Russel of Killowen in Rank Film Distributors Ltd supra note 114 at 448 G. \fCriminal Justice Act 1987 established the Serious Fraud Office. Section 2 of the \u03a0\u03b1\u03b3\u03b5 117 ACKERMANN J Act provides for the questioning of suspected offenders but it is expressly provided in section 2(8) that a statement made by a person in response to a demand for information under the section may only be used in evidence against such person in proceedings relating to the making of a false or misleading statement or in proceedings of a similar nature.136", "In South African law the privilege is not limited to criminal or civil trial proceedings because Incrimination\" in 87 (1971) LQR 214. 136For further examples see J.D. Heydon \"Statutory Restrictions on the Privilege Against Self- \f \u03a0\u03b1\u03b3\u03b5 118 ACKERMANN J \".... it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial.\"137 The privilege has been described as one of the personal rights to refuse to disclose admissible evidence the particular right in terms whereof \"a witness may refuse to answer a question where the answer may tend to expose him to a criminal charge\"138 and is also available, for example, to a person called as a witness in inquest proceedings.139 With reference to the above quoted passage from R v. Camane, Thirion J observed in S v. Khumalo that \"[t]here is indeed even a greater need for protection of the accused against forced self-incrimination before the trial than there is at the trial.\"140 Hoffmann and Zeffert141 also point out that the privilege may be claimed in administrative or quasi-judicial hearings. Lastly, mention should be made of section 65(2) of the Insolvency Act, No. 24 of 1936 which makes provision for the interrogation of the insolvent and other witnesses and stipulates that a person 137R v. Camane 1925 AD 570 at 575 per Innes CJ. 138Magmoed v. Janse van Rensburg and Others 1993 (1) SA 777 (A) at 819I. 139Id at 820 F and S v. Ramaligela en _ Ander 1983 (2) SA 424 (V) at 428 - 430. 1401992 (2) SACR 411 (N) at 421 E. 141The South African Law of Evidence 4ed (1988) at 239. \finterrogated - \u03a0\u03b1\u03b3\u03b5 119 ACKERMANN J \"shall not be entitled at such interrogation to refuse to answer any question upon the ground that the answer would tend to incriminate him or upon the ground that he is to be tried on a criminal charge and may be prejudiced at such trial by his answer.\" Sub-section (2A)(b) does, however, confer use immunity on such incriminating answers given by the witness by providing that they shall not - \"be admissible in any criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers, and in criminal proceedings contemplated in section 139(1) relating to a failure to answer lawful questions fully and satisfactorily.\"", "Two recent Australian decisions, Pyne Board Pty. Ltd v. Trade Practises Commission142 and Sorby and Another v. The Commonwealth of Australia and 142 [1983] 57 ALJR 236. \f Others143, handed down on the same day by the High Court of Australia, may \u03a0\u03b1\u03b3\u03b5 120 ACKERMANN J cast further light on the scope of the privilege against self-incrimination at common law. In both cases the majority of the High Court reached the conclusion that the privilege against self-incrimination is not inherently incapable of application in non-judicial proceedings, but that the availability of the privilege depends on a construction of the statute in question.144 In Pyne Board the Court held that the statute by implication excluded reliance on the privilege and in Sorby the Court held that it did not. The reasoning of the Court in the latter case is of importance. In response to the argument that the provision of a \u201cuse immunity\u201d excludes reliance on the privilege against self-incrimination the Court said, per Gibbs, CJ: 143 [1983] 57 ALJR 248. 144In Pyne Board, at 240 G. In Sorby, at 260. \f \u03a0\u03b1\u03b3\u03b5 121 ACKERMANN J \u201cIn the absence of binding authority the matter must be approached from the standpoint of principle. If a witness is compelled to answer questions which may show that he has committed a crime with which he may be charged, his answers may place him in real and appreciable danger of conviction, notwithstanding that the answers themselves may not be given in evidence. The traditional objection that exists to allowing the executive to compel a man to convict himself out of his own mouth applies even when the words of the witness may not be used as an admission. It is a cardinal principle of our system of justice that the Crown must prove the guilt of an accused person, and the protection which that principle affords to the liberty of the individual will be weakened if power exists to compel a suspected person to confess his guilt. Moreover, the existence of such power tends to lead to abuse and to 'the concomitant moral deterioration in methods of obtaining evidence and in the general administration of justice\u2019. Validity of Section 92(4) of the Vehicles Act, 1957 [Sask.], [1958] S.C.R. 608, at p. 619. It is true that in some cases the legislature may consider that it can only achieve the intended purpose of the statute by limiting or abrogating the privilege against self-incrimination, but, as I have said, if the legislature intends to render the privilege unavailable it must manifest clearly its intention to do so. To provide that the answers may not be used in evidence is not to reveal clearly an intention that the privilege should be unavailable, although, if the legislature did intend to remove the privilege, it might, in fairness, at the same time prevent the use in criminal proceedings of statements which otherwise would have been privileged: cf. Rank Film Ltd. v. Video Information Centre, at p. 448, per Lord Russel of Killowen.\u201d145 The Court held that the privilege \"protects the witness not only from incriminating himself directly under a compulsory process, but also from making a disclosure which may lead to incrimination or to the discovery of real evidence of an incriminating character.\"146 145At 253. 146At 260. See also the Court's dicta at 253 and 261. \fEqually firm, however, was the rejection by the Court of the argument that the \u03a0\u03b1\u03b3\u03b5 122 ACKERMANN J privilege against self-incrimination is constitutionally entrenched: \u201cIt was then submitted on behalf of the plaintiffs that s. 6A was not validly enacted. This argument cannot be accepted. The privilege against self-incrimination is not protected by the Constitution, and like other rights and privileges of equal importance it may be taken away by legislative action. Counsel for the plaintiffs sought to find some constitutional protection for the privilege in Ch III of the Constitution, and submitted that to remove the privilege would be to infringe the guarantee given by s. 80 and to interfere impermissibly with federal judicial power. ....[T]he argument that the compulsory examination of a suspected person is inconsistent with the right to trial by jury was rejected unanimously by the members of this Court in Huddart Parker & Co Pty. Ltd. v. Moorehead (1909), 8 C.L.R 330; see particularly at pp. 358, 375, 385-386, 418. With all respect, I agree with the view that the privilege against self-incrimination is not a necessary part of a trial by jury.\u201d147 \f [98] In Canada, the courts have recognised the different nature and the consequently \u03a0\u03b1\u03b3\u03b5 123 ACKERMANN J wider ambit of the privilege even before the adoption of the Canadian Charter of Rights and Freedoms. In Solosky v R the Supreme Court remarked: \"Recent case law has taken the traditional doctrine of the privilege and placed it on a new plane. Privilege is not longer regarded merely as a rule of evidence which acts as a shield to prevent privileged materials from being tendered in evidence in a courtroom. The Courts, unwilling to so restrict the concept, have extended its application well beyond these limits\".148 Moreover, the position in Canada never quite corresponded to that in the English common law, because sections 4(1) and 5 of the Canada Evidence Act149 147At 255 A - C per Gibbs CJ. 148 [1979] 105 D.L.R. (3d) 745 at 757. 149 R.S.C. 1985, c. C-5. \f effected a change in the Canadian common law from 1893 onwards. Wilson J, \u03a0\u03b1\u03b3\u03b5 124 ACKERMANN J dissenting in Thomson Newspapers, summarised the Canadian position as follows: \"The effect of s. 4(1) was to maintain the common-law rule of non- compellability at the investigatory stage, subject to the modification by the terms of a particular statute, and to make the accused at his trial a competent witness for the defence but not a compellable witness for the Crown. The effect of s. 5 was to abolish the common- law rule of allowing a witness to refuse to answer a question on the ground that it would tend to incriminate him and replace it with the rule that the witness must answer the question but the answer could not be used against him in a subsequent criminal case. This legislation reflects the state\u2019s interest in having all available information before the tribunal so that a proper determination in that case can be made. This state interest is achieved in derogation of the common-law rule protecting a witness from answering a question on the basis of the right against self-incrimination.\u201d150 After stating that the right against compellability and the right against self- \fincrimination are \u201cfundamental precepts of democratic societies which respect \u03a0\u03b1\u03b3\u03b5 125 ACKERMANN J individual rights and freedoms\u201d, Wilson J went on to describe the rationale for the right against self-incrimination as follows: \u201cHaving reviewed the historical origins of the rights against compellability and self-incrimination and the policy justifications advanced in favour of their retention in more modern times, I conclude that their preservation is prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state. The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.\u201d151 150Supra note 75 at 195 h - 196 a. 151Id at 200 a - c. \f [99] The Fifth Amendment to the United States Constitution, which provides, inter ACKERMANN J \u03a0\u03b1\u03b3\u03b5 126 alia, that \u201c[n]o person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...\u201d was initially interpreted as affording protection to individuals from federal authorities only. It was the passing of the Fourteenth Amendment in 1868, especially its prohibition - \u201cnor shall any State deprive any person of life, liberty, or property, without due process of law...\u201d - which brought about the decisive change in the protection of individual rights against the exercise of State power in that country. At first hesitantly and selectively, but from the beginning of the 1960's with greater conviction, the Supreme Court began to apply the Bill of Rights to the States via the Fourteenth Amendment.152 152White J explains this approach in Duncan v. Louisiana 391 US 145 (1968) at 147: \f ACKERMANN J \u03a0\u03b1\u03b3\u03b5 127 \"In resolving conflicting claims concerning the meaning of this spacious language [of due process], the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State; the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from \f \u03a0\u03b1\u03b3\u03b5 128 ACKERMANN J criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses. The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state actions by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions', Powell v. Alabama 287 US 45, 67 (1932); whether it is 'basic in our system of jurisprudence,' In re Oliver 333 US 257, 273 (1948; and whether it is \u201ca fundamental right, essential to a fair trial,\u201d Gideon v Wainwright; ...\" (footnotes omitted). \f [100] The freedom against self-incrimination was effectively incorporated against the ACKERMANN J \u03a0\u03b1\u03b3\u03b5 129 states in Malloy v. Hogan.153 The jurisprudence is important since it shows that the US Supreme Court is prepared to utilise the Fourteenth Amendment to extend procedural guarantees, such as the protection against self-incrimination, to situations where it did not seem to apply textually. The question as to whether the right against self-incrimination applies in extra-curial proceedings was not resolved, as one would have expected, in the context of the Fourteenth Amendment. Instead a broad and purposive interpretation of the Fifth Amendment\u2019s right against self-incrimination made a resort to the Fourteenth Amendment unnecessary. As early as 1892 Justice Blackford remarked in Counselman v. Hitchcock that the \u201c[privilege] is as broad as the mischief against which it seeks to guard\u201d.154 By the 1920's Justice Brandeis, writing for the Court, declared that \u201c[t]he privilege [against self-incrimination] is not ordinarily dependent on the nature of the proceedings in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.\u201d155 153 378 US 1 (1964). Previously the Supreme Court refused to apply the right against self- incrimination against the States. See Adamson v. California, 332 US 46 (1947). 154142 US 547 (1892) at 562; 35 L Ed 1110 at 1114. 155McCarthy v Arndstein 266 US 34 (1924) at 40, where the privilege was upheld in bankruptcy proceedings. \fFinally, in 1973 Justice White stated that \u201c[t]he [Fifth] Amendment not only \u03a0\u03b1\u03b3\u03b5 130 ACKERMANN J protects the individual from being involuntarily called as witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.\u201d156 US Bankruptcy laws nowadays explicitly recognise the constitutional right against self- incrimination.157 There can be little doubt that proceedings similar to the ones envisaged by section 417 of the Companies Act would have been interpreted to constitute a deprivation of liberty and that this would have triggered the due process clause, and more specifically, the right against self-incrimination which forms part of it. The approach in the USA and Canada to resolving the tension between the privilege 156Lefkowitz v Turley 414 US 70 (1973) at 77. 157See section 344 of the Bankruptcy Code 11 USC. \f against self-incrimination and the interest of the State in investigative procedures of ACKERMANN J \u03a0\u03b1\u03b3\u03b5 131 various kinds", "In seeking guidance from the jurisprudence of other countries it is well to heed the warning that \"[e]ach legal system, intertwined with a particular legal tradition, is predicated on a number of integrated elements, and to look at each piece-meal through a magnifying glass cannot provide an accurate picture of the whole nor can such an exercise take into account differences between the systems ... Fundamental justice may take different forms in different societies, given their own legal traditions.\"158 Nevertheless we are obliged, in construing and applying section 33(1), to give content to the phrase \"justifiable in an open and democratic society based on freedom and equality\". At the same time it is necessary to recognise (gratefully) that the roots of South African law draw sustenance from Western Europe, the United Kingdom (and derivatively from the other so-called \"common law\" countries) and from indigenous sources. It is also a fact that since 1945 fundamental human rights are steadily becoming internationalised (albeit not always or everywhere at the same pace and not without set-backs) at the \finternational, regional and domestic constitutional levels. \u03a0\u03b1\u03b3\u03b5 132 ACKERMANN J", "Both in the United States and Canada, and also elsewhere, legislatures have sought a legislative solution to the tension between the privilege against self- incrimination and the interest of the State in investigative procedures of various kinds. This has been achieved by compelling examinees to answer questions even though the answers thereto might tend to incriminate them and, at the same, protecting the interests of the examinees by granting them either an indemnity against prosecution or conferring some form of use immunity in respect of compelled testimony. What is important to note is that the privilege has not, in most cases, simply been abolished by statute without providing some form of protection to the examinee. The somewhat fragmentary treatment in England has been alluded to above. 158Thomson supra note 75 per L'Heureux-Dub\u00e9 J at 279 f - g. \f [103] Initially in the United States, this compromise was attempted by legislation which ACKERMANN J \u03a0\u03b1\u03b3\u03b5 133 excluded use of the evidence given by the examinee, but which did not indemnify the examinee against prosecution. The use immunity only applied to the evidence given by the examinee; it did not prevent the use of the examinee's testimony to search out other evidence to be used against the examinee in a criminal proceeding, which other evidence had not been gained by the compulsion to testify and to give self-incriminating evidence. In Counselman v. Hitchcock159 the Supreme Court considered the constitutional validity of such a use immunity (a \"direct use immunity\") provided by section 860 of the Revised Statutes in the context of Grand Jury testimony and held that it was unconstitutional.160 Under Section 2486 (c) of the Immunity Act of 1954, 18 USC an indemnity against prosecution was accorded to grand jury witnesses.161 In 159Supra note 154. 160Id at 585-6 where Justice Blatchford, writing for the Court said: \"no statute which leaves the party or witness subject to prosecution after he answers the criminating questions put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for the prohibition. In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offence to which the question relates.\" 161\"But no such witness shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding (except prosecution described in sub-section (d) hereof (essentially for perjury and contempt) against him in any court.\" \f Ullmann v. United States162 Justice Frankfurter delivered the judgment of the \u03a0\u03b1\u03b3\u03b5 134 ACKERMANN J majority of the Court. While emphasising that \"the Fifth Amendment's privilege against self-incrimination ... registers an important advance in the development of our liberty\"163 and approaching the petitioner's claims \"in this spirit of strict, not lax, observance of the constitutional protection of the individual\",164 he reaffirmed165 the Court's earlier judgment in Brown v. Walker, decided some sixty years earlier, that compulsion to testify under protection of a similar immunity was constitutional: \"While the constitutional provision in question is justly regarded as one of the most valuable prerogatives of the citizen, its object is fully accomplished by the statutory immunity, and we are, therefore, of opinion that the witness was compellable to answer ...\"166", "In Kastigar v. United States167 the Supreme Court had to consider the 162350 US 422 (1955). 163Id at 426. 164Id at 429. 165Id at 439. 166Brown v. Walker 161 US 591 (1896) at 610. 167406 US 441 (1972). \f constitutionality of the following use immunity in 18 U.S.C. section 6002, which \u03a0\u03b1\u03b3\u03b5 135 ACKERMANN J was afforded to a witness in a District Court when compelled to testify over a claim of Fifth Amendment privilege against compulsory self-incrimination: \".... no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.\" An exclusion of this nature will be referred to as \"a direct and derivative use immunity\". The Court upheld the constitutionality of this provision on the basis that it left the witness and the prosecutorial authorities in substantially the same position as if the witness had claimed the Fifth Amendment privilege; consequently the immunity was \"co-extensive with the privilege and suffices to supplant it\".168 In the course of giving judgment for the majority, Justice Powell stated the following: \"This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an 'investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures. A person accorded this immunity under 18 U.S.C. \u00a7 6002, and subsequently prosecuted, is not dependent for the preservation of his rights upon the integrity and good faith of the prosecuting 168Id at 462. \f \u03a0\u03b1\u03b3\u03b5 136 ACKERMANN J authorities. As stated in Murphy: 'Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. 378 US at 79 n. 18.' This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. This is very substantial protection, commensurate with that resulting from invoking the privilege itself. The privilege assures that a citizen is not compelled to incriminate himself by his own testimony. It usually operates to allow a citizen to remain silent when asked a question requiring an incriminatory answer. This statute, which operates after a witness has given incriminatory testimony, affords the same protection by assuring that the compelled testimony can in no way lead to the infliction of criminal penalties. The statute, like the Fifth Amendment, grants neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the government to prosecute using evidence from legitimate \f\u03a0\u03b1\u03b3\u03b5 137 ACKERMANN J independent sources.\"169 (Footnotes omitted)", "The use immunity in section 20(2) of the CI Act which qualified the compulsion to testify and was the subject of enquiry in Thomson Newspapers read as follows: \"... but no oral evidence so required shall be used or receivable against such person in any criminal proceedings thereafter instituted against him, other than a prosecution under section 121 of the Criminal Code for perjury in giving such evidence or a prosecution under section 124 of the Criminal Code in respect of such evidence.\"170 It was a direct use immunity only and did not include a derivative use immunity such as was considered by the US Supreme Court in Kastigar. We are concerned with the constitutionality of a statutory compulsion to testify and an override of the privilege against self-incrimination with no indemnity against prosecution or use immunity of any nature. It is important, for our purposes, to consider the way in which policy considerations relating to use immunity were 169Id at 460 - 461. 170Supra note 75 at 174, 183. \fdealt with in Thomson. This will emerge more clearly later. \u03a0\u03b1\u03b3\u03b5 138 ACKERMANN J", "As indicated above,171 it was only Wilson J and Sopinka J who came to the conclusion that the direct use immunity was insufficient to prevent section 17 of the CI Act from violating the \"fundamental justice\" provision in section 7 of the Canadian Charter (which qualified the right to \"liberty and security of the person\"). The purpose of the CI Act has authoritatively been stated to be the following: \"From this overview of the Combines Investigation Act I have no difficulty in concluding that the Act as a whole embodies a complex scheme of economic regulation. The purpose of the Act is to eliminate activities that reduce competition in the market-place. The entire Act is geared to achieving this objective. The Act identifies and defines anti-competitive conduct. It establishes an investigatory mechanism for revealing prohibited activities and provides an extensive range of criminal and administrative redress against companies engaging in behaviour that tends to reduce competition.\"172 171Para 55. 172General Motors of Canada Ltd. v. City National Leasing (1989) 58 D.L.R. (4th) 225 at 280, \f Wilson J also pointed out that \u03a0\u03b1\u03b3\u03b5 139 ACKERMANN J \"the Act contains numerous provisions enabling the Director to collect information relating to anti-competitive behaviour. Once this information has been obtained a variety of uses can be made of it, including the referral of the matter to the Attorney-General of Canada for possible prosecution.\"173 The Attorney-General is empowered, in terms of section 15(2) of the CI Act, to exercise all the powers and functions conferred by the Criminal Code on the Attorney-General of a province in any ensuing prosecution. Section 13 of the Canadian Charter which provides that \"[a] witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence\" only affords a limited protection against self-incrimination (I pause to point out that the immunity in the section is only a direct use and not a derivative use quoted with approval in Thomson supra note 75 at 290 h and 223 h - 224 b. 173Thomson, supra note 75 at 184 d - e. \fimmunity). Likewise section 11(c) of the Charter, which enacts that - \u03a0\u03b1\u03b3\u03b5 140 ACKERMANN J \"Any person charged with an offence has the right ..... (c) not to be compelled to be a witness in proceedings against that person in respect of the offence;\" only affords a limited right of non-compellability.", "Wilson J held that the examinees could not avail themselves of either section 13 or 11(c) of the Charter. After reviewing the historical origins of the rights against compellability and self-incrimination in a comparative perspective, Wilson J concluded that their preservation was \"prompted by a concern that the privacy and personal autonomy and dignity of the individual be respected by the state. The state must have some justification for interfering with the individual and cannot rely on the individual to produce the justification out of his own mouth. Were it otherwise, our justice system would be on a slippery slope towards the creation of a police state.\"174 Whilst appreciating \"the importance of getting at the truth in any proceedings, criminal or otherwise ...[o]therwise our justice system might grind to a halt 174Id per Wilson J at 200 b - c. \f \u03a0\u03b1\u03b3\u03b5 141 ACKERMANN J through important evidence not being brought forward\"175 the learned Judge nevertheless considered that this goal had to be subservient to the protection of the fundamental rights of the accused.176 Following the reasoning of the United States Supreme Court in Kastigar177, Wilson J concluded as follows: \"It seems to me that in order to prevent a suspect from being conscripted against himself in a criminal or quasi-criminal proceeding (which would clearly include a charge of predatory pricing under the Combines Investigation Act), the suspect must be protected against the use of evidence derived from testimony given at the earlier investigatory proceeding as well as against the use of the testimony itself. Otherwise the suspect is convicted, 175Id at 200 d - e. 176Id. 177406 US 441 (1972). \f \u03a0\u03b1\u03b3\u03b5 142 ACKERMANN J metaphorically if not literally, out of his own mouth. He has, as the US Supreme Court put it, through the use of the derivative evidence been 'forced to give testimony leading to the infliction of penalties affixed to criminal acts'.\" and, and, \"The judge's discretion under S. 24(2)178 is no guarantee of protection against the use of derivative evidence obtained as a result of a witness's compelled testimony. It is merely a discretion and one which is required to be exercised on a very specific basis, namely, whether or not the admission of the evidence would bring the administration of justice into public disrepute.\" \"That exclusion must be a matter of principle and of right, not of discretion ..... I conclude, therefore, that s. 7 protects the witness in a subsequent criminal proceeding against the use of evidence derived from testimony given by him in an earlier proceeding, which protection is not available under either s. 11(c) or s. 13. Where a person's right 178Section 24(2) of the Canadian Charter reads as follows: \"(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.\" \f\u03a0\u03b1\u03b3\u03b5 143 ACKERMANN J to life, liberty and security of the person is either violated or threatened, the principles of fundamental justice require that such evidence not be used in order to conscript the person against himself.\"179 179Thomson supra note 75 at 202 c - e; 202 g - 203 a; 203 a - d. \f [108] In dealing with the section 1 limitation provisions of the Canadian Charter, Wilson ACKERMANN J \u03a0\u03b1\u03b3\u03b5 144 J held that both the \"effective investigation of suspected criminal and quasi- criminal activity\" and the opportunity \"to monitor economic activity in Canada so as to ensure that the government's economic objectives are met\" were each of sufficient importance to warrant infringement of individual rights and freedoms because \"[s]ociety has a very real interest both in controlling crime and in ensuring the stability of the marketplace.\"180 The learned Judge found, however, that, inasmuch as the legislation in question did not impair the right in question as little as possible, the limitation was not justified under section 1 of the Charter.181 In this regard Wilson J stated the following: \"There is no evidence to suggest that the government's objective in this case would be frustrated if individuals compelled to testify were afforded derivative use protection. Certainly, the monitoring of the Canadian economy would not be injuriously affected by such protection. Moreover, while there may be instances when the investigation of crime or the effective enforcement of legislation may be hampered if suspects are not conscripted against themselves, such a case has not been made out here. No 180Thomson, supra note 75 at 206 a - c. 181Id at 207 c - e. \f \u03a0\u03b1\u03b3\u03b5 145 ACKERMANN J evidence has been presented to the Court to show that the enforcement of the Combines Investigation Act will be drastically impaired if derivative use protection is given to persons testifying under s. 17\"182 (emphasis added) Sopinka J held that, for the reasons given by Wilson J, section 17 of the CI Act \"violates s. 7 of the Canadian Charter of Rights and Freedoms, in particular, the principle of fundamental justice in which the right to remain silent is embodied.\"183 In this context he also expressed himself as follows: \"Obtaining evidence from suspects as a basis for commencing criminal proceedings is not a merely incidental effect of s. 17 of the Act. In this field of anti-competitive crime the police work is carried out largely, if not exclusively, by the Director and his staff.\"184 182Id. 183Id at 290 e - f. 184Id at 297 d - e. \fSopinka J also concluded, for the reasons expressed by Wilson J, that the \u03a0\u03b1\u03b3\u03b5 146 ACKERMANN J violation of section 7 could not be justified under section 1 of the Charter.185", "I have referred somewhat extensively to the judgments of Wilson and Sopinka JJ, although their judgments were in dissent, because they represent the high- water mark in the judgment for striking down a provision which compels self- incrimination and only affords a direct use immunity. The judgment of La Forest J is particularly instructive. La Forest J points to the difference in discovering and investigating ordinary crimes on the one hand and violations of combines legislation on the other; in the former there is usually no question that an offence has been committed and the concern is to establish who committed the offence, while in the latter the position is quite different and the difficulty relates equally to establishing whether an offence has been committed.186 It has been emphasised that \"economic crimes are far more complex than most other federal offences. The events in issue usually have occurred at a far more remote time and over a far more extensive period. The 'proof' consists not merely of relatively few items of real evidence but of a large roomful of often obscure documents. In order to try the case effectively, the Assistant United States Attorney must sometimes master the intricacies of a sophisticated business venture. Furthermore, in the course of doing so, he, or the agents with 185Id at 297 g. 186Id at 232 - 233. \f \u03a0\u03b1\u03b3\u03b5 147 ACKERMANN J whom he works, often must resolve a threshold question that has already been determined in most other cases: Was there a crime in the first place? To use the colloquial, it is not so much a matter of 'Whodunit' as 'what-was-done'.\"187 (Emphasis in original) I shall revert to this aspect of the problem later. La Forest J also observed that, 187S.V. Wilson and A.H. Matz, \"Obtaining Evidence for Federal Economic Crime Prosecutions: An Overview and Analysis of Investigative Methods\" (1977), 14 Am. Crim. L. Rev. 651 at 651, quoted with approval by La Forest J in Thomson supra note 75 at 233 f - g. \f \u03a0\u03b1\u03b3\u03b5 148 ACKERMANN J \"the community's interest is one of the factors that must be taken into account in defining the content of the principles of fundamental justice.\"188 In this regard the learned Judge made the following point, which is also relevant in the context of this case: \"I see a significant difference between investigations that are truly adversarial, where the relationship between the investigated and investigator is akin to that between accused and prosecution in a criminal trial, and the broader and more inquisitorial type of investigation that takes place under s. 17 of the Act. The lower probability of prejudice the latter represents to any particular individual who comes within its reach, together with the important role such investigations play in the effective enforcement of anti- combines and possibly other regulatory legislation, suggests that a more appropriate balance between the interests of the individual and the state can be achieved by retention of the power to compel testimony and the recognition of the right to object to the subsequent use of so much of the compelled testimony as is self- incriminatory.\"189 188Thomson supra note 75 at 246 e. 189Id at 247 d - f. \f \u03a0\u03b1\u03b3\u03b5 149 ACKERMANN J", "In dealing with the difference between \"use immunity\" and \"derivative use immunity\", the learned Judge observed that \"Simply because Parliament has provided for the inadmissibility of certain evidence does not mean that it thereby intended that other evidence should be admitted, even when either at common law or under the Charter, such evidence would be rejected on the ground that admitting it would be unfair. It is quite reasonable for Parliament to have dealt with the obvious case of unfairness resulting from the use of self-incriminating testimony, leaving more subtle situations to be dealt with in the application of general principles.\"190 (emphasis added). and that 190Id at 250 h - 251 a. \f\u03a0\u03b1\u03b3\u03b5 150 ACKERMANN J \"The witness's oral testimony cannot, of course, be used against him or her. Section 20(2) so provides and I have no doubt that this would, in any event, be the case either under s. 7 or s. 11(d) of the Charter.191 (emphasis added).", "In the following significant passages La Forest J points to a fundamental distinction between the direct use of compelled testimony and derivative use: \"The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused. If it were otherwise, it would not, in fact, be derivative evidence at all, but part of the actual testimony itself. Taken together, these aspects of derivative evidence indicate that it is self-sufficient, in the sense that its status and quality as evidence is not dependent on its relation to the testimony used to find it. In this regard, the very phrase \"derivative evidence\" is somewhat misleading. Seen from this light, it becomes apparent that those parts of derivative evidence which are incriminatory are only self- incriminatory by virtue of the circumstances of their discovery in a particular case. They differ in this respect from incriminatory portions of the compelled testimony itself, which are by definition self-incriminatory, since form of evidence is a necessarily unique to the party who gives it. testimony 191Id at 252 c. \f\u03a0\u03b1\u03b3\u03b5 151 ACKERMANN J I would think that this, without more, raises doubts as to whether we should be as wary of prosecutorial use of derivative evidence as we undoubtedly must be of such use of pre-trial testimonial evidence. What prejudice can an accused be said to suffer from being forced to confront evidence 'derived' from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact. In this respect, if reference to its origins was not precluded by an immunity such as that presently found in s. 5 of the Canada Evidence Act, it would in most cases be precluded by simple irrelevance.\"192 and, \"This raises a question of crucial importance in understanding the Collins line of cases and their relevance to a determination of the scope of testimonial immunity required by the principles of fundamental justice; why is the prior existence of evidence regarded as relevant to the fairness of the trial in which it is introduced? There can be only one answer to this question. A breach of the Charter that forces the eventual accused to created evidence necessarily has the effect of providing the Crown with evidence it would not otherwise have had. It follows that the strength of its case against the accused is necessarily enhanced as a result of the breach. This is the very kind of prejudice that the right against self-incrimination, as well as rights such as that to counsel, are intended to prevent. In contrast, where the effect of a breach of the Charter is merely to locate or identify already existing evidence, the case of the ultimate strength of the Crown's case is not necessarily strengthened in this way. The fact that the evidence already existed means that it could have been discovered anyway. Where this is the case, the accused is not forced to confront any evidence at trial that he would not have been forced to confront if his Charter rights had been respected. In such circumstances, it would be the exclusion rather than the admission of evidence that would bring the administration of justice into disrepute.\"193 192Id at 253 f - 254 e. 193Id at 256 a - e. \f [112] La Forest J, favouring a flexible approach to the question of derivative use ACKERMANN J \u03a0\u03b1\u03b3\u03b5 152 immunity, stated: \"In this country, where the question of immunity falls to be determined under the principles of fundamental justice, I think we can achieve a more flexible balance between the interests of the individual and that of the state. In a case like this, where the statute does not provide for the evidence to be admitted, there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of the principles of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does not admit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge.\" and, \"I see no reason why an approach like that in the now constitutionalized rule adopted in the case of prejudicial evidence should not be extended to derivative evidence which, like other prejudicial evidence within the rule, can only be dealt with having due regard to the need to balance the right of the accused and that of the public in a specific context. In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind, a proposition consistent with the cases under s. 24(2) of the Charter. The touchstone for the exercise of the discretion is the fairness of the trial process.\"194 The learned Judge concluded by stating: \"I conclude, then, that the use of derivative evidence derived from the use of the s. 17 power in subsequent trials for offences under the Act does not automatically affect the fairness of those trials. It follows that complete immunity against such use is not required by \f\u03a0\u03b1\u03b3\u03b5 153 ACKERMANN J the principles of fundamental justice. The immunity against use of actual testimony provided by s. 20(2) of the Act together with the judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirements of the Charter.\"195 (emphasis added)", "L'Heureux-Dub\u00e9 J, without commenting on whether or how derivative use of compelled testimony should be controlled, also came to the conclusion that \"use immunity satisfies the requirements of fundamental justice under s. 7 of the Charter. In the present appeal, such protection is afforded by s. 20(2) of the Act which was referred to earlier.\"196 Can the limitation of the examinee's section 11(1) constitutional residual right against self-incrimination by section 417(2)(b) of the Companies Act be justified under section 33(1) of the Constitution? 194Id at 260 h - 261 a; 262 c - e. 195Id at 264 d - e. \f \u03a0\u03b1\u03b3\u03b5 154 ACKERMANN J 196Id at 281 a. \f [114] To meet the requirements of section 33(1) of the Constitution, any limitation of ACKERMANN J \u03a0\u03b1\u03b3\u03b5 155 the section 11(1) right to freedom must: (a) (b) (c) (d) be \"reasonable\"; be \"justifiable in an open and democratic society based on freedom and equality\"; \"not negate the essential content of the right\"; be \"necessary\". (i) The legislative history of sections 417 and 418 of the Companies Act", "In order to determine the nature, extent and weight of the state's interest in the limitation in question, the legislative history and purpose of the investigation and examination procedures embodied in sections 417 and 418 of the Companies Act need to be examined. South African statutory company law has followed closely similar English legislation and drawn heavily on it, all the pre-Union statutes being based on earlier English company legislation.197 The adoption of the South African Companies, Act 61 of 1973 has, however, \"cut the umbilical cord between English and South African company law\" which \"though still based on the general principles of English law ... goes in many respects its own way.\"198 Nevertheless, South African courts have considered English decisions to be 197See, generally, Joubert (ed) The Law of South Africa Vol. 4 at paras 3 - 7; Pretorius et al, Hahlo's South African Company Law Through the Cases 5 ed (1991) at 1 - 3; Cilliers et al, Corporate Law 2 ed (1992) at 18 - 24; De la Rey \"Aspekte van die vroe\u00eb Maatskappyereg: _ Vergelykende Oorsig\" (1986) Codicillus 4, 18. 198Pretorius et al, supra note 197 at 2 - 3. \fauthoritative (though of course not binding) in interpreting statutory provisions \u03a0\u03b1\u03b3\u03b5 156 ACKERMANN J which are substantially the same, this being particularly the case in interpreting section 417 of the Companies Act and corresponding provisions.199 199See, for example, Partnership in Mining Bpk v. Federale Mynbou Bpk en Andere 1984 (1) SA 175 (T) at 179 G - H; Kotze v. De Wet NO and Another 1977 (4) SA 368 (T) at 374 B - C and S v. Heller 1969 (2) SA 361 (W) at 363 A - 366 A. \f [116] The concept of private examination was first introduced in England in the ACKERMANN J \u03a0\u03b1\u03b3\u03b5 157 Companies Act of 1862. Section 115 of the English Companies Act of 1862 empowered the Court, after a winding-up order had been made, to summon before it any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company or supposed to be indebted to the company or any person whom the Court might deem capable of giving information concerning the trade, dealings, estate or effects of the company. The Court could require any such officer or person to produce documents and, under section 117, the Court was empowered to examine on oath, either by word of mouth or upon written interrogatories, any person so appearing concerning the affairs, dealings, estate or effects of the company. The provisions were continued in the English Companies (Consolidation) Act of 1908, the Companies Act of 1929 and the Companies Act of 1948.200 These provisions were repeated, without significant amendment, by sections of the 1985 Companies Act. The Insolvency Acts of 1985 and 1986 introduced major reforms both to the law of personal bankruptcy and to winding-up, the aim of these statutes being to promote harmony between the systems of personal and corporate insolvency. The result of the Insolvency Acts was to remove from the 1985 Companies Act all provisions relating to winding-up and receiverships. The 200The private examination provisions were contained in section 268 of this Act. \fEnglish private examination provisions are now contained in sections 236 and \u03a0\u03b1\u03b3\u03b5 158 ACKERMANN J 237 of the 1986 Insolvency Act.", "The Joint Stock Companies Limited Liability Act 23 of 1861 of the Cape contained no winding up or examination provisions. These were introduced by the Cape Winding-Up Act, 12 of 1868, based on similar provisions in the English Companies Act of 1862. Section 33 of the Cape Act (which was taken over verbatim from section 115 of the English Act) provided that the Court, after it had made an order for winding up, could summon before it - \"any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company, or supposed to be indebted to the company, or any person whom the court may deem capable of giving information concerning the trade, dealings, estate, or effects of the company ...\" Section 34 of the Cape Act, following closely the provisions of section 117 of the English Act, authorised the Court to examine any person appearing or brought before it \"in manner aforesaid, or whom it may be desired to examine,\u201d concerning \"the affairs, dealings, estate, or effects of the company...\". The passage emphasised above was an addition to the corresponding English provision. \f \u03a0\u03b1\u03b3\u03b5 159 ACKERMANN J", "The Transvaal Act, 31 of 1909, which borrowed heavily from the English Companies (Consolidation) Act of 1908, served as a model for the first South African Companies Act (46 of 1926).201 Section 151(1) of the Transvaal Act, 31 of 1909, (which was in terms identical to section 174(1) of the English Companies (Consolidation) Act 1908 and closely resembled section 33 of the Cape Winding-up Act, 12 of 1868, provided for the private examination of - \"any officer of the company or person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or any person whom the Court deems capable of giving information concerning the trade, dealings, affairs, or property of the company.\" Section 152(1) (which in terms closely resembled section 175(1) of the aforementioned English Act) provided for the public examination of the promoter, director or officer of a company who, in the opinion of the Master, had committed a fraud in relation to the company. It should be noted that section 151(2) of the 201See L.P. Pyemont \"The Companies Bill for the Union of South Africa\" 40 (1923) SALJ 389. \fTransvaal Act obliged the examinee to answer any question put to him or her in \u03a0\u03b1\u03b3\u03b5 160 ACKERMANN J the private examination \"notwithstanding that the answer might tend to incriminate him\", but that a direct use immunity was given in the following terms: \"Provided that any answer given to any such question shall not be used against him in any prosecution other than for perjury or for the offence under this Act of giving false evidence.\" Section 152(5) contained a similar ouster of the examinee's privilege against self- incrimination in the public examination, without providing any indemnity against prosecution or use immunity. This appears to be the first occasion in South Africa where the privilege against self-incrimination has been ousted completely without provision for use immunity in the context of an examination following on the winding up of a company.", "Section 155 of the Companies Act, 46 of 1926, made provision for private examinations in terms identical to those in section 151(1) of the Transvaal Act mentioned above and section 156 provided for public examination before the Court in terms very similar to that provided in section 152(1) of the Transvaal Act, save that section 156(1) included any creditor of the company in the list of persons who could be examined. Both sections 155 and 156 ousted the examinee's right against self-incrimination, but provided no indemnity or use \f immunity to the examinee in either case. Section 194 introduced, for the first \u03a0\u03b1\u03b3\u03b5 161 ACKERMANN J time, a provision allowing the Court to appoint a commissioner for the purpose of taking evidence or holding an enquiry under the Act, which provision was the forerunner of section 418 of the 1973 Companies Act. Sections 180 bis and 180 ter were introduced into the 1926 Companies Act by section 105 of the Companies Amendment Act of 1952.202 In terms of section 180 bis, all the directors, the manager and the secretary of a company in liquidation were to attend meetings of creditors. The Master, or other presiding officer at such a meeting, could also, in terms of section 180 bis, subpoena to the meeting - \"any person who is known or on reasonable grounds believed to be or to have been in possession of any property which belongs or belonged to the company or to be indebted to the company, or any person who in the opinion of the Master or such other officer may be able to given any material information concerning the company or its affairs ...\"203 Section 180 ter made provisions for the examination, at a meeting of creditors of a company being wound up and unable to pay its debts, of a director or any other 202Act 46 of 1952. This was an Act passed in consequence of the report of the Millin Commission. (Report of the Commission of Enquiry on the Amendment of the Companies Act (UG 69 of 1948)). 203This section corresponded to section 64(1) of the Insolvency Act 24 of 1936. \fperson present at the meeting - \u03a0\u03b1\u03b3\u03b5 162 ACKERMANN J \"concerning all matters relating to the company or its business or affairs ... and concerning any property belonging to the company ...\"204 Section 180 quat inter alia made the provisions of sections 64 to 68 of the Insolvency Act 1936 applicable to 180 bis and 180 ter. In terms of the proviso to section 65(2) of the Insolvency Act 1936, as it existed at the time, a person interrogated under subsection (1) was \"not entitled at such interrogation to refuse to answer any question upon the ground that the answer would tend to incriminate him\" and subsection (5) provided that any evidence given under section 65 \"shall be admissible in any proceedings instituted against the person who gave that evidence.\" 204This section corresponded to section 65(1) of the Insolvency Act of 1936. \f [120] Sections 180 bis and 180 ter of the 1926 Companies Act have been repeated in ACKERMANN J \u03a0\u03b1\u03b3\u03b5 163 the extant Companies Act, 1973, in sections 414 and 415 respectively. The present Companies Act makes no provision for public examinations before the Court.205 Section 417 of the present Act does, however, make provision for private examinations in terms not dissimilar to section 155 of the 1926 Companies Act. It is to be noted that section 416 (1) of the Companies Act inter alia makes the provisions of section 65 of the Insolvency Act applicable to the interrogation of any person under section 415, \"in so far as they can be applied and are not inconsistent with the provisions of this Act,\" as if such person were being interrogated under section 65 of the Insolvency Act 1936. In 1989 subsection (2A) was inserted in section 65 of the Insolvency Act.206 It reads as follows: 205Section 156 of the 1926 Companies Act was not repeated in the Companies Act 1973. This was on the recommendation of the Van Wyk de Vries Commission of Enquiry into the Companies Act: Main Report (1970) para 50.21. 206By section 3(b) of Act No. 89 of 1989. \f \u03a0\u03b1\u03b3\u03b5 164 ACKERMANN J \"(2A) (a) Where any person gives evidence in terms of the provisions of this section and is obliged to answer questions which may incriminate him or, where he is to be tried on a criminal charge, may prejudice him at such trial, the presiding officer shall, notwithstanding the provisions of section 39(6), order that such part of the proceedings be held in camera and that no information regarding such questions and answers may be published in any manner whatsoever. (b) No evidence regarding any questions and answers contemplated in paragraph (a) shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers, and in criminal proceedings contemplated in section 139(1) relating to a failure to answer lawful questions fully and satisfactorily. (c) Any person who contravenes any provision of an order contemplated in paragraph (a), shall be guilty of an offence and liable on conviction to the penalty mentioned in subsection (5) of section 154 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).\"", "It has been suggested207 that the person interrogated in proceedings under section 415 of the Companies Act enjoys the benefits of the direct use immunity provided for in section 65(2A)(b) of the Insolvency Act, by virtue of the operation of the particular provision in section 416(1) of the Companies Act, referred to above; and it has also been so held in Podlas v. Cohen and Bryden NNO and 207For example, Meskin et al (eds) Henochsberg on the Companies Act 5 ed Vol 1 at 876 - 877. \f Others,208 where Spoelstra J stated the following: \u03a0\u03b1\u03b3\u03b5 165 ACKERMANN J 2081994 (4) SA 662 (T) at 671 G - I. \f \u03a0\u03b1\u03b3\u03b5 166 ACKERMANN J \"I am not persuaded that the judgment of van Niekerk J209 is correct and that those of Goldblatt J210 and De Villiers J211 are clearly wrong. On the contrary, Van Niekerk J's judgment is open to criticism that it overlooked important considerations which, had they been considered, might have resulted in a different conclusion. First, s. 416 of the Companies Act provides that S. 65 of the Insolvency Act shall be applied to interrogations under s. 415 of the Companies Act. Section 65(2A) of the Insolvency Act provides that incriminating evidence shall be ordered to be given in camera and that no information regarding such questions and answers may be published in any manner whatsoever. No evidence regarding incriminating questions and answers shall be admissible in any criminal proceedings except in perjury proceedings. Had these provisions been brought to Van Niekerk J's attention, it is very doubtful that he would have found that there 209In Wehmeyer v. Lane NO and Others 1944 (4) SA 441 (C). 210In Rudolph and Another v. Commissioner for Inland Revenue and Others NNO, 1994 (3) SA 771 (W). 211In De Kock en _ Ander v. Prokureur-Generaal, Transvaal, 1994 (3) SA 785 (T). We are not here concerned with the central issue involved in Wehmeyer, Rudolph and De Kock, viz. whether a Provincial or Local Division of the Supreme Court had jurisdiction (as the law then stood) to grant a temporary interdict on the basis that an Act of Parliament might be invalid, pending the decision of the issue of such validity by the Constitutional Court. Section 101(7) of the Constitution, as introduced by section 3 of the Constitution of the Republic of South African Second Amendment Act 44 of 1995 now provides expressly for such jurisdiction. \f \u03a0\u03b1\u03b3\u03b5 167 ACKERMANN J was any real prejudice to the applicant.\" (emphasis and footnotes added). The inescapable inference from the above is that Spoelstra J considered that the direct use immunity provided for in section 65(2A)(b) of the Insolvency Act applied to incriminating evidence given by a person interrogated under section 415 of the Companies Act. Spoelstra J has, in my view, overlooked the important qualification in section 416(1) itself, namely that the provisions of section 65 of the Insolvency Act are only applicable to the interrogation of a person under section 415 of the Companies Act \"in so far as they can be applied and are not inconsistent with the provisions\" of the Companies Act. Subsection (3) of section 415 provides expressly that - \"No person interrogated under subsection (1) shall be entitled at such interrogation to refuse to answer any question upon the ground that the answer would tend to incriminate him.\" and subsection (5) further expressly provides that - \"Any evidence given under this section shall be admissible in any proceedings instituted against the person who gave that evidence or the body corporate of which he is or was an officer.\" When these two provisions are read in conjunction with one another they leave open no possible construction other than that the testimony of persons interrogated under section 415, even though it might tend to incriminate them, is \fadmissible against such persons in subsequent proceedings against them, even \u03a0\u03b1\u03b3\u03b5 168 ACKERMANN J in subsequent criminal prosecutions. The expression \"... admissible in any proceedings instituted against the person who gave that evidence\" is too wide and unqualified to admit of any other construction. The direct use immunity, provided for in section 65(2A)(b) of the Insolvency Act, is therefore clearly inconsistent with the combined effect of these provisions in section 415 and to that extent are inapplicable. I accordingly disagree with Spoelstra J's conclusion that \"[n]o evidence regarding incriminating questions and answers shall be admissible in any criminal proceedings except in perjury proceedings.\" (ii) The statutory purpose of the section 417 and 418 procedures", "The way is now clear to determine the statutory purpose of the interrogation and other procedures in the Companies Act 1973 and, in particular, those in section 417 and 418. Some of the major statutory duties of the liquidator in any winding- up are: (i) (ii) to \"proceed forthwith to recover and reduce into possession all the assets and property of the company, movable and immovable ...\"212 to \"give the Master such information ... and generally such aid as may be requisite for enabling that officer to perform his duties under this Act.\"213 212Section 391 of the Companies Act 61 of 1973. 213Id section 392. \f\u03a0\u03b1\u03b3\u03b5 169 ACKERMANN J (iii) to \"examine the affairs and transactions of the company before its winding-up in order to ascertain - (a) (b) whether any of the directors and officers or past directors and officers of the company have contravened or appear to have contravened any provision of this Act or have committed or appear to have committed any other offence; and in respect of any of the persons referred to in paragraph (a), whether there are or appear to be any grounds for an order by the Court under section 219 disqualifying a director from office as such.\"214 (iv) Except in the case of a members' voluntary winding-up, to report to the general meeting of creditors and contributories of the company, the causes of the company's failure, if it has failed.215 If the liquidator's report contains particulars of contraventions or offences committed or suspected to have been committed or of any of the grounds mentioned in (iii)(a) and (b) above, the Master must transmit a copy of the report to the Attorney-General.", "The purpose of the enquiry under sections 417 and 418 is undoubtedly to assist liquidators in discharging these duties \"so that they may determine the most advantageous course to 214Id section 400(1). 215Id section 402(b). \f \u03a0\u03b1\u03b3\u03b5 170 ACKERMANN J adopt in regard to the liquidation of the company\";216 and \"to achieve his primary object, namely the ascertainment of the assets and liabilities of the company, the recovery of the one and the payment of the other, according to law and in a way which will best serve the interests of the company's creditors\".217 666 F. 216Per van Winsen J in Western Bank Ltd v. Thorne NO and Others NNO 1973 (3) SA 661 (C) at 217Merchant Shippers SA (Pty) Ltd v. Millman NO and Others 1986 (1) SA 413 (C) at 417 D - E. \f As was pointed out in Moolman v. Builders and Developers (Pty) Ltd (In \u03a0\u03b1\u03b3\u03b5 171 ACKERMANN J Provisional Liquidation): Jooste Intervening218: \"Appellant's counsel is plainly correct in his submission that to enquire into the company's affairs forms part of a liquidator's functions just as much as reducing the assets of the company into his possession and dealing with them in the prescribed manner does. In performing the former part of his functions he exercises an ancillary power without which the second part cannot properly be performed. It is only by enquiring that he is able to determine what is and what is not the property of the company, or who is and who is not a creditor or contributory. It is, moreover, obviously in the interest of creditors that doubtful claims which the company may have against outsiders be properly investigated before being pursued and that claims against the company also be properly investigated before they are admitted or rejected. It is for such reasons that both the South African and the Transkeian Companies Act contain elaborate provisions relating to the interrogation of directors and other persons at meeting of creditors or by a commissioner...\" 2181990 (1) SA 954 (A) at 960 G - I per Hefer JA. \fThe purpose of the interrogation may be directed exclusively at the general \u03a0\u03b1\u03b3\u03b5 172 ACKERMANN J credibility of an examinee, where the testing of such person's veracity is necessary in order to decide whether to embark on a trial to obtain what is due to the company being wound up.219", "It happens not infrequentlythat the liquidation of a company is the result of mismanagement, indeed mismanagement involving fraud and theft, on the part of the directors and other officers of the company. Such persons are the only eyes, ears and brains of the company and often the only persons who have knowledge of the workings of the company prior to liquidation. They are often, because of their part in the mismanagement, fraud and theft, reluctant to assist the liquidators voluntarily in the discharge of their duties. This on occasion also applies to outsiders who, for reasons of their own, are reluctant to assist the liquidator voluntarily. That it is necessary, in the interest of creditors and indeed the wider public interest, to compel them to assist, is widely recognised. In Lynn NO and Another v. Kreuger and Others the following was said: 219Pretorius and Others v. Marais and Others 1981 (1) SA 1051 (A) at 1063 H - 1064 A. \f \u03a0\u03b1\u03b3\u03b5 173 ACKERMANN J \"In my view the procedure provided by sections 417 and 418 of the Companies Act is not primarily concerned with the prosecution of offenders. The sections are aimed at assisting officers of the court in the performance of their duty to the creditors of companies in liquidation, the Master and the Court. It is very often of fundamental importance for the liquidator of a company to find out what has been done with the assets of that company and how the company's business has been run. Speed is of the essence of effectiveness in such an enquiry because, all too often the liquidator must take early and urgent action in order to recover mismanaged or misappropriated assets for the benefit of creditors. The case under consideration seems to be an excellent example of the importance of the need for full information, at a comparatively early stage of the winding up. In this case, on the evidence which is before me, the probabilities indicate very strongly, if not overwhelmingly that the only person who can give the applicants the information which they require is the first respondent. I think that the first respondent's prospects of persuading the Constitutional Court that the 'interrogation procedure' in respect of people who have been involved in the dealings of a company \f \u03a0\u03b1\u03b3\u03b5 174 ACKERMANN J before its liquidation is unconstitutional are remote indeed. I cannot conceive of any other procedure which would enable liquidators, effectively and efficiently, to fulfil their task.\"220 In Cloverbay Ltd v. Bank of Credit and Commerce International SA221 Browne- Wilkinson V-C, dealing with an examination under section 236 of the English Insolvency Act 1986, stated the following: \"[T]he reason for the inquisitorial jurisdiction contained in s. 236 is that a liquidator or administrator comes into the company with no previous knowledge and frequently finds that the company's records are missing or defective. The purpose of s. 236 is to enable him to get sufficient information to reconstitute the state of knowledge that the company should possess.\" (emphasis added.) As explained by Buckley J in Re Rolls Razor, Ltd the position under section 236 of the Insolvency Act 1986 is broadly the same as that under section 268 of the 2201995 (2) BCLR 167 (N) at 170 D - F per Hurt J. 221[1991] 1 All ER 894 (CA) at 900 e. \f Companies Act: \u03a0\u03b1\u03b3\u03b5 175 ACKERMANN J \"The powers conferred by s. 268 are powers directed to enabling the court to help a liquidator to discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings, and so forth, in order that the liquidator may be able, as effectively as possible and, I think, with as little expense as possible ... to complete his function as liquidator, to put the affairs of the company in order and to carry out the liquidation in all its various aspects, including, of course, the getting in of any assets of the company available in the liquidation. It is, therefore, appropriate for the liquidator, when he thinks that he may be under a duty to try to recover something from some officer or employee of a company, or some other person who is, in some way, concerned with the company's affairs, to be able to discover, with as little expense as possible and with as much ease as possible, the facts surrounding any such possible claim.\"222 This passage was subsequently approved by the Court of Appeal.223 In Re Rolls 222[1968] 3 All ER 698 (ChD) at 700. 223In Re Esal (Commodities) Ltd [1989] BCLC 59 at 64. \f Razor Ltd (No. 2) Megarry J said the following: \u03a0\u03b1\u03b3\u03b5 176 ACKERMANN J \"The process under s. 268 is needed because of the difficultly in which the liquidator in an insolvent company is necessarily placed. He usually comes as a stranger to the affairs of a company which has sunk to its financial doom. In that process, it may well be that some of those concerned in the management of the company, and others as well, have been guilty of some misconduct or impropriety which is of relevance to the liquidation. Even those who are wholly innocent of any wrongdoing may have motives for concealing what was done. In any case, there are almost certain to be many transactions which are difficult to discover or to understand merely from the books and papers of the company. Accordingly, the legislature has provided this extraordinary process so as to enable the requisite information to be obtained. The examinees are not in any ordinary sense witnesses, and the ordinary standards of procedure do not apply. There is here an extraordinary and secret mode of obtaining information necessary for the proper conduct of the winding-up. The process, borrowed from the law of bankruptcy, \f \u03a0\u03b1\u03b3\u03b5 177 ACKERMANN J can only be described as being sui generis.\"224 In British and Commonwealth Holdings plc v. Spicer and Oppenheim Lord Slynn, speaking for the House of Lords, approved the passages from Rolls Razor and Rolls Razor (2) quoted above and then said the following: 224[1969] 3 All ER 1386 at 1396 - 1397. \f\u03a0\u03b1\u03b3\u03b5 178 ACKERMANN J \"I am therefore of the opinion that the power of the Court to make an order under s. 236 is not limited to documents which can be said to be needed 'to reconstitute the state of the company's knowledge' even if that may be one of the purposes most clearly justifying the making of an order.\"225 (iii) The application of section 33(1) of the Constitution", "In applying section 33(1) I propose adopting the approach followed in S v. 225[1992] 4 All ER 876 (HL) at 884 b - h and 884 j. See also Anderson and Others v. Dickson and Another NNO 1985 (1) SA 93 (N) at 111 F - G where Booysen J said the following: \"It seems that the object of an examination under ss 417 and 418 is similar to that of an examination at a meeting of creditors under s 415 and that it is to gain information which the creditors, or some of them, and the liquidator do not have or cannot otherwise effectively possess. It is a means of obtaining discovery of facts which may be of financial benefit to creditors of the company with the important limitation that it should be of financial benefit to them qua creditors of the company.\" \f Makwanyane and Another226, where, as in the present case, the justification had \u03a0\u03b1\u03b3\u03b5 179 ACKERMANN J to be necessary as well as reasonable and in which Chaskalson P formulated the approach as follows: 226Supra note 24. \f \u03a0\u03b1\u03b3\u03b5 180 ACKERMANN J \"The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality. This is implicit in the provisions of section 33(1). The fact that different rights have different implications for democracy, and in the case of our Constitution, for 'an open and democratic society based on freedom and equality', means that there is no absolute standard which can be laid down for determining reasonableness and necessity. Principles can be established, but the application of those principles to particular circumstances can only be done on a case by case basis. This is inherent in the requirement of proportionality, which calls for the balancing of different interests. In the balancing process, the relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the \f \u03a0\u03b1\u03b3\u03b5 181 ACKERMANN J right in question. In the process regard must be had to the provisions of section 33(1), and the underlying values of the Constitution, bearing in mind that, as a Canadian Judge has said, 'the role of the Court is not to second-guess the wisdom of policy choices made by legislators'.\"227 (footnotes omitted)", "Because of the statutory duties which liquidators have to discharge in the winding-up of companies and the serious difficulties they face in recapturing the knowledge of the company prior to liquidation, in determining the cause of the company's failure and in establishing what assets (including claims) the company has, it is clearly reasonable (in the sense of there being a rational connection between mischief and remedy) to compel persons to be interrogated in relation to affairs of the company which are relevant to the discharge by liquidators of their duties, even where the testimony given tends to incriminate the person giving it. It is also necessary, in the sense that there is a pressing or compelling state interest to ensure that assets (including claims) of the company are recovered, for the benefit of creditors, especially from directors and officers of the company who may have been responsible, even criminally so, for the failure of the company. It is also necessary, in this sense, to compel persons to answer all 227Id at para 104. \frelevant questions put to them even when the answers might incriminate them, \u03a0\u03b1\u03b3\u03b5 182 ACKERMANN J for without this compulsion there would be a great reluctance by such persons to make a full and frank disclosure of their knowledge of the affairs of the company and their dealings with it.", "The real question is whether it is necessary in the sense that no other method exists which achieves the desired objective, but which is less intrusive of the examinee's section 11(1) rights. Differently stated, is there an acceptable proportionality between the legitimate objective sought to be achieved and the means chosen? The answer must clearly be in the negative. The state interest in achieving full information must be just as compelling in the United States of America, Canada and the United Kingdom. Yet these countries, more consistently the United States and Canada, have achieved this objective by means which are less invasive of the examinee's rights, namely by conferring on the examinee either a direct or both a direct and a derivative use immunity in respect of self-incriminating evidence given at the enquiry. There is nothing to suggest that in South Africa the objective cannot be fully achieved if some form of use immunity were to be appended to section 417(2)(b) of the Companies Act. Section 65(2A)(b) of the Insolvency Act provides for direct use immunity in respect of enquiries held under that Act and, while there may be legitimate \freasons for distinguishing between enquiries held in respect of personal \u03a0\u03b1\u03b3\u03b5 183 ACKERMANN J bankruptcies and those relating to company liquidations, I can think of no proper justification for providing direct use immunity in respect of the former but not the latter. In the light of the aforegoing it is unnecessary to consider whether the essential content of the section 11(1) right has, within the meaning of section 33(1)(b), been negated by this provision. The conclusion is therefore reached that, as currently formulated, the provisions of section 417(2)(b) of the Companies Act, which infringe the examinee's section 11(1) rights, cannot be justified under section 33(1) of the Constitution. These provisions are accordingly found to be inconsistent with the section 11(1) right to freedom. The attacks based on sections 8, 10, 13, 15, 22 or 24 of the Constitution", "In view of the above finding it is unnecessary to consider whether the provisions of section 417(2)(b) of the Companies Act are inconsistent with any of the rights protected in sections 8, 10, 13, 15, 22 or 24 of the Constitution. The extent of the inconsistency of the provisions of section 417(2)(b) of the Companies Act with the section 11(1) right to freedom", "Section 98(5) of the Constitution provides that: \"In the event of the Constitutional Court finding that any law or any \f \u03a0\u03b1\u03b3\u03b5 184 ACKERMANN J provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament or any other competent authority, within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified.\" The above subsection enjoins this Court, on finding that any law or any provision thereof is inconsistent with this Constitution, to declare such law or provision invalid \"to the extent of its inconsistency.\" This raises two issues, one of severability and the other of judicial policy. We were urged on behalf of the applicants to strike down section 417(2)(b) in its entirety, leaving it to Parliament to decide whether to re-instate the obligation to give self-incriminating evidence, but coupled this time with a suitable indemnity against prosecution or a suitable use immunity (whether a direct or a direct and derivative use immunity). On behalf of the applicants we were urged not to express our own views as to what an appropriate and constitutionally valid use immunity would be, under the guise of a section 98(5) declaration as to the extent of the inconsistency of section 417(2)(b) with the Constitution. To do so would, it was submitted, be trespassing \f on Parliament's legislative sphere. On behalf of the second respondents in the \u03a0\u03b1\u03b3\u03b5 185 ACKERMANN J Ferreira matter we were invited, in the alternative and in the event of finding section 417(2)(b) to be inconsistent with the Constitution, to make a qualified order in the following terms: \"To the extent only that the words 'and any answer given to any such question may thereafter be used in evidence against him' in section 417(of the Companies Act apply to the use of any such answer by an accused against him or her in criminal proceedings (other than proceedings for common law or statutory perjury in giving evidence under this section), the provisions are declared to be invalid.\"", "On the issue of severability it is unnecessary on the issue before us to do more than apply the test which Kriegler J formulated for this Court in Coetzee v. Government of the Republic of South Africa and Others; Matiso and Others v. Commanding Officer, Port Elizabeth Prison and Others as follows: \"Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The test has two parts: first, is it possible to sever the invalid provisions and second, if so, is what remains giving effect to \f \u03a0\u03b1\u03b3\u03b5 186 ACKERMANN J the purpose of the legislative scheme?\"228 Both tests are satisfied in the present case, whether the order takes the form suggested by the applicants, or by second respondents in the Ferreira matter. On the applicants' approach the remainder of the legislative scheme in sections 417 and 418 is not dependent on the bad in section 417(2)(b). On the approach suggested by the second respondent in the Ferreira matter a person examined would still be obliged to answer all questions put, including those that might be self-incriminating, but the deletion of the words \"and any answer given to any such questions may thereafter be used in evidence against him\" would merely exclude the use of incriminating answers in all subsequent criminal proceedings against the examinee. The exclusion would be limited to criminal proceedings. Such a deletion would not have any effect on the efficacy of the section 417 and 418 proceedings; the removal of the bad would only affect subsequent use of the answers. On the second leg of the test, that which will remain clearly still gives 2281995 (10) BCLR 1382 (CC) at para 16. The footnote reference in the text quoted has been omitted but the footnote itself reads: \"Johannesburg City Council v. Chesterfield House 1952 (3) SA 809 (A) at 822 D - E. See also S v. Lasker 1991 (1) SA 558 (CPD) at 566.\" \feffect to the purpose of the legislative scheme, which has been analysed above. \u03a0\u03b1\u03b3\u03b5 187 ACKERMANN J", "The more difficult problem relates to the way in which the Court should declare the extent of the inconsistency of section 417(2)(b) with the Constitution. There is great force in the warning that this Court ought not to prescribe or even suggest to Parliament how best it should legislate in order to address any statutory vacuum or deficiency caused by a declaration of invalidity. By doing this we might be seen to be trespassing on Parliament's legislative terrain. At the same time, however, the injunction in section 98(5) of the Constitution requires the Court to indicate the \"extent\" of the inconsistency. This qualification was not essential. The injunction could merely have read \"it shall declare such law or provision invalid.\" The Constitution therefore reflects a choice for a narrow striking down. In certain cases such a narrow striking down is technically and linguistically simple where the constitutional inconsistency is encapsulated in (and limited to) a discrete subsection or paragraph containing nothing but the inconsistent provision. However, the excision cannot always be so surgically neat. The Constitution seems to have foreseen this by using the expression \"to the extent of its inconsistency\" as a qualification to the bald declaration of invalidity of \"any law or any provision thereof.\" It permits the Court greater latitude in formulating its declaration of invalidity. \f \u03a0\u03b1\u03b3\u03b5 188 ACKERMANN J", "A not inconsiderable part of the argument was directed to the nature of (a) an indemnity against prosecution, or (b) a direct use immunity or (c) a derivative use immunity which, if coupled with the compulsion to give self-incriminating evidence, might render such compulsion constitutionally unobjectionable. This debate was an important feature in the judgments in Thomson's case.229 It is not inconceivable (in fact it seems likely) that, if we were simply to strike down section 417(2)(b) in its entirety, Parliament would consider introducing more limited provisions along the lines of the provisions of section 65(2A) of the Insolvency Act. In so doing, Parliament might decide to provide for a direct use immunity only, which might very well give rise to another constitutional challenge, resulting in another suspension of the section 417 and 418 procedures, the halting of liquidation enquiries and a hearing in this Court simply duplicating the arguments that have been addressed to us in the present case. Such a course of events would be both unnecessary and unfortunate, particularly if it could legitimately be avoided. It can properly, in my view, be avoided. It would be permissible for us, in the process of determining the extent of the inconsistency of section 417(2)(b) with the Constitution, to decide whether, in the South African context, both a direct and a derivative use immunity is necessary to save such a \fprovision from being unconstitutional, or whether a direct use immunity would \u03a0\u03b1\u03b3\u03b5 189 ACKERMANN J suffice. Without doing so, it would be difficult, if not impossible to indicate accurately the extent of the inconsistency. I now proceed to address myself to this question.", "It has been pointed out above that, in the United States of America, both derivative and direct use immunity is necessary in order to escape constitutional challenge to a statute which limits the right against self-incrimination. In Thomson Newspapers La Forest J pointed out, however, that \"the absolutist position the courts in the United States have adopted in this area is undoubtedly rooted in the explicit and seemingly absolute right against self-incrimination found in the country's constitution\"230 and that \"one should not automatically accept that s. 7 comprises a broad right against self-incrimination on an abstract level or, for that matter, on the American model, complete with all its residual doctrines. If that had been intended, it would have been very easy 229Supra note 75. \f to say so.\"231 \u03a0\u03b1\u03b3\u03b5 190 ACKERMANN J 230Supra note 75 at 260 g. 231Id at 244 a - b. \fIn embarking on this enquiry regarding derivative use immunity, it is salutary to \u03a0\u03b1\u03b3\u03b5 191 ACKERMANN J bear in mind that the problem cannot be resolved in the abstract but must be confronted in the context of South African conditions and resources - political, social, economic and human.232 The fact that a particular obligation may be placed on the criminal investigative and prosecutorial authorities in one country with vast resources, does not necessarily justify placing an identical burden on a country with significantly less resources. One appreciates the danger of relativising criminal justice, but it would also be dangerous not to contextualise it. The aphorism proclaims that it is better for ten guilty accused to go free than to have one innocent accused wrongly convicted. Does the same hold true if the proportion is stretched to a hundred to one or to a thousand to one? And must a system, which only produces one in a hundred wrong acquittals in one country, be maintained in another if it would consistently give rise to three in five wrong acquittals in the latter?", "The distinction which La Forest J draws between the direct use of compelled 232As La Forest J observed in Thomson Newspapers supra note 75 at 241 e: \"The courts in Canada ... cannot remain oblivious to the concrete social, political and economic realities within which our system of constitutional rights and guarantees must operate.\" The learned Judge further pointed out at 245 e that, \"these principles [of natural justice] vary with the context,\" and at 245 g that the entitlement of an accused, \"to a fair hearing ... does not entitle him to the most favourable procedures that could possibly be imagined\", \f testimony and the use of evidence derived from compelled testimony is, in my \u03a0\u03b1\u03b3\u03b5 192 ACKERMANN J view, important: (a) In the case of the direct use of compelled testimony, \"[i]t is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self- incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused.\"233 (b) By contrast, citing from R. v. Lyons (1987) 44 D.L.R. (4th) 193 at 237. 233Id generally at 252 - 260 and specifically at 252 h. \f \u03a0\u03b1\u03b3\u03b5 193 ACKERMANN J \"evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony ... Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues ... [this] is not the same thing as non-existence ... [which in turn means] that it could have been found by some other means, however low the probability of such discovery may have been.\"234", "This last mentioned feature means that the relevance, quality and weight of derivative evidence can be determined independently of the testimony of the accused and is therefore self-sufficient.235 This distinguishing feature is significant. In Lam Chi-Ming v. R236, an appeal to the Privy Council from Hong Kong, Lord Griffiths, in a passage quoted with approval by this Court in Zuma237, identified three reasons for excluding confessions obtained by improper methods: (a) possible unreliability, (b) the privilege or principle against self-incrimination and (c) the desire to ensure proper behaviour by the police towards those in their 234Id at 253 a. 235Id at 252 f - h. 236(1991) 2 AC 212 (PC). 2371995 (4) BCLR 401 (SA) at para 31. \f custody and then added: \u03a0\u03b1\u03b3\u03b5 194 ACKERMANN J \"the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.\"238 238Id at 220. \f The policy considerations (a) and (c) above do not apply at all to the admission \u03a0\u03b1\u03b3\u03b5 195 ACKERMANN J of derivative evidence. For this reason alone, it is legitimate to approach the admissibility of derivative evidence somewhat differently, the more so when regard is had to the independent existence of derivative evidence, quite apart form the testimony of the person disclosing it. In Thomson Newspapers, La Forest J, in dealing with the admissibility of derivative evidence, drew an analogy to section 24(2) Charter jurisprudence.239 This subsection of the Charter has adopted an intermediate position with respect to the exclusion of evidence obtained in violation of the Charter. In R. v. Collins the Canadian Supreme Court explained that - \"[S. 24(2)] rejected the American rule excluding all evidence obtained in violation of the Bill of Rights and the common law rule that all relevant evidence was admissible regardless of the means by which it was obtained.\"240 Apart from the obvious statutory exceptions relating to confessions and 239Supra note 75 at 255 e. Section 24(2) of the Canadian Charter reads: \"(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.\" 240(1987) 38 D.L.R. (4th) 508 at 522 - 523 per Lamer J. \fadmissions, the English common law rule is applied in South Africa.241 No doubt \u03a0\u03b1\u03b3\u03b5 196 ACKERMANN J this rule will have to be reconsidered at some stage in the light of the provisions of Chapter 3 of the present Constitution.", "In Collins, evidence had been discovered on the accused in pursuance to a search which was in breach of the accused's rights under section 8 of the Charter. Lamer J, in the course of considering whether the admission of such evidence would bring the administration of justice into disrepute, stated the following: 241The English rule is formulated in Kuruma v. R, [1995] AC 197 (PC) at 203; [1985] 1 All ER 236 at 239. See Ex Parte Minister of Justice: In re R. v. Matemba 1941 AD 75; S v. Nel 1987 (4) SA 950 (W) at 953 E - J and see, generally, Hoffmann and Zeffert The South African Law of Evidence 4 ed (1988) 278 - 281. \f \u03a0\u03b1\u03b3\u03b5 197 ACKERMANN J \"Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination.\"242 In Thomson Newspapers, La Forest J pointed out that Lamer J had not, in Collins: \"intended to draw a hard-and-fast line between real evidence obtained in breach of the Charter and all other types of evidence that could be so obtained. ... what Lamer J had in mind was the much broader distinction between evidence which the accused had been forced to create, and evidence which he or she has been forced to merely locate or identify. In other words, he had in mind the kind of distinction which I have attempted to draw between 242Supra note 240 at 526. \f\u03a0\u03b1\u03b3\u03b5 198 ACKERMANN J compelled testimony and evidence derived from compelled testimony.\"243", "La Forest J also drew attention to the fact that \"... the testimony of third parties obtained as a result of the pursuit of such clue facts is clearly evidence that exists regardless of whether or not the person who provided the clue facts was compelled to give testimony. As much as the murder weapon or the stolen car, it is evidence that could have been found in the absence of any assistance, compelled or otherwise, from the person subsequently charged. I do not see why this factor should be relevant to the admissibility of the murder weapon under s. 24(2), but irrelevant to the admissibility of the third party's testimony under the same section, or to the admissibility of either 243Supra note 75 at 255 f - 256 a. \f \u03a0\u03b1\u03b3\u03b5 199 ACKERMANN J piece of evidence under s. 7 or s. 11(d).\"244 The learned Judge considered it 244Id at 257 f - g. \f\u03a0\u03b1\u03b3\u03b5 200 ACKERMANN J \"overly broad to say that there must be an absolute prohibition against the use at trial of all evidence derived from testimony compelled before trial on the ground that the admission of such evidence can in some cases affect the fairness of the trial. ... [I]n defining the scope of the immunity required by the Charter, we are called upon to balance the individual's right against self- incrimination against the state's legitimate need for information about the commission of an offence.\"245", "In outlining the advantages to the community as a whole (including the fact that investigation and detection is speeded up and the law's effectiveness as a deterrent enhanced) if there was not a blanket exclusion of derivative evidence, La Forest J made, to my mind, the important point, particularly for our context, that \"[t]he limited resources that society has to spend on law enforcement activity in general will be utilised in a more cost- effective manner ... [which will mean] the effective investigation of a greater proportion of offences ... [enhancing in turn] the law's 245Id at 258 f - h. \f \u03a0\u03b1\u03b3\u03b5 201 ACKERMANN J potency as a deterrent to potential wrongdoers.\"246 He concluded that \"[a]ll of these benefits of a power to compel testimony would either be lost or severely limited if the Constitution required that the legislative grant of any such power must be accompanied by a grant of full use and derivative use immunity.\"247", "The learned Judge adopted a flexible approach to balancing the interests of the individual and that of the state, which in his view could only be achieved by the trial judge exercising a discretion.248 This discretion was, as La Forest formulated it in R. v. Corbett249 and confirmed it in Thomson Newspapers, 246Id at 259 c. 247Id at 259 d. 248Id at 260 - 261. 249(1988) 41 C.C.C. (3rd) 385 at 416. \f \u03a0\u03b1\u03b3\u03b5 202 ACKERMANN J \"to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy\".250 This discretion \"is ultimately grounded in the trial judge's duty to ensure a fair trial.\"251 A similar flexible approach could, La Forest J argued, be adopted in regard to the admissibility of derivative evidence, having due regard to the need to balance the right of the accused and that of the public in a specific context: \"... derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge's discretion be excluded since its admission would violate the principles of fundamental justice ... such exclusion should [not] take place if the evidence would otherwise have been found and its relevance understood ... The touchstone for the exercise of the discretion is the fairness of the trial process.\"252 La Forest J concluded by holding that: 250Supra note 75 at 261 C. 251Thomson Newspapers supra note 75 at 261 F and see also R v. Potvin (1989) 47 C.C.C. (3d) 289. 252Id at 262 c - e. \f \u03a0\u03b1\u03b3\u03b5 203 ACKERMANN J \"... complete immunity against such use is not required by the principles of fundamental justice. The immunity against use of actual testimony provided by s. 20(2) of the Act together with the judge's power to exclude derivative evidence where appropriate is all that is necessary to satisfy the requirement of the Charter.\"253", "I respectfully favour the approach adopted by La Forest J, for the reasons stated by him, rather than that preferred by Wilson J. Wilson J criticized La Forest J's approach on basically two grounds. Firstly because, 253Id at 264 d - e. \f \u03a0\u03b1\u03b3\u03b5 204 ACKERMANN J \"[t]he public repute of justice is not the relevant consideration in determining whether derivative evidence should be excluded on the ground that it was obtained as a direct result of testimonial compulsion in violation of the principles of fundamental justice.\"254 I do not understand La Forest J to have advanced such a proposition so rigidly. The learned judge was arguing by way of analogy in an attempt (perfectly permissible in my view) to find an acceptable norm on the basis whereof the right of the individual could fairly be balanced against the interests of the state. This is encapsulated in the following observation the learned judge made: \"I find it difficult to imagine how the use of evidence which does not bring the administration of justice into disrepute can at the same time be contrary to the principles of fundamental justice. The consequence of the former finding is, in effect, to declare that the Charter breach by which evidence was obtained was non- prejudicial, and in a sense nominal. To argue that the same reasoning cannot be used to determine whether the use of derivative evidence constitutes a breach of the rights guaranteed under s. 7 would be to take an unduly formalistic approach to the interpretation of the Charter. As I mentioned earlier, the discussion 254Id at 202 h. \f\u03a0\u03b1\u03b3\u03b5 205 ACKERMANN J might equally be framed in terms of the right to a fair trial under s. 11(d) with similar results, a matter to which I shall return.\"255 The second criticism was to the effect that \"[the] exclusion [of derivative evidence] must be a matter of principle and of right, not of discretion.\"256 If, as a result of the proper exercise of a discretion, a fair trial is ensured, I fail to see how principle is lacking, any more than when such evidence is admitted in a way which is \"in accordance with the principles of fundamental justice\", the qualification to section 7 of the Charter. 255Id at 255 a - b. 256Id at 203 a. \f [141] A recent decision in the Canadian Supreme Court, R.J.S. v. The Queen; ACKERMANN J \u03a0\u03b1\u03b3\u03b5 206 Attorney-General et al., Interveners257 (hereinafter \"R.v.S. (R.J.)\"), which bears on the issue of derivative use immunity as a constitutional requirement, came to our attention after argument. It concerned two young offenders who were both charged with the same offence of \"break, enter, and theft\" but, because of their age and by virtue of relevant Ontario legislation, were to be tried separately. At the trial of the one young offender (\"the accused\"), the other young offender (\"the witness\") was subpoenaed by the Crown to testify against the accused. On an application brought by the witness's counsel, the subpoena against him was quashed on the basis that to require the witness to testify would violate section 7 of the Canadian Charter of Rights and Freedoms. Because of the resultant lack of evidence the accused was acquitted. On appeal by the Crown, the quashing of the subpoena was set aside and a new trial ordered, a decision confirmed by the Supreme Court. It is necessary to point out the obvious, namely, that this particular problem could not arise in our law because of the transactional indemnity which, in similar circumstances, would be available to the witness by virtue of the provisions of section 204 of the Criminal Procedure Act.258 257(1995) 121 D.L.R. (4th) 589. 258Act 51 of 1977. \f \u03a0\u03b1\u03b3\u03b5 207 ACKERMANN J", "Nevertheless the decision is of significance for a number of reasons. First, it clearly affirms the principle that in all cases \"a statutory compulsion to testify engages the liberty interest of s. 7\" but that normally \"the liberty interest is affected in accordance with the principles of fundamental justice.\"259 Second, it confirms that a \"deprivation of liberty may arise by virtue of a compulsion to speak per se ...\"260 regardless of the character of the compelled speech. The character of the speech which is compelled (for example, self-incriminatory speech) may, however, depending on the particular construction of the Charter, be determinative of the issue as to whether such deprivation of liberty is in accordance with the principles of fundamental justice or whether an infringement is justified under section 1 of the Charter.261 Third, it makes clear that the liberty interest in section 7 of the Charter \"may be engaged although there is no coincident deprivation in respect of the other s. 7 interests, life or security of the Judge further stated the following: 259R.v.S. (R.J.) supra note 257, per Iacobucci J at 607 in fin - 608 b. At 612 e - g the learned \"[T]he encroachment upon liberty is complete at the moment of compelled speech, regardless of its character. David Stratas, in The Charter of Rights in Litigation: Direction from the Supreme Court of Canada, vol. 1 (Aurora, Ont: Canada Law Book Inc., 1990)(loose-leaf [updated 1994]), has noted that an uncertainty which currently exists is 'just how immediate a threatened deprivation of liberty must be' (at p. 17 - 2.1). Inasmuch as a statutory compulsion to give oral testimony engages the liberty interest, it is unnecessary to resolve this uncertainty today. When J.P.M. challenged the subpoena in this case, he faced an imminent deprivation of liberty.\" La Forest, Cory and Major JJ concurred fully in the entire judgment of Iacobucci J. L'Heureux-Dub\u00e9 J (Gonthier J concurring) did not differ with Iacobucci J on this part of his judgment see p. 677) and in fact specifically confirmed his approach thus (at 692 a): \"The compulsion to testify subject to possible imprisonment for failure to comply is, itself, a deprivation of liberty which brings the issue of witness compellability within the scope of a s. 7 examination.\" Neither Lamer CJC, Sopinka J nor McLachlin J questioned the correctness of the aforegoing approach. 260Id at 612 b - c. 261Id. \f \u03a0\u03b1\u03b3\u03b5 208 ACKERMANN J person\".262 Fourth, it holds, relying on earlier dicta, that not every restriction of absolute freedom constitutes a deprivation of liberty. Fifth, the judgment also confirms that, notwithstanding the provisions of sections 11(c)263 and 13264 of the Canadian Charter, section 7 of the Charter contains residual protections against self-incrimination extending beyond sections 11(c) and 13 and that this is necessary, in part, to protect the section 11(c) right.265 Iacobucci J, highlighting \"the vigour of section 7\", held that there was \"a functional, unifying principle\" against self-incrimination and that pre-trial silence was no longer merely \"a particular manifestation of the general freedom to do as one pleases\" but had \"been elevated to the status of a constitutional right.\"266 Lastly, it considers extensively the nature of derivative evidence and whether and to what extent a derivative use immunity is necessary in order to render compelled testimony in accordance with the principles of fundamental justice. I shall endeavour to deal as briefly as possible with this last aspect. D.L.R. (4th) 422. 262Id at 608 h, relying on Singh v. Canada (Minister of Employment and Immigration) (9185), 17 263Which provides that \"[a]ny person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence\". 264Which provides that \"[a] witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.\" 265Id at 631 b - h. See also R v Hebert (1990) 57 C.C.C. (3d) at 33 where McLachlin J, recognising in section 7 of the Charter a residual protection against self-incriminated because of (in part) a need to protect the section 11(c) right, states the following: \"From a practical point of view, the relationship between the privilege against self- incrimination and right to silence at the investigatory phase is equally clear. The protection conferred by a legal system which grants the accused immunity from incriminating himself at trial but offers no protection with respect to pre-trial statements would be illusory\". McLachlin J at 34 also postulates a principle of fundamental justice involving \"the right of the individual to choose whether to make a statement to the authorities or to remain silent, coupled with concern with the repute and integrity of the judicial process.\" 266Id at 632 b- e. \f \u03a0\u03b1\u03b3\u03b5 209 ACKERMANN J", "The issue of derivative use evidence was considered on the basis that the principle of fundamental justice which operated in the case was the \"principle against self-incrimination\".267 It was pointed out that the Canada Evidence Act had abolished the witness's (as opposed to the accused's) privilege and replaced it with a limited form of immunity, applicable in respect of subsequent proceedings and not at the moment of compelled testimony, in as much as section 5(2) of the Canada Evidence Act currently provides that a witness's self- incriminatory answers cannot \"be used or admissible in evidence against [the witness] in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury\".268 Iacobucci J describes the policy justification for the common law protections as resting \"on the idea that the Crown must establish a 'case to meet'\"269 and reflecting \"a basic distaste for self- 267Id at 613 b. 268Id at 620 c - e. 269Id at 626 h. \f conscription\".270 \u03a0\u03b1\u03b3\u03b5 210 ACKERMANN J 270Id at 627 f. \f [144] The learned Judge's approach was to seek a compromise271 between, on the ACKERMANN J \u03a0\u03b1\u03b3\u03b5 211 one hand, full transactional immunity if self-incriminating testimony is compelled and, on the other, mere direct use immunity where it is only the witness's direct communication which is protected against subsequent use. In the course of his enquiry, Iacobucci J agreed272 with the following statement by La Forest J in Thomson Newspapers: \"A right to prevent the subsequent use of compelled self- incriminating testimony protects the individual from being 'conscripted against himself' without simultaneously denying an investigator's access to relevant information. It strikes a just and proper balance between the interests of the individual and the state.\"273 The conclusion reached by Iacobucci J was that the Canadian Charter did not demand absolute derivative use immunity.274 The learned judge approved275 of the distinction drawn by La Forest J between compelled testimony and derivative evidence and stated succinctly that \"compelled testimony is evidence which has been created by the witness, whereas derivative evidence is evidence which has independent existence. It is only the class of created evidence 271Id at 637-650. 272Id at 649 e. 273Supra note 75 at 246 e - f. 274Supra note 257 at 659 a. 275Id at 662 a - e. \f\u03a0\u03b1\u03b3\u03b5 212 ACKERMANN J which is, by definition, self-incriminatory.\"276 276Id at 662 f. \f [145] Of importance is the fact that Iacobucci J277, like La Forest J in Thomson ACKERMANN J \u03a0\u03b1\u03b3\u03b5 213 Newspapers278, drew heavily, by way of analogy, on Canadian Charter section 24(2) jurisprudence in dealing with the question of the exclusion of derivative evidence. Nowhere in his judgment does Iacobucci J express disagreement with La Forest J in Thomson Newspapers; in fact it is written in terms of general approval with and further explication of La Forest J's judgment. Iacobucci J accordingly concludes that \"derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness, ought generally to be excluded under s. 7 of the Charter in the interests of trial fairness.\"279 The qualification \"ought generally\" was introduced because the learned judge advocated280 the same discretion on the part of the trial judge as is employed in the case of section 24(2) Charter exclusion, namely, that the exercise of the discretion \"will depend on the probative effect of the evidence balanced against the prejudice caused to the accused by its admission.\"281 In other words, there is no automatic rule of exclusion. Iacobucci J was, quite correctly in my view, hesitant to elaborate any further on the test and stated: \"Since this test for exclusion can only arise in the context of 277Id at 661 - 669. 278Supra note 75 and see also para [135] above. 279R.v.S. (R.J.) supra note 257 at 669 d. 280Id at 670 h - 671 a. 281Iacobucci J quoted this passage with approval from R. v. Sweitzer (1982) 137 D.L.R. (3d) 702 at 706. \f\u03a0\u03b1\u03b3\u03b5 214 ACKERMANN J proceedings subsequent to a witness' testimony ... [i]ts form will become known, as it should, in the context of concrete factual situations.\"282", "There is, in my judgment, no reason why this approach cannot and ought not to be adopted in regard to the enquiry concerning the admissibility of derivative evidence in the context of section 417(2)(b) of the Companies Act. I have little doubt that two different but related areas concerning the law of evidence will, in due course, have to be reconsidered fully in the light of Chapter 3 of the Constitution and section 25(3) in particular. The one relates to the way in which evidence, particularly in criminal proceedings, is obtained and the second to the question of when and to what extent a trial judge has a discretion to exclude otherwise admissible evidence. 282R.v.S.(R.J.) supra note 257 at 669 g. \f [147] Prior to the coming into operation of the Constitution, courts in South Africa were ACKERMANN J \u03a0\u03b1\u03b3\u03b5 215 not particularly concerned with the way in which evidence was obtained. Notable exceptions of course related to admissions, confessions and, more recently, to acts of pointing out.283 In other cases, however, the general approach was that, provided the evidence was relevant, it was admissible.284 It is unnecessary in the present case to reconsider this issue beyond the very narrow area of the derivative use of compelled self-incriminating evidence. It can be noted, however, that since the Constitution came into effect, a new approach is beginning to emerge in decisions of the Supreme Court.285 283See, particularly in the latter regard, S v. Sheehama 1991 (2) SA 860 (A). 284See Kuruma v. R [1955] 1 All ER 236 (PC) at 239; R v. Uys and Uys 1940 TPD 405; S v. Nel 1987 (4) SA 950 (W) at 953 G and Du Toit et al Commentary on the Criminal Procedure Act 24 - 98. In Nel van der Walt J added, however, with reference to Ex Parte Minister of Justice in re R. v. Matemba 1941 AD 75, that evidence illegally obtained could be excluded on the basis that accused could not be compelled to provide evidence against themselves and that evidence obtained under duress from an accused could not be used against such an accused. 285In S v. Hammer and Others 1994 (2) SACR 496 (C) at 498 g, Farlam J held that, in the exercise of a general discretion to exclude improperly obtained evidence on the grounds of unfairness and public policy, the Court should endeavour to strike a careful and credible balance, since although it was important for a criminal court to maintain high standards of propriety in its own process, public confidence could be undermined by indiscriminate exclusions of improperly obtained evidence. Farlam J considered the following factors to be useful in the exercise of the discretion (at 499 a - e): \"(a) (b) (c) (d) (f) society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired; whether the unlawful act was a mistaken act and whether in the case of mistake, the cogency of evidence is affected; the ease with which the law might have been complied with in procuring the evidence in question (a deliberate 'cutting of corners' would tend towards the inadmissibility of the evidence illegally obtained); the nature of the offence charged and the policy decision behind the enactment of the offence are also considerations; (e) unfairness to the accused should not be the only basis for the exercise of the discretion; whether the administration of justice would be brought into disrepute if the evidence was admitted; \f \u03a0\u03b1\u03b3\u03b5 216 ACKERMANN J (g) (h) (i) there should be no presumption in favour of or against the reception of the evidence, the question of an onus should not be introduced; it should not be a direct intention to discipline the law enforcement officials; an untrammelled search for the truth should be balanced by discretionary measures, for in the words of Knight Bruce VC, 'Truth, like other good things, may be loved unwisely - it may be pursued too keenly - may cost too much'.\" In S v. Melani en Andere 1995 (2) SACR 141 (ECD) at 153 a Froneman J reaches the conclusion that a judge should have a discretion to exclude unlawfully obtained evidence on a case by case basis. The learned judge considered (at 154 B) the Canadian criterion of \"bringing into disrepute the administration of justice\" as the appropriate guideline for exercising the discretion. \f \u03a0\u03b1\u03b3\u03b5 217 ACKERMANN J", "As far as the discretion to exclude otherwise admissible evidence is concerned, there appears to be little doubt that similar fact evidence may be excluded if the probative value is outweighed by the prejudice it would cause.286 The existence of a general discretion to exclude admissible evidence is, however, disputed. As Professor Zeffertt points out: \"There can be no more controversial an issue in the South African law of evidence than whether there is a judicial discretion, in criminal proceedings, to exclude admissible evidence. Some authorities say it exists; others deny it\".287 286R v. Roets and Another 1954 (3) SA 512 (A) at 521 A. 287Annual Survey of South African Law (1990) at 498 - 9. \f Those in favour288 of the existence of the general discretion to exclude \u03a0\u03b1\u03b3\u03b5 218 ACKERMANN J admissible evidence usually rely on an obiter dictum of Rumpff CJ in S v. Mushimba289, who referred to the English case of R v. Kuruma,290 where it was stated that there could be no doubt that \"the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused\"; but those opposed to the discretion point to the fact that the English rule referred to in Kuruma has been narrowly construed in subsequent cases291 and has in England been affected by statute.292 In South Africa most decisions of the Provincial and Local Divisions of the Supreme Court seem to confirm the existence of such a discretion, but the decisions are divided as to the basis for exercising the discretion.293 Some of the decisions merely recognise 288See Hoffmann and Zeffertt The South African Law of Evidence 4 ed (1988) at 284 - 292; Du Toit et al Commentary on the Criminal Procedure Act (1995) 24 - 98. 289(1977) (2) SA 629 (A) at 840 E. 290[1955] 1 All ER 236 at 239. that 291In particular the case of R v. Sang [1979] 2 All ER 1222 at 1231 where the House of Lords held \"[a] trial judge in a criminal case has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value.\" See also C. Tapper Cross on Evidence 7 ed (1990) 180 - 193. 292S. 78 of the Police and Criminal Evidence Act 1984 which provides that: \"(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.\" 293I deliberately exclude the question as to whether the rule applies to an otherwise admissible confession. See, in this regard S v. Mkanzi en _ Ander 1979 (2) SA 757 (T) at 759 E and on appeal 1982 \f that the rule relating to similar fact evidence applies in other situations as well, for \u03a0\u03b1\u03b3\u03b5 219 ACKERMANN J example in criminal proceedings, where a judge has a general discretion to exclude evidence where its probative value is outweighed by its prejudicial effect.294 Others appear to support the existence of a discretion, along the lines suggested by Lord Goddard in Kuruma's case, to exclude admissible evidence that would operate unfairly against the accused.295 The more recent decisions, before the commencement of the Constitution, suggest that the discretion should (4) SA 509 (A) at 512 H - 513 E and S v. Zuma supra note 8 at para 28. 294See S v Holshausen 1983 (2) SA 699 (D) at 704 F - H; S v Mbatha 1985 (2) SA 26 (D) at 30 - 31. 295See, apart from the obiter dictum in Mushimba referred to above, S v Lebea 1975 (4) SA 337 (W) at 339 D. \f be based on considerations of public policy, rather than fairness.296 \u03a0\u03b1\u03b3\u03b5 220 ACKERMANN J 296See S v Boesman 1990 (2) SACR 389 (E) at 399 J - 401 C; Shell SA (Edms) Bpk en Andere v Voorsitter, Dorperaad van die Oranje-Vrystaat en Andere 1992 (1) SA 906 (O) at 916; and the earlier dictum in S v Forbes and Another 1970 (2) SA 594 (C) at 598 H - 599 A. \f [149] In considering matters of evidential admissibility or inadmissibility we ought not to ACKERMANN J \u03a0\u03b1\u03b3\u03b5 221 limit the focus of our attention exclusively on the state of the law of evidence which existed prior to the present Constitution coming into operation. Section 25(3) of the Constitution guarantees to every accused person the broad right to a fair trial, which is not limited to the specific enumerated rights in paragraphs (a) - (j) of the subsection. In certain areas of criminal procedure, the specific provisions of these paragraphs will settle debates concerning criminal procedure and criminal justice generally which previously were uncertain or controversial. Thus, the application of section 25(3)(e) of the Constitution in S v. Vermaas; S v. du Plessis297 settled the \"lively controversy in our law [as to] whether persons standing trial on criminal charges who could not afford to pay for their legal representation were entitled to be provided with it at public expense once its lack amounted to a handicap so great that to try them on their own lay beyond the pale of justice.\"298 297Supra note 1. 298Id at paragraph 1 per Didcott J and compare with S v. Khanyile and Another 1988 (3) SA 795 (N); S v. Davids; S v. Dladla 1989 (4) SA 172 (N) and S v. Rudman and Another; S v. Mthwana 1992 (1) \f \u03a0\u03b1\u03b3\u03b5 222 ACKERMANN J SA 343 (A). \fThe general discretion to exclude evidence in a criminal trial is a principle \u03a0\u03b1\u03b3\u03b5 223 ACKERMANN J accepted, for example, both in England and in Canada.299 As La Forest J pointed out in Thomson Newspapers, the discretion to exclude evidence which would otherwise have been admissible, has been applied in various areas of criminal procedure because this discretion is \"ultimately grounded in the trial judge's duty to ensure a fair trial.\"300 La Forest J had no hesitation in concluding that this discretion ought also to be exercised in the determination of when, and when not, derivative evidence relating to compelled self-incriminating testimony should be admitted against an accused.301 This approach, subject to its passing the test of section 33(1) of the Constitution, ought to apply in this country as well inasmuch as, just as in Canada, the right to a fair trial has been constitutionalised.302", "In my view an approach whereby a blanket exclusion of derivative evidence is not applied but where instead it is dealt with on the flexible basis of discretionary admissibility, as outlined above, passes section 33(1) muster. We are not obliged to follow the absolutist United States approach which, as pointed out in Thomson 299See R v. Sand [1980] AC 402 and Thomson Newspaper supra note 75 at 261, respectively. 300Supra note 75 at 261 F. 301Id at 262 c and 264 d - e. 302In Canada under sections 7 and 11(d) of the Charter; see Thomson Newspapers supra note 75 at 261 h. In South Africa under section 25(3) of the Constitution. \fNewspapers in a passage already referred to \u03a0\u03b1\u03b3\u03b5 224 ACKERMANN J \"is undoubtedly rooted in the explicit and seemingly absolute right against self-incrimination found in that country's Constitution.\"303 The holding of a section 417 enquiry is lawful and serves an important public purpose. Evidence obtained as a result of such an enquiry cannot be equated with evidence obtained as a result of unlawful conduct. Where, for example, derivative evidence is obtained as a result of torture there might be compelling reasons of public policy for holding such evidence to be inadmissible even if it can be proved independently of the accused. Otherwise, the ends might be allowed to justify the means. The admission of evidence in such circumstances could easily bring the administration of justice into disrepute and undermine the sanctity of the constitutional right which has been trampled upon. The same considerations do not apply to derivative evidence obtained as a result of the application of section 417(2)(b) at a section 417 enquiry. 303Supra note 75 at 260 g. \f [151] Companies are used to raise money from the public and to conduct business on ACKERMANN J \u03a0\u03b1\u03b3\u03b5 225 the basis of limited liability. There are obvious advantages to doing so. But there are responsibilities which go with it. Part of the responsibility is to account to shareholders for the way in which the company conducts its affairs and, if the company goes insolvent, to account to shareholders and creditors for the failure of the business. These responsibilities are well known to all who participate in the running of public companies. Giving evidence at a section 417 enquiry is part of the responsibility to account. It cannot simply be said that the administration of justice would necessarily be brought into disrepute by the subsequent use, even in criminal proceedings against the examinee, of derivative evidence obtained as a result of the application of section 417(2)(b) of the Act. Indeed, the public, and especially the victims of the crime, might find a denial of the right to use such evidence inexplicable. Although it has been held that an auditor is not an officer of the company within the meaning of that expression in section 184(1) of the 1926 Act (corresponding to section 423(1) of the present Act)304 and it has been suggested that there is no basis for regarding an auditor as being an officer of the company for any purpose of the Act,305 in my view the same public policy G. 304Lipschitz NO v. Wolpert and Abrahams 1977 (2) SA 732 (A) at 742 - 750 and particularly at 750 305 Meskin et al (eds) Henochsberg On the Companies Act 5ed Vol. 1 at 523. \f considerations apply to the use of derivative evidence of an auditor of the \u03a0\u03b1\u03b3\u03b5 226 ACKERMANN J company compelled to testify under section 417(2)(b) of the Act. The auditor has, inter alia, many statutory duties under the Companies Act306 and the Public Accountants' and Auditors Act,307 the purpose of which duties is, inter alia, to protect shareholders and creditors. The knowledge and expertise of the auditor is of particular importance in reconstructing the affairs of the company in liquidation and in achieving the other aims of the section 417 enquiry. An auditor is not obliged to become the auditor of a particular company nor to discharge the attendant duties without remuneration. In accepting appointment as an auditor of any particular company the auditor is aware of these duties. 535 - 539 and 580 - 588. 306For example, sections 282, 300 and 301 and see, generally, Henochsberg supra note 305 at 307Act 80 of 1991. See in particular section 20(5) (a) which prescribes the action to be taken by an auditor when he or she is \"satisfied or has reason to believe that in the conduct of the affairs of such undertaking a material irregularity has taken place or is taking place which has caused or is likely to cause financial loss to the undertaking or to any of its members or creditors\". \f \u03a0\u03b1\u03b3\u03b5 227 ACKERMANN J", "Although no statistical or other material was placed before us, it is quite apparent that the United States has vastly greater resources, in all respects and at all levels, than this country when it comes to the investigation and prosecution of crime, more particularly when regard is had to the particularly high crime rate, which one can take judicial notice of, currently prevalent in South Africa. This in my view gives added weight to the considerations of efficiency, economy of time and the most prudent use of scare resources, highlighted by La Forest J in Thomson Newspapers and to which I have already referred, and supporting the adoption of a flexible approach in dealing with the admissibility of derivative evidence. The flexible approach is narrowly tailored to meet important state objectives flowing from the collapse and liquidation of companies and the resulting duties of liquidators to protect the interests of creditors and the public at large, while at the same time interfering as little as possible with the examinee's right against self-incrimination. It is balanced and proportional and, in my view, fully justifiable in an open and democratic society based on freedom and equality. To the extent that this conclusion is in conflict with any of the general views expressed in Park-Ross and Another v. The Director, Office of Serious Economic \f\u03a0\u03b1\u03b3\u03b5 228 Offences,308 I disagree with those views. ACKERMANN J", "A compulsion to give self-incriminating evidence, coupled with only a direct use immunity along the lines indicated above, and subject to a judicial discretion to exclude derivative evidence at the criminal trial, would not negate the essential content of the section 11(1) right to freedom or the section 25(3) right to a fair trial. Only a discrete and narrowly defined part of the broad right to freedom is involved which could not conceivably be described as a \"negation\" of its essential content. As far as section 25(3) is concerned, the trial judge is obliged to ensure a \"fair trial\", if necessary by his or her discretion to exclude, in the appropriate case, derivative evidence. Ultimately this is a question of fairness to the accused and is an issue which has to be decided on the facts of each case. The trial judge is the person best placed to take that decision. The development of the law of evidence in this regard is a matter for the Supreme Court. The essential content of the right is therefore not even touched. concurring). 3081995 (2) BCLR 198 (C) at 213 D - H; 1995 (2) SA 148 (C) at 165 D - J per Tebbutt J (Scott J \f \u03a0\u03b1\u03b3\u03b5 229 ACKERMANN J", "There is one further matter on the merits which needs to be mentioned. In the applicants' written argument and in the oral argument on their behalf in this Court, fleeting reference was made to the fact that section 417(2)(b) was also inconsistent with the Constitution to the extent that it permitted incriminating testimony to be used in a subsequent civil trial against the examinee. The argument was not pressed or developed and no authority, academic, judicial or otherwise, from any jurisdiction, was cited in support of the contention. Nor was any specific provision in the Constitution relied upon in this regard. I am unaware of any authority which would support such a submission. It is therefore unnecessary to express any view on it at this stage, particularly since the issue was raised and more fully argued in the Bernstein case supra. If there is any merit in the argument it will be dealt with in the Bernstein judgment. Costs", "Apart from a formal request for costs in the respective written arguments delivered on their behalf, none of the parties developed further argument on this question in such written arguments. Nor was there any specific argument addressed to the Court relating to the principles which ought to apply to the question of costs in constitutional litigation before this Court. It does not \f obviously or necessarily follow that the rules as to costs which have been \u03a0\u03b1\u03b3\u03b5 230 ACKERMANN J developed in pre-constitutional litigation must apply to constitutional litigation. One of the general rules is that, although an award of costs is in the discretion of the Court, successful parties should usually be awarded their costs and that this rule should be departed from only where good grounds for doing so exist.309 One can think off-hand of at least one reason why this general rule might not apply to constitutional litigation, namely, that it could have a chilling effect on litigants, other than the wealthiest, desirous of enforcing their constitutional rights. It might also not apply where the constitutionality of a statute is challenged, a matter which would usually be one of public interest. I think it inadvisable that we should express ourselves on this issue, without the benefit of comprehensive argument. Until such time the issue should remain completely open. It therefore seems to me that the best course is to make no order as to costs. Should any of the applicants or respondents wish to pursue the matter of costs further, such party is at liberty to notify the Registrar in writing, within fourteen days of the order in this matter and upon notice to all other parties, of an intention so to do, whereupon further directions will be given. 309See, generally, Cilliers Costs (1972) at 11 - 17. \f The Order \u03a0\u03b1\u03b3\u03b5 231 ACKERMANN J", "I conclude that section 417(2)(b) of the Companies Act is inconsistent with the right to freedom protected in section 11(1) of the Constitution to the extent indicated above. It must therefore, pursuant to section 98(5) of the Constitution, be declared invalid to the extent of such inconsistency. This is not a case where an order in terms of the proviso to section 98(5) ought to be made. The declaration of invalidity is very narrow. Its only effect will be to render inadmissible, in criminal proceedings against a person previously examined pursuant to the provisions of section 417(2)(b), incriminating evidence given by such person under compulsion of the provisions of section 417(2)(b). Neither the interests of justice nor good government require that these provisions should be kept in force any longer. A declaration of invalidity will not affect any of the other provisions of sections 417 or 418 of the Companies Act and will have insignificant, if any, impact on the purpose or efficacy of enquiries under these proceedings.", "The following order is accordingly made: 1. The provisions of section 417(2)(b) of the Companies Act 1973 are, with immediate effect declared invalid, to the extent only that the words \f \u03a0\u03b1\u03b3\u03b5 232 ACKERMANN J \"and any answer given to any such question may thereafter be used in evidence against him\" in section 417(2)(b) apply to the use of any such answer against the person who gave such answer, in criminal proceedings against such person, other than proceedings where that person stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers or a failure to answer lawful questions fully and satisfactorily. 2. As from the date of this order, no incriminating answer given pursuant to the provisions of section 417(2)(b) of the Companies Act on or after 27 April 1994 shall be used against the person who gave such answer, in criminal proceedings against such person, other than proceedings excepted in 1. above. 3. No order is now made as to costs, but should any of the applicants or respondents in either matter wish to pursue the matter of costs further, such party is required to notify the Registrar in writing, within fourteen days of this order and upon notice to all other parties, of an intention so to \f\u03a0\u03b1\u03b3\u03b5 233 CHASKALSON P do, whereupon further directions will be given.", "CHASKALSON P. I have read the meticulous judgment of Ackermann J. I agree with paragraphs", "to [33] of his judgment. I also agree with his conclusion that section 417(2)(b) of the Companies Act, 1973 is inconsistent with the Constitution and with the order that he proposes as the remedy for that situation. I am, however, unable to agree with his analysis of the issue of standing and with his interpretation of section 11(1) of the Constitution on which he ultimately relies for his decision. In my view the matter is one in which the Applicants have standing and which can and should be dealt with under section 25(3) of the Constitution.", "The finding that section 417(2)(b) of the Companies Act is inconsistent with the Constitution is in essence based on a finding that the section infringes the rule against self incrimination. This is apparent from the reasons given by Ackermann J for holding the section to be inconsistent with the Constitution. The rule against self incrimination is not simply a rule of evidence. It is a right which by virtue of the provisions of section 25(3) is, as far as an accused person is \fconcerned, entitled to the status of a constitutional right.1 It is inextricably linked \u03a0\u03b1\u03b3\u03b5 234 CHASKALSON P to the right of an accused person to a fair trial. The rule exists to protect that right. If that right is not threatened the rule has no application. Thus a person who has been indemnified against prosecution, or a person convicted of a crime who is subsequently called to give evidence against a co-conspirator, would not be entitled to claim the privilege in respect of evidence covered by the indemnity or the conviction.2 This connection between the unconstitutionality of section 417(2)(b) and the privilege is recognised in the order made by Ackermann J which is designed to eliminate the conflict by ensuring that evidence given by a witness at a section 417(2)(b) enquiry cannot be used against that witness if he or she is subsequently prosecuted. judgment at para. 79. 1Compare: S v Zuma and Others 1995(4) BCLR 401(CC), para. 33; see also, Ackermann J's 2R v Kuyper 1915 TPD 308; R v Hubbard 1921 TPD 433; Ramsay v Attorney General for the Transvaal 1937 WLD 70; HALSBURY\u2019S LAWS OF ENGLAND, vol. 17, para. 240 (4th ed. 1976). \f [160] A challenge to the constitutionality of section 417(2)(b) should therefore, in my CHASKALSON P \u03a0\u03b1\u03b3\u03b5 235 view, be characterised and dealt with as a challenge founded on the right to a fair criminal trial. It is precisely because section 417(2)(b) is inconsistent with that right, that its validity can be impugned. It is also the basis upon which the Applicants launched their constitutional challenge in the present case. Although they relied on various provisions of Chapter 3 to support their argument, at the core of their complaint was the concern that they were required to answer questions at the enquiry which might incriminate them, and which might thereafter be used in evidence against them. That they had such a fear was not disputed in argument. Although the matter was initially dealt with as directed by this Court on the basis of a referral of what was then an abstract question of law, the Applicant in the Ferreira matter had previously lodged with the Court extracts from the record of the enquiry which showed that he was indeed being called upon to answer incriminating questions. Heher J pointed out in his judgment in this case in the Witwatersrand Local Division3 that both Applicants had reasonable grounds for such an apprehension. As this was never disputed I see no need to delay the proceedings further by calling for the record in the Supreme Court case to be lodged with us. The Applicants\u2019 desire to secure a ruling on the (1995) (4) BCLR 437(W) at 456C-G. 3Reported as Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others \fconstitutionality of the section cannot be characterised as being hypothetical or \u03a0\u03b1\u03b3\u03b5 236 CHASKALSON P academic. It raises a real and substantial issue as far as the Applicants are concerned, and I have no doubt that they have an interest in having that issue resolved. Whether that interest is sufficient to give them standing to challenge the constitutionality of section 417(2)(b) is the matter to which I now turn.", "Section 4 of the Constitution provides that any law inconsistent with the provisions of the Constitution shall \"be of no force and effect to the extent of the inconsistency\". Section 98(2)(c) of the Constitution gives this Court jurisdiction to enquire into \"the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed or made before or after the commencement of this Constitution.\" Under section 98(5) the Court is directed to declare such law or a provision thereof to be invalid if it is found to be inconsistent with the Constitution. Other provisions of sections 98(5) and 98(6) enable the Court to control the consequences of such a declaration of invalidity. What is clear, however, is that the Court has a general jurisdiction to enquire into and declare an Act of Parliament or any provision thereof to be invalid.", "In the present case the Applicants allege that section 417(2)(b) is inconsistent with section 25(3) of the Constitution. This is a matter which this Court has \fjurisdiction to enquire into, and it can do so in the present case if the Applicants \u03a0\u03b1\u03b3\u03b5 237 CHASKALSON P have standing to seek such an order from it. Ordinarily a person whose rights are directly affected by an invalid law in a manner adverse to such person, has standing to challenge the validity of that law in the courts.4 There can be no question that the Applicants have such an interest in the present case. Their right to refuse to answer questions that incriminate them is in issue and they seek to vindicate that right by challenging the only obstacle to their assertion of it. It was argued, however, that this does not apply to the present Applicants because section 7(4) of the Constitution limits constitutional challenges to persons whose constitutional rights have been impaired or threatened. And, so the argument went, this could occur only if they are charged with a criminal offence and the evidence given by them at the enquiry is tendered against them at the criminal trial.", "If there is a conflict between section 25(3) of the Constitution and section (Wessels, CJ, concurring). 4 Roodepoort-Maraisburg Town Council v Eastern Properties (Prop.) Ltd. 1933 AD 87 at 101 \f417(2)(b) which, viewed objectively, renders section 417(2)(b) invalid to the \u03a0\u03b1\u03b3\u03b5 238 CHASKALSON P extent of that inconsistency, it seems to me to be highly technical to say that a witness called to a section 417(2)(b) enquiry lacks standing to challenge the constitutionality of the section. A witness who genuinely fears prosecution if he or she is called upon to give incriminating answers cannot be said to lack an interest in the decision on the constitutionality of the section. To deny the witness the right to challenge the constitutionality of the section in such circumstances is in effect to say to the witness: the only obstacle to your right to refuse to answer incriminating questions is an unconstitutional provision, but you cannot ask this Court to declare the provision unconstitutional because you have not yet been charged. What if the witness refuses to answer and is threatened with imprisonment? Surely the witness would then be entitled to challenge the constitutionality of the section on which the prosecution is based. The fact that the witness might be entitled to turn to section 11(1) of the Constitution to found a constitutional challenge is not in my view an adequate answer to that dilemma. The right to challenge the constitutionality of a statute which affects you directly cannot be made dependent on the finding of some other constitutional right on which to base the challenge. What if there is no such right?", "The objection to constitutional challenges brought by persons who have only a \f hypothetical or academic interest in the outcome of the litigation is referred to in \u03a0\u03b1\u03b3\u03b5 239 CHASKALSON P Zantsi v Council of State, Ciskei and Others.5 The principal reasons for this objection are that in an adversarial system decisions are best made when there is a genuine dispute in which each party has an interest to protect. There is moreover the need to conserve scarce judicial resources and to apply them to real and not hypothetical disputes. The United States courts also have regard to \"the proper role of the Courts in a democratic society\" which is to settle concrete disputes, and to the need to prevent courts from being drawn into unnecessary conflict with coordinate branches of government.6 These objections do not apply to the present case. The Applicants have a real and not a hypothetical interest in the decision. The decision will not be academic; on the contrary it is a decision which will have an effect on all section 417 enquiries and there is a pressing public interest that the decision be given as soon as possible. All the requirements ordinarily set by a court for the exercise of its jurisdiction to issue a 51995(10) BCLR 1424 (CC), para. 7. 6LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, at 109 (2d ed. 1988). \fdeclaration of rights are therefore present.7 The question is whether different \u03a0\u03b1\u03b3\u03b5 240 CHASKALSON P considerations apply in constitutional cases. 7Ex Parte Nell 1963(1) SA 754 (A) at 759G-760A; Ex Parte Prokureur-General, Transvaal 1978(4) SA 15 (T) at 20B-D; Ex Parte Chief Immigration Officer, Zimbabwe 1994(1) SA 370 (ZSC) at 376B-377F. \f [165] Whilst it is important that this Court should not be required to deal with abstract CHASKALSON P \u03a0\u03b1\u03b3\u03b5 241 or hypothetical issues, and should devote its scarce resources to issues that are properly before it, I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view that we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this Court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.8 Such an approach would also be consistent in my view with the provisions of section 7(4) of the Constitution on which counsel for the Respondents based his argument. I will deal later with the terms of this section and the purpose that it serves.", "The Canadian courts accept that persons have a standing to challenge unconstitutional law if they are liable to conviction for an offence under the law even though the unconstitutional effects are not directed against [them] per se.9 8See, e.g., R v McDonough [1989] 40 CRR 151 at 155. 9Morgentaler, Smoling and Scott v R [1988] 31 CRR 1 at 26. \f \u03a0\u03b1\u03b3\u03b5 242 CHASKALSON P It is sufficient for the accused to show that he or she is directly affected by the unconstitutional legislation. If this is shown \"...it matters not whether he is the victim\".10 Thus in the Morgentaler case (cited above) a male doctor was entitled to challenge the constitutionality of legislation dealing with abortion under which he was liable to be prosecuted, although the rights upon which the constitutional challenge were based were the rights of pregnant women, which did not and could not vest in the male doctor. Although corporations do not have rights under the Canadian Charter and cannot institute Charter challenges in their own behalf, they can challenge the constitutionality of a statutory provision at a criminal trial on the grounds that it infringes the rights of human beings and is accordingly invalid.11 Where, as in the present case, the impugned section of the Companies Act has a direct bearing on the Applicants\u2019 common law rights, and noncompliance with the section has possible criminal consequences, they have sufficient standing in my view to secure a declaration from this Court as to 10R v McDonough (supra) at 155 (citation omitted). 11 R v Wholesale Travel Group Inc. [1992] 7 CRR (2d.) 36 at 84-86; R v Big M Drug Mart Ltd. 18 DLR (4th) 321; HOGG, CONSTITUTIONAL LAW OF CANADA, para. 37.2(d) (3rd ed 1992). \fthe constitutionality of the section. \u03a0\u03b1\u03b3\u03b5 243 CHASKALSON P", "I do not read section 7(4) as denying the Applicants this right. The section deals with the situation where \u201c...an infringement of or threat to any right entrenched in this Chapter is alleged...\u201d It therefore applies specifically to the jurisdiction vested in the courts by section 98(2)(a) and 101(3)(a) of the Constitution to deal with \"any alleged violation or threatened violation of any fundamental right entrenched in Chapter 3\". But section 98(2) vests a general jurisdiction in this Court to interpret, protect and enforce the provisions of the Constitution. Section 7(4) in dealing with the section 98(2)(a) jurisdiction provides that where an infringement or threat to the infringement of a constitutional right is alleged, any of the persons referred to in section 7(4)(b) will have standing to bring the matter to \u201ca competent court of law\u201d. The category of persons empowered to do so is broader than the category of persons who have hitherto been allowed standing in cases where it is alleged that a right has been infringed or threatened, and to that extent the section demonstrates a broad and not a narrow approach to standing.12 Section 7(4) does not, however, deal specifically with the jurisdiction vested in this Court by the other subsections of section 98(2). Section 98(2)(c) actio popularis. 12 Cf. Roodepoort Maraisburg Town Council (supra) and the comments there made concerning the \fvests in this Court the jurisdiction to enquire into \"the constitutionality of any law, \u03a0\u03b1\u03b3\u03b5 244 CHASKALSON P including an Act of Parliament, irrespective of whether such law was passed before or after the commencement of this Constitution.\" The constitutionality of a law may be challenged on the basis that it is inconsistent with provisions of the Constitution other than those contained in Chapter 3. Neither section 7(4) nor any other provision of the Constitution denies to the Applicants the right that a litigant has to seek a declaration of rights in respect of the validity of a law which directly affects his or her interests adversely.", "Once it is accepted, as Ackermann J has, that the issue of constitutionality has to be tested objectively and not subjectively, there is no valid reason for denying persons in the position of the Applicants standing to secure a ruling on the validity of a law that directly affects their interests. Even if section 7(4) were to be read extensively as applying by inference to all the subsections of section 98(2), I would not see it as an obstacle to the Applicants\u2019 case. In that event it would have to be read as meaning \"where an infringement of or threat to any right entrenched in this Chapter [or any dispute over the constitutionality of any executive or administrative act or conduct or threatened administrative act or conduct of any organ of the state, or any enquiry into the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed \for made before or after the commencement of this Constitution...] is alleged\" the \u03a0\u03b1\u03b3\u03b5 245 CHASKALSON P persons referred to in paragraph (b) shall have standing. There would be no need on this extensive interpretation of the section to construe section 7(4)(b)(i) as meaning that the person acting in his or her own interest must be a person whose constitutional right has been infringed or threatened. This is not what the section says. What the section requires is that the person concerned should make the challenge in his or her own interest. It is for this Court to decide what is a sufficient interest in such circumstances. In my view, on the facts of the present case, the Applicants have a sufficient interest to seek such a ruling. If that is so they can rely on the argument that viewed objectively section 417(2)(b) is inconsistent with the Constitution because it infringes the right to a fair trial guaranteed by section 25(3).", "Because of his analysis of the issue of standing Ackermann J was driven to base his judgment on section 11(1) of the Constitution and not on section 25(3). In giving the judgment of the majority of this Court in Coetzee v Government of the Republic of South Africa,13 Kriegler J declined to examine \"...the philosophical foundation or the precise content of the right\"14 to freedom under section 11(1) or 131995(10) BCLR 1382 (CC). 14Id. at para. 10. \f to attempt to \u201c...determine the outer boundaries of the right.\"15 Wilson J adopted \u03a0\u03b1\u03b3\u03b5 246 CHASKALSON P a similar approach in her dissent in Thomson Newspapers v Canada,16 saying that she did not consider it necessary in that case \"to attempt to determine the perimeters of \"liberty\" and \"security of the person\".\u201d17 This is a complex and difficult undertaking which has previously been alluded to in the judgment of Sachs J in Coetzee's case. The approach of the majority in Coetzee's case is in accordance with the principle laid down by this Court in Zantsi\u2019s case.18 If the same approach had been followed in the present case I would not have entered the debate on the meaning of \"freedom\" in section 11(1). In dealing with section 11(1), however, Ackermann J proceeded on the basis that \"freedom\" should be \"defined as widely as possible\" and as embracing the right of individuals \"not to have obstacles to possible choices and activities placed in their way by...the State\". I disagree with this approach and feel constrained in the circumstances 15Id. 16[1990] 67 DLR (4th) 161 (\u201cThomson\u201d). 17Id. at 186. 18Supra note 5, at para. 5. \fto express my disagreement and my reasons therefor. \u03a0\u03b1\u03b3\u03b5 247 CHASKALSON P", "The primary, though not necessarily the only, purpose of section 11(1) of the Constitution is to ensure that the physical integrity of every person is protected. This is how a guarantee of \"freedom (liberty) and security of the person\" would ordinarily be understood. It is also the primary sense in which the phrase, \"freedom and security of the person\" is used in public international law. The American Declaration of the Rights and Duties of Man, the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the African Charter on Human and People's Rights, all use the phrase \"liberty and security of the person\" in a context which shows that it relates to detention or other physical constraints.19 Sieghart,20 notes that although \"...all the instruments protect these two rights jointly in virtually identical terms, they have been interpreted as being separate and independent rights\", and that the European Commission of Human Rights and The European Court of Human Rights have found that what is protected is \"physical liberty\" and \"physical security\". There is European Convention). 19Guzzardi v Italy 3 EHRR 333 at 362, para. 92 (with respect to that wording in Article 5 of the 20SIEGHART, THE INTERNATIONAL LAW OF HUMAN RIGHTS, Clarendon Press, Oxford (1992) 139-142 (citing Guzzardi\u2019s case, supra; Arrowsmith v United Kingdom (7050/75) Report: DR 19,5; and X v United Kingdom (5877/72) CD 45,90). \fnothing to suggest that the primary purpose of section 11(1) of our Constitution is \u03a0\u03b1\u03b3\u03b5 248 CHASKALSON P different. It finds its place alongside prohibitions of \"detention without trial\", and of \"torture\" and \"cruel, inhuman or degrading treatment or punishment\" - all matters concerned primarily with physical integrity. This does not mean that we must construe section 11(1) as dealing only with physical integrity. Whether \"freedom\" has a broader meaning in section 11(1), and if so, how broad it should be, does not depend on the construction of the section in isolation but on its construction in the context of Chapter 3 of the Constitution.", "Chapter 3 is an extensive charter of freedoms. It guarantees and gives protection in specific terms to equality, life, human dignity, privacy, religion, belief, opinion (including academic freedom in institutes of higher learning), freedom of expression, freedom of assembly, freedom of demonstration and petition, freedom of association, freedom of movement, freedom of residence, freedom to enter, remain in and leave the Republic of South Africa, political rights, access to court, access to information, and administrative justice. Chapter 3 also provides guarantees and protection in respect of fair arrest, detention and trial procedures, economic activity, labour relations, property, the environment, language and culture, education and the rights of children. \f [172] This Court has adopted a purposive interpretation of the Constitution,21 and as CHASKALSON P \u03a0\u03b1\u03b3\u03b5 249 Ackermann J points out, it has also held that section 11: must not be construed in isolation, but in its context, which includes the history and background to the adoption of the Constitution, other provisions of the Constitution itself and, in particular, the provisions of Chapter 3 of which it is part. It must also be construed in a way which secures for \"individuals the full measure\" of its protection.22 These considerations must be borne in mind in construing section 11(1). I agree with Ackermann J that the mechanical application of the expressio unius principle is not appropriate to an interpretation of Chapter 3. This does not mean, however, that the structure of Chapter 3, the detailed formulation of the different rights, and the language of section 11 can be ignored.23 21 S v Zuma 1995 (4) BCLR 401 (CC), para. 15; S v Makwanyane 1995 (6) BCLR 655 (CC), para. 9; and S v Mhlungu 1995 (7) BCLR 793 (CC), para. 8. 22S v Makwanyane 1995 (6) BCLR 655 (CC), para. 10. 23See in this regard the comments of L\u2019Heureux-Dub\u00e9 J in the Thomson case, supra, at p.269- \f \u03a0\u03b1\u03b3\u03b5 250 CHASKALSON P 270. \f [173] Chapter 3 of the Constitution enumerates the wide range of fundamental CHASKALSON P \u03a0\u03b1\u03b3\u03b5 251 freedoms to which I have referred. All are subject to section 33, the limitations clause. The criteria according to which Chapter 3 rights may be limited are referred to in paragraph 125 of Ackermann J's judgment. Some grounds are common to all rights, but a distinction is drawn between those rights in respect of which a limitation must also be shown to be \"reasonable\" and those which require the limitation to be both \"reasonable\" and \"necessary\". The differentiation pointedly made in section 33 of the Constitution between different categories of freedom has a bearing on the meaning to be given to section 11(1). Limitations of section 11(1) are subject to the \"necessary\" test, which is an indication that the section is concerned with a freedom of a \"higher order\" than those enumerated freedoms which are not subjected to such an onerous test. A guarantee of the physical integrity of all persons is a freedom of the highest order which calls for the more onerous test of limitation. I am not persuaded, however, that this could be said of section 11(1) generally if it is given as wide a meaning as Ackermann J gives it in paragraph 54 of his judgment. I have found nothing in the legislative history to suggest that the framers of the Constitution intended section 11(1) to have such a meaning; nor do I consider it necessary, as Ackerman J has suggested that it may be, to adopt such a construction in order to give substance to the right to human dignity. In the context of the multiplicity of rights with which \fit is associated in Chapter 3, human dignity can and will flourish without such an \u03a0\u03b1\u03b3\u03b5 252 CHASKALSON P extensive interpretation being given to section 11(1).", "It would in my view be highly anomalous to give to unenumerated rights forming a \"residue\" in section 11(1) a higher status, subject to closer scrutiny, than a right so important to freedom as privacy, which is subject only to the \"reasonable' test. If there are residual freedom rights within section 11(1), that residue should be confined to freedoms which, though not enumerated elsewhere in Chapter 3, are entitled to be characterised as fundamental freedoms and thus properly claimable under section 11(1). If freedom were to be given the wide meaning suggested by Ackermann J.24 all regulatory laws, which are a feature of any modern society, would have to be justified as being necessary. In my view this is not what is contemplated by the provisions of section 11(1), nor is it a conclusion to which we need be driven. It would require courts to sit in judgment on what are essentially political decisions, and in doing so to require the legislature to justify such decisions as being necessary. This is not something that is required either by the words or the context of the section. If the intention had been to vest the control of freedom in that sense in the courts, I would have 24I.e., \u201cthe right not to have \u201cobstacles to possible choices and activities\u201d placed in [the way of any person] by ... the State\u201d, para. 54 (citation omitted). \fexpected this to have been clearly stated and not left to be inferred from an \u03a0\u03b1\u03b3\u03b5 253 CHASKALSON P extensive interpretation of the section.", "Reference is made in the judgment of Ackermann J to the manner in which the courts have construed the Constitutions of the United States of America, Canada and Germany. It is important to appreciate - as Ackermann J is at pains to point out - that these Constitutions are formulated in different terms, and the rights protected under them are not dealt with in the same way as the rights protected in Chapter 3 of our Constitution are.", "In the United States of America the courts have given a wide meaning to the provisions of the Fifth and Fourteenth amendments which contain prohibitions against the deprivation of \"life or personal liberty or property without due process of law\". The jurisprudence on the Fourteenth amendment has been of particular importance in this regard; it has also been extremely contentious. The Fourteenth Amendment is the means through which the courts have extended the Bill of Rights to provide protection against State action. In doing so they have held explicitly that \"...that term [liberty] is not confined to mere freedom from \fbodily restraint...\".25 The United States Constitution, however, contains none of \u03a0\u03b1\u03b3\u03b5 254 CHASKALSON P the detail found in Chapter 3 of our Constitution. The Fourteenth amendment is the only provision of the Constitution that protects individuals against the legislative power of the States. This protection has had to be spelt out of the terse injunction of section 1 of the Fourteenth amendment that: \"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.\"", "The Fourteenth Amendment guarantees of \"privileges\" and \"immunities\" of \" life, liberty, or property\" and the \"equal protection of the laws\" have been the basis of the jurisprudence of freedom in the United States. They are the source of unenumerated rights of personal freedom which have been identified and enforced by the courts in judgments, some of which have been the subject of great controversy. 25Bolling v Sharpe 347 US 497 (1954) at 499; Board of Regents v Roth 408 US 564 (1972) at \f \u03a0\u03b1\u03b3\u03b5 255 CHASKALSON P", "The jurisprudence of the United States is influenced by the fact that the Constitution is 200 years old. To give effect to the aspiration set out in the preamble to the Constitution to \"secure the Blessings of Liberty to ourselves and to our Posterity\" the courts have construed the notion of liberty in the Fifth and Fourteenth amendments in the light of the needs of a changing society. They have given a broad meaning to \"liberty\" to enable them to do so. At the same time they have adopted different levels of scrutiny as a means of addressing institutional conflict which might otherwise have existed between the courts and the Federal and State legislatures. In some instances, particularly in the field of economic regulation, all that is required is that there should be a rational basis for the legislation that infringes the right. At the other extreme, infringements of certain unenumerated rights such as privacy - characterised as fundamental - are subjected to strict scrutiny, whilst in between, infringements of other rights are subjected to \"intermediate\" scrutiny. 572. \f [179] The passages from the judgment of Wilson J in the Canadian Supreme Court CHASKALSON P \u03a0\u03b1\u03b3\u03b5 256 referred to by Ackermann J in para 76 of his judgment, describe the situation confronting a witness at an enquiry such as that conducted under section 417(2)(b) and characterise it as being one touching \"upon the physical integrity of the individual as well as the individual's reasonable expectation of privacy.\" The decision in this case cannot be relied upon for the proposition that freedom should be \"defined as widely as possible\" and as far as I am aware the Canadian Supreme Court has not suggested that this is how liberty should be construed in section 7 of the Charter.26 Wilson J, a vigorous upholder of liberty, found it necessary to say in the Thomson case that \"liberty\" and \"personal security\" as used in section 7 of the Canadian Charter must \"[c]learly be subject to some limits; otherwise any tenuous restriction placed on an individual would constitute a violation of liberty and security of the person.\"27 She declined, however, to attempt to determine those limits. It is also important to bear in mind that the guarantee of \"liberty\" and \"security of the person \" in section 7 of the Canadian Charter is subject to the qualification that it may be encroached upon in accordance with the principles of fundamental justice\". Liberty is implicated by 26See, in this regard, the judgment of Lamer J in Reference Re Criminal Code s. 192 and 195 (1)(c) [1990] 48 CRR 1 at 46, and HOGG, supra, para. 44.7 and 44.8 (3rd ed 1992). 27 Thomson, supra, at 186 (Wilson J, dissenting); see also, Edward Brooks and Art v The Queen 35 DLR (4th) 1 at 54 (per Dickson, CJC). \flaws which impose imprisonment as a penalty for their non-observance, but \u03a0\u03b1\u03b3\u03b5 257 CHASKALSON P under Canadian law a person objecting to the constitutionality of the law on these grounds has the onus of showing that it is not in accordance with the fundamental principle of justice Reference Re Criminal Code,28 and to discharge this onus it must be established that the legislative scheme is so unfair as to violate that principle Reference Re Criminal Code.29 Even if this is done it is still open to the prosecution to justify the law under section 1 of the Charter.30 Section 7 of the Charter is therefore both in substance and form materially different to section 11(1) of our Constitution.", "Liberty is dealt with in article 2 of the German Constitution The wording of this article is also different to the wording of section 11 of our Constitution. The 28Supra, at 46. 29Supra, at 17. 30Morgentaler, Smoling and Scott v R [1988] 31 CRR 1 at 33. \fprovision closest to section 11(1) is article 2(2) which provides: \u03a0\u03b1\u03b3\u03b5 258 CHASKALSON P Everyone shall have the right to life and to the inviolability of his person. The liberty of the individual shall be inviolable. These rights may be encroached upon pursuant to law.31 of the Federal Republic of Germany (1977). 31THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY, Press and Info. Office of the Government \f As Ackermann J points out in paragraph 83 of his judgment \"liberty\" in the \u03a0\u03b1\u03b3\u03b5 259 CHASKALSON P context of article 2(2) is construed as referring to freedom from physical constraint. The fact that it is found alongside a provision which explicitly lays down that \"everyone shall have the right to the free development of his personality\" which in turn has been construed by the German Federal Constitutional Court as protection of a general freedom to act,32 is no reason for us to give that meaning to \"freedom\" in section 11(1) of our Constitution. Currie indicates that the extensive interpretation of the right to free development of the personality by the German Federal Constitutional Court was influenced by the legislative history of the provision.33 He also points out that in Elfe's case,34 referred to in paragraph 86 of Ackermann J's judgment, the court held that the general right to freedom of action is limited \u201c...both by the Basic Law itself and \u2018by every legal norm that conforms procedurally and substantively with the Constitution.\u2019\"35 That apparently requires laws to conform with \"the principles of the rule of law and the social welfare state.\"36 Implicit in the social welfare state Chicago Press 1994). 32DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY, at 316 (Univ. of 33Id. 346 BverfGE 32. 35Supra note 32 at 317-318 (citation omitted). 36Supra note 32 at 318 (citation omitted). \fis the acceptance of regulation and redistribution in the public interest. If in the \u03a0\u03b1\u03b3\u03b5 260 CHASKALSON P context of our Constitution freedom is given the wide meaning that Ackermann J suggest it should have, the result might be to impede such policies. Whether or not there should be regulation and redistribution is essentially a political question which falls within the domain of the legislature and not the court. It is not for the courts to approve or disapprove of such policies. What the courts must ensure is that the implementation of any political decision to undertake such policies conforms with the Constitution. It should not, however, require the legislature to show that they are necessary if the Constitution does not specifically require that this be done.", "In terms of our Constitution we are enjoined to protect the freedom guaranteed by section 11(1) against all governmental action that cannot be justified as being necessary. If we define freedom in the context of section 11(1) in sweeping terms we will be called upon to scrutinise every infringement of freedom in this broad sense as being \"necessary\". We cannot regulate this power by mechanisms of different levels of scrutiny as the courts of the United States do, nor can we control it through the application of the principle that freedom is subject to laws that are consistent with the principles of \"fundamental justice\", as the Canadian courts do. \f \u03a0\u03b1\u03b3\u03b5 261 CHASKALSON P", "We should be careful to avoid the pitfall of Lochner v New York37 which has been described by Professor Tribe in his seminal work on American Constitutional Law, as being \"not in judicial intervention to protect \"liberty\" but in a misguided understanding of what liberty actually required in the industrial age.\"38 The Lochner era gave rise to serious questions about judicial review and the relationship between the court and the legislature, and as Professor Tribe points out, the collapse of Lochner gave \"credence to the notion that the legislative process should be completely wilful and self-controlled, with absolutely no judicial interference except where constitutional provisions much more explicit than due process were in jeopardy\".39", "The protection of fundamental freedoms is pre-eminently a function of the court. We should not, however, construe section 11 so broadly that we overshoot the mark and trespass upon terrain that is not rightly ours. In a famous dissent in Lochner's case, Holmes J said: 37198 US 45 (1905). 38Supra note 6, at 769. 39Id. at 582. \f\u03a0\u03b1\u03b3\u03b5 262 CHASKALSON P I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.40 The fundamental principles to which we must look for guidance in this regard are those laid down by our Constitution. They are the principles of an open and democratic society based on freedom and equality. In a democratic society the role of the legislature as a body reflecting the dominant opinion should be acknowledged. It is important that we bear in mind that there are functions that are properly the concern of the courts and others that are properly the concern of the legislature. At times these functions may overlap. But the terrains are in the main separate, and should be kept separate.", "This does not mean that we must necessarily confine the application of section 11(1) to the protection of physical integrity. Freedom involves much more than that, and we should not hesitate to say so if the occasion demands it. But, because of the detailed provisions of Chapter 3, such occasions are likely to be rare. If despite the detailed provisions of Chapter 3 a freedom of a fundamental 40Supra note 37 at 76. \fnature which calls for protection is identified, and if it cannot find adequate \u03a0\u03b1\u03b3\u03b5 263 CHASKALSON P protection under any of the other provisions in Chapter 3, there may be a reason to look to section 11(1) to protect such a right. But to secure such protection, the otherwise unprotected freedom should at least be fundamental and of a character appropriate to the strict scrutiny to which all limitations of section 11 are subjected.", "Against this background I can see no objection to accepting provisionally that section 11(1) is not confined to the protection of physical integrity and that in a proper case it may be relied upon to support a fundamental freedom that is not otherwise protected adequately under Chapter 3. This, however, is not such a case. The reason why the Canadian Courts have dealt with this issue under section 7 of the Charter is that the requirement of \u201cfundamental justice\u201d which is part of that section has been construed as \u201c...obviously requir[ing] that a person accused of a crime receive a fair trial.\u201d41 Section 11(1) of our Constitution contains no comparable provision. In the context of our Constitution, and having regard to the specific wording of the section itself, and the fact that the right to a fair trial is dealt with specifically and in detail under section 25(3), I cannot read section 11(1) as including a residual fair trial right. \f \u03a0\u03b1\u03b3\u03b5 264 CHASKALSON P In paragraph 3 of this judgment I indicated that \u201ca challenge to the constitutionality of section 417(2)(b) should...be characterised and dealt with as a challenge founded on the right to a fair criminal trial.\u201d It is precisely because section 417(2)(b) is inconsistent with this right that its validity can be impugned. As long as incriminating evidence is not admissible at the criminal trial and the use of \u201cderivative evidence\u201d at such trial is made dependant on such use being subject to \u201cfair criminal trial\u201d standards, the rule against self incrimination is adequately protected. If this is so, the first of the two requirements which would have to be established in order to invoke section 11(1) to protect a residual right of freedom, i.e., that the right is not otherwise protected adequately by Chapter 3, has not been met, and it is not necessary to consider the second requirement, i.e., whether the \u201cresidual right\u201d claimed is of a character appropriate for protection under section 11(1). 41HOGG, supra note 11, at 44.16. \f [186] Ackermann J has demonstrated that the rule against being compelled to answer KRIEGLER J \u03a0\u03b1\u03b3\u03b5 265 incriminating questions is inherent in the right to a fair trial guaranteed by section 25(3).42 Because he held that the Applicants could not rely on section 25(3) he analysed the issues in the present case in terms of section 11(1). The reasoning that led him to conclude that section 417(2)(b) is inconsistent with section 11(1) would also have led him to conclude that it is inconsistent with section 25(3). It seems to me to be clear that this is so. To some extent his reasons are shaped by the fact that the issue is treated as one implicating freedom and not the right to a fair trial. In substance, however, they can be applied to a section 25(3) analysis and I have nothing to add to them, nor to his reasons for the conclusion that the issue of derivative evidence is one that ought properly to be decided by a trial court. I agree, therefore, with the order proposed by him. Mahomed DP, Didcott J, Langa J, Madala J and Trengove AJ concur in the judgment of Chaskalson P.", "KRIEGLER J: Regretfully I cannot agree with the conclusions of any one of my four colleagues 42See paragraph 79 of his judgment. \f(Chaskalson P and Ackermann, O'Regan and Sachs JJ) whose draft judgments I \u03a0\u03b1\u03b3\u03b5 266 KRIEGLER J have had the privilege of considering. Notwithstanding the erudition and persuasive force of their two distinct lines of reasoning, I cannot subscribe to their joint conclusion. I also dissent from the order they unanimously propose.", "In essence Ackermann and Sachs JJ conclude that the applicants do not have standing to seek relief under the fair trial protection of the Constitution,1 against a provision in the Companies Act2 relating to the admissibility of evidence.3 They do not non-suit the applicants, however, holding that they qualify for assistance under section 11(1) of the Constitution, which guards personal liberty. Chaskalson P and O'Regan J do not see the applicants' complaint as falling under section 11(1) of the Constitution. They nevertheless agree that the applicants are entitled to an order invalidating the qualification in section 417(2)(b) of the Companies Act on the basis of its irredeemable conflict with rights protected in the Constitution. They analyse the standing provisions of the Constitution4 and hold that witnesses at a section 417 enquiry have locus standi 1Section 25(3) of the Constitution of the Republic of South Africa No. 200 of 1993. 2Companies Act No. 61 of 1973. 3The qualification to section 417(b) of the Companies Act which renders admissible at a subsequent criminal trial evidence compulsorily obtained from persons at an enquiry into the affairs of an insolvent company. 4Contained in section 7(4). \fto raise the alleged unconstitutionality of the qualification under the fair trial \u03a0\u03b1\u03b3\u03b5 267 KRIEGLER J rubric.", "I both agree and disagree with those views - up to point. I agree with Ackermann and Sachs JJ that witnesses at a section 417 enquiry cannot be brought within the ambit of the fair trial procedures of section 25(3). At the same time however I agree with Chaskalson P and O'Regan J that section 11(1) is inapposite in these cases.", "In my view, therefore, no invalidation of section 417(2)(b) of the Companies Act, or any part of that subsection, is warranted in either of these cases. This Court is neither called upon nor empowered to consider the constitutionality of section 417(2)(b) now. And if and when that issue does arise, I would urge a much closer consideration of its possible saving under section 33(1) of the Constitution than that conducted by my colleagues in the present cases. In particular I would require to be persuaded that the differences between South Africa on the one hand, and the foreign jurisdictions used as lodestars, on the other, are not so great that a local departure is not warranted. That will entail, inter alia, a comparison of the safeguards against corporate fraud in the countries concerned and the relative competence of the supervisory, investigatory and prosecuting \fauthorities in the particular countries compared with what is available in this \u03a0\u03b1\u03b3\u03b5 268 KRIEGLER J country. I would also want to be persuaded that it is apt to equate the admissibility provisions of the Insolvency Act5 with those under scrutiny here. That debate would embrace the question whether the materially greater scope of activities conducted under the shield of corporate anonymity and limited liability does not justify a distinction. Because of my view that a cost/benefit analysis of that kind can not arise in the present circumstances, no more need be said on the topic.", "My line of thinking is relatively straightforward and I hope to make it plain in a few pages. That is possible, primarily because the issues have been so crisply identified by Ackermann J. 5Insolvency Act No. 24 of 1936. \f [192] The cases do not belong here, neither as referrals under section 102(1) of the KRIEGLER J \u03a0\u03b1\u03b3\u03b5 269 Constitution, nor as instances of direct access under section 100, read with Constitutional Court Rule 17. Ackermann J's discussion of section 102(1)6 omits any reference to the proviso to the subsection, namely: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court. The words are quite unequivocal - cases dependent upon particular evidence cannot be referred to this Court unless and until such evidence has been heard and a finding thereon has been made. 6Especially in paragraph [6] of his judgment. \f [193] Therefore, although I am in respectful agreement with the view of Ackermann J,7 KRIEGLER J \u03a0\u03b1\u03b3\u03b5 270 concurred in by Chaskalson P and O'Regan and Sachs JJ, that the dismissal of the applications in the Court a quo rendered referrals under section 102(1) legally incompetent, there was, however, in my view, an even more fundamental ground for this Court rejecting them. As I will try to show, the question whether any constitutionally protected right of the applicants had been infringed (or could be said to have been threatened) merely by a subpoena to attend an inquiry in terms of section 417 of the Companies Act for the purposes of interrogation concerning the trade, dealing, affairs or property of the company,8 cannot conceivably be answered on any tenable allegation that could be made at this stage by the applicants in the instant cases.", "In terms of the proviso to section 102(1) that would be an insurmountable obstacle to a referral of the kind - and at the time - in issue here. One simply cannot be heard to say: \"I do not know what they want to ask me; I do not know what my answers will be; because of my guilty knowledge, however, I am afraid that such answers may turn out to evidence some offence on my part; I do not know whether it is so, but I may be prosecuted for such offence; I do not know 7At Paragraph [9] of his judgment. 8See section 417(1) of the Companies Act. \fwhether such evidence will be used against me by the prosecution; nor do I know \u03a0\u03b1\u03b3\u03b5 271 KRIEGLER J what its cogency will be; I do not know whether the trial court will uphold or reject an objection on my behalf to such evidence; I do not know what the weight of the other evidence will be; I do not know if I will be convicted. But this I do know - I may be convicted on the strength of what I am obliged to disclose at an enquiry instituted at the instance of the Supreme Court or the Master concerning an insolvent company's affairs. Therefore, please declare, at this juncture already, that I need not answer questions that may reveal my deeds.\"9", "But the substantive point to be made is not directed at the formal obstacle constituted by the proviso to section 102(1). The crucial point is that no witness subpoenaed to testify at a section 417 enquiry can at that stage possibly formulate allegations essential for relief based on fair trial provisions. And if the witness cannot bring the case within those provisions, I see nothing in the Constitution that avails. There simply is no general prohibition against self- incrimination to be found anywhere in the Constitution, nothing express and 9I do not overlook but regard as remote the kind of case where the witness is not sure whether the particular conduct does or does not constitute a crime. \fnothing implicit. It is only if and when the production of evidence obtained \u03a0\u03b1\u03b3\u03b5 272 KRIEGLER J pursuant to a section 417 enquiry jeopardizes the fairness of the trial that the Constitution can be invoked.", "I do not wish to be misunderstood. I am not distinguishing between evidence of what the accused said qua section 417 witness (i.e. direct evidence) and evidence based on such disclosures (i.e. derivative evidence). That is a thicket that we may have to penetrate at some stage; but not now. Nor am I referring to any possible proceeding against the witness for non-compliance with the duty to testify at the section 417 enquiry. It is the production at a subsequent criminal trial of evidence (directly or derivatively) elicited at such an enquiry that may render the trial unfair, and then a breach of the provisions of Chapter 3 of the Constitution may arise. It is only then that a court would have to decide whether the unfairness of producing the involuntarily extracted evidence in question can be saved under section 33(1). It will be a value judgment based on all the data then available. Previously an accused had no general right to demand a fair trial. Now such a right exists under section 25(3) and may be invoked where section 417(2)(b) works an injustice.", "I am also satisfied that a prayer for direct access under section 100(2) of the \fConstitution and Rule 17, founded on such allegations as the applicants can \u03a0\u03b1\u03b3\u03b5 273 KRIEGLER J possibly make, should receive short shrift from this Court. The subsection postulates that such access must be \"in the interest of justice\" and the Rule explains that an applicant must ordinarily establish exceptional circumstances prejudicing the ends of justice and good government. I cannot accept that the case of an applicant who, on his own showing, has done things for which he fears prosecution if the truth be revealed, can ordinarily be brought within those strict criteria.", "I wish to emphasize that I am saying nothing about the propriety of using involuntarily elicited evidence to convict the person from whom it was obtained. That aspect does not arise here. All we are discussing now is whether, at the stage when the evidence is being elicited, the witness can be heard to complain about its possible use later. If the applicants were accused persons against whom the prosecution had adduced or had indicated that it intended adducing such evidence, other considerations would be in issue. Those issues do not arise here. The current discussion focuses exclusively on the right of audience of a probable criminal at the stage of the enquiry contemplated by section 417(2)(b) of the Companies Act. \f [199] The essential flaw in the applicants' cases is one of timing or, as the Americans KRIEGLER J \u03a0\u03b1\u03b3\u03b5 274 and, occasionally, the Canadians call it, \"ripeness\". That term has a particular connotation in the constitutional jurisprudence of those countries which need not be analysed now. Suffice it to say that the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallized, and not with prospective or hypothetical ones.10 Although, as Professor Sharpe points out11 and our Constitution acknowledges,12 the criteria for hearing a constitutional case are more generous than for ordinary suits, even cases for relief on constitutional grounds are not decided in the air. And the present cases seem to me, as I have tried to show in the parody above, to be pre-eminent examples of speculative cases. The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons being discovered. LAW OF CANADA paragraphs 56.4 and 56.17 (1992); Robert J. Sharpe, CHARTER LITIGATION 340-2 (1987). 10See Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 78 - 82, paragraph 3.10 (1988); Peter W. Hogg, CONSTITUTIONAL 11Supra note 10, at 328 et. seq. 12See section 7(4) and the analysis of the section in the judgment of Chaskalson P, at paragraphs [166] to [169]. See also \f \u03a0\u03b1\u03b3\u03b5 275 KRIEGLER J Zantsi v Council of State, Ciskei and Others, 1995 (10) BCLR 1424 (CC) at paragraph 7. \f [200] The challenge to the relevant provision of section 417(2)(b) of the Companies KRIEGLER J \u03a0\u03b1\u03b3\u03b5 276 Act arises from the conflict it engenders between two interests. On the one hand society at large has a material interest in ascertaining as fully and reliably as possible why a defunct company went under. A company is not a live human being from whom one can enquire what went wrong in the business, or where its books of account, records and assets are. It is a legal fiction. Over time human ingenuity devised and developed the limited liability company as a vehicle for amassing venture capital, while limiting the risk involved. It worked wonderfully and served as the blueprint for the growth of commerce and industry around the world.", "But there were risks, one of which was that the size and anonymity of corporations rendered it more difficult to conduct post-mortems when they collapsed. Obviously those characteristics could also serve as a shield for dishonesty. Consequently special safeguards were evolved to protect the interests of outsiders (i.e. creditors and ordinary investors) against those involved in the running of a company. Section 417 of the Companies Act is an example. Without a mechanism of this kind the danger to creditors would be materially increased, their protection attenuated. \f [202] The other interest involved lies at a more atavistic level. In open and democratic KRIEGLER J \u03a0\u03b1\u03b3\u03b5 277 societies based on freedom and equality,13 it is regarded as impermissible for the state to use incriminating evidence extorted from an accused person in order to procure his or her conviction. This so-called privilege against self-incrimination has proved a powerful bulwark against governmental excesses, as Ackermann J so lucidly illustrates in his extensive and instructive survey of comparable foreign jurisprudence.14 The survey demonstrates that different societies have at different times devised a variety of subsidiary rules to ensure that the prosecution must make out its case without any claim to assistance by an accused person. 13The values of which we and the other courts of land are enjoined by section 35(1) of the Constitution to promote. 14See paragraphs [72] to [113] of his judgment in the course of which he reviews on an array of relevant Canadian, American, English, German and European Union sources. \f [203] To that end South African common law honours the principle that one should not KRIEGLER J \u03a0\u03b1\u03b3\u03b5 278 be compelled to produce evidence against oneself.15 Conformably rules of evidence and of criminal procedure were evolved to give practical effect to the principle. Those rules and the various statutory endorsements thereof fall outside the scope of this discussion. We are not being asked to intervene because any rule of the common law or of statute law is being, or is about to be, breached to the irreparable detriment of the applicants. Had that been the prayer before us, we would have been obliged to dismiss it for lack of jurisdiction, because that is not a constitutional issue. What we are concerned with here is an invocation of, specifically, the Constitution. Chapter 3 thereof, as Chaskalson P points out,16 is an extensive and detailed charter of freedoms. Yet nowhere is there any mention of a general - or independent - right against self-incrimination. What one does find, is the right referred to in section 25(3)(c) and (d), i.e. as a subsidiary part of the right to a fair trial, to maintain silence and not to be a compellable witness against oneself. Those provisions, on the clear wording and self-evident context thereof, relate to the proceedings during a criminal trial - and to nothing else. To my mind it is not possible to read those provisions as embodying the general privilege against self-incrimination. Nor can I read them 15The maxim \"nemo pro se prodere tenetur\" of ancient lineage, encapsulates the principle. 16In paragraphs [171] and [184] of his judgment. \fas referring to any process so far removed from, and antecedent to, a trial as an \u03a0\u03b1\u03b3\u03b5 279 KRIEGLER J enquiry under section 417 of the Companies Act.", "Indeed, where the Constitution wants to refer to proceedings related to but preceding a criminal trial, it does so quite explicitly and clearly in section 25(2). In that subsection, dealing with arrested persons, paragraph (a) lays down that one is to be warned of the right to silence. That right of course is one of the main supporting struts of the privilege against self-incrimination.", "I do not believe that these cases can be entertained on any reading of section 7(4) of the Constitution. However widely one may read the provisions of that subsection, and I agree that they should be read generously and purposively, they cannot extend to persons in the position of the applicants. Paragraph (a) of section 7(4) speaks of both an alleged infringement of a right and a \"threat to any right.\" That is not surprising. The concept of an anticipated invasion of rights is well known in our law and forms the cornerstone of our system of interdictory relief. But a threat to a right, or a tenable allegation of such a threat, does not include and can never include someone as remote from a possible consequence as the applicants are removed from the use of their involuntary evidence against them here. Put differently, it is only when there is an actual criminal trial at which \fevidence, tainted by compulsion under section 417, and harmful to the accused \u03a0\u03b1\u03b3\u03b5 280 KRIEGLER J and quondam witness is produced (or at least sought to be produced) that any threat arises. That is a threat to the right of the accused to be tried fairly.", "In the circumstances it is of no consequence to seek to slot the applicants into one or other of the categories of standing enumerated in subparagraph (i) to (v) of subsection 7(4)(b). At present they cannot be fitted into any of those categories. If it should transpire that the one or other of them is confronted at a criminal trial with evidence he or she had to give at a section 417 enquiry, that might be the time to consider a resort to section 25(3)(c) or (d) of the Constitution. Unless and until that comes to pass this Court should adopt the attitude that their case is not ripe.", "I would therefore dismiss both applications.", "MOKGORO J. I have had the opportunity of reading the judgments of Chaskalson P. And Ackermann J. I agree with Ackermann J. that section 417(2)(b) is unconstitutional and the order that he proposes. I however, agree with Chaskalson P. that the Applicants do have standing to secure a ruling on the \fvalidity of section 417(2) (b) of the said Act. I therefore concur in his judgment for \u03a0\u03b1\u03b3\u03b5 281 MOKGORO J the reasons that he gives. Although I am in agreement with him regarding the meaning of \u201cfreedom\u201d in section 11(1) of the Constitution, this brief concurring note reflects the difference I have with him regarding his interpretation of \u201cfreedom\u201d in section 11(1) of the Constitution.", "Section 11(1) is entitled \u201cFreedom and security of the person\u201d. Textually, this section, in my view, protects the two related rights of \u201cfreedom of the person\u201d and \u201csecurity of the person\u201d, as opposed to \u201cfreedom\u201d on the one hand and \u201csecurity of the person\u201d on the other. The conjunctive \u201cand\u201d in this section serves to connect \u201cfreedom\u201d to \u201cof the person\u201d. Once \u201cfreedom\u201d in section 11(1) is textually separated from \u201csecurity of the person\u201d, we run the risk of giving it a construction of an all-embracing \u201cright to freedom\u201d, which it certainly is not. Attributing so broad a meaning to \u201cfreedom\u201d in this section, has the effect of extending it too far beyond the perimeters of physical integrity. That \u201cfreedom\u201d in section 11(1) means freedom in the sense of physical integrity emerges from the plain meaning of the text and not from the narrowing of an all-embracing freedom right. This, however, does not mean that section 11(1) cannot be given a broad meaning sufficient to provide protection to an unenumerated right akin to freedom of the person, within the context of the rest of Chapter 3. \f \u03a0\u03b1\u03b3\u03b5 282 MOKGORO J", "Section 11(1) provides for the \u201cright to freedom and security of the person\u201d and section 11(2) protects persons against \u201ctorture\u201d and \u201ccruel, inhuman and degrading treatment and punishment\u201d. Therefore, viewed within the context of the whole of section 11, \u201cfreedom\u201d in section 11(1) undoubtedly points toward physical integrity and not a broad, all-embracing right to freedom. This perspective is confirmed in various international human rights instruments, as has already been pointed out by Chaskalson P. in his judgment.1", "For the aforesaid reasons, I have no doubt in my mind that section 11(1) is not a resort for unenumerated residual freedom rights, which do not find adequate protection under any other provision of Chapter 3 of the Constitution. 1See paragraph 170 of the judgment of Chaskalson P. \f [212] Chapter 3 makes detailed provision for the protection of a variety of enumerated \u03a0\u03b1\u03b3\u03b5 283 MOKGORO J freedom rights2 . As the President of this Court so correctly points out, there is therefore a rare likelihood that we may find occasion to protect an unenumerated freedom which calls for protection.3 While it is his view that we may have to look to section 11(1) to protect such rights, I respectfully do not share this view with him. As pointed out earlier4, section 11(1) does not provide protection for unenumerated freedom rights. If occasion for the protection of such an unenumerated right arises, that right may have to be classified under a Chapter 3 right to which it is most akin and or give that Chapter 3 right a generous and full benefit construction to embrace that unenumerated right. 2See paragraph 171 of the judgment of Chaskalson P. 3See paragraph 184 of the judgment of Chaskalson P. 4See paragraph 211. \f [213] The generous, full benefit and purposive approach to constitutional interpretation \u03a0\u03b1\u03b3\u03b5 284 O\u2019REGAN J has already been adopted in previous decisions of this Court (S v Zuma 1995(4) BCLR 410 (CC), para. 15; S v Makwanyane 1995 (6) BCLR 655 (CC), para 9; and S v Mhlungu 1995(7) BCLR 793 (CC), para. 8). Although section 11(1) should also be generously construed, there would be no need to give it such a strained construction5 to accommodate an outcome which we may nevertheless reach by invoking a generous, full-benefit and purposive construction of one or other enumerated right in Chapter 3. In this way, the limitations tests in section 33 would apply appropriately, without any undue elevation or downgrading of an enumerated freedom right vis a vis any unenumerated freedom right, in Chapter 3 of the Constitution.", "O'REGAN J: I have had the opportunity of reading the judgments of Chaskalson P, Ackermann J and Sachs J. I concur in the order proposed by Ackermann J for the reasons given in this judgment.", "The following five issues were referred to this court by the Transvaal Provincial 5S v Mhlungu (supra) at para.108. \f Division of the Supreme Court in terms of section 102(1) of the Republic of South \u03a0\u03b1\u03b3\u03b5 285 O\u2019REGAN J Africa Constitution Act, 200 of 1993 (' the Constitution'): 1. Whether section 417(2)(b) of the Companies Act, 61 of 1973 as amended, ('the Act'), is unconstitutional in that it compels a person summoned to an enquiry to testify and produce documents, even though such person seeks to invoke the privilege against self-incrimination. 2. Whether evidence given by a person at an enquiry in terms of section 417 of the Act falls to be excluded in any subsequent criminal proceedings brought against such person where the evidence may be incriminating and was extracted without recognition of such person's privilege against self-incrimination. 3. Whether a person appearing at an enquiry in terms of section 417 of the Act is entitled to have prior access to: 3.1 a copy of the record of the examination of all other persons examined at the enquiry ; 3.2 all documents in the possession of the liquidator or those prosecuting the enquiry relevant to the interrogation of such \f\u03a0\u03b1\u03b3\u03b5 286 O\u2019REGAN J person. 4. Whether a person is required to give testimony at an enquiry in terms of section 417 which testimony may tend or have the effect of supporting a civil claim against such person. 5. Whether a person who has given testimony at an enquiry in terms of section 417, which testimony tends to support a civil claim against such person, may have such testimony excluded in any subsequent civil proceedings.", "As Ackermann J has stated (at para 6), section 102(1) contemplates only the referral of issues which fall within this court's exclusive jurisdiction. Of the five issues referred, only the first falls within that exclusive jurisdiction and the referral of the four other issues was therefore not competent in terms of section 102(1). At the hearing of this case, Mr Levin, for the applicants, requested that direct access be granted in respect of those four issues. The propriety of the referral of the first issue was not questioned at the hearing and no direct access application was made in that regard. However I agree with Ackermann J that the referral was also incompetent in relation to that issue (at paragraphs 5 - 10 of his judgment). \fBecause the application had been disposed of by the provincial division, the \u03a0\u03b1\u03b3\u03b5 287 O\u2019REGAN J constitutionality of section 417(2)(b) of the Companies Act, 61 of 1973 ('the Act') could not be decisive of any matter before that court and could not be referred to this court in terms of section 102(1) of the Constitution.", "In terms of section 100(2) of the Constitution, it is provided that: 'The rules of the Constitutional Court may make provision for direct access to the Court where it is in the interest of justice to do so in respect of any matter over which it has jurisdiction.' Rule 17 of the Rules of the Constitutional Court provide that: '(1) The Court shall allow direct access in terms of section 100(2) of the Constitution in exceptional circumstances only, which will ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of the ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government.'", "In S v Zuma 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (CC), the question of the constitutio nality of \f \u03a0\u03b1\u03b3\u03b5 288 O\u2019REGAN J section 217(1)(b)(i i) of the Criminal Procedure Act, 51 of 1977, was referred to this court by the Natal Provincial Division of the Supreme Court. It became clear at the hearing of \f \u03a0\u03b1\u03b3\u03b5 289 O\u2019REGAN J the matter that the referral was incompete nt and accordingl y, the Attorney- General made application for direct access to the court in terms of Rule 17. In his judgment, Kentridge \f \u03a0\u03b1\u03b3\u03b5 290 O\u2019REGAN J AJ, speaking for the court held: 'The Attorney-General of Natal submits in his supporting affidavit that if the matter is sent back to the trial court without our deciding the issue it would have to be referred again to this Court at the end of the trial. More importantly, he informs us that prevailing uncertainty as to the constitutionality of section 217(1)(b)(ii) has resulted in inconsistency in practice in Natal and elsewhere in the Republic. That uncertainty would remain unresolved until a suitable case came properly before this Court. We agree with the Attorney-General of Natal and with Mr d'Oliveira SC, the Attorney-General of the Transvaal, who appeared for the State, that this state of affairs must seriously prejudice the general administration of justice as well as the interests of the numerous accused persons affected. The admissibility of confessions is a question which arises daily in our criminal courts and prolonged uncertainty would be quite unacceptable. As appears from the terms of Rule 17, direct access is contemplated in only the most exceptional cases, and it is certainly not intended to be \f\u03a0\u03b1\u03b3\u03b5 291 O\u2019REGAN J used to legitimate an incompetent reference. But in the special circumstances set out in the affidavit the application under Rule 17 was fully justified.' (At para 11.) The application for direct access was granted. Similarly, in Executive Council of the Western Cape Legislature and others v The President of the Republic of South Africa CCT 27/1995, an unreported judgment of the Constitutional Court handed down on 22 September 1995, direct access was granted to the Applicants to challenge the validity of certain proclamations relevant to impending local government elections. In the light of the imminence of those elections, Chaskalson P held that 'urgent and direct access to this Court is warranted' (at para 17).", "I agree with Ackermann J that, had the propriety of the referral on the first issue been disputed at the hearing, Mr Levin would have made application for direct access in terms of Rule 17 in regard to that issue as well. Subsequently, in response to a written enquiry by this court, all the parties in this case have indicated that they have no objection to the grant of an application for direct access in relation to the first issue, should the referral of that issue be held to be incompetent. \f [220] There are two considerations relevant to the grant of direct access: exceptional \u03a0\u03b1\u03b3\u03b5 292 O\u2019REGAN J circumstances must be shown as contemplated by the terms of rule 17; and the applicant must demonstrate that he or she has standing to seek the relevant relief from this court. There are overlapping considerations relevant to these enquiries, but it appears to me that reliance on rule 17 will not relieve an applicant of the need to establish standing sufficient to seek the relief sought and that, therefore, standing and the requirements of rule 17 must both be considered. The relief sought in this case is a declaration of the invalidity of section 417(2)(b) of the Act on the grounds that it 'compels a person summoned to an enquiry to testify and produce documents, even though such person seeks to invoke the privilege against self-incrimination.'", "The uncertainty caused by doubts concerning the constitutionality of section 417 must seriously hamper the procedures in terms of that section, which in turn will materially disrupt the administration of insolvent companies. In many cases, inquiries will have been suspended pending a determination by this court and creditors and other interested parties will be awaiting anxiously a determination on the constitutionality of the section, so that proceedings may be finalised. Prolonging this situation is highly undesirable. It is clearly in the public interest that certainty be reached. Often this court will be reluctant to grant direct access \fin cases where the referral is shown to be incompetent. However, in this case, \u03a0\u03b1\u03b3\u03b5 293 O\u2019REGAN J the uncertainty that surrounds section 417 procedures, and the need to clarify the constitutional status of section 417(2)(b) in particular, are sufficiently cogent grounds for the grant of direct access.", "The urgent need to obtain clarity on the constitutionality of a statutory provision was also the reason for the grant of direct access in Zuma's case. In the circumstances of the political transition in South Africa, it is not surprising that a considerable number of statutory provisions have come under constitutional challenge and that this process is leading to uncertainty and dislocation in the broader community. The transition that has occurred in South Africa is from a political system not based on the democratic values of openness, freedom and equality, to a constitutional state premised upon them. (See S v Makwanyane 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at paragraphs 262, 310 and 322.) Legislation adopted under the old constitutional order was drafted without consideration of those values and may, accordingly, be in conflict with the provisions of chapter 3 of the Constitution. Uncertainty surrounding the constitutionality of such legislation may cause considerable disruption in our society. As a result, it may well be that resort to Rule 17 and direct access applications will be considerably more common in the early years of our \fconstitutional democracy. New legislation will be drafted and adopted by \u03a0\u03b1\u03b3\u03b5 294 O\u2019REGAN J Parliament in full knowledge of the values upon which the Constitution is based and will be less likely therefore to require urgent constitutional scrutiny.", "The second question then is whether these applicants have sufficient standing to seek relief by way of direct access. The grounds on which the constitutionality of section 417(2)(b) is challenged are that it constitutes an infringement of rights enshrined in chapter 3 of the Constitution. As such, the question of standing is governed by section 7(4). I respectfully disagree with Chaskalson P (at para 168) when he states that, because the issue before the court concerns the constitutionality of an Act of Parliament, the rules for standing contained in section 7(4) do not apply in this case. In my view, section 7(4) governs any constitutional challenge where the grounds for the challenge arise out of an infringement or threatened infringement of a right contained in chapter 3, whether it be a matter which falls within the court's jurisdiction under section 98(2)(a), 98(2)(b) or 98(2)(c). Constitutional challenges based on grounds other than alleged violations of chapter 3 are, on a straightforward reading of section 7(4), not governed by its terms. In this case, the constitutional attack is based on the provisions of chapter 3 and section 7(4) is accordingly applicable. \f [224] The applicants allege that section 417(2)(b) constitutes a breach of the rights of \u03a0\u03b1\u03b3\u03b5 295 O\u2019REGAN J accused persons, in that it permits the admission of evidence in a criminal trial which has been compelled from those accused persons in a section 417 enquiry. The difficulty the applicants face is that they have not yet been charged, nor is there any allegation on the record to suggest that they consider that there is a threat that a prosecution may be launched against them, after they have given evidence at the section 417 enquiry, in which that evidence will be used against them.", "Section 7(4) of the Constitution provides that: '(a) When an infringement of or threat to any right entrenched in this Chapter is alleged, any person referred to in paragraph (b) shall be entitled to apply to a competent court of law for appropriate relief, which may include a declaration of rights. (b) The relief referred to in paragraph (a) may be sought by - (i) a person acting in his or her own interest; (ii) an association acting in the interest of its members; (iii) a person acting on behalf of another person who is not in a position to seek such relief in his or her own name; (iv) a person acting as a member of or in the interest of a group \f\u03a0\u03b1\u03b3\u03b5 296 O\u2019REGAN J or class of persons; or (v) a person acting in the public interest.", "Ackermann J (at para 38) finds that persons acting in their own interest (as contemplated by section 7(4)(b)(i)) may only seek relief from the court where their rights, and not the rights of others, are infringed. I respectfully disagree with this approach. It seems clear to me from the text of section 7(4) that a person may have an interest in the infringement or threatened infringement of the right of another which would afford such a person the standing to seek constitutional relief. In addition, such an interpretation fits best contextually with the overall approach adopted in section 7(4).", "There are many circumstances where it may be alleged that an individual has an interest in the infringement or threatened infringement of the right of another. Several such cases have come before the Canadian courts. In R v Big M Drug Mart Ltd [1985] 13 CRR 64, a corporation was charged in terms of a statute which prohibited trading on Sundays. The corporation did not have a right to religious freedom, but nevertheless it was permitted to raise the constitutionality of the statute which was held to be in breach of the Charter. A similar issue arose in Morgentaler, Smoling and Scott v R [1988] 31 CRR 1 in which male doctors, \fprosecuted under anti-abortion provisions, successfully challenged the \u03a0\u03b1\u03b3\u03b5 297 O\u2019REGAN J constitutionality of the legislation in terms of which they were prosecuted. In both of these cases, the prosecution was based on a provision which itself directly infringed the rights of people other than the accused. The Canadian jurisprudence on standing is not directly comparable to ours, however, for their constitutional provisions governing standing are different, but the fact that situations of this nature arise is instructive of the need for a broad approach to standing.", "In this case, however, although the challenge is section 417(2)(b) in its entirety, the constitutional objection lies in the condition that evidence given under compulsion in an enquiry, whether incriminating or not, may be used in a subsequent prosecution. There is no allegation on the record of any actual or threatened prosecution in which such evidence is to be led.", "There can be little doubt that section 7(4) provides for a generous and expanded approach to standing in the constitutional context. The categories of persons who are granted standing to seek relief are far broader than our common law has ever permitted. (See, for a discussion, Erasmus Superior Court Practice (1994) A2-17 to A2-33.) In this respect, I agree with Chaskalson P (at paras 165 - 166). \f This expanded approach to standing is quite appropriate for constitutional \u03a0\u03b1\u03b3\u03b5 298 O\u2019REGAN J litigation. Existing common law rules of standing have often developed in the context of private litigation. As a general rule, private litigation is concerned with the determination of a dispute between two individuals, in which relief will be specific and, often, retrospective, in that it applies to a set of past events. Such litigation will generally not directly affect people who are not parties to the litigation. In such cases, the plaintiff is both the victim of the harm and the beneficiary of the relief. In litigation of a public character, however, that nexus is rarely so intimate. The relief sought is generally forward-looking and general in its application, so that it may directly affect a wide range of people. In addition, the harm alleged may often be quite diffuse or amorphous. Of course, these categories are ideal types: no bright line can be drawn between private litigation and litigation of a public or constitutional nature. Not all non-constitutional litigation is private in nature. Nor can it be said that all constitutional challenges involve litigation of a purely public character: a challenge to a particular administrative act or decision may be of a private rather than a public character. But it is clear that in litigation of a public character, different considerations may be appropriate to determine who should have standing to launch litigation. In recognition of this, section 7(4) casts a wider net for standing than has traditionally been cast by the common law. \f \u03a0\u03b1\u03b3\u03b5 299 O\u2019REGAN J", "Section 7(4) is a recognition too of the particular role played by the courts in a constitutional democracy. As the arm of government which is entrusted primarily with the interpretation and enforcement of constitutional rights, it carries a particular democratic responsibility to ensure that those rights are honoured in our society. This role requires that access to the courts in constitutional matters should not be precluded by rules of standing developed in a different constitutional environment in which a different model of adjudication predominated. In particular, it is important that it is not only those with vested interests who should be afforded standing in constitutional challenges, where remedies may have a wide impact.", "However, standing remains a factual question. In each case, applicants must demonstrate that they have the necessary interest in an infringement or threatened infringement of a right. The facts necessary to establish standing should appear from the record before the court. As I have said, there is no evidence on the record in this case which would meet the requirements of section 7(4)(b)(i). The applicants have alleged neither a threat of a prosecution in which compelled evidence may be led against them, nor an interest in the infringement or threatened infringement of the rights of other persons. This \fsituation, may have arisen because the case was referred by Van Schalkwyk J in \u03a0\u03b1\u03b3\u03b5 300 O\u2019REGAN J terms of section 102(1); it did not arise originally as an application for direct access. Accordingly, there are no affidavits before the court in support of a direct access application. The only document on the record in this court was the decision of Van Schalkwyk J.", "In his judgment, Chaskalson P has noted that, in the appeal from the judgment of Van Schalkwyk J to the Full Bench of the Transvaal Provincial Division of the Supreme Court, a majority of the court found that the applicants had demonstrated on the affidavits before that court a reasonable apprehension of harm sufficient to warrant the issue of an interim interdict. These affidavits upon which those findings were made were not before this court as part of the record, nor was the judgment of that court. It may well be that, if we had called for the record from the court a quo, it would have been sufficient to establish standing for the applicants on the basis of section 7(4)(b)(i). In my respectful view, however, this court cannot make factual findings required by section 7(4)(a) by relying on that judgment. In any event, I do not think it is necessary.", "In the special circumstances of this case, it appears to me that the applicants may rely upon section 7(4)(b)(v), as applicants acting in the public interest. The \fpossibility that applicants may be granted standing on the grounds that they are \u03a0\u03b1\u03b3\u03b5 301 O\u2019REGAN J acting in the public interest is a new departure in our law. Even the old actiones populares of Roman Law afforded a right to act in the public interest only in narrowly circumscribed causes of action. Section 7(4)(b)(v) is the provision in which the expansion of the ordinary rules of standing is most obvious and it needs to be interpreted in the light of the special role that the courts now play in our constitutional democracy.", "This court will be circumspect in affording applicants standing by way of section 7(4)(b)(v) and will require an applicant to show that he or she is genuinely acting in the public interest. Factors relevant to determining whether a person is genuinely acting in the public interest will include considerations such as: whether there is another reasonable and effective manner in which the challenge can be brought; the nature of the relief sought, and the extent to which it is of general and prospective application; and the range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity that those persons or groups have had to present evidence and argument to the court. These factors will need to be considered in the light of the facts and circumstances of each case.", "Although in this case too, section 7(4)(a) requires applicants to allege an \finfringement of or threat to a right contained in chapter 3, applicants under \u03a0\u03b1\u03b3\u03b5 302 O\u2019REGAN J section 7(4)(b)(v) need not point to an infringement of or threat to the right of a particular person. They need to allege that, objectively speaking, the challenged rule or conduct is in breach of a right enshrined in chapter 3. This flows from the notion of acting in the public interest. The public will ordinarily have an interest in the infringement of rights generally, not particularly.", "In this case, it is clear from the referral that the applicants consider that section 417(2)(b) is, objectively speaking, in breach of chapter 3. Although the challenge could be brought by other persons, a considerable delay may result if this court were to wait for such a challenge. It is also clear that the challenge is to the constitutionality of a provision contained in an Act of Parliament and that the relief sought is a declaration of invalidity. It is relief which falls exclusively within the jurisdiction of this court and it is of a general, not particular, nature. In addition, adequate notice of the constitutional challenge has been given and a wide range of different individuals and organisations have lodged memoranda and amicus curiae briefs in the matter. At the hearing also, the matter of the constitutionality of section 417 was thoroughly argued. There can be little doubt that those directly interested in the constitutionality of section 417 have had an opportunity to place their views before the court. \f \u03a0\u03b1\u03b3\u03b5 303 O\u2019REGAN J", "In these special circumstances, it seems to me that the applicants have established standing to act in the public interest to challenge the constitutionality of section 417(2)(b). It is also clear that the exceptional circumstances necessary to warrant a grant of direct access exist. Accordingly, I agree with Ackermann J that the applicants should be granted direct access in respect of the first issue referred to this court by the Transvaal Provincial Division of the Supreme Court. In my view, however, the application for direct access on the other issues referred to this court should fail. None of these issues fall within the exclusive jurisdiction of this court. They are best dealt with by the Supreme Court, as they arise in litigation before it.", "Once the court has considered and granted direct access, it must then decide the issue upon which it has granted direct access. No further considerations of standing arise. To that extent, I respectfully disagree with Ackermann J who, after granting direct access to the applicants, finds that they have no standing to challenge section 417(2)(b) on the grounds that it is in breach of section 25 (at paras 34 - 41). He does of course find that they have standing to challenge the section on the grounds that it is in breach of section 11(1). \f [239] It is now necessary to consider whether section 417(2)(b) of the Act is \u03a0\u03b1\u03b3\u03b5 304 O\u2019REGAN J unconstitutional. Section 417(2)(b) provides that, where a person has been summoned to an enquiry in connection with an investigation into the insolvency of a company, 'Any such person may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him.'", "Section 25(3) of the Constitution provides that: 'Every accused person shall have the right to a fair trial, which shall include the right - ... (d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself;' The clear consequence of section 417(2)(b) is that incriminating evidence given in a section 417 enquiry is admissible in the subsequent criminal trial of such person. In effect, that person has been compelled to give evidence against himself or herself. In S v Zuma, supra, Kentridge AJ noted that the rule that accused persons should not be compelled to give evidence in a criminal trial is a \f long-standing rule of the common law. He cited R v Camane and Others 1925 \u03a0\u03b1\u03b3\u03b5 305 O\u2019REGAN J AD 570 at 575 where Innes CJ held that: 'Now, it is an established principle of our law that no one can be compelled to give evidence incriminating himself. He cannot be forced to do that either before the trial, or during the trial. The principle comes to us through the English law, and its roots go far back in history.'", "It seems clear to me that the purpose of section 25(3)(d) is to give this common law principle constitutional force. Any departure from it will constitute a breach of section 25(3) which will have to be justified in terms of section 33. Section 33(1) requires that any limitation of a right entrenched in section 25 must be shown to be reasonable, necessary and justifiable in an open and democratic society based on freedom and equality. If the limitation passes this test, it must also be shown not to be a negation of the essential content of the right. In S v Makwanyane, supra, Chaskalson P held that section 33 requires that the purpose and importance of the infringing rule be measured against the nature and effect of the infringement (at para 104).", "There can be little doubt that the provisions of section 417(2)(b) constitute a grave inroad on an accused person's right to a fair trial. As such the infringement caused by the subsection is a substantial one which would require substantial \f\u03a0\u03b1\u03b3\u03b5 306 O\u2019REGAN J justification.", "I agree with Ackermann J (at paras 123 - 124) that the primary purpose of section 417 is to assist a liquidator in identifying the assets and liabilities of the company in the best interests of creditors. This task is greatly facilitated by the obligation imposed upon persons who have knowledge of the company to answer questions in connection with the company's affairs. However, it does not seem central to this purpose to require that any such answers be admissible in subsequent criminal proceedings. Even if the legislation had as a secondary purpose the facilitation of the prosecution of white collar offenders, I am not persuaded that this purpose could not be achieved by less invasive means as outlined by Ackermann J at para 127.", "It is my view, after weighing these considerations, that section 417(2)(b) constitutes an unjustifiable breach of section 25. In the light of this finding, it is unnecessary for me to consider whether section 417(2)(b) constitutes a breach of any of the other rights entrenched in chapter 3. In particular, I do not find it necessary to consider whether it constitutes a breach of section 11 and I decline to express any view at all on that question. For the above reasons, I concur in the order proposed by Ackermann J. \f\u03a0\u03b1\u03b3\u03b5 307 SACHS J", "SACHS J: I have had the advantage, and, I might say, the pleasure of reading the judgments of Ackermann J and Chaskalson P respectively. I concur in their conclusions, but since I agree with the critique each makes or implies of the other, I will advance my own reasons. In essence, I accept Ackermann J\u2019s contention that the issue engaged is a freedom one and not a fair trial one, and Chaskalson P\u2019s argument that the concept of constitutionally protected freedom as advanced by Ackermann J is too broad.", "It is not difficult to establish that in our system of criminal justice, the introduction of enforced confessions into criminal trials is as a general rule1 not reasonable, justifiable or necessary; the right to silence, the right not to be a compellable witness against oneself, the right to be presumed innocent until proven guilty and the refusal to permit evidence of admissions that were not made freely and voluntarily, are all composite and mutually re-enforcing parts of the adversarial system of criminal justice that is deeply implanted in our country2 and resolutely 1I say \u2018as a general rule\u2019 because special attention has to be given to the question whether answers elicited in a Companies Act enquiry constitute an exception, the tendering of which can be justified in terms of section 33(1) of our Constitution. 2It could have been different. Had Dutch overlordship in the Cape not been replaced by that of the British, we could well be extolling the virtues of the inquisitorial system of criminal justice, in terms of which \f\u03a0\u03b1\u03b3\u03b5 308 SACHS J the interrogation of potential accused persons is normal. See H R Hahlo and Ellison Kahn: The South African Legal System and its Background,Juta & Co 1968 at p576; also Jonathan Burchell and John Milton, Principles of Criminal Law, Juta & Co. 1991 at pp20-21, and CJR Dugard, South African Criminal Law and Procedure Vol IV Introduction to Criminal Procedure, Juta and Co. 1977 p26 where he says ...a welcome innovation of English origin was the abolition of the judicial practice of interrogating an accused. The accused was now warned that he was not obliged to make a statement which might incriminate him, and no confession was admissible in evidence against him unless it was shown to have been freely and voluntarily made (s.28 of Ordinance 72 of 1830). Hoffmann and Zeffert in South African Law of Evidence (4th ed) at p7, point out that this Ordinance formed a model from which virtually all subsequent South African legislation on the subject was taken. See also S v Sesetse \u2018n Ander 1981 (3) SA353(A) at 355 F, where the court stated that our criminal law is based on two principles, the first being that we have an accusatorial system where an accused is considered to be innocent until he is found guilty. \f affirmed by the Constitution.3 \u03a0\u03b1\u03b3\u03b5 309 SACHS J 3(d). 3See the fair trial guarantees contained in section 25, especially in subparagraphs 2(c), 3(c) and \f [247] What is more complex is to decide the question which logically should be \u03a0\u03b1\u03b3\u03b5 310 SACHS J anterior, namely, precisely what constitutional right, if any, would such an enforced confession unjustifiably limit? More particularly, what protected right, if any, would be violated if a potentially punishable confession were compulsorily extracted outside the context of detention or trial? By not including in the South African Constitution a general and free-floating Fifth Amendment-type prohibition against self-incrimination, the framers presumably did not intend to establish a right as powerful and generalized as that contained in the US Constitution.4 Yet the mere fact that in South Africa the right against self-incrimination is located expressly in the context of a criminal trial,5 does not mean that it was by implication excluded from other areas. Section 33(3) clearly rules out such an implication.6 At the same time, the existence of such a common law principle outside of but not inconsistent with Chapter 3, as recognized by section 33(3), 4R v S (RJ) ]121 D.L.R. (4th) 589 at p620 where Iacobucci J points out that in the United States both the accused person and the witness benefit from a constitutionalised version of the common law privilege against self-incrimination. Later he says (at p657) .....what should be obvious in the American context... is that a statute in that country which purports to abrogate a testimonial privilege is in direct violation of the Fifth Amendment. As a general rule, a statute which purports to do the same thing in Canada is in direct violation of nothing at all. The same could be said for this country. 5Section 25(2): Every person arrested for the alleged commission of an offence shall ...... have the right - ( c) not to be compelled to make a confession or admission which could be used in evidence against him or her. 25(3): Every accused person shall have the right to a fair trial which shall include the right - ( c) to be pressumed innocent and to remain silent during plea proceedings or trial and not to testify during trial; (d) ...... not to be a compellable witness against himself or herself ..... 6Section 33(3): The entrenchment of the rights in terms of this Chapter shall not be construed as denying the existence of any other rights or freedoms recognised or conferred by common law, customary \f would not in itself provide the basis for invalidating a statute. However long and \u03a0\u03b1\u03b3\u03b5 311 SACHS J honourable the pedigree of such a common law principle might be, without embodiment in a specific constitutional text, it could not render a statute unconstitutional; we deal not with rights in the air, but with rights anchored in the wording of the Constitution. Furthermore, we are concerned not with invasion of rights in abstract but with infringements of rights at a particular time and in a concrete factual setting.", "The specific question we have to decide is not what constitutional rights of the examinee could be violated as a matter of abstract reasoning, nor what rights could be infringed at a subsequent criminal trial, but, rather, what rights, if any, are violated at the moment that he or she is summoned to answer questions about the company\u2019s affairs, or, more particularly, when the potentially incriminating questions are put. I have difficulty in accepting that the examinee\u2019s right to a fair trial as guaranteed by section 25 of the Constitution is trespassed upon at that moment. It may be that the examinee\u2019s right to have a fair trial at law or legislation to the extent that they are not inconsistent with this Chapter. \f some time in the future is threatened, and in a manner far from academic, \u03a0\u03b1\u03b3\u03b5 312 SACHS J namely, by the express provision that the answers may indeed by used against him or her at a subsequent criminal trial. What might have been fair compulsion in the context of reconstituting information about the affairs of the company, could cease to be fair when it becomes a forced confession, actually tendered for the purposes of a criminal trial. Yet even if the examinee\u2019s right to a fair trial in the future is being threatened, the examinee is still not an \u2018arrested\u2019 or an \u2018accused\u2019 person as contemplated by section 25, and might never become such. The time to assert a fair trial right would be when a trial was pending or imminent, and the use of the incriminating answers actually threatened. In the absence of imminent prosecution, the jeopardy in which the examinee is placed relates to the potentially unconscionable and concrete pressures of the moment, rather than the hypothetical, even if grave, possibility of future penalisation. What is in issue, then, is a right to a fair examination, not a right to a fair trial.", "In this connection, I find myself in agreement with Ackermann J that the answer to the problem before us is to be found in a recognition of the existence of a residuary and unenumerated right protected by section 11(1).7 At the same 7Virtually all the judges in R v S (RJ) and Thomson Newspapers v Canada, 67 DLR (4th) 161, located the right against self-incrimination in a residual protection against self-incrimination under section 7 of the Canadian Charter, which deals with life, liberty and personal security, rather than in a penumbra \f time, I am far from convinced that the concept of freedom contained in section \u03a0\u03b1\u03b3\u03b5 313 SACHS J relating to the specific Charter provisions dealing with protections accorded to an accused in the course of a trial. Freedom comes from two barrels of our Constitution, the protected freedom interest in section 11, and the interpretive freedom value in section 35(1). One might say that freedom is squared. In my view, the case before us lends itself readily to treatment in terms of the freedom interest contained in section 11, as interpreted by the freedom value urged upon us by section 35(1). I accordingly do not find it necessary to offer a definitive opinion in the the present case as to whether or not a fair trial right can be said actually to be threatened. \f 11(1) should be given as expansive a treatment as Ackermann J suggests,8 or \u03a0\u03b1\u03b3\u03b5 314 SACHS J that the residual space is as large as he indicates. I accordingly offer the following tentative observations to indicate where I differ. 8To replicate the broad American approach to liberty in the context of the structure of our Constitution, would mean that just about every law would, simply by virtue of its compulsory character, represent an invasion of freedom and as such have to be justified by section 33(1) criteria. The two-stage enquiry which our Court normally adopts - see S v Zuma 1995 (4) BCLR 401; S v Makwanyane and another 1995 (6) BCLR 665 (CC); S v Williams and others 1995 (7) BCLR 861 (CC) - would in effect be reduced to a one-stage enquiry. The further consequence would be to over-extend the judicial power by allowing this Court to review virtually all legislation in terms of its \u2018necessity\u2019. In addition, there is the danger of many of the remaining provisions of Chapter 3 being subsumed under the right to freedom and becoming redundant, with consequent impoverishment of the texture of the Chapter and a weakening of its internal balance. Sometimes less is more - a narrowly defined concept of freedom can be more easily defended against invasion than a broad one - see Peter W Hogg - Constitutional Law of Canada, 3ed (1992) Carswell Chapter 4. \f [250] To equate freedom simply with autonomy or the right to be left alone does not \u03a0\u03b1\u03b3\u03b5 315 SACHS J accord with the reality of life in a modern, industrialized society.9 Far from violating freedom, the normal rules regulating human interaction and securing the peace are preconditions for its enjoyment. Without traffic regulation, it would be impossible to exercise freedom of movement in a meaningful sense; absent government compulsion to pay taxes, the expenditure necessary for elections to be held, for Parliament to pass legislation, or for this court itself to uphold fundamental rights, would not be guaranteed. The rechtsstaat, as I understand it, is not simply a state in which government is regulated by law and forbidden to encroach on a constitutionally protected private realm. It is one where government is required to establish a lawfully regulated regime outside of itself in 9Thomson Newspapers v Canada supra note 7 per La Forest J. at p220 .....in a modern industrialised society it is generally accepted that many activities in which individuals can engage must never the less to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self- interest is compatible with the community's interest in the realization of collective goals and aspirations. He goes on to point out at 228 that ..... the ultimate justification for a constitutional guarantee of the right to privacy is our belief...that it is for the individual to determine the manner in which he or she will order his or her private life.....to decide what persons or groups he or she will associate with. One does not have to look far in history to find examples of how the mere possibility of the intervention of the eyes and ears of the state can undermine the security and confidence that are essential to the meaningful exercise of the right to make such choices. But where the possibility of such intervention is confined to business records and documents, the situation is entirely different. These records and documents do not normally contain information about one's lifestyle, intimate relations or political or religious opinions. They do not, in short, deal with those aspects of individual identity which the right of privacy is intended to protect from the overbearing influence of the state. On the contrary...... it is imperative that the state have power to regulate business and the market both for economic reasons and for the protection of the individual against private power. Given this, state demands concerning the activities and internal operations of business have become a regular and predictable part of doing business. (My emphasis.) \f which people can go about their business, develop their personalities and pursue \u03a0\u03b1\u03b3\u03b5 316 SACHS J individual and collective destinies with a reasonable degree of confidence and security.10 I accordingly cannot accept that the laws that guarantee my freedom - for example, my right to vote, or to litigate, or to receive education - represent invasions of my freedom, simply because they are subject to governmentally enforced rules and contain penal clauses. We should ever be mindful of the fact that the review powers of this Court are not concerned with maintaining good 10See Dennis Davis, Matthew Chaskalson and Johan de Waal, The Role of Constitutional Interpretation in Rights and Constitutionalism Van Wyk et al eds, Juta 1994 at p88 The classical approach sees rights as the protection of those historically vulnerable areas of individual and societal freedom against state interference. The individual's dependence on the state for the realisation of his/her rights and the individual's need for protection from societal infringements of his/her rights is addressed by the objective dimension. The state must therefore establish the necessary social preconditions for the exercise of Grundrechte. And at p100: \f government, or correcting governmental error, but with keeping government \u03a0\u03b1\u03b3\u03b5 317 SACHS J within constitutional limits.", "The reality is that meaningful personal interventions and abstinences in modern society depend not only on the state refraining from interfering with individual choice, but on the state helping to create conditions within which individuals can effectively make such choices. Freedom and personal security are thus achieved both by protecting human autonomy on the one hand, and by acknowledging human interdependence on the other.11 The interdependence is not a limitation on freedom, but an element of it. It follows that the definition of freedom requires not the exclusion of inter-dependence, but its embodiment, bearing in mind that such incorporation should be accomplished in a manner which reinforces rather than undermines autonomy and upholds rather than p461, 11Dawn Oliver, The Changing Constitution, 3rd ed, Jowell and Oliver eds, Clarendon Press (1994) To define people as autonomous individuals is to underestimate the extent to which we are, inevitably and indeed beneficially, dependent on one another. Lawrence Tribe, American Constitutional Law, 2nd ed, p1305, Meaningful freedom cannot be protected simply by placing identified realms of thought or spheres of action beyond the reach of government, anymore than it can be defended entirely by establishing minimum levels of specific services for government to provide. Nedelsky, Reconceiving Rights as Relationships, p7, paper delivered at the Centre for Applied Legal Studies, University of Witwatersrand (1993), quoted in van Wyk et al p63 dependence is no longer the antithesis of autonomy, but a pre-condition in the relationships - between parent and child, student and teacher, state and citizen - which provide the security, education, nurturing and support that make the development of autonomy possible ... the collective is a source of autonomy as well as a threat to it. See also, Nedelsky, Private Property and the Limits of American Constitutionalism, University of Chicago Press (1990). \f reduces the value of maximising effective personal choice. \u03a0\u03b1\u03b3\u03b5 318 SACHS J", "In my view, the values of an open and democratic society require an application of Chapter 3 which is centred on what - in a culture dedicated to freedom and equality - have come to be regarded as real issues of fundamental rights.12 Ordinary rights are protected by the common law and statute;13 only fundamental rights are safeguarded by the Constitution.14 The Constitution accordingly requires this Court to focus its attention on real and substantial infringements15 of (4th) 385 at p493 per McIntyre J (dissenting) 12For a Canadian example of this kind of reasoning see Morgantaler v Queen (1988) 44 D.L.R. to invade the s.7 right of security of the person, there would have to be more than state-imposed stress or strain. A breach of the right would have to be based upon an infringement of some interest which would be of such nature and such importance as to warrant constitutional protection. The majority of the court in that case, which dealt with abortion, felt that the physical and psychological integrity of the pregnant woman did engage such an interest. 13In terms of section 35(3), in the interpretation of any law and the application and development of common law and customary law, a court shall have due regard to the spirit, purport and objects of Chapter 3. Chapter 3 is headed \u2018Fundamental Rights\u2019. Guarding the fundamental rights framework is the function of this Court; interpreting and developing the law within this framework is the task of the ordinary courts. 14If one looks at other rights entrenched in our Constitution, then the need to impose sensible functional restrictions on the circumstances where proof of reasonable limitation is required, becomes even clearer. Thus, the right to dignity is expressed in a totally unqualified manner in section 10. Could this mean that every statute and each and every action by a state official causing embarrassment, discomfort or a loss of composure to any person, would have to be justified in terms of section 33(1) criteria? Could it be appropriate to regard the right to dignity as being so wide as to catch the fragments of state-induced inconvenience that escape even the residuary net said to be provided by the right to freedom? To carry the matter even further, could the right to privacy be the ultimate barrier, requiring justification of any state action whatsoever? 15In R v Edwards Books and Art Ltd (1986) 35 D.L.R. (4th) 1 at p55 Dixon CJC wrote in my opinion \u2018liberty\u2019 in s.7 of the Charter is not synonymous with unconstrained freedom. In another case, Reference re s.94(2) of Motor Vehicle Act (1985), 24 D.L.R. (4th) 536 at 565 Wilson J observed: Indeed, all regulatory offences impose some restriction on liberty broadly \f fundamental rights, and not to risk dispersing energies, losing its sharp critical \u03a0\u03b1\u03b3\u03b5 319 SACHS J gaze and over-extending its legitimate functioning, by being drawn into testing the reasonableness or necessity for each and every piece of regulation undertaken by the State.", "For the purposes of the present case, I accordingly regard Ackermann J\u2019s valuable analysis as providing a broad framework within which to approach the question of freedom, rather than as establishing a focused and operational definition of the concept. I find his approach particularly useful as a guide to what construed. But I think it will trivialize the Charter to sweep all those offences into s.7 as violations of the right to life, liberty and security of the person even if they can be sustained under s.1. See also her remarks in Operation Dismantle Inc (1985) 1SCR 441 at pp489-91; Patrice Garant in The Canadian Charter of Rights and Freedom, Beaudoin and Ratushny eds, (1989) Carswell 2nd ed at p352: Countless standards, provisions and measures which affect the security of individual citizens are established by public authorities. Would it be necessary to see in each case an interference with or threat to the security of the individual? \f is meant by the values of freedom and equality which the Constitution requires \u03a0\u03b1\u03b3\u03b5 320 SACHS J us to promote. Freedom and equality are at one and the same time in tension with each other, and mutually supportive; in the context in which the Constitution has to be interpreted, the quest for equality should not be used as a justification for suppressing freedom, just as the need to protect freedom should not become a means for denying equality.", "In relation to the definition of what is meant by the words \u2018freedom and personal security\u2019 in section 11(1), I therefore believe that something more is required than a broad philosophical framework allied to a concept of residual, constitutionally protected liberty. My view is that it is not necessary for the purposes of this case to go beyond treating freedom and personal security as two elements of a single basic right which encompasses protection from interferences, of a substantial rather than a trivial kind, with the basic freedoms known to our legal culture, of which freedom from physical restraint is the most pungent example, but not the \f only one.16 \u03a0\u03b1\u03b3\u03b5 321 SACHS J 16The definition which I propose, is, unavoidably I believe, the result of a certain degree of circular reasoning. In my view, it is inevitable that the definitional ambit of section 11 should be influenced by a considered evaluation, structured by the text and the overall purposive design of the Constitution, as to the kinds of state intervention that by their nature are so potentially injurious to fundamental rights, that they can only be condoned if they meet the strict justificatory requirements of section 33. For a forceful critique of this kind of \u2018definitional balancing\u2019, however, see David Beatty, Constitutional Law in Theory and Practice, Toronto (1995) at p84 et seq. \f [255] The text of section 11, which includes a prohibition against detention without trial, \u03a0\u03b1\u03b3\u03b5 322 SACHS J as well as the exclusion of torture and other forms of physical and emotional ill- treatment, indicates a narrow concern with the theme of bodily restraint or abuse, rather than a sweeping repudiation of any impediment whatsoever to the orderly pursuit of happiness. On the other hand, the express acknowledgement of the rights to dignity and privacy in sections 10 and 13 respectively, read together with the preamble and the afterword, establish a setting which allows for a more expansive role for the word freedom. Similarly, the general injunction to interpret Chapter 3 in such a way as to promote the values which underlie an open and democratic society based on freedom and equality, also encourages a broad rather than a narrow interpretation of the concept of freedom. Where the text permits, the different provisions should be read together in such a way as to maintain rather than reduce hard-won freedoms.17 The antiquity of an institution is, of course, no guarantee in itself of its constitutional virtue.18 Yet tried and he said at para 33, 17This is consistent with the approach adopted by Kentridge AJ in S v Zuma supra note 8, where I therefore consider that the common law rule on the burden of proof is inherent in the rights specifically mentioned in section 25(2) and 3( c) and 3(d), and forms part of a right to a fair trial. In so interpreting these provisions of the Constitution I have taken account of the historical background, and comparable foreign case law. I believe too that this interpretation promotes the values which underlie an open and democratic society and is entirely consistent with the language of section 25. 18Garant supra note 15 at p344 points out that in Canada certain fundamental legal traditions, such as those associated with patriarchy and the treatment of aboriginal people, were in fact in contradiction with the Charter. Quoting Tanya Lee in Section 7 of the Charter: An Overview (1985) 43 U.T. Fac. L. Rev. 1 at p8 where she states .....the traditions of a society are not necessarily admirable. \f tested principles generally associated with fundamental fairness and manifestly \u03a0\u03b1\u03b3\u03b5 323 SACHS J in harmony with the Constitution, should, if the text so allows, be subsumed into rather than blotted out from the Constitution. The afterword to our Constitution speaks unequivocally of a past characterised by untold suffering and injustice and gross violations of human rights. \f\u03a0\u03b1\u03b3\u03b5 324 SACHS J [256] The question arises whether or not a violation of the privilege against self- incrimination could enter into this penumbra of protected liberties. I think it would be incorrect to regard the express inclusion of protections against self- incrimination in section 25(2) and 25(3) in favour of detained or accused persons, as representing an intention by the framers to restrict the right purely to the pre- trial and trial situations. I feel it is more appropriate to regard these provisions as constituting evidence in a particularly pungent and impermeable form of a wider underlying and unifying principle, that which in Canada has been summed up as \u2018the case to meet\u2019.19 One\u2019s right to freedom and personal security is jeopardised when any part of this inter-related structure is touched. In the celebrated words of Mr Justice Frankfurter; the history of liberty has largely been the history of procedural observance of safeguards.20 Freedom and procedural safeguards are closely inter-related, and the principal focus of this Court's activity should accordingly not \"lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice 19See Iacobucci J in R v S (RJ) supra note 7 at p632. In Thomson Newspapers supra note 7 at p195 Wilson J quotes Stephen\u2019s classic statement of what is meant by the phrase \u2018criminating himself\u2019, It is not that a man must be guilty of an offence and say substantially, \u2018I am guilty of the offence, but am not going to furnish evidence of it.\u2019 I do not think the privilege is so narrow as that, for then it would be illusory. The extent of the privilege is I think this: the man may say \u2018if you are going to bring a criminal charge, or if I have reason to think a criminal charge is going to be brought against me, I will hold my tongue. Prove what you can, but I am protected from furnishing evidence against myself out of my own mouth\u2019. 20McNabb v. United States 318 U.S. 332 at 347 (1943). \f system\"21 . \u03a0\u03b1\u03b3\u03b5 325 SACHS J 21Per Lamer J, as he then was, in Reference re s.94(2) of Motor Vehicle Act, supra note 15 at p549-50. He was dealing with the 'principles of fundamental justice' in the Canadian Charter. \f [257] Adopting this approach, which I do, allows for an amplified interpretation of the \u03a0\u03b1\u03b3\u03b5 326 SACHS J concept of freedom and personal security, one capable of giving shelter under its wing to protections which have evolved over the ages against abusive state power while recognising that such protections will be primarily, but by no means exclusively, related to freedom from physical restraint. The words of section 11 should then be construed in such a manner as to provide constitutionally defensible space against invasions of freedom of a kind analogous in character and intensity to the imposition of physical restraint. Legal traditions, both positive and negative, would help to define what this analogous or penumbral area would include: legal institutions developed and applied in the past with a view to curtailing abusive State action, would readily fit; similarly, negative memories of past oppressive State behaviour in our country and elsewhere, would help define whether or not a freedom issue is being raised.22 The first step is to establish the existence of what is a real or substantial invasion of freedom, and not a normal regulatory act;23 only when this is done should the need to justify the infringement arise. Once a substantial breach of this kind has been shown to 22The \u2018never again\u2019 principle as in the USA after Independence and Germany after the Second World War, has particular relevance in respect of interpreting our Constitution. In the present context, issues such as banning orders and abusive use of Commissions of Enquiry, come to mind. Professor Dugard, supra note 2 at p86, writing contemporaneously, shows how the fairness of trials in security matters was jeopardized by pre-trial interrogations of witnesses and potential accused in solitary confinement, even where their statements were not directly used in evidence at subsequent trials. 23See discussion in paras 250 - 252. \f exist, however, the scrutiny for justification required by section 33(1) can be truly \u03a0\u03b1\u03b3\u03b5 327 SACHS J stringent.24 24See Hogg supra note 8. \f [258] In my view, a breach of the long-standing right not to be compelled to incriminate \u03a0\u03b1\u03b3\u03b5 328 SACHS J oneself out of one\u2019s own mouth would, in any context, raise a question of fundamental freedom. At the same time, the absence of an explicitly stated generalized right against self-incrimination in the Constitution, indicates that the operation of the principle outside of a trial situation is weaker than within. The privilege against self incrimination should therefore neither be reduced to a restricted immunity confined to the trial situation, nor be enlarged so as to become an absolute right to be used on all occasions. Its application depends on time, place and context.25 The closer to a trial situation, the more powerful the principle; the more remote from a trial, the weaker it will be. Thus there would be little scope, if any at all, for possible weakening of the right of a detained or accused person [so firmly protected by sections 25(2) and 25(3)] not to be compelled to testify. The interests of shareholders and creditors, however aggrieved they may feel, would not even be put into the balance in this context, 25Per Iacobucci J in R v S (RJ) supra note 7 at p636: the principle against self-incrimination may mean different things at different times and in different context [It] admits of many rules. See also Lord Mustill\u2019s reference in Reg. v Director of Serious Fraud Office, Ex p. Smith [H.L.(E)] 1993 A.C. p1 at p24G, to what is compendiously, albeit inaccurately, called the \u2018right of silence\u2019. A term which arouses strong but unfocused feelings (but) does not denote any single right, but rather refers to a disparate group of immunities, which differ in nature, origin, incidence and importance at p30F. One of these motives is the instinct that it is contrary to fair play to put the accused in a position where he is exposed to punishment whatever he does. If he answers, he may condemn himself out of his own mouth: if he refuses he may be punished for his refusal ...... \f let alone weighed. Their very real concerns are subsumed into the general \u03a0\u03b1\u03b3\u03b5 329 SACHS J interest of the community in ensuring that crime does not pay and criminals are duly punished. The further away from the trial situation one gets, however, and the more residual rather than primary the application of the privilege, the more does it submit itself to countervailing interests. Accordingly, the claims of shareholders and creditors would firmly enter the scales at a section 417 enquiry, to be balanced against the principle that people should not be compelled to condemn themselves out of their own mouths. at p32B. \f [259] Similarly, the more that self-incrimination takes the form of oral communication, \u03a0\u03b1\u03b3\u03b5 330 SACHS J the more compelling will the protection be; the more objective or real the existence of the incriminating material, on the other hand, the more attenuated. Accordingly, pre-trial procedures of a non-communicative or non-testimonial kind, such as compulsory fingerprinting, blood tests, blood-alcohol tests, attendance at identity parades, DNA and other tests of an objective nature,26 or, in company fraud matters, hand-writing tests, all of which would seem to fall directly under the concept of freedom and personal security, have become well-established processes regarded in many parts of the world as being consistent with the 26L'Heureux-Dube J in R v S (RJ) supra note 7 at p702-3 mentions that all these activities enlist the individual's co-operation in his or her own investigation. The dignity of the individual, she says, is a fundamental value underlying both the common law and the Charter. Although the search of an individual's home is an invasion of privacy, and although the taking of fingerprints, breath samples or bodily fluids are even more private, there is no doubt that the mind is the individual's most private sanctum. Although the state may legitimately invade many of these spheres for valid and justifiable investigatory purposes vis-a-vis the accused, it is fundamental to justice that the state not be able to invade the sanctum of the mind for the purpose of incriminating that individual. This fundamental tenet is preserved, in its entirety, by the principle against self-incrimination.' I would support this approach. \f values of an open and democratic society based on freedom and equality, and in \u03a0\u03b1\u03b3\u03b5 331 SACHS J suitably controlled conditions, would have far less difficulty in passing section 33 scrutiny in terms of our Constitution.", "Section 417 procedures involve both oral and documentary elements, and cover areas that are both far removed from the context of a criminal trial and quite proximate to it. Its most remote aspect in relation to the privilege against self- incrimination is the summons to appear at the enquiry. In my view, applying the reasoning advanced in the earlier part of this judgment, this obligation to attend the enquiry and submit to questions does not raise a question of fundamental freedom as envisaged by section 11. The holding of an enquiry is an integral part of regulating companies. The duty to attend such an enquiry after the company has failed, flows not from intrusive State action, but from the need to wind up the company in an orderly way and protect the interests of creditors and shareholders. As far as the company director or other official is concerned, it goes with the job, and does not require section 33(1) justification. Similarly, I would hold that the compulsion to answer non-incriminating questions does not constitute an infringement of section 11 rights of sufficient substance to require special sanction in terms of section 33(1). \f \u03a0\u03b1\u03b3\u03b5 332 SACHS J", "Section 417 read with section 424 goes further, however. The examinee is obliged to answer questions which may be incriminating;27 and the answers may be used in subsequent criminal proceedings.28 Once one enters the zone of possible self-incrimination and potential punishment, a freedom interest is clearly engaged, and section 33(1) justification is required. In my opinion, the compulsion to answer all questions dealing with stewardship of the company, whether incriminating or not, can be justified in terms of section 33 criteria with relative ease. The whole purpose of getting to the bottom of the collapse so as to inform and reimburse as much as possible those who invested or traded in good faith, would be defeated if the director could shield him or herself behind the right not to answer incriminating questions. It is precisely in areas where assets have been fraudulently disposed of, that specially penetrative investigations for their recovery might be required. Company directors and other officials who appeal to the public for funds and engage in public commercial activity with the benefit of not being personally liable for company debts, cannot complain if they are 27Section 417(2)b, first part. 28Section 417(2)b, latter part. In terms of section 424(1) and (3) concerning liability of directors and others for fraudulent conduct of business every person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be guilty of an offence. \f subsequently called upon to account for their stewardship, at least, for the \u03a0\u03b1\u03b3\u03b5 333 SACHS J purposes of discovering all assets so as to minimize the loss to creditors and give full information to shareholders. When raising funds and trading with the protection of not being personally liable for company debts, the company officials implicitly undertake to submit to such enquiry, and effectively waive in advance any claim not to answer questions of an incriminating kind that relate to their management of the company\u2019s affairs. Indeed, it would be ironical if crooked directors were more able to avoid submitting themselves to enquiry than honest ones.29 The problem therefore lies not in the interrogation per se, however, discomfiting to the examinee it might be, but in the knowledge that the answers can be used in subsequent criminal proceedings. It is this that gives rise to the constitutionally questionable situation of being damned with prison if you do, and damned with prison if you don\u2019t. Hence the examinee\u2019s quadrilemma: confess to a crime, refuse to answer, commit perjury, or seek refuge in the Constitutional Court.30 Justification in terms of section 33(1) for using state compulsion to 29MacKenna J in Regina v Harris (Richard) and another, 1970 (1) WLR 1252 G. 30Iacobucci J in R v S (RJ) supra note 7 at p635 quotes Wigmore as referring to the 3 horns of the triceratops - harmful disclosure, contempt, perjury. Mr Justice Goldberg converted this into the cruel trilemma of self-accusation, perjury or contempt. Murphy v Waterfront Com. of New York Harbor 378 U.S. 52 (1964) 678 at 681. The full quotation bears repetition: The privilege against self-incrimination ..... reflects many of our fundamental values and most noble aspirations: Our unwillingness to subject those suspected \f create such a situation is accordingly far more difficult to achieve. \u03a0\u03b1\u03b3\u03b5 334 SACHS J", "This is not to say that no case can be made out for justifying interrogatory procedures not only to collect information but also to help secure the conviction of fraudulent company officials, that is, for elements of the inquisitorial system of criminal justice to be used in our procedures for the specific purpose of combatting company fraud. This would not constitute a startling innovation but, rather, represent the continuation of an established practice. In the well known English case of Reg. v Scott,31 Lord Campbell said that the interpolation of an implied clause to the effect that the examination should not be used as evidence of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair-play which dictates \u2018a fair state-individual balance by requiring the government to leave individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load\u2019; our respect for the inviolability of the human personality and of the right of each individual \u2018to a private enclave where he may lead a private life\u2019; our distrust of self-deprecatory statements; and our realisation that the privilege, while sometimes \u2018a shelter to the guilty\u2019 is often \u2018a protection to the innocent\u2019. \f against the bankrupt on any criminal charge, would be more likely to defeat than \u03a0\u03b1\u03b3\u03b5 335 SACHS J to further the intention of the legislature. Considering the enormous frauds practised by bankrupts upon their creditors, he observed, the object may have been, in an exceptional instance, to allow a procedure in England universally allowed in many highly civilised countries. This was in 1856. More recently, Lord Mustill has pointed out that the statutory interference with the right against self-incrimination is almost as old as the right itself. Since the 16th century, he says 31(1856) Dears. & B. 47 at p58. \f \u03a0\u03b1\u03b3\u03b5 336 SACHS J legislation has established an inquisitorial form of investigation into the dealings and assets of bankrupts which is calculated to yield potentially incriminating material, and in more recent times there have been many other examples in widely separated fields, which are probably more numerous than is generally appreciated.32", "The question must, however, still be asked: does the fact that the exception is a longstanding one mean that it would constitute a reasonable, justifiable, and necessary limitation of the general protection accorded against self- incrimination? It is, of course, not for the Constitution to conform to legislation, however antique the latter may be, but for legislation to be consistent with the Constitution.33 Nevertheless, the well-established nature of the legislative 32Reg. v Director of Serious Fraud Office, Ex p. Smith supra note 25 at p40 D-E. It should be borne in mind that these remarks were made in the context of the interpretation of a statute where parliamentary supremacy prevailed and no issue of constitutionally inviolable fundamental rights could be raised. Furthermore, the statute in question expressly excluded the use of answers in a subsequent criminal trial. Nevertheless, the passage does indicate that the common law privilege against self- incrimination has, as far as company officials are concerned, been honoured as much in the breach as in the observance. 33Section 4(1) of the Constitution reads This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall, unless otherwise provided expressly or by \f exception, both in our country34 and abroad, when measured against the \u03a0\u03b1\u03b3\u03b5 337 SACHS J relatively inchoate and adaptive nature of the common-law principle, indicates that it could well pass the test at least of reasonableness and justifiability. In S v Zuma, supra, Kentridge AJ asked why it should be thought reasonable to undermine a long-established and now entrenched right. In the present case, however, the limitation itself is almost as ancient as the right it impinges on, and furthermore the right is not directly and robustly entrenched, but only subsumed in a residuary manner into a broader right. This would, of necessary implication in this Constitution, be of no force or effect to the extent of the inconsistency. See the remarks by Wilson J on a similar provision in the Canadian Charter, in the Thomson Newspapers case supra note 7 at p203. 34As Ackermann J points out in paras 118 - 119, legislation in the Transvaal, the commercial hub of the country, has, at least since 1926, expressly authorised the use of incriminating answers in subsequent criminal proceedings. \f course, not make it a \u2018lesser right\u2019 as such, but would affect its intensity and \u03a0\u03b1\u03b3\u03b5 338 SACHS J weight in the balancing process.", "In South Africa today, \u2018enormous fraud\u2019 is unfortunately a continuing occurrence. As I have said, it might well be reasonable and justifiable to continue with inquisitorial procedures against officials of failed companies. The public interest undoubtedly requires both that fraudulent dealings be exposed and set aside where possible, and that those responsible be punished. The corporate veil functions not only at the legal level to promote corporate identity and create the conditions for limited liability, but also at the evidential level to hide the doings of dishonest company officials. Front companies and nominee holdings can obscure the true economic nature of transactions. Frauds can be intricate, take place over a long period of time, and depend on the effect of activities which in their separate detail appear lawful, but in their cumulative conjunction are fraudulent. There is no \u2018smoking gun\u2019 to be detected by ordinary police enquiry methods. Yet, even allowing for the fact that special procedures of ancient provenance, designed to pierce the corporate veil and ensure that fraud is properly uncovered and punished, may pass the tests of reasonableness and justifiability, do they as well overcome the third hurdle provided by section 33(1) in relation to section 11, namely, that they are necessary? \f\u03a0\u03b1\u03b3\u03b5 339 SACHS J [265] The concept of necessity gives central place to the proportionality of the means used to achieve a pressing and legitimate public purpose.35 In positive terms, the public interest served by the challenged provisions would have to be so compelling as clearly to outweigh the questionable pressure to which the examinees would be put at the time of their interrogation, and the consequent sense of unfairness that would flow from their being obliged to convict themselves out of their own mouths. Expressed negatively, the burden imposed should not go beyond what would be strictly required to meet the legitimate interests both of shareholders and creditors and of society as a whole. The means adopted by Parliament should thus be shown to fall within the range of options which would not be unduly burdensome, overbroad or excessive, considering all the reasonable alternatives. In making this assessment of proportionality, a structured value judgment, taking account of all the established elements, is required. Applying what I consider the wise counsel of Dickson CJC of the Canadian Supreme Court to focus on the synergetic relation between the values underlying the Charter and the circumstances of the particular case,36 I have grave doubts as to whether the materials placed before us indicate that the test of necessity has been met. 35In Coetzee v Government of the Republic of South Africa and Matiso and others v Commanding Officer Port Elizabeth Prison and others 1995 (10) BCLR 1382 at paras 55 - 60, I had occasion to cite a large number of international instruments and commentaries on the subject, and I will not repeat them here. 36R v Keegstra (1990) 3 C.R.R. (2d) 193 at p221. \f [266] The Serious Economics Offences Act,37 which, with the sole objective of \u03a0\u03b1\u03b3\u03b5 340 SACHS J investigating economic crimes, establishes inquisitorial procedures not dissimilar to those contained in section 417, expressly immunises answers from subsequent use at a criminal trial.38 There is nothing before us to show why the legislature can balance the securing of effective investigatory capacity, and the maintenance of sensitivity to basic rights, when it comes to fraud investigated as such in terms of the Serious Economic Offences Act, and not manage to do so in respect of fraud discovered as a result of a broader enquiry in terms of section 417 of the Companies Act. Similarly, the Insolvency Act provides that no evidence regarding questions and answers at an Insolvency Enquiry shall be admissible in subsequent criminal proceedings.39 Far from being manifestly necessary, therefore, the provisions of section 417(2)(b) appear to be out of step with what is considered appropriate in sibling statutory material.", "I would add that unfortunate experiences in the past suggest that we should 37Act No. 117 of 1991. 38See section 5(b); No evidence regarding any questions and answers contemplated in paragraph (a) shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge contemplated in subsection (10) (b) or (c), or in section 319 (3) of the Criminal Procedure Act, 1955 (Act No. 56 of 1955). These latter exceptions refer essentially to perjury and making contradictory statements on oath. 39Act No. 24 of 1936 section 65(2A)(b); the only exceptions relate to the giving of false evidence or the failure to answer lawful questions fully and satisfactorily. \f exercise great caution in accepting any departure from the \u2018case to meet\u2019 \u03a0\u03b1\u03b3\u03b5 341 SACHS J principle. Failure to do so could open up the way to justifying pre-trial interrogations of persons suspected of treason or sedition, and the wheel could then turn full circle, with the Star Chamber - type inquisition which gave rise to the right against self-incrimination in the first place, ending up being legitimized by the very chapter in the Constitution designed to protect fundamental rights. In the words, once more, of Mr Justice Frankfurter,40 No doubt the constitutional privilege (against self-incrimination), may, on occasion, save a guilty man from his just deserts. It was aimed at a more far- reaching evil - a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. Having had much experience with a tendency in human nature to abuse power, the Founders sought to close the doors against like future abuses by law enforcing-agencies. 40In Ullman v United States, 350 U.S. 422 (1956) at p428. \f The framers of our Constitution no doubt had more recent South African \u03a0\u03b1\u03b3\u03b5 342 SACHS J experience in mind when they drafted Chapter 3.41 41Writing in 1977, Professor Dugard supra note 2 points out supra at p86, While the Criminal Procedure Act introduces a procedure with slight resemblances to the inquisitorial system, \u2018the drastic process\u2019 has produced a procedure with striking similarities to the inquisitorial method. The 90 day detention law (section 17 of Act No. 37 of 1963), the 14 day detention law(section 22 of Act No. 62 of 1966), section 6 of the Terrorism Act and section 13 of the Abuse of Dependence-producing Substances and Rehabilitation Centres Act all authorise police interrogation in solitary confinement before the arrested person is brought to trial .....Thus as an example of the inquisitorial method it is closer to the Roman-Dutch extra-ordinary procedure than it is to modern continental inquisitorial methods where the person subjected to interrogation is assured all the guarantees normally accorded to a person under the accusatorial system. (Original emphasis). \f [268] To sum up: I agree with the implications of Ackermann J\u2019s judgment that section \u03a0\u03b1\u03b3\u03b5 343 SACHS J 417 should not be seen as a piece of criminal procedure legislation deliberately targeting company officials for specially harsh treatment, but rather as an integral part of an Act designed to consolidate the law relating to companies. If meaningful regulation of companies requires compulsory disclosure of information to interested persons while the company is in existence, such a duty to \u2018come clean\u2019, or in modern parlance to manifest transparency, should not cease, but if anything become stronger, when the company enters its demise. The duty to disclose does not entirely eliminate the right against self- incrimination, but does attenuate it. When the principle of the duty to reveal all material information is balanced against the privilege against self-incrimination, the scales come to rest in such a way as to compel the production of the testimony, while ensuring that it is not used in evidence at a criminal trial.42 The granting of use immunity thus saves the authorities from being put to an invidious (and not necessary) election between the option of examining and recovering, on the one hand, and that of prosecuting and punishing, on the other. The public 42The judges in both Thomson Newspapers case supra note 7 and R v S (RJ) supra note 7 were all agreed that use immunity should be co-extensive with the oral testimony given. They disagreed on the question of derivative immunity. The coupling of compellability with protection in the form of evidentiary immunity, was regarded as a unique Canadian balancing of individual and societal interests. See Iacobucci J in R v S (RJ) at p649. In Thomson Newspapers case at p246 La Forest J said A right to prevent the subsequent use of compelled self-incriminating testimony protects the individual from being \u2018conscripted against himself\u2019 without simultaneously denying an investigator's access to relevant information. It strikes a just and proper balance between the interests of the individual and the \f interest requires that both possibilities remain open, subject to the former not \u03a0\u03b1\u03b3\u03b5 344 SACHS J trespassing unduly on the latter.43 Once the provision authorizing the admission of the answers at a subsequent criminal trial is removed, and use immunity is state. 43I agree with Ackermann J that at this stage that we are not called upon to make a definitive finding on whether the use of derivative evidence, or so called \u2018clue facts\u2019, should at the subsequent criminal trial automatically be regarded as either permissible or impermissible. The trial court would, at that stage, not be dealing with the \u2018fruits of a poisoned tree\u2019, but rather with the product of a legitimate and legally controlled enquiry. Nor would it be concerned with evidence existing solely of words used by the accused, but instead with objective evidence existing independently of any oral communication. In addition, if all incriminating evidence possibly derived from the examinee\u2019s answers were automatically to be excluded in the same way as the incriminating answers themselves, then a subtle and crooked examinee could gain effective immunity from prosecution by answering questions in such a manner as to cover all possible sources of evidence at a subsequent criminal trial. In Thomson Newspapers case supra note 7 at 260 Le Forest J says that a general requirement of derivative use immunity would mean that in many cases the use of the power to compel testimony would furnish wrongdoers with the type of \u2018immunity baths\u2019 that were characteristic of the transaction immunity formerly available in the United States: Sopinka J in R v S (RJ) supra note 7 at p721 expresses the further fear that even challenges to derivative use could lead to interminable admissibility proceedings resulting in virtual transactional immunity. I feel, however, that there could well be circumstances where it would manifestly not be fair to admit such derivative evidence. These are matters, which, in my view, should be determined by the trial court, using a voir dire if necessary. \f granted, as Ackermann J proposes, the dilemma that remains is the \u03a0\u03b1\u03b3\u03b5 345 SACHS J constitutionally non-problematic one which faces any witness in any proceedings: whether or not to tell the truth.", "Subject to these observations, I agree with the conclusions of Ackermann J and the order he proposes. Counsel for the Applicants: R.D. Levin S.C. D. Unterhalter Moss-Morris Inc. Instructed by: Counsel for the 2nd Respondents in the Ferreira Matter: R. Strydom S.A. Cilliers S.C. Instructed by: Counsel for the 3rd Respondent in the Vryenhoek Matter: Instructed by: Counsel for the Amicus Curiae - Fourie, J.S.N. and Others: Hofmeyr Van Der Merwe Inc. C. Edeling Allan Levin & Associates W.H. Trengove S.C. G.J. Marcus Instructed by: Deneys Reitz"], "max_length_judgement_paras": 2108}, {"title": "S v Ntuli (CCT17/95) [1995] ZACC 14; 1996 (1) BCLR 141; 1996 (1) SA 1207 (8 December 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/14.html", "summary_document": {"filename": "summary-for-case-14.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/14media.pdf", "file_content": " \n\n \n\nS v Ntuli \n\nExplanatory Note \n\n \n\n \n\n Case CCT 17/95 \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nSection 309(4) read with s 305 of the Criminal Procedure Act provides that convicted \nprisoners who lack legal representation and who were convicted in a magistrates court do not \nhave an automatic right of appeal to the Supreme Court. Such prisoners may only appeal \nagainst their convictions or sentences if a Supreme Court judge has granted a judge's \ncertificate certifying that there are reasonable grounds for the appeal. All other types of \nconvicted persons do not require a certificate in order to appeal from a decision of a \nmagistrates court to the Supreme Court. \n\nThe Court found that the sections violated a person's right to a fair trial in terms of s 25(3) of \nthe Constitution. In particular, the sections violated s 25(3)(h) -- the right to have recourse by \nway of appeal or review to a higher court than the court of first instance. It was found that the \nrestriction meant that there was a real danger that the merits of an appeal which deserved to \nbe heard would not attract judicial attention. The certificate requirement was also found to \nviolate s 8(1) (right of equality) of the Constitution which at the very least entitled everyone \nto equal treatment by the courts. \n\nThe violations could not be saved by the limitations section (s 33 of the Constitution) because \nthe reasons put forward by the state for limiting the rights in question were unreasonable and \nunjustifiable. \n\nAlthough the Court declared s 309(4)(a) of the Criminal Procedure Act to be unconstitutional, \nit decided in the interests of justice and good government to give Parliament until 30 April \n1997 to remedy the defect, thus suspending the declaration of invalidity until that date, or \nuntil Parliament acts to remedy the unconstitutionality. \n\nThe judgment of the Court was delivered by Didcott J and was concurred in by all the other \nmembers of the Court. \n\n \n\n1 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-14.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/14.pdf", "file_content": "Case CCT 17/95\n\nCONSTITUTIONAL COURT OF SOUTH AFRICA\n\nTHE STATE\n\nversus\n\nNICKO NTULI\n\nHeard on 24 August 1995\n\nDecided on 8 December 1995\n\nDIDCOTT J:\n\nJUDGMENT\n\n[1] \n\nSection 25(3) of the Constitution (Act 200 of 1993) proclaims \u201cthe right\n\nto a fair trial\u201d that every person charged with a crime enjoys in South Africa nowadays.\n\nA general principle of fundamental importance has thus been introduced into our system,\n\none which it previously lacked according to the decision reached in S v Rudman and\n\nAnother; S v Mthwana 1992(1) SA 343(A). The former position was this, as the Appellate\n\nDivision described it on that occasion. The rules regulating the conduct of criminal trials,\n\neither statutorily or at common law, had been designed to take full care of their fairness\n\nand set all the legal standards for that. Infringements of those specific rules were judicially\n\ncognisable as defects in the proceedings. But no broader grounds were recognised for\n\nany complaint about the unfairness of a trial. The view then taken of such complaints was\n\nexpressed by Nicholas AJA, who declared (at 387 A-B):\n\nPg. 2/ \u201cWhat...\n\n\fPage 2\n\n\u201cWhat an accused person is entitled to is a trial initiated and conducted in\n\naccordance with those formalities, rules and principles of procedure which\n\nthe law requires. He is not entitled to a trial which is fair when tested\n\nagainst abstract notions of fairness and justice.\u201d\n\nSection 25(3) has removed the restriction and enlarged the enquiry. The import of the\n\nsub-section was noted in paragraph [16] of the judgment delivered by this Court in S v\n\nZuma and Others 1995(2)SA 642(CC), where Kentridge AJ wrote (at 651J - 652A):\n\n\u201cThe right to a fair trial conferred by that provision... embraces a concept\n\nof substantive fairness which is not to be equated with what might have\n\npassed muster in our criminal courts before the Constitution came into\n\nforce.\u201d\n\nThe result is that criminal trials must now be run not only in compliance with the old\n\nrequirements mentioned by Nicholas AJA but also, as Kentridge AJ then added (at 652D),\n\nin conformity with those \u201cnotions of basic fairness and justice\u201d which have entered the\n\nreckoning at last. The significance of that development was underestimated by Erasmus\n\nJ, I believe, when he dismissed the sub-section in S v Shuma and Another 1994(4)SA\n\n583(E) (at 591 A-B) as \u201cno radically new phenomenon\u201d, as \u201cnot a startling innovation\u201d, but\n\na provision which contributed nothing momentous to the \u201cdistillation of wisdom\u201d on the\n\nsubject that he ascribed to our earlier jurisprudence.1\n\n1 See also paragraphs [28] and [29] of the judgment, not yet reported, which Mahomed\nDP delivered on 29 November 1995 in Shabalala and Others v Attorney-General of the Transvaal\nand Another (CCT 23/94).\n\nPg. 3/[2]...\n\n\f[2]\n\nSection 25(3) lists some particular rights that are deemed to be covered by the\n\ngeneral right to a fair trial, bestowing and protecting them individually. One of those,\n\nwhich paragraph (h) specifies, is -\n\nPage 3\n\n\u201c... the right ... to have recourse by way of appeal or review to a higher\n\ncourt than the court of first instance.\u201d\n\nThe paragraph has been invoked in the matter that we now have before us.\n\n[3]\n\nThe case concerns a man named Nicko Ntuli. A regional magistrate convicted\n\nhim of rape, attempted murder and assault with intent to do grievous bodily harm. For\n\nthose crimes he was sentenced by the magistrate to terms of imprisonment which\n\namounted effectively to an aggregate of thirteen years. He went to gaol at once. There\n\nhe resolved to appeal against the convictions and the sentences. He had not been legally\n\nrepresented at his trial. Nor, it seems, could he get a lawyer to prepare and present his\n\nappeal. So he planned to perform the tasks personally. But a hurdle had to be\n\nsurmounted at first, one erected by the provisions of the Criminal Procedure Act (51 of\n\n1977) which regulated appeals lodged by convicts like him.\n\n[4]\n\nSection 309(1)(a) of the statute decrees that:\n\n\u201cAny person convicted of any offence by any lower court ... may appeal\n\nagainst such conviction and against any resultant sentence or order to the\n\nprovincial or local division having jurisdiction.\u201d\n\nPg. 4/A...\n\n\fA magistrate\u2019s court is a lower one for that purpose, and the provincial and local divisions\n\nof the Supreme Court are those thus mentioned. In Ntuli\u2019s circumstances, however, his\n\nright to appeal was qualified. Section 309(4)(a) stipulates that:\n\nPage 4\n\n\u201cWhen an appeal under this section is noted, the provisions of ... section\n\n305 shall mutatis mutandis apply in respect of the conviction, sentence or\n\norder appealed against.\u201d\n\nAnd this is how section 305 goes in turn:\n\n\u201cNotwithstanding anything to the contrary in any law contained, no\n\nperson who has been convicted by a lower court of an offence, and is\n\nundergoing imprisonment for that or any other offence, shall be entitled to\n\nprosecute in person any proceedings for the review of the proceedings\n\nrelating to such conviction unless a judge of the provincial or local division\n\nhaving jurisdiction has certified that there are reasonable grounds for\n\nreview.\u201d\n\nA condition of the same nature therefore governs every appeal that is noted by a prisoner\n\nagainst his or her conviction or sentence.\n\n[5]\n\nNtuli wrote a letter to the authorities, an informal one protesting at the outcome\n\nof his trial. The letter was forwarded to the Witwatersrand Local Division of the Supreme\n\nCourt since the matter fell within its jurisdiction. There Cloete J considered the complaint\n\n in chambers. Taking the course usually followed in such a situation, he treated\n\nthe letter as both a notice of appeal and an application for a judge\u2019s \n\nPg. 5/certificate...\n\n\fcertificate. He then wrote a short judgment, saying that he saw -\n\nPage 5\n\n\u201c... no prospect whatever of an appeal court interfering with either the\n\nconvictions or the sentences.\u201d\n\nHe did not, however, refuse the application. Instead he made this order mero motu:\n\n\u201cThe question whether the provisions of section 309(4)(a) as read with\n\nsection 305 of the Criminal Procedure Act are in conflict with the\n\nprovisions of section 25(3)(h) of the Constitution is referred to the\n\nConstitutional Court in terms of section 102(1) of the Constitution for its\n\ndecision. Pending the decision of the Constitutional Court, the application\n\nis suspended in terms of section 102(2) of the Constitution.\u201d\n\n[6]\n\nA second item was placed on our agenda, this time by us after a perusal of the\n\nrecord when we sent the parties a note worded thus:\n\n\u201cThe arguments on both sides are to deal also with a point not\n\nspecifically raised by the order of referral. Section 305 of the Criminal\n\nProcedure Act, as read with section 309(4)(a), applies only to prisoners\n\nwho are not legally represented. It touches neither prisoners who are\n\nrepresented nor convicted persons, represented or unrepresented, who\n\nare not serving sentences of imprisonment. The questions that must be\n\nargued in those circumstances are whether it infringes sections 8(1) and\n\n8(2) of the Constitution or either and, if so, whether the infringement is\n\npermissible under section 33(1).\u201d\n\nSection 8(1) dictates that \u201cevery person shall have the right to equality before the law\u201d,\n\nwhile section 8(2) forbids \u201cunfair discrimination\u201d against anyone.\n\n\fPg. 6/[7]...\n\nPage 6\n\n[7]\n\nBy the time when we issued that direction Ntuli no longer lacked the services\n\nof a lawyer. The Legal Resources Centre had kindly stepped into the breach and was\n\nalready acting for him pro amico in the proceedings before us. The Government of South\n\nAfrica entered the lists afterwards, exercising the privilege of intervention which \n\nit derived from section 102(10) of the Constitution. The arguments that we heard\n\neventually were advanced as a result by separate counsel whom the Centre and the\n\nGovernment had instructed, in addition to those representing the Attorney-General of the\n\nWitwatersrand Local Division. \n\n[8]\n\nApplications for judges\u2019 certificates were compared, during the debate that\n\nfollowed, with the sort made under the same statute2 whenever a person who had been\n\nconvicted and sentenced in the Supreme Court applied to the Appellate Division for the\n\nleave which was required for an appeal and could be obtained from that quarter on its\n\nrefusal by the judge presiding over the trial. The two processes were said to be\n\nanalogous. They certainly have some features in common. \n\n[9]\n\nEach process affords access, for the purposes of the order sought at that\n\nstage, to a court higher than the one of first instance. Both types of application are\n\nnormally considered there in chambers, by a single judge of the provincial or local division\n\nin the one case, by two judges of the Appellate Division in the other or by three if they\n\n2 Section 316 of the Criminal Procedure Act, as read with section 315(4).\n\n\fdisagree. Oral argument does not have to be heard in either situation and is rare \n\nPg. 7/at...\n\nPage 7\n\nat most in each. Indeed I know of no occasion when that has ever happened in an\n\napplication for a judge\u2019s certificate, and I understand that it seldom occurs in applications\n\nfor leave to appeal apart from the few which are set down, before benches fully\n\nconstituted, to be argued together with the appeals themselves. A second omission from\n\nboth mechanisms is this. In neither case is the complete record of the trial placed as a\n\nrule in front of the judge or judges dealing with the application. He, she or they may call\n\nfor the lot, and that will then be supplied. Otherwise the papers filed in the application are\n\naugmented only by the judgments of the court below, those delivered at the trial when the\n\nverdict was entered and the sentencing ensued, with the addition once leave to appeal\n\nis requested of the judgment refusing it there.\n\n[10]\n\nA further similarity between the two processes lies in the tests which the\n\napplications need to meet, and in the consequences of their not doing so. The question\n\nposed by an application for leave to appeal is whether the prospects of success on\n\nappeal are reasonable. The one asked in an application for a judge\u2019s certificate is\n\nwhether there are reasonable grounds for the appeal. What amounts in substance to the\n\nsame test, so one sees, is set for both applications. Each question has to be answered\n\nin the affirmative. The application must be refused once no such answer is forthcoming.\n\nThat decision then bars the appeal, in the first situation without further ado, in the second\n\nunless the applicant manages afterwards to procure the services of a lawyer and is no\n\n\flonger hit by the ban imposed on its personal prosecution. \n\nPg. 8/[11]...\n\nPage 8\n\n[11]\n\nThe result is the elimination of appeals which appear to be futile. To achieve\n\nthat object has always been the avowed purpose of the demand for leave to appeal. The\n\nrefusal of judges\u2019 certificates serves it too in the cases calling for them, although the \n\noriginal reason for their stipulation was apparently a rather different one that still gets\n\nadvanced and to which I shall come later.\n\n[12]\n\nWhether applications for leave to appeal are proceedings that satisfy the\n\nrequirements of section 25(3)(h) once they cater for recourse to the Appellate Division,\n\nor a scheme that falls foul of those requirements by obstructing the free flow of appeals,\n\nis an issue confronting us elsewhere. It arose in S v Rens (CCT 1/95), a case which we\n\nhave heard already but not yet decided. I am anxious not to impinge on or anticipate the\n\noutcome of our current deliberations in that matter. No more than this shall I say in the\n\nmeantime about the question presented there. It does not follow in my opinion that, if\n\nleave to appeal is a condition compatible with section 25(3)(h), the same must necessarily\n\ngo for judges\u2019 certificates. For the similarities between the two mechanisms are\n\naccompanied by a difference important enough, as I view it, to distinguish the one from\n\nthe other.\n\n[13]\n\nThe difference concerns the form and contents of the papers filed in the\n\n\fproceedings, and therefore the material ordinarily supplied for the judicial enquiry that\n\nensues. It is a factor which needs to be examined against the background of the\n\ncircumstance that, whereas persons who are tried nowadays by the Supreme Court \n\nPg. 9/seldom...\n\nPage 9\n\nseldom lack legal representation either then or in any subsequent applications made by\n\nthem for leave to appeal, those in need of judges\u2019 certificates always do, by definition,\n\nwhen it comes to their appeals at all events.\n\n[14]\n\nThe statute lays down the procedure that has to be followed whenever leave\n\nto appeal is requested. Every application for it must \u201cset forth clearly and specifically\u201d\n\nthe grounds on which the applicant wants to appeal. That is required at the outset, at the\n\ninitial stage where he or she applies for leave to the judge who tried the case. The\n\ngrounds of appeal are forwarded to the Appellate Division in turn when, persisting with\n\nthe request, the applicant seeks leave there on its refusal by the court below. So are the\n\nreasons for the refusal that emerge from the judgment announcing it . A formal petition\n\naddressed to the Chief Justice must be lodged in support of the application at the same\n\ntime. The purpose which the petition should serve, and no doubt does on the whole, is\n\nto amplify those grounds, to explain their settings, and to describe the features of the\n\ncase that seem to be salient. Both the grounds and the petition are likely to have been\n\ndrafted by counsel, in all probability by the very counsel who appeared for the defence\n\nduring the trial, one acquainted with the evidence adduced there and alive to the issues\n\nthat an appeal would raise. In practice, so I understand, copies of the judgments\n\n\fdelivered at the trial are added regularly to the petition, and would certainly be\n\nrequisitioned if they were not. A framework has thus been established for the\n\nconsideration of all such applications in the Appellate Division. The judges handling each\n\none are furnished as a matter of course with the basic information which pertains \n\nPg. 10/to...\n\nPage 10\n\nto it. From that they can tell whether they have enough material by then to assess the\n\nprospects of success on appeal and may safely proceed to do so, or whether more is\n\nneeded and had better be gathered first. They can see, in particular, how helpful or not\n\nthey might find it to obtain and study either the entire record of the trial or some selected\n\nexcerpts, with special reference to the passages cited in the petition.\n\n[15]\n\nJudges\u2019 certificates do not fall within a comparable framework. Nor indeed is\n\nany procedure prescribed for use when they are sought. The lack of statutory control\n\nfashions a pattern with no clear design. It marks the communication from the prisoner\n\nwhich sets the proceedings in motion. He or she has usually composed that, either alone\n\nor with the help of some imprisoned sea lawyer. The typical product of such efforts, a\n\nproduct familiar to all with experience of it and hardly surprising in view of its source, is\n\na rambling and incoherent commentary on the trial which misses points that matter, takes\n\nones that do not, and scarcely enlightens the judge about any. The only impressions of\n\nthe case which the judge gains at the start are those derived from the reasons given by\n\nthe magistrate for the conviction and the sentence. And they will remain sole impressions\n\nunless the record is procured and read. The pattern is noticed again when we look next\n\n\fat calls for the record or their absence. No uniform practice prevails there. Some judges\n\nobtain the record habitually, once the case is not the sort where the information already\n\navailable satisfies them that a certificate should be granted straight away. Others do\n\nso rarely, being content by and large to rely rather on the magistrate\u2019s account of the\n\ntrial. The refusal of a certificate on that footing \n\nPg. 11/worries...\n\nPage 11\n\nworries one. Those judges who do not read the record will have no means of knowing\n\nwhether the evidence substantiated the findings made by the magistrate on the credibility\n\nof witnesses and other factual issues. They will not learn of any procedural irregularities\n\nthat may have marred the trial. Nothing dispels their ignorance on those scores. Nothing\n\nalerts them to flaws in the magistrate\u2019s findings or conduct of the proceedings which are\n\nhidden for the time being but the record may in due course reveal. No petition prepared\n\nby counsel is there to guide them in that direction. Nor is the possible presence of such\n\ndefects likely to have been mentioned either by the prisoner or even by the magistrate,\n\nthe one oblivious to the true character of the features in question, the other failing to\n\nattribute any such character to them.\n\n[16]\n\nThe scheme, one therefore sees, is unsystematic and works in a haphazard\n\nway. It exposes the process to the real danger that appeals which deserve to be heard\n\nare stifled because their merits never attract judicial attention. The inherent likelihood\n\nof some worthy appeals suffering that fate surely speaks for itself. The number of cases\n\n\fwhere it actually happens is unascertainable, but may well be substantial. We cannot\n\nremove the danger by dictating to the judges of the provincial and local divisions what\n\npractice they should adopt uniformly to remedy the shortcomings in the scheme. That is\n\nnot our business. Instead we must apply our minds to the constitutional tolerability of the\n\nstatutory provision in point which, by neglecting to regulate the process, opens the door\n\nto such a state of affairs.\n\nPg. 12/[17]...\n\nPage 12\n\n[17]\n\nThe requirement that a judge\u2019s certificate has to be obtained obviously\n\noperates, in each case hit by it, as a restriction on the full access to the Supreme Court\n\nwhich is enjoyed by those who are free to prosecute their similar appeals to finality and\n\nusable for the determination of the appeals themselves. That is not, however, the end\n\nof the matter. The question which we must answer is this. Does a prisoner seeking a\n\ncertificate exercise his or her constitutional right \u201cto have recourse by way of appeal or\n\nreview to a higher court\u201d in that very application, by means of that very application, and\n\nirrespective of its result ? Does the requirement itself cater sufficiently, in other words,\n\nfor such \u201crecourse by way of appeal or review\u201d? That phrase sounds rather vague. But\n\nthe minimum that it envisages and implies, I believe, is the opportunity for an adequate\n\nreappraisal of every case and an informed decision on it. The statute makes no provision\n\nfor that opportunity. Nor does it ensure that certificates will never be refused without it.\n\nSo applications for them do not amount to exercises of the constitutional right. And no\n\nother occasion for its exercise can arise once a certificate has been refused. The\n\nrequirement is therefore incompatible with section 25(3)(h).\n\n\f[18]\n\nIt follows, in my opinion, that the requirement is inconsistent with section 8 as\n\nwell. There I have in mind the right to equality proclaimed by sub-section (1) rather than\n\nthe prohibition against unfair discrimination which sub-section (2) pronounces. I find it\n\nunnecessary to look at the latter, irrespective of its rating either as an independent\n\nprovision or as a corollary to the former. Nor do I need to explore the outer reaches of\n\nthe \u201cequality before the law\u201d guaranteed by sub-section (1). It suffices for the present\n\nPg. 13/to...\n\nPage 13\n\nto say that the guarantee surely entitles everybody, at the very least, to equal treatment\n\nby our courts of law. Such treatment must accordingly be administered within the area\n\ncontrolled by section 25(3)(h).\n\n[19]\n\nThe scheme which provides for judges\u2019 certificates differentiates, as we\n\nmentioned in our note to the parties, between two groups of prospective appellants, those\n\nin prison who have no lawyers acting for them on the one hand and all the rest on the\n\nother. That second group consists of prisoners who are legally represented in their\n\nappeals and every convicted person, represented or unrepresented, who is free. Some\n\nmay have been fined. Others may have received wholly suspended sentences of\n\nimprisonment. Or perhaps, though sent to gaol, they were released on bail pending their\n\nappeals. It is trite, however, that differentiation does not amount per se to unequal\n\ntreatment in the constitutional sense. \n\n\f[20]\n\nCounsel agreed that, in its circumstances and consequences, the particular\n\ndifferentiation encountered now did have that effect. I take the same view. No more\n\nneed be said in support of it than to point out the result. The right derived from section\n\n25(3)(h) is respected in the cases of all who fall within the one group. It is denied,\n\npotentially and sometimes actually, to those comprising the other and consisting of the\n\npeople who labour under the greatest disadvantage in managing their appeals without that\n\nextra handicap. That the guarantee of \u201cequality before the law\u201d is violated could\n\nhardly be clearer.\n\nPg. 14/[21]...\n\nPage 14\n\n[21]\n\nWhether the infringements of sections 25(3)(h) and 8(1) are nevertheless\n\ndefensible under section 33(1) of the Constitution is the next question that arises. It\n\nnecessitates an examination of the circumstances which are said to excuse the\n\nperpetuation of the scheme.\n\n[22]\n\nJudges\u2019 certificates were introduced as requirements for the appeals which \n\nthey regulated, so counsel told us, in order to obviate a mischief peculiar to those noted\n\nby unrepresented prisoners, the mischief that was perceived of ones lodged frivolously\n\nwith a view to no gain but the opportunity for an excursion to court and some temporary\n\nrelief from the tedium of imprisonment. Such an abuse of the appellate process could not\n\nbe allowed. It increased the risk of escapes from custody and attempts to escape.\n\nExtra precautions to guard against those had to be taken, which put the staff of the\n\n\fprisons to much inconvenience. So did the constant arrangements that were needed for\n\nthe transport of prisoners and their escorts from gaol to court and back.\n\n[23]\n\nThe idea of prisoners lodging appeals for no reason better than the one\n\nsuggested is wholly conjectural and, it seems to me, probably exaggerated if not\n\ndownright fanciful when entertained about any significant number. That an appeal is\n\nobjectively hopeless does not make it, after all, subjectively frivolous. Bad appeals are\n\na lot likelier to be noted with undue optimism, but in earnest even so. Perhaps it is\n\ninstructive to look in that connection at the actual excursions taken to court nowadays \n\non the tickets of judges\u2019 certificates. They occur only in the Transvaal Provincial Division\n\nPg. 15/and...\n\nPage 15\n\nand the Witwatersrand Local Division, where most prisoners still argue their appeals in\n\nperson. Everywhere else advocates perform the work for them, and have done so for\n\nmany years, at the request of the court and in their absence. Yet I have never heard it\n\nsaid that, in proportion to the populations of the respective prisons, applications for\n\ncertificates are more numerous in those two divisions than they happen to be in the\n\nothers. The sincerity which I impute to the general run of appeals does not detract, to\n\nbe sure, from the administrative difficulties caused by the excursions that continue. Such\n\ndifficulties would increase, what is more, were the abolition of certificates to result in a\n\nmuch larger flow of appeals presented by prisoners. That consideration counts. But I\n\ndo not regard it as a factor important enough to override the protection of the\n\nconstitutional rights in question.\n\n\f[24]\n\nThe purpose for which judges\u2019 certificates were originally designed was not the\n\nsole one asserted in argument. Store was set in addition by the usefulness of refusals in\n\nblocking appeals that were devoid of discernible merit. No sound objection can be laid\n\nin principle against an aim like that. The cause of fairness is hardly served when judicial\n\nrolls are crammed with futile appeals which delay the hearings of better ones, to the\n\ndetriment of the appellants awaiting their determination, often in gaol. Attributing such\n\nan effect alone to the refusal of certificates is, however, another matter. The trouble\n\nencountered there lies in the postulate that no appeals but those without\n\nsubstance get stopped. Of that, to say the least, nobody can feel certain. The means\n\nused to achieve the end therefore go beyond it.\n\nPg. 16/[25]...\n\nPage 16\n\n[25]\n\nIn order to pass one of the tests for their permissibility which section 33(1)\n\nsets, the infringements of sections 8(1) and 25(3)(h) have to be rated as reasonable.\n\nThey are not in my opinion. They fail another test too, I believe, the test of justifiability\n\nin a \u201csociety based on ... equality\u201d. How they fare on the rest I need not consider. Each\n\nof the failures found suffices on its own to dispose of the defence raised under section\n\n33(1). The statutory provisions that clash with sections 8(1) and 25(3)(h) cannot\n\nconsequently be allowed to stand.\n\n[26]\n\nOur powers in that regard are gained from section 98(5) of the Constitution,\n\nwhich ordains that:\n\n\f\u201cIn the event of the Constitutional Court finding that any law or any provision\n\nthereof is inconsistent with this Constitution, it shall declare such law or\n\nprovision invalid to the extent of its inconsistency: Provided that the\n\nConstitutional Court may, in the interests of justice and good government,\n\nrequire Parliament ..., within a period specified by the Court, to correct the\n\ndefect in the law or provision, which shall then remain in force pending\n\ncorrection or the expiry of the period so specified.\u201d\n\nWhether the declaration of invalidity which must now follow should be qualified by an\n\norder made in terms of the proviso is the question that remains.\n\n[27]\n\nSome statistics were supplied to us which have a bearing on that question.\n\nThey show that during the period of three years from the beginning of 1992 until the end\n\nof 1994, and in all the divisions of the Supreme Court taken together, slightly more than\n\nPg. 17/8000...\n\nPage 17\n\n8000 applications for certificates were received and almost 7000 were rejected. The\n\nexpansion of legal aid that is now under way would no doubt affect the picture if\n\ncertificates survived, decreasing the occasions for those to be sought and reducing them\n\neventually to anachronisms. But the pace and extent of that development is not yet easy\n\nto predict, and I shall omit it from the reckoning. I have not managed to correlate the\n\nfigures thus furnished with some further information that we were given about the number\n\nof appeals from the magistrate\u2019s courts, regional and district, which got heard in several\n\nparts of the country throughout the same period. But one can assume with confidence\n\n\fthat, for the time being at any rate, the total will be swollen substantially by allowing\n\nprisoners who need certificates at present to appeal in the future without them.\n\n[28]\n\nThe need to cope with the increase is clear, should judges\u2019 certificates be\n\nabolished altogether instead of being retained within an adequately improved system. In\n\nthat event new structures will have to be established. A variety of alternative ones were\n\ncanvassed in argument. To choose between them, to imagine others or to recommend\n\nany falls outside our province. The decision rests with Parliament. In the meantime it will\n\nwant advice. Perhaps the matter will be referred to the South African Law Commission.\n\nConcrete proposals are likely to be put in due course to the Chief Justice, to the Judges-\n\nPresident, to the Attorneys-General and to the professional bodies of advocates and\n\nattorneys. Their reactions and suggestions will be awaited and then evaluated.\n\nLegislation will have to be drafted and circulated. All that will take time, \n\nPg. 18/lots...\n\nPage 18\n\nlots of time. Nor should we overlook the pressures on Parliament once everything else\n\nis ready. The preparation and enactment of the final Constitution and the transitional\n\narrangements associated with each phase will no doubt preoccupy its members for much\n\nof next year. The long perpetuation of an unconstitutional scheme is admittedly\n\nunfortunate. But the statute book cannot be purged suddenly of all its old elements that\n\nare now repugnant to the Constitution. And, if fresh problems are to be avoided, the\n\nremoval of the objectionable parts and their replacement by ones that are sound and\n\n\frealistic has to be both thorough and thoughtful. That, I have no doubt, is \u201cin the interests\n\nof justice and good government\u201d. We must therefore provide the opportunity for it.\n\n[29]\n\nI had better mention something else before finishing. It has to do with Ntuli\u2019s\n\nlack of legal representation at his trial and in his subsequent endeavour to appeal. We\n\ndo not know what accounted for it at either stage. The circumstances explaining that are\n\nnot before us. Nor is a question which suggests itself, the question whether section\n\n25(3)(e) of the Constitution entitled Ntuli to be provided with a lawyer\u2019s services at the\n\nexpense of the state and, if it did, how the want of them may now be remedied. Indeed\n\nthe referral could not competently have raised that issue, according to our judgment in \n\nS v Vermaas; S v Du Plessis 1995(3) SA 292(CC). The point seems not to have been\n\nconsidered yet in the Witwatersrand Local Division. It should receive attention once the\n\ncase returns there.\n\nPg. 19/[30]...\n\nPage 19\n\n[30]\n\nIn the result this order is made. Section 309(4)(a) of the Criminal Procedure\n\nAct is declared to be invalid on the score of its inconsistency with the Constitution.\n\nParliament is required to remedy the defect by 30 April 1997, with the result that our\n\ndeclaration of invalidity is suspended until that happens or that date arrives, whichever\n\noccurs earlier, when it will come into force. The case is remitted to the Witwatersrand\n\nLocal Division, which must deal with it accordingly.\n\n\fChaskalson P, Mahomed DP, Ackermann J, Kriegler J, Langa J, Madala J, Mokgoro J,\n\nNgoepe J, O\u2019Regan J, and Sachs J all concur in the judgment of Didcott J.\n\nCounsel for Ntuli:\n\nW.H. Trengove S.C., with him L. Gerntholz, \ninstructed by the Legal Resources Centre\n\nCounsel for the State:\n\nJ.S.M. Henning S.C., with him P.P. Stander, \ninstructed by the Attorney-General of the\nWitwatersrand Local Division\n\nCounsel for the\nGovernment:\n\nN. Pandya S.C., with him R. Mogagabe,\ninstructed by the State Attorney\n\n\f"}, "id": "7afdfa4c-6e8c-4631-bfe8-c202a2a829da", "update_date": "2021-03-15 17:08:56.815691", "year": "1995", "judgement_paragraphs": ["Case CCT 17/95 CONSTITUTIONAL COURT OF SOUTH AFRICA THE STATE versus NICKO NTULI Heard on 24 August 1995 Decided on 8 December 1995 DIDCOTT J: JUDGMENT", "Section 25(3) of the Constitution (Act 200 of 1993) proclaims \u201cthe right to a fair trial\u201d that every person charged with a crime enjoys in South Africa nowadays. A general principle of fundamental importance has thus been introduced into our system, one which it previously lacked according to the decision reached in S v Rudman and Another; S v Mthwana 1992(1) SA 343(A). The former position was this, as the Appellate Division described it on that occasion. The rules regulating the conduct of criminal trials, either statutorily or at common law, had been designed to take full care of their fairness and set all the legal standards for that. Infringements of those specific rules were judicially cognisable as defects in the proceedings. But no broader grounds were recognised for any complaint about the unfairness of a trial. The view then taken of such complaints was expressed by Nicholas AJA, who declared (at 387 A-B): Pg. 2/ \u201cWhat... \fPage 2 \u201cWhat an accused person is entitled to is a trial initiated and conducted in accordance with those formalities, rules and principles of procedure which the law requires. He is not entitled to a trial which is fair when tested against abstract notions of fairness and justice.\u201d Section 25(3) has removed the restriction and enlarged the enquiry. The import of the sub-section was noted in paragraph [16] of the judgment delivered by this Court in S v Zuma and Others 1995(2)SA 642(CC), where Kentridge AJ wrote (at 651J - 652A): \u201cThe right to a fair trial conferred by that provision... embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force.\u201d The result is that criminal trials must now be run not only in compliance with the old requirements mentioned by Nicholas AJA but also, as Kentridge AJ then added (at 652D), in conformity with those \u201cnotions of basic fairness and justice\u201d which have entered the reckoning at last. The significance of that development was underestimated by Erasmus J, I believe, when he dismissed the sub-section in S v Shuma and Another 1994(4)SA 583(E) (at 591 A-B) as \u201cno radically new phenomenon\u201d, as \u201cnot a startling innovation\u201d, but a provision which contributed nothing momentous to the \u201cdistillation of wisdom\u201d on the subject that he ascribed to our earlier jurisprudence.1 1 See also paragraphs [28] and [29] of the judgment, not yet reported, which Mahomed DP delivered on 29 November 1995 in Shabalala and Others v Attorney-General of the Transvaal and Another (CCT 23/94). Pg. 3/[2]... \f[2] Section 25(3) lists some particular rights that are deemed to be covered by the general right to a fair trial, bestowing and protecting them individually. One of those, which paragraph (h) specifies, is - Page 3 \u201c... the right ... to have recourse by way of appeal or review to a higher court than the court of first instance.\u201d The paragraph has been invoked in the matter that we now have before us.", "The case concerns a man named Nicko Ntuli. A regional magistrate convicted him of rape, attempted murder and assault with intent to do grievous bodily harm. For those crimes he was sentenced by the magistrate to terms of imprisonment which amounted effectively to an aggregate of thirteen years. He went to gaol at once. There he resolved to appeal against the convictions and the sentences. He had not been legally represented at his trial. Nor, it seems, could he get a lawyer to prepare and present his appeal. So he planned to perform the tasks personally. But a hurdle had to be surmounted at first, one erected by the provisions of the Criminal Procedure Act (51 of 1977) which regulated appeals lodged by convicts like him.", "Section 309(1)(a) of the statute decrees that: \u201cAny person convicted of any offence by any lower court ... may appeal against such conviction and against any resultant sentence or order to the provincial or local division having jurisdiction.\u201d Pg. 4/A... \fA magistrate\u2019s court is a lower one for that purpose, and the provincial and local divisions of the Supreme Court are those thus mentioned. In Ntuli\u2019s circumstances, however, his right to appeal was qualified. Section 309(4)(a) stipulates that: Page 4 \u201cWhen an appeal under this section is noted, the provisions of ... section 305 shall mutatis mutandis apply in respect of the conviction, sentence or order appealed against.\u201d And this is how section 305 goes in turn: \u201cNotwithstanding anything to the contrary in any law contained, no person who has been convicted by a lower court of an offence, and is undergoing imprisonment for that or any other offence, shall be entitled to prosecute in person any proceedings for the review of the proceedings relating to such conviction unless a judge of the provincial or local division having jurisdiction has certified that there are reasonable grounds for review.\u201d A condition of the same nature therefore governs every appeal that is noted by a prisoner against his or her conviction or sentence.", "Ntuli wrote a letter to the authorities, an informal one protesting at the outcome of his trial. The letter was forwarded to the Witwatersrand Local Division of the Supreme Court since the matter fell within its jurisdiction. There Cloete J considered the complaint in chambers. Taking the course usually followed in such a situation, he treated the letter as both a notice of appeal and an application for a judge\u2019s Pg. 5/certificate... \fcertificate. He then wrote a short judgment, saying that he saw - Page 5 \u201c... no prospect whatever of an appeal court interfering with either the convictions or the sentences.\u201d He did not, however, refuse the application. Instead he made this order mero motu: \u201cThe question whether the provisions of section 309(4)(a) as read with section 305 of the Criminal Procedure Act are in conflict with the provisions of section 25(3)(h) of the Constitution is referred to the Constitutional Court in terms of section 102(1) of the Constitution for its decision. Pending the decision of the Constitutional Court, the application is suspended in terms of section 102(2) of the Constitution.\u201d", "A second item was placed on our agenda, this time by us after a perusal of the record when we sent the parties a note worded thus: \u201cThe arguments on both sides are to deal also with a point not specifically raised by the order of referral. Section 305 of the Criminal Procedure Act, as read with section 309(4)(a), applies only to prisoners who are not legally represented. It touches neither prisoners who are represented nor convicted persons, represented or unrepresented, who are not serving sentences of imprisonment. The questions that must be argued in those circumstances are whether it infringes sections 8(1) and 8(2) of the Constitution or either and, if so, whether the infringement is permissible under section 33(1).\u201d Section 8(1) dictates that \u201cevery person shall have the right to equality before the law\u201d, while section 8(2) forbids \u201cunfair discrimination\u201d against anyone. \fPg. 6/[7]... Page 6", "By the time when we issued that direction Ntuli no longer lacked the services of a lawyer. The Legal Resources Centre had kindly stepped into the breach and was already acting for him pro amico in the proceedings before us. The Government of South Africa entered the lists afterwards, exercising the privilege of intervention which it derived from section 102(10) of the Constitution. The arguments that we heard eventually were advanced as a result by separate counsel whom the Centre and the Government had instructed, in addition to those representing the Attorney-General of the Witwatersrand Local Division.", "Applications for judges\u2019 certificates were compared, during the debate that followed, with the sort made under the same statute2 whenever a person who had been convicted and sentenced in the Supreme Court applied to the Appellate Division for the leave which was required for an appeal and could be obtained from that quarter on its refusal by the judge presiding over the trial. The two processes were said to be analogous. They certainly have some features in common.", "Each process affords access, for the purposes of the order sought at that stage, to a court higher than the one of first instance. Both types of application are normally considered there in chambers, by a single judge of the provincial or local division in the one case, by two judges of the Appellate Division in the other or by three if they 2 Section 316 of the Criminal Procedure Act, as read with section 315(4). \fdisagree. Oral argument does not have to be heard in either situation and is rare Pg. 7/at... Page 7 at most in each. Indeed I know of no occasion when that has ever happened in an application for a judge\u2019s certificate, and I understand that it seldom occurs in applications for leave to appeal apart from the few which are set down, before benches fully constituted, to be argued together with the appeals themselves. A second omission from both mechanisms is this. In neither case is the complete record of the trial placed as a rule in front of the judge or judges dealing with the application. He, she or they may call for the lot, and that will then be supplied. Otherwise the papers filed in the application are augmented only by the judgments of the court below, those delivered at the trial when the verdict was entered and the sentencing ensued, with the addition once leave to appeal is requested of the judgment refusing it there.", "A further similarity between the two processes lies in the tests which the applications need to meet, and in the consequences of their not doing so. The question posed by an application for leave to appeal is whether the prospects of success on appeal are reasonable. The one asked in an application for a judge\u2019s certificate is whether there are reasonable grounds for the appeal. What amounts in substance to the same test, so one sees, is set for both applications. Each question has to be answered in the affirmative. The application must be refused once no such answer is forthcoming. That decision then bars the appeal, in the first situation without further ado, in the second unless the applicant manages afterwards to procure the services of a lawyer and is no \flonger hit by the ban imposed on its personal prosecution. Pg. 8/[11]... Page 8", "The result is the elimination of appeals which appear to be futile. To achieve that object has always been the avowed purpose of the demand for leave to appeal. The refusal of judges\u2019 certificates serves it too in the cases calling for them, although the original reason for their stipulation was apparently a rather different one that still gets advanced and to which I shall come later.", "Whether applications for leave to appeal are proceedings that satisfy the requirements of section 25(3)(h) once they cater for recourse to the Appellate Division, or a scheme that falls foul of those requirements by obstructing the free flow of appeals, is an issue confronting us elsewhere. It arose in S v Rens (CCT 1/95), a case which we have heard already but not yet decided. I am anxious not to impinge on or anticipate the outcome of our current deliberations in that matter. No more than this shall I say in the meantime about the question presented there. It does not follow in my opinion that, if leave to appeal is a condition compatible with section 25(3)(h), the same must necessarily go for judges\u2019 certificates. For the similarities between the two mechanisms are accompanied by a difference important enough, as I view it, to distinguish the one from the other.", "The difference concerns the form and contents of the papers filed in the \fproceedings, and therefore the material ordinarily supplied for the judicial enquiry that ensues. It is a factor which needs to be examined against the background of the circumstance that, whereas persons who are tried nowadays by the Supreme Court Pg. 9/seldom... Page 9 seldom lack legal representation either then or in any subsequent applications made by them for leave to appeal, those in need of judges\u2019 certificates always do, by definition, when it comes to their appeals at all events.", "The statute lays down the procedure that has to be followed whenever leave to appeal is requested. Every application for it must \u201cset forth clearly and specifically\u201d the grounds on which the applicant wants to appeal. That is required at the outset, at the initial stage where he or she applies for leave to the judge who tried the case. The grounds of appeal are forwarded to the Appellate Division in turn when, persisting with the request, the applicant seeks leave there on its refusal by the court below. So are the reasons for the refusal that emerge from the judgment announcing it . A formal petition addressed to the Chief Justice must be lodged in support of the application at the same time. The purpose which the petition should serve, and no doubt does on the whole, is to amplify those grounds, to explain their settings, and to describe the features of the case that seem to be salient. Both the grounds and the petition are likely to have been drafted by counsel, in all probability by the very counsel who appeared for the defence during the trial, one acquainted with the evidence adduced there and alive to the issues that an appeal would raise. In practice, so I understand, copies of the judgments \fdelivered at the trial are added regularly to the petition, and would certainly be requisitioned if they were not. A framework has thus been established for the consideration of all such applications in the Appellate Division. The judges handling each one are furnished as a matter of course with the basic information which pertains Pg. 10/to... Page 10 to it. From that they can tell whether they have enough material by then to assess the prospects of success on appeal and may safely proceed to do so, or whether more is needed and had better be gathered first. They can see, in particular, how helpful or not they might find it to obtain and study either the entire record of the trial or some selected excerpts, with special reference to the passages cited in the petition.", "Judges\u2019 certificates do not fall within a comparable framework. Nor indeed is any procedure prescribed for use when they are sought. The lack of statutory control fashions a pattern with no clear design. It marks the communication from the prisoner which sets the proceedings in motion. He or she has usually composed that, either alone or with the help of some imprisoned sea lawyer. The typical product of such efforts, a product familiar to all with experience of it and hardly surprising in view of its source, is a rambling and incoherent commentary on the trial which misses points that matter, takes ones that do not, and scarcely enlightens the judge about any. The only impressions of the case which the judge gains at the start are those derived from the reasons given by the magistrate for the conviction and the sentence. And they will remain sole impressions unless the record is procured and read. The pattern is noticed again when we look next \fat calls for the record or their absence. No uniform practice prevails there. Some judges obtain the record habitually, once the case is not the sort where the information already available satisfies them that a certificate should be granted straight away. Others do so rarely, being content by and large to rely rather on the magistrate\u2019s account of the trial. The refusal of a certificate on that footing Pg. 11/worries... Page 11 worries one. Those judges who do not read the record will have no means of knowing whether the evidence substantiated the findings made by the magistrate on the credibility of witnesses and other factual issues. They will not learn of any procedural irregularities that may have marred the trial. Nothing dispels their ignorance on those scores. Nothing alerts them to flaws in the magistrate\u2019s findings or conduct of the proceedings which are hidden for the time being but the record may in due course reveal. No petition prepared by counsel is there to guide them in that direction. Nor is the possible presence of such defects likely to have been mentioned either by the prisoner or even by the magistrate, the one oblivious to the true character of the features in question, the other failing to attribute any such character to them.", "The scheme, one therefore sees, is unsystematic and works in a haphazard way. It exposes the process to the real danger that appeals which deserve to be heard are stifled because their merits never attract judicial attention. The inherent likelihood of some worthy appeals suffering that fate surely speaks for itself. The number of cases \fwhere it actually happens is unascertainable, but may well be substantial. We cannot remove the danger by dictating to the judges of the provincial and local divisions what practice they should adopt uniformly to remedy the shortcomings in the scheme. That is not our business. Instead we must apply our minds to the constitutional tolerability of the statutory provision in point which, by neglecting to regulate the process, opens the door to such a state of affairs. Pg. 12/[17]... Page 12", "The requirement that a judge\u2019s certificate has to be obtained obviously operates, in each case hit by it, as a restriction on the full access to the Supreme Court which is enjoyed by those who are free to prosecute their similar appeals to finality and usable for the determination of the appeals themselves. That is not, however, the end of the matter. The question which we must answer is this. Does a prisoner seeking a certificate exercise his or her constitutional right \u201cto have recourse by way of appeal or review to a higher court\u201d in that very application, by means of that very application, and irrespective of its result ? Does the requirement itself cater sufficiently, in other words, for such \u201crecourse by way of appeal or review\u201d? That phrase sounds rather vague. But the minimum that it envisages and implies, I believe, is the opportunity for an adequate reappraisal of every case and an informed decision on it. The statute makes no provision for that opportunity. Nor does it ensure that certificates will never be refused without it. So applications for them do not amount to exercises of the constitutional right. And no other occasion for its exercise can arise once a certificate has been refused. The requirement is therefore incompatible with section 25(3)(h). \f[18] It follows, in my opinion, that the requirement is inconsistent with section 8 as well. There I have in mind the right to equality proclaimed by sub-section (1) rather than the prohibition against unfair discrimination which sub-section (2) pronounces. I find it unnecessary to look at the latter, irrespective of its rating either as an independent provision or as a corollary to the former. Nor do I need to explore the outer reaches of the \u201cequality before the law\u201d guaranteed by sub-section (1). It suffices for the present Pg. 13/to... Page 13 to say that the guarantee surely entitles everybody, at the very least, to equal treatment by our courts of law. Such treatment must accordingly be administered within the area controlled by section 25(3)(h).", "The scheme which provides for judges\u2019 certificates differentiates, as we mentioned in our note to the parties, between two groups of prospective appellants, those in prison who have no lawyers acting for them on the one hand and all the rest on the other. That second group consists of prisoners who are legally represented in their appeals and every convicted person, represented or unrepresented, who is free. Some may have been fined. Others may have received wholly suspended sentences of imprisonment. Or perhaps, though sent to gaol, they were released on bail pending their appeals. It is trite, however, that differentiation does not amount per se to unequal treatment in the constitutional sense. \f[20] Counsel agreed that, in its circumstances and consequences, the particular differentiation encountered now did have that effect. I take the same view. No more need be said in support of it than to point out the result. The right derived from section 25(3)(h) is respected in the cases of all who fall within the one group. It is denied, potentially and sometimes actually, to those comprising the other and consisting of the people who labour under the greatest disadvantage in managing their appeals without that extra handicap. That the guarantee of \u201cequality before the law\u201d is violated could hardly be clearer. Pg. 14/[21]... Page 14", "Whether the infringements of sections 25(3)(h) and 8(1) are nevertheless defensible under section 33(1) of the Constitution is the next question that arises. It necessitates an examination of the circumstances which are said to excuse the perpetuation of the scheme.", "Judges\u2019 certificates were introduced as requirements for the appeals which they regulated, so counsel told us, in order to obviate a mischief peculiar to those noted by unrepresented prisoners, the mischief that was perceived of ones lodged frivolously with a view to no gain but the opportunity for an excursion to court and some temporary relief from the tedium of imprisonment. Such an abuse of the appellate process could not be allowed. It increased the risk of escapes from custody and attempts to escape. Extra precautions to guard against those had to be taken, which put the staff of the \fprisons to much inconvenience. So did the constant arrangements that were needed for the transport of prisoners and their escorts from gaol to court and back.", "The idea of prisoners lodging appeals for no reason better than the one suggested is wholly conjectural and, it seems to me, probably exaggerated if not downright fanciful when entertained about any significant number. That an appeal is objectively hopeless does not make it, after all, subjectively frivolous. Bad appeals are a lot likelier to be noted with undue optimism, but in earnest even so. Perhaps it is instructive to look in that connection at the actual excursions taken to court nowadays on the tickets of judges\u2019 certificates. They occur only in the Transvaal Provincial Division Pg. 15/and... Page 15 and the Witwatersrand Local Division, where most prisoners still argue their appeals in person. Everywhere else advocates perform the work for them, and have done so for many years, at the request of the court and in their absence. Yet I have never heard it said that, in proportion to the populations of the respective prisons, applications for certificates are more numerous in those two divisions than they happen to be in the others. The sincerity which I impute to the general run of appeals does not detract, to be sure, from the administrative difficulties caused by the excursions that continue. Such difficulties would increase, what is more, were the abolition of certificates to result in a much larger flow of appeals presented by prisoners. That consideration counts. But I do not regard it as a factor important enough to override the protection of the constitutional rights in question. \f[24] The purpose for which judges\u2019 certificates were originally designed was not the sole one asserted in argument. Store was set in addition by the usefulness of refusals in blocking appeals that were devoid of discernible merit. No sound objection can be laid in principle against an aim like that. The cause of fairness is hardly served when judicial rolls are crammed with futile appeals which delay the hearings of better ones, to the detriment of the appellants awaiting their determination, often in gaol. Attributing such an effect alone to the refusal of certificates is, however, another matter. The trouble encountered there lies in the postulate that no appeals but those without substance get stopped. Of that, to say the least, nobody can feel certain. The means used to achieve the end therefore go beyond it. Pg. 16/[25]... Page 16", "In order to pass one of the tests for their permissibility which section 33(1) sets, the infringements of sections 8(1) and 25(3)(h) have to be rated as reasonable. They are not in my opinion. They fail another test too, I believe, the test of justifiability in a \u201csociety based on ... equality\u201d. How they fare on the rest I need not consider. Each of the failures found suffices on its own to dispose of the defence raised under section 33(1). The statutory provisions that clash with sections 8(1) and 25(3)(h) cannot consequently be allowed to stand.", "Our powers in that regard are gained from section 98(5) of the Constitution, which ordains that: \f\u201cIn the event of the Constitutional Court finding that any law or any provision thereof is inconsistent with this Constitution, it shall declare such law or provision invalid to the extent of its inconsistency: Provided that the Constitutional Court may, in the interests of justice and good government, require Parliament ..., within a period specified by the Court, to correct the defect in the law or provision, which shall then remain in force pending correction or the expiry of the period so specified.\u201d Whether the declaration of invalidity which must now follow should be qualified by an order made in terms of the proviso is the question that remains.", "Some statistics were supplied to us which have a bearing on that question. They show that during the period of three years from the beginning of 1992 until the end of 1994, and in all the divisions of the Supreme Court taken together, slightly more than Pg. 17/8000... Page 17 8000 applications for certificates were received and almost 7000 were rejected. The expansion of legal aid that is now under way would no doubt affect the picture if certificates survived, decreasing the occasions for those to be sought and reducing them eventually to anachronisms. But the pace and extent of that development is not yet easy to predict, and I shall omit it from the reckoning. I have not managed to correlate the figures thus furnished with some further information that we were given about the number of appeals from the magistrate\u2019s courts, regional and district, which got heard in several parts of the country throughout the same period. But one can assume with confidence \fthat, for the time being at any rate, the total will be swollen substantially by allowing prisoners who need certificates at present to appeal in the future without them.", "The need to cope with the increase is clear, should judges\u2019 certificates be abolished altogether instead of being retained within an adequately improved system. In that event new structures will have to be established. A variety of alternative ones were canvassed in argument. To choose between them, to imagine others or to recommend any falls outside our province. The decision rests with Parliament. In the meantime it will want advice. Perhaps the matter will be referred to the South African Law Commission. Concrete proposals are likely to be put in due course to the Chief Justice, to the Judges- President, to the Attorneys-General and to the professional bodies of advocates and attorneys. Their reactions and suggestions will be awaited and then evaluated. Legislation will have to be drafted and circulated. All that will take time, Pg. 18/lots... Page 18 lots of time. Nor should we overlook the pressures on Parliament once everything else is ready. The preparation and enactment of the final Constitution and the transitional arrangements associated with each phase will no doubt preoccupy its members for much of next year. The long perpetuation of an unconstitutional scheme is admittedly unfortunate. But the statute book cannot be purged suddenly of all its old elements that are now repugnant to the Constitution. And, if fresh problems are to be avoided, the removal of the objectionable parts and their replacement by ones that are sound and \frealistic has to be both thorough and thoughtful. That, I have no doubt, is \u201cin the interests of justice and good government\u201d. We must therefore provide the opportunity for it.", "I had better mention something else before finishing. It has to do with Ntuli\u2019s lack of legal representation at his trial and in his subsequent endeavour to appeal. We do not know what accounted for it at either stage. The circumstances explaining that are not before us. Nor is a question which suggests itself, the question whether section 25(3)(e) of the Constitution entitled Ntuli to be provided with a lawyer\u2019s services at the expense of the state and, if it did, how the want of them may now be remedied. Indeed the referral could not competently have raised that issue, according to our judgment in S v Vermaas; S v Du Plessis 1995(3) SA 292(CC). The point seems not to have been considered yet in the Witwatersrand Local Division. It should receive attention once the case returns there. Pg. 19/[30]... Page 19", "In the result this order is made. Section 309(4)(a) of the Criminal Procedure Act is declared to be invalid on the score of its inconsistency with the Constitution. Parliament is required to remedy the defect by 30 April 1997, with the result that our declaration of invalidity is suspended until that happens or that date arrives, whichever occurs earlier, when it will come into force. The case is remitted to the Witwatersrand Local Division, which must deal with it accordingly. \fChaskalson P, Mahomed DP, Ackermann J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe J, O\u2019Regan J, and Sachs J all concur in the judgment of Didcott J. Counsel for Ntuli: W.H. Trengove S.C., with him L. Gerntholz, instructed by the Legal Resources Centre Counsel for the State: J.S.M. Henning S.C., with him P.P. Stander, instructed by the Attorney-General of the Witwatersrand Local Division Counsel for the Government: N. Pandya S.C., with him R. Mogagabe, instructed by the State Attorney"], "max_length_judgement_paras": 504}, {"title": "S v Rens (CCT1/95) [1995] ZACC 15; 1996 (2) BCLR 155; 1996 (1) SA 1218 (28 December 1995)", "url": "http://www.saflii.org/za/cases/ZACC/1995/15.html", "summary_document": {"filename": "summary-for-case-15.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/15media.pdf", "file_content": " \n\n \n\nS v Rens \n\nExplanatory Note \n\n \n\n \n\n Case CCT 1/95 \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nThe Court found the procedures for leave to appeal in s 316 of the Criminal Procedure Act \n(44 of 1977) to be constitutional. \n\nSection 316 requires that an accused person convicted of an offence before a division of the \nSupreme Court must apply for leave to appeal against his or her conviction and sentence. \nThis leave must be applied for from the judge who heard the case from which the person is \nappealing. If this judge is not available, the accused person can apply to another judge. If the \napplication for leave to appeal is refused, the accused person may petition the Chief Justice of \nthe Supreme Court of South Africa for leave to appeal. There are no such procedures for \nleave to appeal from the magistrates' courts. \n\nRens was accused of abduction and attempted murder in the Cape Provincial Division. He \nwas convicted and sentenced and sought leave to appeal. The judge referred the question of \nthe constitutionality of s 316 (read with s 315(4)) of the Criminal Procedure Act to the \nConstitutional Court. Rens argued that the difference in appeal procedures between the \nmagistrates' courts and the Supreme Court violated the Constitution's s 8, the equality clause. \nRens also argued that the leave to appeal procedures violated section 25(3)(h) (the right to \nhave recourse by way of appeal or review to a higher court than the court of first instance), \ncontending that only a full and substantial reassessment of the case meets the requirements of \nthat section. \n\nThe Court rejected the distinction between the superior and inferior courts. It also held that \nthe s 316 procedures were constitutional in that they allow for recourse by way of appeal or \nreview to a higher court than the court of first instance as provided for in section 25(3)(h). \nThe case was referred back to the Provincial Division. \n\nThe judgment of the Court was delivered by Madala J and was concurred in by the other \nmembers of the Court. \n\n \n\n1 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-15.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1995/15.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nIn the matter of:\n\nTHE STATE \n\nv\n\nPEET RENS \n\nHeard on: \n\nCASE NO CCT 1/95\n\nApplicant\n\nRespondent\n\n19 May 1995\n\nDelivered on: 28 December 1995\n\nJUDGMENT \n\n[1] MADALA J: After hearing an application for leave to appeal\n\nagainst conviction and sentence, Rose-Innes J of the Cape\n\nof Good Hope Provincial Division suspended the proceedings\n\nand referred this case to us, on the question:\n\n\u201cWhether the provisions of Section 316 of the\nCriminal Procedure Act, 51 of 1977 relating to\napplications by an accused convicted of an offence\nbefore a superior court for leave to appeal against\nhis conviction or sentence and providing in terms of\nSection 315(4) of the said Act that such appeal shall\nbe only if such leave to appeal is granted and not as\nof right, are unconstitutional by reason of\ninconsistency with Section 25(3)(h) of the\nConstitution of the Republic of South Africa 1993 and\nof no force and effect pursuant to Section 4 of the\nConstitution.\u201d\n\n[2] Section 316(1)(b) of the Criminal Procedure Act, 51 of 1977\n\n(\u201cthe Act\u201d) - alleged to be in conflict with Section\n\n25(3)(h) of the Constitution - states:\n\n\f\"An accused convicted of any offence before a\nsuperior court may, within a period of fourteen days\nof the passing of any sentence as a result of such\nconviction or within such extended period as may on\napplication (in this section referred to as an\napplication for condonation) on good cause be\nallowed, apply - \n\n(a)\n(b)\n\n..........\nif the conviction was by any other\ncourt, to the judge who presided at the\ntrial or if he is not available or, if\nin the case of a conviction before a\ncircuit court the said court is not\nsitting, to any other judge of the\nprovincial or local division of which\nthe aforesaid judge was a member when he\nso presided, \n\nfor leave to appeal against his conviction or against\nany sentence or order following thereon (in this\nsection referred to as an application for leave to\nappeal), and an accused convicted of any offence\nbefore any such court on a plea of guilty may, within\nthe same period, apply for leave to appeal against\nany sentence or any order following thereon.\"\n\n[3] The matter was argued before us by Mr Charters who appeared\n\non behalf of Mr Peet Rens, the accused in the Court a quo;\n\nMr Cilliers represented the State. Mr Rens was neither an\n\napplicant nor an appellant before this Court, but purely\n\nfor reasons of convenience and also because the last\n\nproceedings by him or on his behalf in the court a quo were\n\nin the form of an application, I shall refer to him, in\n\nthis matter, as the applicant, and to the State as the\n\nrespondent, again for the same reasons.\n\n[4]\n\nThe applicant was charged with and convicted of abduction\n\nand of attempted murder, and received a suspended sentence\n\nand a fine in respect of the first charge and ten years\u2019\n\nimprisonment on the second. He then sought to appeal\n\nagainst the conviction on both counts as well as against\n\n2\n\n\fthe sentence imposed on the charge of attempted murder.\n\nFor purposes of this judgment it is not necessary for me to\n\ndeal with the grounds on which the application for leave to\n\nappeal was based, or with any arguments advanced in favour\n\nof or against the application. Suffice it to say that\n\nRose-Innes J came to the conclusion that there was no\n\nreasonable prospect of another court reversing the\n\nconviction or interfering with the sentence of\n\nimprisonment. He accordingly would have refused the\n\napplication for leave to appeal but for the constitutional\n\nissue in respect of which he had no jurisdiction.\n\n[5]\n\nSection 25(3)(h) forms part of Chapter Three of the\n\nConstitution which sets out the entrenched fundamental\n\nrights and freedoms. It provides:\n\n\"25(3) Every accused person shall have the right to\na fair trial, which shall include the right -\n\n..........\n(h)\n\nto have recourse by way of appeal or\nreview to a higher court than the court\nof first instance;\"\n\nIt was contended on behalf of the applicant, in the court\n\na quo, that this Section afforded him an automatic right to\n\nappeal, and that, therefore, the provisions of Section\n\n316(1)(b) of the Act were unconstitutional in that they\n\nwere repugnant to and in conflict with Section 25(3)(h).\n\nIf this submission is correct, it means that a person\n\nconvicted in the superior courts does not require leave in\n\norder to appeal to a higher court than the court of first\n\ninstance. \n\n3\n\n\f[6] The legal provisions relating to appeals in criminal\n\nproceedings in the superior courts in South Africa are set\n\nout in Chapter 31 of the Act. Section 315 provides that an\n\nappeal in terms of Chapter 31 shall lie not as of right but\n\nin accordance with the provisions of Sections 316 - 319.\n\nThese provisions are a legacy of a preceding Act, the\n\nCriminal Procedure Act, 56 of 19551, whose predecessor, the\n\nCriminal Procedure and Evidence Act, 31 of 1917, which\n\nconsolidated the different procedure codes existing at\n\nUnion, also contained substantially similar provisions2.\n\n[7] Applications for leave to appeal are governed by Section\n\n316 of the Act. A person who has been convicted by a\n\nsuperior court may apply for leave to appeal against such\n\nconviction and/or sentence, and must satisfy the court, on\n\na balance of probabilities, that there are reasonable\n\nprospects of success3. Such application may be made orally\n\nat the end of the trial by the accused or by the accused\u2019s\n\nlegal representative to the presiding Judge. Alternatively,\n\nthe accused person may submit a written application for\n\nleave to appeal within a prescribed period. The procedure\n\nallows for condonation of late applications in appropriate\n\ncircumstances. The test of reasonable prospects of success\n\non appeal is lower than that which is applied in deciding\n\n1Section 363 of Act 56 of 1955.\n\n2Section 369 of Act 31 of 1917.\n\n3See R v Ngubane and Others 1945 AD 185 at 186 - 187, R v Baloi 1949 (1)\n SA 523 (A) at 524 - 525; S v Shabalala 1966 (2) SA 297(A) and S v \n Sikosana 1980 (4) SA 559(A) at 561 - 562.\n\n4\n\n\fwhether the appeal ought to succeed or not.4 If the trial\n\njudge refuses the application for leave to appeal, Section\n\n316(6) provides that the accused may petition the Chief\n\nJustice. I shall deal with this procedure later. The\n\nunderlying purpose of these requirements is to protect the\n\nappeal court - either the Appellate Division or the full\n\ncourt of the provincial or local division - against the\n\nburden of having to deal with appeals in which there are no\n\nprospects of success.\n\n[8] The leave to appeal procedure contained in Section 316 is\n\nsupplemented by the provisions of Section 317 of the Act.\n\nThis Section makes provision for the special entry of an\n\nalleged irregularity or illegality, in connection with the\n\nproceedings, and Section 319 makes provision for questions\n\nof law to be reserved for consideration by the Appellate\n\nDivision. \n\n[9] In terms of the special entry provisions of Sections 317\n\nand 318, the accused is afforded the opportunity to appeal\n\nto the Appellate Division against the decision of a\n\nsuperior court, acting as a court of first instance, where\n\nthe accused alleges there has been an irregularity or\n\nillegality in connection with the proceedings which has\n\nresulted in prejudice.\n\n4See S v N 1991 (2) SACR 10 (A) at 13 B - C.\n\n5\n\n\f[10] An application for a special entry is ordinarily made to\n\nthe judge who presided over the trial proceedings. The\n\njudge to whom the application is made is obliged to make\n\nthe special entry unless he or she is of the view that the\n\napplication is not bona fide or is frivolous or absurd. An\n\napplication can only be refused on these grounds if \u201c...it\n\nis quite certain that there is no prospect at all of an\n\nappeal based on the alleged irregularity succeeding.\u201d5 And\n\neven then, the appellant has the right in terms of Section\n\n317(5) to petition the Chief Justice for the special entry\n\nto be made on the record.\n\n[11] Section 319, which makes provision for the reservation of\n\na question of law for consideration by the Appellate\n\nDivision, permits an accused person who has been convicted\n\nat the trial to raise a question of law, as a ground for\n\nappeal. Although the question of law can be raised under\n\nSection 316, there may be cases in which it is convenient\n\nto use Section 319 as the basis for the appeal6. The judge\n\nto whom the application for the reservation of a question\n\nof law is made is obliged to reserve it if there is a\n\nreasonable prospect of success in regard to that question.\n\nIf the application to reserve a question of law is\n\ndismissed, the convicted person once again has the right to\n\npetition the Chief Justice for the question to be reserved.\n\n5S v Xaba 1983 (3) SA 717 (A) at 733 D.\n\n6R v Nzimande 1957 (3) SA 772 (A) at 774A - B.\n\n6\n\n\f[12] It follows that the procedures available to an accused\n\nperson who has been convicted, are to apply generally for\n\nleave to appeal, to apply specifically for a special entry\n\nto be made on the record, concerning any irregularity or\n\nillegality connected with the proceedings, and to apply for\n\na question of law to be reserved for the consideration of\n\nthe Appellate Division. The question we have to decide in\n\nthis case is whether, notwithstanding these provisions, the\n\nprocedures prescribed by Section 316 are inconsistent with\n\nthe Constitution.\n\n[13] It was contended by Mr Cilliers, that Section 102(11) of\n\nthe Constitution was dispositive of the issue under\n\nconsideration, because it supports the proposition that a\n\nprocedure for leave to appeal is expressly contemplated and\n\nsanctioned by the Constitution and that such a procedure\n\ncould, therefore, never be unconstitutional.\n\n[14] Section 102(11) states:\n\n\u201cAppeals to the Appellate Division and the Constitutional\nCourt shall be regulated by law, including the rules of\nsuch courts, which may provide that leave of the court from\nwhich the appeal is brought, or to which the appeal is\nnoted, shall be required as a condition for such appeal.\u201d\n\nIn S v Madasie and Others7, the same issue as in the\n\npresent case as well as Section 102(11) was raised for\n\ndecision. The accused in that case, had taken the\n\n7Case No SS 105/94 : unreported judgment of the CPD.\n\n7\n\n\fpoint that the need for leave to appeal against the\n\nconviction and sentence had been eliminated by the\n\nprovisions of Section 25(3)(h) of the Constitution.\n\nConradie J held at page 2:\n\n\u201cThe point is without merit. Section 102(11) of the\nConstitution Act makes it permissible for an Act of\nParliament to require (as section 316(1) of the\nCriminal Procedure Act 51 of 1977 does) leave as a\ncondition for an appeal. Since both provisions are\ncontained in the Constitution Act they must be\naccorded equal force. Section 102(11) therefore\nnecessarily qualifies section 25(3)(h). It follows\nthat section 316(1)(b) of the Criminal Procedure Act\nis not open to attack.\u201d\n\nHe accordingly dismissed the application, and also\n\nrefused to refer the issue to the Constitutional\n\nCourt, holding that he was only entitled to refer the\n\nissue of the validity of Section 316(1)(b) if it\n\nshould be considered to be in the interests of justice\n\nto do so. In that case, so his judgment ran, it was\n\nnot in the interests of justice to refer an unarguable\n\npoint to the Constitutional Court or to any other\n\ncourt.\n\n[15] It was contended for the applicant that if Section 102\n\n(11) is construed in this way it would be inconsistent\n\nwith section 25(3)(h). It was argued that Section\n\n25(3)(h) makes provision for a fundamental right and\n\nshould therefore prevail over Section 102(11), or\n\nalternatively, that section 102(11) should be given a\n\n8\n\n\frestricted operation so that it does not detract from\n\nthe rigour of the fair trial rights contemplated by\n\nSection 25(3)(h). \n\n[16] Section 102(11) could be construed narrowly within the\n\ncontext of Section 102 of the Constitution as meaning\n\nno more than that Sections 102(4),(5),(6),(12),(16)\n\nand (17) do not confer an unlimited constitutional\n\nright of appeal on litigants, and not as detracting in\n\nany way from the provisions of Section 25(3)(h). If\n\nthis is the correct construction of the Section, the\n\nanswer to the question referred to us would depend\n\nupon the proper construction of Section 25(3)(h) of\n\nthe Constitution.\n\n[17] But even if the section is construed as a general\n\nprovision, textually unlimited, which contemplates\n\nrules which provide for leave to appeal in respect of\n\nall appeals to the Appellate Division and the\n\nConstitutional Court, it would still be necessary to\n\nhave regard to the provisions of Section 25(3)(h). It\n\nis not to be assumed that provisions in the same\n\nconstitution are contradictory and the two provisions\n\nshould, if possible, be construed in such a way as to\n\nharmonise with one another. Section 102(11) does not\n\n9\n\n\fmention specific criteria which have to be complied\n\nwith for the purpose of a leave to appeal procedure,\n\nand, in my view, it should not be construed as\n\nauthorising procedures that would be inconsistent with\n\nSection 25(3)(h).\n\n[18] Section 25(3) protects \u201cthe right to a fair trial\u201d.\n\nThe framers of the Constitution provided in Section\n\n25(3) that a fair trial \u201cshall include\u201d certain\n\nspecific rights, but as Kentridge AJ observed in S v\n\nZuma and Others 1995 (4) BCLR 401 (CC) at 411 G - H,\n\nthe right so conferred by that Section\n\n\u201c...is broader than the list of specific rights set\nout in paragraphs (a) to (j) of the subsection.\u201d\n\nThe criterion set by section 25(3) is fairness and in\n\norder to harmonise Section 102(11) with Section\n\n25(3)(h), the leave to appeal procedures should be\n\nconsistent with this requirement. And this is so\n\nwhether Section 102(11) is construed narrowly as\n\nreferring only to appeals mentioned in Section 102, or\n\ngenerally as applying to all appeals.\n\n[19] It was contended by Mr Charters that any procedure\n\nthat requires leave to appeal to be obtained from the\n\ncourt a quo would be inconsistent with Section\n\n25(3)(h). In this regard it was argued that the\n\nprocedure prescribed by Section 316 of the Criminal\n\n10\n\n\fProcedure Act offends against the provisions of\n\nSection 25(3)(h), firstly, because it requires the\n\ntrial judge to pronounce on prospects of success on\n\nappeal against his or her own judgment, and secondly\n\nbecause the petition procedure does not involve a full\n\nhearing with a comprehensive traversing of the facts\n\nof the case in the court a quo.\n\n[20] There is no substance in the first submission. The\n\ntrial judge is not required to say that the judgment\n\nis wrong; the test is simply that another court may\n\nreasonably come to a different conclusion. If leave\n\nis refused Section 316(6) of the Act allows the\n\naccused, whose application for leave to appeal has\n\nbeen refused by the trial judge, to make use of the\n\npetition procedure. In so doing it allows the accused\n\nto approach a higher court. The question that has to\n\nbe decided is whether this constitutes a resort to a\n\nhigher court by way of appeal or review within the\n\nmeaning of Section 25(3)(h) of the Constitution, and\n\nif so, whether the prescribed procedures are\n\nconsistent with the requirements of fairness implicit\n\nin Section 25(3)(h). \n\n[21] It was contended on behalf of the applicant that only\n\na reassessment of the issues based on full oral\n\nargument would serve to meet the requirements of the\n\nright contemplated by Section 25(3)(h). I cannot agree\n\n11\n\n\fwith this submission. The words used in Section\n\n25(3)(h) are \u201c... to have recourse by way of ...\u201d.\n\nThe Oxford Dictionary meaning of \u201crecourse\u201d is:\n\n\u201c(n) resorting to a possible source of help; person\nor thing resorted to; have recourse to turn to\n(person or thing) for help.\u201d\n\nThe use of the phrase \"have recourse by way of\"\n\nsupports a broad construction of the words \u201cappeal or\n\nreview\u201d. What the Section requires, in my view, is\n\nthat provision be made either for an appeal in the\n\nconventional manner, or for a review in the sense of\n\na re-assessment of the issues by a court higher than\n\nthat in which the accused was convicted. Such a\n\nconstruction would bring the provisions of Section\n\n25(3)(h) and Section 102(11) into harmony with one\n\nanother.\n\n[22] The provisions of Section 25(3)(h) were also\n\nconsidered by Magid J in S v Bhengu8. The applicant\n\nin Bhengu\u2019s case had been convicted and sentenced in\n\na circuit local division of the supreme court. He\n\nsought leave to appeal against his conviction,\n\nalternatively, a postponement of the matter and its\n\nreferral to the Constitutional Court on the same\n\nquestion which is before us. For the applicant, it\n\nwas argued that Section 25(3)(h) was intended to\n\n81995(3) BCLR 394(D).\n\n12\n\n\fconfer an absolute right of appeal from a judgment of\n\nthe trial court.\n\nMagid J held at 397 I:\n\n\u201cI should indicate that I have very grave doubts\nwhether this provision entitles a convicted person to\nan absolute right of appeal. The phrase `to have\nrecourse by way of appeal\u2019 is in my view perfectly\ncapable of meaning `to have recourse to a court of\nappeal if the proper procedure is followed\u2019.\u201d\n\nIn coming to the conclusion that Section 25(3)(h) of\n\nthe Constitution does not confer an absolute right of\n\nappeal on a convicted person, and that leave to appeal\n\nprovisions are not inconsistent with its requirements,\n\nMagid J said, at 397 J - 398A:\n\n\u201cIf that had been the intention (to create an\nabsolute right of appeal) I should have\nexpected the words `to have recourse by way\u2019\nto have been omitted from the provision of\nsection 25(3)(h).\u201d\n\nSubject to the qualification that the leave to appeal\n\nprocedures must be consistent with the requirements of\n\nfairness demanded by section 25(3), I agree with this\n\nconclusion.\n\n[23] Section 316(1)(b) of the Act gives the convicted\n\nperson two bites of the cherry. On being convicted and\n\nsentenced, the accused person has an opportunity of\n\napproaching the trial court and seeking leave from\n\nthat court to appeal against the conviction or\n\n13\n\n\fsentence, or both. If the application is refused, the\n\nperson may then seek leave to appeal from the Chief\n\nJustice by way of petition. The Chief Justice is\n\nrequired to refer the matter to two members of the\n\nAppellate Division. Procedural irregularities and\n\npoints of law are taken care of by Sections 317 to 319\n\nin terms of which the accused person is given an\n\nextensive right to appeal, and if leave is refused,\n\nthe opportunity of placing such issues before two\n\njudges of the Appellate Division through the petition\n\nprocedure. In all petitions, whether under Section 316\n\nor Sections 317 to 319, if the two judges of the\n\nAppellate Division fail to agree, a third member of\n\nthe Appellate Division is assigned to the case. The\n\nprescribed procedures make provision for argument to\n\nbe set out in writing in the petition. In terms of\n\nthe Act, the judges of the Appellate Division to whom\n\nthe petition is referred, may call for further\n\ninformation from the trial judge or the judge who\n\nheard the application for leave to appeal, and may\n\nalso call for oral argument on the application for\n\nleave to appeal, or refer the matter to the Appellate\n\nDivision for its consideration. The judges of the\n\nAppellate Division will refuse the leave sought only\n\n14\n\n\fif they are satisfied that there are no reasonable\n\nprospects of success on appeal.\n\n[24] It is true that the re-assessment of the case usually\n\nlacks full oral argument or a full re-hearing of the\n\nmatter, but this does not in itself mean that the\n\nprocedure is not fair, or that it does not constitute\n\nresort to a higher court within the meaning of Section\n\n25(3)(h). In Monnell and Morris v United Kingdom9, the\n\nEuropean Court of Human Rights held that an\n\napplication for leave to appeal did not necessarily\n\ncall for the hearing of oral argument at a public\n\nhearing or the personal appearance of the accused\n\nbefore the higher court, and that an accused who had\n\nbeen denied leave to appeal without such a hearing,\n\ncould not contend for that reason alone that there had\n\nbeen a denial of the right to a fair and public\n\nhearing by an independent tribunal. The trial had\n\nbeen conducted in public and this was sufficient in\n\nthe circumstances to meet the requirements of the\n\nCharter. There are indeed other jurisdictions in\n\nwhich oral argument in connection with appeals or\n\n9(1987) 10 E.H.R.R. 205 at 220-5.\n\n15\n\n\fleave to appeal is not allowed, or where it is\n\ncurtailed to some extent.10\n\n[25] The doors of the appeal court are not closed to a\n\nperson convicted in the supreme court, and in my view,\n\nthe requirements of fairness are satisfied. It cannot\n\nbe in the interests of justice and fairness to allow\n\nunmeritorious and vexatious issues of procedure, law\n\nor fact to be placed before three judges of the\n\nappellate tribunal sitting in open court to re-hear\n\noral argument. The rolls would be clogged by hopeless\n\ncases, thus prejudicing the speedy resolution of those\n\ncases where there is sufficient substance to justify\n\nan appeal.\n\n[26] In my view the petition procedure which is available\n\nto every accused whose application for leave to appeal\n\nhas been refused by the supreme court in which he or\n\nshe was convicted, allows such accused recourse to a\n\nhigher court to review, in a broad and not a technical\n\nsense, the judgment of the trial court. The procedure\n\ninvolves a re-assessment of the disputed issues by two\n\njudges of the higher court, and provides a framework\n\n10Axen v Germany (1984) 6 E.H.R.R. 195, para. 28; Sutter v Switzerland\n(1984) 6 E.H.R.R. 272, para. 29-30. In the United States of America and Canada\noral argument in appeals is often subject to strict time limits.\n\n16\n\n\ffor that reassessment, which ensures that an informed\n\ndecision is made by them as to the prospects of\n\nsuccess. In this respect the procedure is materially\n\ndifferent to the procedure for judges' certificates\n\nwhich we found to be inconsistent with the\n\nConstitution in the as yet unreported decision in S v\n\nNtuli.11\n\n[27] It was also contended on behalf of the applicant that\n\nthe procedures for appeal prescribed by Section 316\n\nare open to the objection that they permit a direction\n\nto be given that the appeal be made to the full bench\n\nof the supreme court of the provincial division in\n\nwhich the accused was convicted, and not to a higher\n\ncourt. There is no substance in this contention. The\n\nfull bench is clearly a higher tribunal than a court\n\ncomposed of a judge sitting alone with or without\n\nassessors.\n\n[28] Finally it was argued on behalf of the applicant that\n\na denial to persons tried in the supreme court of an\n\nabsolute right of appeal is discriminatory and in\n\nbreach of the provisions of Section 8 of the\n\nConstitution. On this aspect of the case, it was\n\n11 CCT 17/ 95: Delivered on 8 December 1995, at pp 8-9. \n\n17\n\n\fcontended that, whereas Section 309 of the Act affords\n\nan accused person convicted in a lower court a right\n\nof appeal to a provincial or local division of the\n\nsupreme court having jurisdiction, no such right is\n\navailable to an accused person convicted in a superior\n\ncourt. It was argued that the leave to appeal\n\nprocedure was so startling a departure from what was\n\nelsewhere in our law an accepted norm - the right to\n\nan appeal from the court of first instance - that it\n\ndemanded an explanation to justify its existence.\n\nThis argument is not sound. As indicated above the\n\nsuccessive criminal procedure codes of South Africa\n\ndid not give to an accused person an automatic right\n\nof appeal from the court of first instance at all\n\nlevels of the court structure. On the contrary, at\n\ncertain levels of our court system, appeals have\n\nalways been possible only after leave had been\n\ngranted. The fact that appeals from the supreme court\n\nare treated differently from appeals from the\n\nmagistrates\u2019 courts, is due to differences in the\n\nstanding and functioning of the courts. Counsel for\n\nthe applicant conceded that the underlying purpose of\n\nthe leave to appeal procedure - to protect the higher\n\ncourt from the burden of having to deal with appeals\n\n18\n\n\fin which there is no prospect of success - is a\n\nlegitimate and rational purpose. \n\n[29] The challenge to the constitutionality of the leave to\n\nappeal procedure on the grounds that it is\n\ninconsistent with the provisions of Section 8 of the\n\nConstitution was not mentioned in the applicant\u2019s\n\nheads of argument, nor was it thoroughly canvassed\n\nduring argument. In my view, Section 8 does not\n\nassist the applicant in this matter. The principle\n\nthat there be equality before the law and equal\n\nprotection of the law does not require identical\n\nprocedures to be followed in respect of appeals from\n\nor to different tiers of courts. As long as all\n\npersons appealing from or to a particular court are\n\nsubject to the same procedures the requirement of\n\nequality is met. It was not suggested that the\n\ndistinction between people tried in the superior\n\ncourts and those tried in the inferior courts resulted\n\nin unfair discrimination, either direct or indirect,\n\non any of the grounds listed in Section 8(2) of the\n\nConstitution or any other analogous ground. Nor was\n\nany cogent reason suggested as to why cases tried in\n\nthe superior courts must follow identical procedures\n\nto those applicable in the lower courts. It is true\n\n19\n\n\fthat both categories of accused persons are entitled\n\nto a fair trial, but it is quite rational that\n\ndifferent procedures be followed in the different\n\ncourts given the different circumstances. In my view,\n\nthere was no force at all in the argument that the\n\ndifferent appellate procedures applicable in the\n\nsuperior and lower courts could be constitutionally\n\nchallenged under Section 8.\n\n[30] I accordingly find that Section 316 of the Criminal\n\nProcedure Act is not inconsistent with Section\n\n25(3)(h) or Section 8 of the Constitution. The\n\nfollowing order is made:\n\n1.\n\nThe question referred by Rose-Innes J. is\n\nanswered as follows: The provisions of\n\nSection 316 of the Criminal Procedure Act,\n\n51 of 1977, are not inconsistent with the\n\nprovisions of Section 25(3)(h) of the\n\nRepublic of South Africa Constitution Act,\n\n200 of 1993.\n\n2.\n\nThe case is referred back to the Cape\n\nProvincial Division to be dealt with in\n\naccordance with the terms of this order.\n\n20\n\n\f_____________\n\nT.H. Madala:\n\nJustice of the Constitutional Court.\n\nChaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler\n\nJ, Langa J, Mokgoro J, O\u2019Regan J, Sachs J and Trengove AJ\n\nconcur in the judgment of Madala J.\n\nCounsel for the\nApplicant/Accused\n\nCounsel for the\nRespondent/State\n\nInstructed by\n\n:\n\n:\n\n:\n\nD.J. Charters (Pro Deo)\n\nC.A. Cilliers\n\nThe Attorney-General \nCape Town\n\n21\n\n\f"}, "id": "7db6387a-2b5c-4df4-b38d-77dcdc1d1cd9", "update_date": "2021-03-15 17:08:56.815716", "year": "1995", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter of: THE STATE v PEET RENS Heard on: CASE NO CCT 1/95 Applicant Respondent 19 May 1995 Delivered on: 28 December 1995 JUDGMENT", "MADALA J: After hearing an application for leave to appeal against conviction and sentence, Rose-Innes J of the Cape of Good Hope Provincial Division suspended the proceedings and referred this case to us, on the question: \u201cWhether the provisions of Section 316 of the Criminal Procedure Act, 51 of 1977 relating to applications by an accused convicted of an offence before a superior court for leave to appeal against his conviction or sentence and providing in terms of Section 315(4) of the said Act that such appeal shall be only if such leave to appeal is granted and not as of right, are unconstitutional by reason of inconsistency with Section 25(3)(h) of the Constitution of the Republic of South Africa 1993 and of no force and effect pursuant to Section 4 of the Constitution.\u201d", "Section 316(1)(b) of the Criminal Procedure Act, 51 of 1977 (\u201cthe Act\u201d) - alleged to be in conflict with Section 25(3)(h) of the Constitution - states: \f\"An accused convicted of any offence before a superior court may, within a period of fourteen days of the passing of any sentence as a result of such conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause be allowed, apply - (a) (b) .......... if the conviction was by any other court, to the judge who presided at the trial or if he is not available or, if in the case of a conviction before a circuit court the said court is not sitting, to any other judge of the provincial or local division of which the aforesaid judge was a member when he so presided, for leave to appeal against his conviction or against any sentence or order following thereon (in this section referred to as an application for leave to appeal), and an accused convicted of any offence before any such court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.\"", "The matter was argued before us by Mr Charters who appeared on behalf of Mr Peet Rens, the accused in the Court a quo; Mr Cilliers represented the State. Mr Rens was neither an applicant nor an appellant before this Court, but purely for reasons of convenience and also because the last proceedings by him or on his behalf in the court a quo were in the form of an application, I shall refer to him, in this matter, as the applicant, and to the State as the respondent, again for the same reasons.", "The applicant was charged with and convicted of abduction and of attempted murder, and received a suspended sentence and a fine in respect of the first charge and ten years\u2019 imprisonment on the second. He then sought to appeal against the conviction on both counts as well as against 2 \fthe sentence imposed on the charge of attempted murder. For purposes of this judgment it is not necessary for me to deal with the grounds on which the application for leave to appeal was based, or with any arguments advanced in favour of or against the application. Suffice it to say that Rose-Innes J came to the conclusion that there was no reasonable prospect of another court reversing the conviction or interfering with the sentence of imprisonment. He accordingly would have refused the application for leave to appeal but for the constitutional issue in respect of which he had no jurisdiction.", "Section 25(3)(h) forms part of Chapter Three of the Constitution which sets out the entrenched fundamental rights and freedoms. It provides: \"25(3) Every accused person shall have the right to a fair trial, which shall include the right - .......... (h) to have recourse by way of appeal or review to a higher court than the court of first instance;\" It was contended on behalf of the applicant, in the court a quo, that this Section afforded him an automatic right to appeal, and that, therefore, the provisions of Section 316(1)(b) of the Act were unconstitutional in that they were repugnant to and in conflict with Section 25(3)(h). If this submission is correct, it means that a person convicted in the superior courts does not require leave in order to appeal to a higher court than the court of first instance. 3 \f[6] The legal provisions relating to appeals in criminal proceedings in the superior courts in South Africa are set out in Chapter 31 of the Act. Section 315 provides that an appeal in terms of Chapter 31 shall lie not as of right but in accordance with the provisions of Sections 316 - 319. These provisions are a legacy of a preceding Act, the Criminal Procedure Act, 56 of 19551, whose predecessor, the Criminal Procedure and Evidence Act, 31 of 1917, which consolidated the different procedure codes existing at Union, also contained substantially similar provisions2.", "Applications for leave to appeal are governed by Section 316 of the Act. A person who has been convicted by a superior court may apply for leave to appeal against such conviction and/or sentence, and must satisfy the court, on a balance of probabilities, that there are reasonable prospects of success3. Such application may be made orally at the end of the trial by the accused or by the accused\u2019s legal representative to the presiding Judge. Alternatively, the accused person may submit a written application for leave to appeal within a prescribed period. The procedure allows for condonation of late applications in appropriate circumstances. The test of reasonable prospects of success on appeal is lower than that which is applied in deciding 1Section 363 of Act 56 of 1955. 2Section 369 of Act 31 of 1917. 3See R v Ngubane and Others 1945 AD 185 at 186 - 187, R v Baloi 1949 (1) SA 523 (A) at 524 - 525; S v Shabalala 1966 (2) SA 297(A) and S v Sikosana 1980 (4) SA 559(A) at 561 - 562. 4 \fwhether the appeal ought to succeed or not.4 If the trial judge refuses the application for leave to appeal, Section 316(6) provides that the accused may petition the Chief Justice. I shall deal with this procedure later. The underlying purpose of these requirements is to protect the appeal court - either the Appellate Division or the full court of the provincial or local division - against the burden of having to deal with appeals in which there are no prospects of success.", "The leave to appeal procedure contained in Section 316 is supplemented by the provisions of Section 317 of the Act. This Section makes provision for the special entry of an alleged irregularity or illegality, in connection with the proceedings, and Section 319 makes provision for questions of law to be reserved for consideration by the Appellate Division.", "In terms of the special entry provisions of Sections 317 and 318, the accused is afforded the opportunity to appeal to the Appellate Division against the decision of a superior court, acting as a court of first instance, where the accused alleges there has been an irregularity or illegality in connection with the proceedings which has resulted in prejudice. 4See S v N 1991 (2) SACR 10 (A) at 13 B - C. 5 \f[10] An application for a special entry is ordinarily made to the judge who presided over the trial proceedings. The judge to whom the application is made is obliged to make the special entry unless he or she is of the view that the application is not bona fide or is frivolous or absurd. An application can only be refused on these grounds if \u201c...it is quite certain that there is no prospect at all of an appeal based on the alleged irregularity succeeding.\u201d5 And even then, the appellant has the right in terms of Section 317(5) to petition the Chief Justice for the special entry to be made on the record.", "Section 319, which makes provision for the reservation of a question of law for consideration by the Appellate Division, permits an accused person who has been convicted at the trial to raise a question of law, as a ground for appeal. Although the question of law can be raised under Section 316, there may be cases in which it is convenient to use Section 319 as the basis for the appeal6. The judge to whom the application for the reservation of a question of law is made is obliged to reserve it if there is a reasonable prospect of success in regard to that question. If the application to reserve a question of law is dismissed, the convicted person once again has the right to petition the Chief Justice for the question to be reserved. 5S v Xaba 1983 (3) SA 717 (A) at 733 D. 6R v Nzimande 1957 (3) SA 772 (A) at 774A - B. 6 \f[12] It follows that the procedures available to an accused person who has been convicted, are to apply generally for leave to appeal, to apply specifically for a special entry to be made on the record, concerning any irregularity or illegality connected with the proceedings, and to apply for a question of law to be reserved for the consideration of the Appellate Division. The question we have to decide in this case is whether, notwithstanding these provisions, the procedures prescribed by Section 316 are inconsistent with the Constitution.", "It was contended by Mr Cilliers, that Section 102(11) of the Constitution was dispositive of the issue under consideration, because it supports the proposition that a procedure for leave to appeal is expressly contemplated and sanctioned by the Constitution and that such a procedure could, therefore, never be unconstitutional.", "Section 102(11) states: \u201cAppeals to the Appellate Division and the Constitutional Court shall be regulated by law, including the rules of such courts, which may provide that leave of the court from which the appeal is brought, or to which the appeal is noted, shall be required as a condition for such appeal.\u201d In S v Madasie and Others7, the same issue as in the present case as well as Section 102(11) was raised for decision. The accused in that case, had taken the 7Case No SS 105/94 : unreported judgment of the CPD. 7 \fpoint that the need for leave to appeal against the conviction and sentence had been eliminated by the provisions of Section 25(3)(h) of the Constitution. Conradie J held at page 2: \u201cThe point is without merit. Section 102(11) of the Constitution Act makes it permissible for an Act of Parliament to require (as section 316(1) of the Criminal Procedure Act 51 of 1977 does) leave as a condition for an appeal. Since both provisions are contained in the Constitution Act they must be accorded equal force. Section 102(11) therefore necessarily qualifies section 25(3)(h). It follows that section 316(1)(b) of the Criminal Procedure Act is not open to attack.\u201d He accordingly dismissed the application, and also refused to refer the issue to the Constitutional Court, holding that he was only entitled to refer the issue of the validity of Section 316(1)(b) if it should be considered to be in the interests of justice to do so. In that case, so his judgment ran, it was not in the interests of justice to refer an unarguable point to the Constitutional Court or to any other court.", "It was contended for the applicant that if Section 102 (11) is construed in this way it would be inconsistent with section 25(3)(h). It was argued that Section 25(3)(h) makes provision for a fundamental right and should therefore prevail over Section 102(11), or alternatively, that section 102(11) should be given a 8 \frestricted operation so that it does not detract from the rigour of the fair trial rights contemplated by Section 25(3)(h).", "Section 102(11) could be construed narrowly within the context of Section 102 of the Constitution as meaning no more than that Sections 102(4),(5),(6),(12),(16) and (17) do not confer an unlimited constitutional right of appeal on litigants, and not as detracting in any way from the provisions of Section 25(3)(h). If this is the correct construction of the Section, the answer to the question referred to us would depend upon the proper construction of Section 25(3)(h) of the Constitution.", "But even if the section is construed as a general provision, textually unlimited, which contemplates rules which provide for leave to appeal in respect of all appeals to the Appellate Division and the Constitutional Court, it would still be necessary to have regard to the provisions of Section 25(3)(h). It is not to be assumed that provisions in the same constitution are contradictory and the two provisions should, if possible, be construed in such a way as to harmonise with one another. Section 102(11) does not 9 \fmention specific criteria which have to be complied with for the purpose of a leave to appeal procedure, and, in my view, it should not be construed as authorising procedures that would be inconsistent with Section 25(3)(h).", "Section 25(3) protects \u201cthe right to a fair trial\u201d. The framers of the Constitution provided in Section 25(3) that a fair trial \u201cshall include\u201d certain specific rights, but as Kentridge AJ observed in S v Zuma and Others 1995 (4) BCLR 401 (CC) at 411 G - H, the right so conferred by that Section \u201c...is broader than the list of specific rights set out in paragraphs (a) to (j) of the subsection.\u201d The criterion set by section 25(3) is fairness and in order to harmonise Section 102(11) with Section 25(3)(h), the leave to appeal procedures should be consistent with this requirement. And this is so whether Section 102(11) is construed narrowly as referring only to appeals mentioned in Section 102, or generally as applying to all appeals.", "It was contended by Mr Charters that any procedure that requires leave to appeal to be obtained from the court a quo would be inconsistent with Section 25(3)(h). In this regard it was argued that the procedure prescribed by Section 316 of the Criminal 10 \fProcedure Act offends against the provisions of Section 25(3)(h), firstly, because it requires the trial judge to pronounce on prospects of success on appeal against his or her own judgment, and secondly because the petition procedure does not involve a full hearing with a comprehensive traversing of the facts of the case in the court a quo.", "There is no substance in the first submission. The trial judge is not required to say that the judgment is wrong; the test is simply that another court may reasonably come to a different conclusion. If leave is refused Section 316(6) of the Act allows the accused, whose application for leave to appeal has been refused by the trial judge, to make use of the petition procedure. In so doing it allows the accused to approach a higher court. The question that has to be decided is whether this constitutes a resort to a higher court by way of appeal or review within the meaning of Section 25(3)(h) of the Constitution, and if so, whether the prescribed procedures are consistent with the requirements of fairness implicit in Section 25(3)(h).", "It was contended on behalf of the applicant that only a reassessment of the issues based on full oral argument would serve to meet the requirements of the right contemplated by Section 25(3)(h). I cannot agree 11 \fwith this submission. The words used in Section 25(3)(h) are \u201c... to have recourse by way of ...\u201d. The Oxford Dictionary meaning of \u201crecourse\u201d is: \u201c(n) resorting to a possible source of help; person or thing resorted to; have recourse to turn to (person or thing) for help.\u201d The use of the phrase \"have recourse by way of\" supports a broad construction of the words \u201cappeal or review\u201d. What the Section requires, in my view, is that provision be made either for an appeal in the conventional manner, or for a review in the sense of a re-assessment of the issues by a court higher than that in which the accused was convicted. Such a construction would bring the provisions of Section 25(3)(h) and Section 102(11) into harmony with one another.", "The provisions of Section 25(3)(h) were also considered by Magid J in S v Bhengu8. The applicant in Bhengu\u2019s case had been convicted and sentenced in a circuit local division of the supreme court. He sought leave to appeal against his conviction, alternatively, a postponement of the matter and its referral to the Constitutional Court on the same question which is before us. For the applicant, it was argued that Section 25(3)(h) was intended to 81995(3) BCLR 394(D). 12 \fconfer an absolute right of appeal from a judgment of the trial court. Magid J held at 397 I: \u201cI should indicate that I have very grave doubts whether this provision entitles a convicted person to an absolute right of appeal. The phrase `to have recourse by way of appeal\u2019 is in my view perfectly capable of meaning `to have recourse to a court of appeal if the proper procedure is followed\u2019.\u201d In coming to the conclusion that Section 25(3)(h) of the Constitution does not confer an absolute right of appeal on a convicted person, and that leave to appeal provisions are not inconsistent with its requirements, Magid J said, at 397 J - 398A: \u201cIf that had been the intention (to create an absolute right of appeal) I should have expected the words `to have recourse by way\u2019 to have been omitted from the provision of section 25(3)(h).\u201d Subject to the qualification that the leave to appeal procedures must be consistent with the requirements of fairness demanded by section 25(3), I agree with this conclusion.", "Section 316(1)(b) of the Act gives the convicted person two bites of the cherry. On being convicted and sentenced, the accused person has an opportunity of approaching the trial court and seeking leave from that court to appeal against the conviction or 13 \fsentence, or both. If the application is refused, the person may then seek leave to appeal from the Chief Justice by way of petition. The Chief Justice is required to refer the matter to two members of the Appellate Division. Procedural irregularities and points of law are taken care of by Sections 317 to 319 in terms of which the accused person is given an extensive right to appeal, and if leave is refused, the opportunity of placing such issues before two judges of the Appellate Division through the petition procedure. In all petitions, whether under Section 316 or Sections 317 to 319, if the two judges of the Appellate Division fail to agree, a third member of the Appellate Division is assigned to the case. The prescribed procedures make provision for argument to be set out in writing in the petition. In terms of the Act, the judges of the Appellate Division to whom the petition is referred, may call for further information from the trial judge or the judge who heard the application for leave to appeal, and may also call for oral argument on the application for leave to appeal, or refer the matter to the Appellate Division for its consideration. The judges of the Appellate Division will refuse the leave sought only 14 \fif they are satisfied that there are no reasonable prospects of success on appeal.", "It is true that the re-assessment of the case usually lacks full oral argument or a full re-hearing of the matter, but this does not in itself mean that the procedure is not fair, or that it does not constitute resort to a higher court within the meaning of Section 25(3)(h). In Monnell and Morris v United Kingdom9, the European Court of Human Rights held that an application for leave to appeal did not necessarily call for the hearing of oral argument at a public hearing or the personal appearance of the accused before the higher court, and that an accused who had been denied leave to appeal without such a hearing, could not contend for that reason alone that there had been a denial of the right to a fair and public hearing by an independent tribunal. The trial had been conducted in public and this was sufficient in the circumstances to meet the requirements of the Charter. There are indeed other jurisdictions in which oral argument in connection with appeals or 9(1987) 10 E.H.R.R. 205 at 220-5. 15 \fleave to appeal is not allowed, or where it is curtailed to some extent.10", "The doors of the appeal court are not closed to a person convicted in the supreme court, and in my view, the requirements of fairness are satisfied. It cannot be in the interests of justice and fairness to allow unmeritorious and vexatious issues of procedure, law or fact to be placed before three judges of the appellate tribunal sitting in open court to re-hear oral argument. The rolls would be clogged by hopeless cases, thus prejudicing the speedy resolution of those cases where there is sufficient substance to justify an appeal.", "In my view the petition procedure which is available to every accused whose application for leave to appeal has been refused by the supreme court in which he or she was convicted, allows such accused recourse to a higher court to review, in a broad and not a technical sense, the judgment of the trial court. The procedure involves a re-assessment of the disputed issues by two judges of the higher court, and provides a framework 10Axen v Germany (1984) 6 E.H.R.R. 195, para. 28; Sutter v Switzerland (1984) 6 E.H.R.R. 272, para. 29-30. In the United States of America and Canada oral argument in appeals is often subject to strict time limits. 16 \ffor that reassessment, which ensures that an informed decision is made by them as to the prospects of success. In this respect the procedure is materially different to the procedure for judges' certificates which we found to be inconsistent with the Constitution in the as yet unreported decision in S v Ntuli.11", "It was also contended on behalf of the applicant that the procedures for appeal prescribed by Section 316 are open to the objection that they permit a direction to be given that the appeal be made to the full bench of the supreme court of the provincial division in which the accused was convicted, and not to a higher court. There is no substance in this contention. The full bench is clearly a higher tribunal than a court composed of a judge sitting alone with or without assessors.", "Finally it was argued on behalf of the applicant that a denial to persons tried in the supreme court of an absolute right of appeal is discriminatory and in breach of the provisions of Section 8 of the Constitution. On this aspect of the case, it was 11 CCT 17/ 95: Delivered on 8 December 1995, at pp 8-9. 17 \fcontended that, whereas Section 309 of the Act affords an accused person convicted in a lower court a right of appeal to a provincial or local division of the supreme court having jurisdiction, no such right is available to an accused person convicted in a superior court. It was argued that the leave to appeal procedure was so startling a departure from what was elsewhere in our law an accepted norm - the right to an appeal from the court of first instance - that it demanded an explanation to justify its existence. This argument is not sound. As indicated above the successive criminal procedure codes of South Africa did not give to an accused person an automatic right of appeal from the court of first instance at all levels of the court structure. On the contrary, at certain levels of our court system, appeals have always been possible only after leave had been granted. The fact that appeals from the supreme court are treated differently from appeals from the magistrates\u2019 courts, is due to differences in the standing and functioning of the courts. Counsel for the applicant conceded that the underlying purpose of the leave to appeal procedure - to protect the higher court from the burden of having to deal with appeals 18 \fin which there is no prospect of success - is a legitimate and rational purpose.", "The challenge to the constitutionality of the leave to appeal procedure on the grounds that it is inconsistent with the provisions of Section 8 of the Constitution was not mentioned in the applicant\u2019s heads of argument, nor was it thoroughly canvassed during argument. In my view, Section 8 does not assist the applicant in this matter. The principle that there be equality before the law and equal protection of the law does not require identical procedures to be followed in respect of appeals from or to different tiers of courts. As long as all persons appealing from or to a particular court are subject to the same procedures the requirement of equality is met. It was not suggested that the distinction between people tried in the superior courts and those tried in the inferior courts resulted in unfair discrimination, either direct or indirect, on any of the grounds listed in Section 8(2) of the Constitution or any other analogous ground. Nor was any cogent reason suggested as to why cases tried in the superior courts must follow identical procedures to those applicable in the lower courts. It is true 19 \fthat both categories of accused persons are entitled to a fair trial, but it is quite rational that different procedures be followed in the different courts given the different circumstances. In my view, there was no force at all in the argument that the different appellate procedures applicable in the superior and lower courts could be constitutionally challenged under Section 8.", "I accordingly find that Section 316 of the Criminal Procedure Act is not inconsistent with Section 25(3)(h) or Section 8 of the Constitution. The following order is made: 1. The question referred by Rose-Innes J. is answered as follows: The provisions of Section 316 of the Criminal Procedure Act, 51 of 1977, are not inconsistent with the provisions of Section 25(3)(h) of the Republic of South Africa Constitution Act, 200 of 1993. 2. The case is referred back to the Cape Provincial Division to be dealt with in accordance with the terms of this order. 20 \f_____________ T.H. Madala: Justice of the Constitutional Court. Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Mokgoro J, O\u2019Regan J, Sachs J and Trengove AJ concur in the judgment of Madala J. Counsel for the Applicant/Accused Counsel for the Respondent/State Instructed by : : : D.J. Charters (Pro Deo) C.A. Cilliers The Attorney-General Cape Town 21"], "max_length_judgement_paras": 290}, {"title": "S v Mbatha, S v Prinsloo (CCT19/95, CCT35/95) [1996] ZACC 1; 1996 (3) BCLR 293; 1996 (2) SA 464 (9 February 1996)", "url": "http://www.saflii.org/za/cases/ZACC/1996/1.html", "summary_document": {"filename": "summary-for-case-1.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/1media.pdf", "file_content": "S v Mbatha\n\n Case CCT 19/95\n\nExplanatory Note \n\nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court.\n\nThe applicants in both cases challenged the constitutionality of section 40(1) of the Arms and \nAmmunitions Act 75 of 1969 which contains a presumption to assist the state prove \npossession of unlawful possession of arms and ammunition. The presumption provides: \n\nWhenever in any prosecution for being in possession of any article contrary to the provisions \nof this Act, it is proved that such article has at any time been on or in any premises, including\nany building, dwelling, flat, room, office, shop, structure, vessel, aircraft or vehicle or any \npart thereof, any person who at that time was on or in or in charge of or present at or \noccupying such premises, shall be presumed to have been in possession of that article at that \ntime, until the contrary is proved. \n\nThe Court classified the presumption in s 40(1) as a 'reverse-onus' provision because it \nshifted the burden of proof of guilt away from the State to the accused to disprove the \npresumed fact on a balance of probabilities. In this case the fact presumed was 'possession' \nwhich constituted an essential element of the offence. The presumption required the accused \nto disprove 'possession' on a balance of probabilities. This meant that even if the accused \nestablished a reasonable doubt he or she could still be convicted for failing to disprove the \npresumed fact on a balance of probabilities. \n\nThe Court held that this presumption infringed the right of an accused person to be presumed \ninnocent in terms of s 25(3)(c) of the Constitution. The court considered next whether the \npresumption was a reasonable and justifiable limitation of the right of an accused to be \npresumed innocent. It noted the high levels of crime in South Africa were linked to the \nproliferation of illegal firearms and ammunition and also acknowledged the difficulties \nconfronting the police in the investigation of crime and the illegal distribution and possession \nof arms and ammunition. \n\nThe Court found that the presumption was widely phrased and included within its reach many \ncategories of potentially innocent people who may have had no connection with the arms or \nammunition found, but against whom the presumption could be used to prove guilt despite \nthe existence of a reasonable doubt. It held that the presumption as it stood could not be \nclassified a reasonable and justifiable limitation on the right of an accused to be presumed \ninnocent. \n\nThe judgment of the Court was delivered by Langa J and was concurred in by the other \nmembers of the Court.\n\n1\n\n\f"}, "judgement_document": {"filename": "judgement-for-case-1.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/1.pdf", "file_content": " \n \n \n \n \n\nIN THE CONSTITUTIONAL COURT OF SOUTH AFRICA \n\nCASE NO CCT 19/95 \n\nIn the matter between: \n \nThe STATE \nand \nWELLINGTON MBATHA \n \n \nand \n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\nCASE NO. CCT 35/95 \n\nIn the matter between: \n \nThe STATE \nand \nNICOLAAS MARTHINUS PRINSLOO \nHeard on: \nDelivered on: 9 FEBRUARY 1996 \n \n\n16 NOVEMBER 1995 \n \n\n \n\n JUDGMENT \n\n \n \nLANGA J: \n \n[1] \n\nTwo matters come to this Court by way of referrals from the Witwatersrand Local \nDivision of the Supreme Court. The accused in the first case is Wellington \nMbatha who was tried and convicted in the Regional Court at Germiston. \nNicolaas Marthinus Prinsloo, an accused in the second matter, is standing trial in \n\n\f \n \n\n \n[2] \n\n \n[3] \n\n \n \n[4] \n\n2 \n\nthe Witwatersrand Local Division with 25 others in the case of the S v Le Roux \nand Others. I shall refer to the two accused persons as the applicants. \n\nIn the first matter, the applicant appealed against his conviction on two counts \nunder the provisions of the Arms and Ammunition Act 75 of 1969 (the Act). The \ncharge concerned the unlawful possession of two AK47 rifles and twelve rounds \nof ammunition, in contravention of sections 32(1)(a) and 32(1)(e) of the Act \nrespectively. The sentences imposed, of eight and two years= imprisonment \nrespectively, were ordered to run concurrently. On appeal, the matter was in turn \nreferred to this Court by Leveson J, with MacArthur J agreeing, for a decision on \nthe constitutionality of the presumption contained in section 40(1) of the Act. \n\nThe twenty-six (26) accused in the second matter were indicted on various \ncharges, 96 counts in all, arising out of a series of bomb explosions which took \nplace before the national elections in April 1994. After the close of the \nprosecution case, Flemming DJP refused an application for the discharge of all \nthe accused on all counts. The applicant and six others were acquitted on all but \nfour of the counts, namely, counts 80 to 83, which relate to the unlawful \npossession of machine guns, firearms and ammunition, in contravention \nrespectively of sections 32(1)(a) and 32(1)(e) of the Act. In refusing to discharge \nthe applicant on those remaining counts, the trial Judge stated that he relied \nsolely on the presumption in section 40(1) of the Act. He then suspended the \nproceedings and made the referral order in terms of section 102(1) of the \nConstitution of the Republic of South Africa Act 200 of 1993 (the Constitution) on \nthe basis that it was in the interests of justice that the issue be resolved at this \nstage of the proceedings. The case has been postponed to 16 February 1996. \n\nThe issue in both matters is the validity of the presumption contained in section \n40(1) of the Act in the light of the provisions of section 25(3)(c) and (d) of the \nConstitution. The applicants complain that the presumption offends against the \n>fair trial= provisions in the Constitution, in particular, the right to be presumed \n\n\f3 \n\ninnocent and the privilege against self-incrimination. Section 40(1) of the Act \nprovides: \n\nWhenever in any prosecution for being in possession of any article \ncontrary to the provisions of this Act, it is proved that such article \nhas at any time been on or in any premises, including any building, \ndwelling, flat, room, office, shop, structure, vessel, aircraft or \nvehicle or any part thereof, any person who at that time was on or \nin or in charge of or present at or occupying such premises, shall \nbe presumed to have been in possession of that article at that \ntime, until the contrary is proved. \n\nThe first comprehensive statute to regulate arms and ammunition nationally was \nthe Arms and Ammunition Act 28 of 1937. Prior to this, each of the four provinces \nhad their own acts regulating the possession and distribution of arms and \nammunition. Section 32 of the 1937 Act provided: \n\nAny occupier of premises and any person who is upon or in charge \nof or who accompanies any vehicle, vessel or animal upon which \nor in which there is any article mentioned in section one or any arm \nor ammunition shall, until the contrary is proved, be deemed for the \npurposes of this Act to be the possessor of such article or arm as \nthe case may be. \n\nThe Orange Free State (Act 23 of 1908) and Transvaal (Act 10 of 1907) had \nsubstantially similar provisions. Our courts, in an attempt to avoid obviously \nunintended results, interpreted the word Aoccupier@ in the 1937 Act strictly. Thus \nin S v Mnguni 1962(3) SA 662 (NPD) at 664D-E, the word was held to mean the \nperson Awho is responsible for the premises and has the general control of \nthem.@ It was held further that the word did not mean Aany person who is an \noccupant of premises@ because it was Aunlikely that the legislature would have \ndeemed every person residing on the premises to be the possessor of arms.@ \nSection 40(1) of the present Act came into operation on 1 February 1972. The \nterms of the presumption are clearly wider in scope than those in the antecedent \nlegislation, and now include not only occupants of premises but also persons \nAon@, Ain@ or Apresent at@ such premises at any time when the Aarticle@ has been \nAon@ or Ain@ such premises. \n\n \n \n\n \n\n \n[5] \n\n \n\n \n\n \n\n\f \n \n[6] \n\n \n\n \n \n[7] \n\n4 \n\nAspects of section 25(3)(c) and (d) of the Constitution have already been the \nsubject of enquiry in some of the matters before this Court in which their impact \non statutory presumptions in our criminal law was considered. The relevant part \nof the section reads: \n\nEvery accused person shall have the right to a fair trial, which shall \ninclude the right ..... \n(c) \n\nto be presumed innocent and to remain silent during plea \nproceedings or trial and not to testify during trial; \nto adduce and challenge evidence, and not to be a \ncompellable witness against himself or herself ... \n\n(d) \n\n In S v Zuma and Others 1995(2) SA 642(CC); 1995(4) BCLR 401(CC), the issue \nwas the constitutionality of a legal provision contained in section 217(1)(b)(ii) of \nthe Criminal Procedure Act 51 of 1977 which placed a burden on the accused to \nrebut a presumed fact, namely, that a confession had been made freely and \nvoluntarily. The phrase Aunless the contrary is proved@ which was used in the \nprovision meant, in effect, that if the accused failed to discharge the burden of \nproof, that is, on a balance of probabilities, the confession would be admitted \nnotwithstanding the existence of a reasonable doubt that it had been made freely \nand voluntarily. (See Ex Parte Minister of Justice: In re: R v Jacobson and Levy \n1931 AD 466 at 471; Ex parte Minister of Justice: In re: R v Bolon 1941 AD 345 \nat 360 - 361; S v Mphahlele and Another 1982 (4) SA 505 (A) at 512C). Sections \n25(2) and 25(3)(c) and (d) of the Constitution entrench as a fundamental \nconstitutional value the fact that it is the duty of the prosecution to prove the guilt \nof an accused person in a criminal case. As Kentridge AJ at paragraph 25 \npointed out, Athe presumption of innocence is derived from the centuries-old \nprinciple of English law, forcefully restated by Viscount Sankey in his celebrated \nspeech in Woolmington v Director of Public Prosecutions (1935) AC 462 (HL) at \n481, that it is always for the prosecution to prove the guilt of the accused person, \nand that the proof must be proof beyond a reasonable doubt.@ The rights to be \npresumed innocent, to remain silent during trial and not to be a compellable \nwitness against oneself are entrenched in sections 25(3)(c) and (d). \nConstitutional recognition of these rights in criminal trials means that statutory \n\n\f \n \n\n \n[8] \n\n \n[9] \n\n5 \n\nerosion of these rights and principles can no longer be accepted without question \nas they were before this Constitution came into force; statutory presumptions and \nother legislation which adversely affect the rights entrenched in Chapter 3 of the \nConstitution will now have to meet the limitations criteria of section 33(1) of the \nConstitution. (See S v Makwanyane and Another 1995(3) SA 391 (CC);1995(6) \nBCLR 665 (CC) at paragraphs 100 and 156; S v Williams and Others 1995(3) \nSA 632 (CC); 1995(7) BCLR 861 (CC) at paragraphs 8 and 54; S v Bhulwana; S \nv Gwadiso 1996(1) SALR 388 (CC); 1995(12) BCLR 1579 (CC) at paragraph 16.) \n This Court held in Zuma=s case that the presumption of innocence was infringed \nby the provision which imposed an onus on the accused to disprove the \nvoluntariness of the confession. \n\nIn S v Bhulwana; S v Gwadiso supra this Court was concerned with a provision in \n Section 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 which \nrequired that an accused who was proved to be in unlawful possession of dagga \nin excess of 115 grams be presumed, Auntil the contrary is proved,@ to be dealing \nin such dagga. The effect of the presumption was that if the accused failed to \nprove on a preponderance of probabilities that he or she was not dealing or \ntrafficking in dagga, a conviction for dealing would result, even if the evidence \nraised a reasonable doubt as to the innocence of such accused. O=Regan J \n(paragraph 15) pointed out on behalf of a unanimous court that the presumption \nof innocence was not new to our legal system but was in fact an established \nprinciple of our law. She referred, inter alia, to the general rule restated by the \nAppellate Division in R v Ndhlovu 1945 AD 369 at 386 that A[i]n all criminal cases \nit is for the Crown to establish the guilt of the accused, not for the accused to \nestablish his innocence. The onus is on the Crown to prove all averments to \nestablish his guilt.@ The only common law exception recognised was a defence of \ninsanity which had to be proved by the accused. \n\nIt is now well established that the enquiry into the constitutionality of the \nimpugned section involves two stages. Firstly, whether the section is inconsistent \nwith a fundamental right contained in Chapter 3 of the Constitution; if it is, then \n\n\f \n \n\n6 \n\nsecondly, whether the inconsistency is saved in terms of section 33(1) of the \nConstitution. In argument before us, the State was unable to indicate any reason \nfor departing from the principles expressed in the first stage of the enquiry in S v \nZuma. It was common cause that the provision amounts to a legal presumption; \nit is a reverse onus provision. As a presumption, it has similar features to that \ndiscussed in Bhulwana=s case. The effect of the provision is to relieve the \nprosecution of the burden of proof with regard to an essential element of the \noffence. It requires that the presumed fact must be disproved by the accused on \na balance of probabilities. (See R v Bolon supra at 360-1; S v Nene and Others \n(2) 1979(2) SA 521(D) at 523H; S v Mkanzi en >n Ander 1979(2) SA 757(T) at \n758H; S v Mphahlele supra 512B; S v Zuma supra at paragraph 4). As pointed \nout by O=Regan J in Bhulwana=s case (paragraph 15), a presumption of this \nnature is in breach of the presumption of innocence since it could result in the \nconviction of an accused person despite the existence of a reasonable doubt as \nto his or her guilt. \n\n \n[10] No legal system can guarantee that no innocent person can ever be convicted. \nIndeed, the provision of corrective action by way of appeal and review \nprocedures is an acknowledgement of the ever-present possibility of judicial \nfallibility. Yet it is one thing for the law to acknowledge the possibility of wrongly \nbut honestly convicting the innocent and then provide appropriate measures to \nreduce the possibility of this happening as far as is practicable; it is another for \nthe law itself to heighten the possibility of a miscarriage of justice by compelling \nthe trial court to convict where it entertains real doubts as to culpability and then \nto prevent the reviewing court from altering the conviction even if it shares in the \ndoubts. \n\n \n[11] Counsel for the applicants also argued that the presumption violated the privilege \nor rule against self-incrimination. This was disputed by the State on the basis \nthat the accused was not compelled to give evidence, self-incriminatory or \notherwise. The Constitution does not mention a right or privilege against self-\nincrimination expressly, but the cluster of >fair trial= rights guaranteed in section \n\n\f \n \n\n7 \n\n25(3)(c) and (d) of the Constitution includes the right of the accused Ato remain \nsilent during plea proceedings or trial and not to testify during trial ... [and] ... not \nto be a compellable witness against himself or herself.@ In Ferreira and Others v \nLevin and Others CCT/5/95 (judgment delivered on 6 December 1995), this \nCourt (per Ackermann J at paragraph 79 and Chaskalson P at paragraph 159) \nheld that a right against self-incrimination is implicit in the provisions of section \n25(3) of the Constitution. However, because of the view I take with regard to the \ndecisiveness of the presumption of innocence for this enquiry, it is unnecessary, \nfor purposes of this judgment, to canvass the precise scope of such right or \nprivilege or its applicability to the facts of the present case. \n\n \n[12] The conclusion I come to, therefore, is that section 40(1) of the Act offends \nagainst the right of an accused person to be presumed innocent, in terms of \nsection 25(3)(c) of the Constitution. The provision can accordingly only be \npermissible if it is saved by the provisions of section 33(1) of the Constitution. \n\n \n[13] Section 33(1) of the Constitution, in so far as it applies to section 25(3), provides \n\nas follows: \n\n \n\n \n[14] \n\n \n\nThe rights entrenched in this Chapter may be limited by law of \ngeneral application, provided that such limitation - \n\n(a) shall be permissible only to the extent that it is - \n\n(i) reasonable; and \n(ii)justifiable in an open and democratic society \nbased on freedom and equality; and \n(b) shall not negate the essential content of \nthe right in question, \n\nand ... shall ... also be necessary. \n\nIn S v Makwanyane supra, Chaskalson P (at paragraph 104) stated that the \nenquiry involves the weighing up of competing values and ultimately an \nassessment based on proportionality. He named the factors to be considered in \nthis process as including: the wider implications which the right has for our \nsociety (>an open and democratic society based on freedom and equality=); the \npurpose for which the right is limited; the importance of that purpose to our \nsociety; the extent of the limitation and its efficacy and, in cases where the \nlimitation has to be necessary, whether the objectives of the limitation could \nreasonably be achieved by means less damaging to the right. \n\n\f8 \n\n \n \n[15] The State argued that the inroads which section 40(1) of the Act makes on the \npresumption of innocence are reasonable, justifiable and necessary and that \nthey do not negate the essential content of the right. Relying on remarks in S v \nZuma supra (at paragraph 41), it was argued that the reverse onus provisions in \nthe present case are justifiable and therefore constitutionally permissible. In the \npassage referred to, Kentridge AJ pointed out that the effect of the judgment in \nthat case was not to invalidate every legal presumption reversing the onus of \nproof as some presumptions Amay be justifiable as being rational in themselves, \nrequiring an accused person to prove only facts to which he or she has easy \naccess, and which it would be unreasonable to expect the prosecution to \ndisprove ... Or there may be presumptions which are necessary if certain \noffences are to be effectively prosecuted, and the State is able to show that for \ngood reason it cannot be expected to produce the evidence itself ...@ The State \ncontended that circumstances existed which rendered section 40(1) of the Act \njustifiable, regard being had to the context and the manner in which its provisions \nwere implemented. \n\n[16] The State characterised the objective of the presumption in the present case as \nbeing to assist in combating the escalating levels of crime as part of the \ngovernment=s duty to protect society generally. The contention was that the \nprovision is intended to ensure effective policing and to facilitate the investigation \n and prosecution of crime as well as to ease the prosecution=s task of securing \nconvictions for contraventions under the Act. Such an objective is truly laudable \nand its importance, in the current climate of very high levels of violent crime, \ncannot be overstated. Information in papers submitted to us reveals that during \nthe period 1990 to 1994, there was a distressing increase in crimes of violence. \nThe common denominator in most of them is the involvement of firearms. In a \ndiscussion document titled: Recent Crime Trends, Dr Lorraine Glanz of the \nHuman Sciences Research Council observed that Athe face of crime is becoming \nincreasingly violent and more serious,@ and that the rampant crime levels must \nhave Aa profound negative effect on the quality of life in communities. If left \nunchecked, a protracted increase in violent crime in particular is a threat to social \nstability.@ I could not agree more. A further ugly feature allied to the actual deeds \n\n\f \n \n\n9 \n\nof violence is the incidence of illegal smuggling, sale and possession of arms. \nWe were told that trafficking in arms and drugs from neighbouring countries into \nSouth Africa is taking place on a significant scale. There is a proliferation of \nillegal firearms throughout the country and this, no doubt, contributes in no small \nmeasure to the high incidence of violent crime. This state of affairs is obviously a \nmatter of serious concern, not only for the courts, but for the legislature, the \npolice and the entire population which is affected by it. There is no doubt that, \nwhatever the causes, crimes of violence particularly those involving firearms \nhave reached an intolerably high level and that urgent corrective measures are \nwarranted. \n\n \n[17] The problems which the government has to contend with in fulfilling its duty to \nprotect society were given to us in some detail. We were informed that the \ndetection of people in possession of illegal arms and ammunition is often very \ndifficult. Police have to depend on informers or pure chance to trace offenders. \nThe use of informers who infiltrate gun-smuggling networks is a helpful but often \n time-consuming and dangerous process. Gunrunners make extensive use of \ncouriers to transport arms; some of the couriers, especially women and children, \nare used without their knowledge. Even vehicles such as ambulances and official \ngovernment cars are sometimes used, without the people in control of the \nvehicles knowing it. Sometimes aircraft and motor vehicles equipped with false \npanels and compartments for storage are used in the illegal transportation of \narms. The problem of policing is compounded by geographical factors; the \nborders of South Africa are extensive and impossible to patrol effectively 24 \nhours a day, making it easier for cross-border dealers and smugglers of arms to \nply their trade and evade detection. The severe shortage of trained personnel \nhas adverse effects on the capacity of the police to conduct raids and searches \nin places like hostels and informal settlements, to look for places used for \nconcealment of illegal arms and to trap motor vehicles used in illegal conveyance \nof arms. Ordinary members of the community often withhold information because \nthey are too terrified and intimidated by armed gangsters and traffickers in \nnarcotic drugs and illegal arms. \n\n\f \n \n \n[18] \n\n10 \n\nIt is difficult not to have sympathy for representations of this nature, coming as \nthey do from officials of the State whose task it is to deal with what has become a \ntruly serious problem. These are real and pressing social concerns and it is \nimperative that proper attention should be given to finding urgent and effective \nsolutions. The issue before us, however, is not simply whether there is a \npressing social need to combat the crimes of violence - there clearly is - but also \nwhether the instrument to be used in meeting this need is itself fashioned in \naccordance with specifications permitted by the Constitution. Although the \nrelevant legislative provision was enacted before the Constitution came into \nforce, the enquiry is whether the limitation it imposes on constitutionally protected \nrights is consistent with the provisions of the Constitution. This involves a \nconsideration of the other factors referred to in Makwanyane=s case, and in \nparticular, the importance of the impugned right in an open and democratic \nsociety, and the extent to which that right has been limited. As O=Regan J said in \nS v Bhulwana supra (at paragraph 18), Athe more substantial the inroad into \nfundamental rights, the more persuasive the ground of justification must be.@ \n\n \n[19] The presumption of innocence is clearly of vital importance in the establishment \nand maintenance of an open and democratic society based on freedom and \nequality. If, in particular cases, what is effectively a presumption of guilt is to be \nsubstituted for the presumption of innocence, the justification for doing so must \nbe established clearly and convincingly. \n\n \n[20] \n\nIt was argued that without the presumption it would be almost impossible for the \nprosecution to prove both the mental and physical elements of possession. I do \nnot agree. The circumstances of each case will determine whether or not the \nelements of possession have been established beyond reasonable doubt. The \nevidence need not necessarily be direct. It may be, and often is, circumstantial \nand will often be sufficient to secure a conviction without the assistance of the \npresumption. There will no doubt be cases in which it will be difficult to prove \nthat a particular person against whom the presumption would have operated, \n\n\f \n \n\n11 \n\nwas in fact in possession of the prohibited article. If that person was in fact \nguilty, the absence of the presumption might enable him or her to escape \nconviction. But this is inevitably a consequence of the presumption of innocence; \nthis must be weighed against the danger that innocent people may be convicted \nif the presumption were to apply. In that process the rights of innocent persons \nmust be given precedence. After all, the consequences of a wrong conviction \nare not trivial. Apart from the social disapprobation attached to it, heavy \npenalties are attached to contraventions of the Act. In the cases before us, the \nsentence prescribed by the Act for the illegal possession of a firearm is \nimprisonment for a period not exceeding 25 years with a minimum of five years. \nIllegal possession of ammunition attracts a sentence of imprisonment for a period \nnot exceeding 25 years. \n\n \n[21] The presumption is couched in wide terms and no attempt has been made to \ntune its provisions finely so as to make them consistent with the Constitution and \nto avoid the real risk of convicting innocent persons, who happen to be in the \nwrong place at the wrong time. It may be invoked in a wide range of \ncircumstances and against any number of categories of persons, as long as they \nhave been in, on or at a particular place at the relevant time. The presumption \nbecomes operative without the prosecution being required to show any \nconnection between the accused and the prohibited article, and between such \naccused and the place where the article was. APremises@ is defined in the section \nas including Aany building, dwelling, flat, room, office, shop, structure, vessel, \naircraft or vehicle or any part thereof@. The provision targets Aany person@ who \nwas in, on or at the premises at the relevant time, regardless of that person=s \npossible connection (or lack of it) with such premises. It also targets any person \nin charge of or occupying the premises, however remote his or her connection \nwith the particular part thereof where the offending article is proved to have been. \nIndeed, it very much looks as if the intention was to override the restrictions read \ninto that section=s forerunner in cases like S v Mnguni supra. \n\n \n[22] The application of the presumption does not depend on there being a logical or \n\n\f \n \n\n12 \n\nrational connection between the presumed fact and the basic facts proved, nor \ncan it be claimed that in all cases covered by the presumption, the presumed fact \nis something which is more likely than not to arise from the basic facts proved. \nThe mere presence of the accused in, on or at the premises at the same time as \nthe prohibited article does not, as a matter of course, give rise to the inference of \npossession. There are clearly circumstances where this connection can be \nreasonably sustained. Circumstances may even arise where such an adverse \ninference would be warranted without the accused having been present in, on or \nat the particular premises when the firearm was found. An example is a case \nwhere it is proved beyond a reasonable doubt that a firemarm was found in the \nglove compartment of a locked car which had been driven by its owner and in \nwhich there had been no passengers. If the accused=s exculpatory version is \nfound to be false (also beyond a reasonable doubt), the conviction would be \ndefensible. That would be so, not because of the presumption created by \nsection 40(1) of the Act, but as a matter of logical inference. The problem with \nthe provision is that it contains no inherent mechanism to exclude those who are \ninnocent and who would otherwise be included within its reach. If, for example, a \nsingle firearm were to be found on a crowded bus, each passenger on the bus \nwould be liable to be arrested and prosecuted, and would be presumed guilty \nunless he or she were able to establish innocence. \n\n \n[23] Counsel for the State claimed that in practice, use of the presumption does not \nlead to absurd results because it is applied with circumspection by prosecutors. \nThe contention is not convincing for a number of reasons. First, there is nothing \nto suggest that prosecutors in general and around the country agree with the \nview or, if they do, that it is invariably implemented. If a general directive to that \neffect has been issued, it has not been mentioned in argument. In the second \ninstance, even if one were to accept that prosecutors adhere to such a policy \nthere is no evidence that the police do so. On the contrary, counsel for the State \nsubmitted that the breadth of the presumption was a valuable investigative tool \nbecause it enabled the police to detain anyone found in the vicinity of an \nunlicensed firearm for questioning. Quite apart from the fact that the legality of \n\n\f13 \n\ndetention for questioning may be suspect, and its constitutionality the more so, \nthe submission underscores the fact that the very breadth of the presumption is \nregarded by the police as warranting the blanket arrest of groups of persons \nwithout any suspicion that each of them has committed any offence. In S v \nShange and Others 1994(1) SACR 621(N), for instance, the police actually \narrested and charged the eight appellants who were passengers in a vehicle \nfrom which a firearm and ammunition were thrown out as it approached a police \nroadblock. The prosecution proceeded against them and they were all convicted, \non the basis of the presumption, notwithstanding the fact that each one of them \ngave evidence denying any knowledge of the articles in question. Apart from \nhaving been attending the same tribal celebration at a certain kraal and the fact \nthat they had all spontaneously clambered on to the vehicle simply because it \nwas going in their direction, there was nothing connecting them with each other, \nnor was there any evidence of any link between each one of them and the \narticles concerned. It was only when the appeal was heard by the Provincial \nDivision that the convictions were reversed on the basis that the appellants had, \nin fact, discharged the onus cast on them by virtue of the presumption. One can \nreadily accept that police conducting a raid of a hostel are in a quandary when \nthey find a firearm in a place with no apparent link with any of the hostel-\ndwellers; or as the State suggested in argument, when a firearm was found in a \nvehicle wreck in the courtyard. One must also accept, as has been done in \nparagraphs 16 to 18 above, that the eradication of the cancer of illegal firearms is \na pressing public concern calling for vigorous and concerted effort. Nevertheless \nsuch concern cannot render the wholesale arrest of ostensibly innocent people \neither reasonable or justifiable in an open and democratic society based on \nfreedom and equality. Thirdly, and in itself conclusively, it is clear that the \npresumption could lead to the conviction of innocent persons. Their rights are \nenshrined in the Constitution and do not depend on the discretion of the police or \nthe attorney-general to prosecute only in cases where the accused are in fact \nguilty. If the police and the attorney-general are satisfied of the guilt of the \naccused, they should be able to establish this in the ordinary way. \n\n \n \n\n \n\n\f14 \n\nIf the purpose of the provision is to promote the legitimate law enforcement \nobjective of separating innocent bystanders from genuine suspects, then it \nshould be cast in terms limited to serving that function only. A legislative \nlimitation motivated by strong societal need should not be disproportionate in its \nimpact to the purpose for which that right is limited. If restrictions are warranted \nby such societal need, they should be properly focused and appropriately \nbalanced. The foundations of effective law enforcement procedures should \nalways be the thorough collection of evidence and the careful presentation of a \nprosecution case. The sweeping terms of the presumption, however, encourage \ndragnet searches followed by dragnet prosecutions in which innocent \nbystanders, occupants and travellers can be required to prove their innocence \nand the normal checks and balances operating at the pre-trial stage cease to \noperate. Immense discretionary power is given to the police, in the first instance \nand to the prosecuting authorities thereafter, as to whether or not to proceed with \narrest and indictment. From a practical point of view, the focus of crucial \ndecision-making on guilt or innocence thus shifts from the constitutionally \ncontrolled context of a trial to the unrestrained discretion of police and \nprosecutor. The possibility cannot be excluded that overworked police and \nprosecuting authorities would understandably be tempted to focus on merely \ngetting sufficient evidence to raise the presumption of possession; they can then \nrely on a poor showing by the accused in the witness box to secure a conviction. \n Yet the law gives no guidance to investigators and prosecutors as to when it is \nappropriate to rely on the presumption to proceed with a case and when not. \nInnocent persons may be put to the inconvenience, indignity and expense of a \ntrial simply because they were in a bus, on a ship, or in a taxi, restaurant or \nhouse where weapons happened to be discovered. At the same time, the \nobjectivity and professionalism of the police and prosecution are undermined by \nthe lack of principled criteria governing their actions. In my view, in order to \ncatch offenders and secure their convictions, it is not reasonable and justifiable \neither to expose honest citizens to such open-ended jeopardy or to impose such \nill-defined responsibility upon those charged with law enforcement. \n\n \n \n[24] \n\n \n\n\f15 \n\n \n \n[25] The presumption is not only too wide in its application with regard to persons, it \nalso casts a heavy burden on those who are caught by it to disprove guilt. The \nfacts in the case of S v Mtshemla and Others 1994(1) SACR 518 (A) give some \nindication of the seriousness of the task facing an accused person if he or she is \nto discharge the burden of proof. Of the three persons accused of possession of \none firearm, in that matter, two elected to give evidence to rebut the \npresumption. They were both convicted, the magistrate ruling that their evidence \nwas insufficient to dislodge the presumption. The third, who had decided to \nremain silent was also convicted, there being nothing in his case to gainsay the \npresumption. In another case, that of S v Makunga and Others 1977(1) SA 685 \nAD, the remarks of Wessels JA (at 699A) are illustrative of some of the problems \ninherent in the practical application of the presumption: \n \n\n... [T]here was an onus on each one of the seven accused to \nestablish by a preponderance of probabilities that he was not in \npossession of any one of the six firearms found in the hut. In my \nopinion, no one of the accused succeeded in discharging that \nonus. The mere fact that on the evidence it was probable that one \nunidentified accused was in possession of the toy pistol is wholly \ninsufficient to discharge the onus which rested on each one of the \nseven accused. \n\n \n \n[26] Based on the assessment of the potential effect of the provision on innocent \npeople, I am not persuaded that the presumption, as it stands, satisfies the \nrequirements of reasonableness and justifiability. I am fortified in this conclusion \nby the fact that it has also not been demonstrated that its objective, that is, \nfacilitating the conviction of offenders, could not reasonably have been achieved \nby other means less damaging to constitutionally entrenched rights. Although \nthe choice of the appropriate measures to address the need is that of the \nlegislature, it has not been shown that an evidentiary burden, for example, would \nnot be as effective. I should not be understood as suggesting that any provision \nimposing an evidentiary burden, particularly if it is framed as broadly as the \npresumption in the present case, would be immune from constitutional attack. \nBut by requiring the accused to provide evidence sufficient to raise a reasonable \n\n\f \n \n\n \n[27] \n\n16 \n\ndoubt, such a provision would be of assistance to the prosecution whilst at the \nsame time being less invasive of section 25(3) rights. That it might impact on the \nright of an accused person to remain silent is true; but on the assumption that the \nrampant criminal abuse of lethal weapons in many parts of our country would \njustify some measured re-thinking about time-honoured rules and procedures, \nsome limitation on the right to silence might be more defensible than the present \none on the presumption of innocence. The accused could of course be exposed \nto the risk of being convicted if he or she fails to offer an explanation which could \nreasonably possibly be true, regarding physical association with the weapons; \nthere would however be no legal presumption overriding any doubts that the \ncourt might have. At the end of the day and taking into account all the evidence, \nthe court would still have to be convinced beyond a reasonable doubt that the \naccused was indeed guilty. \n\nI accordingly find that although the provision in question is a law of general \napplication, it has not been shown to be reasonable as required by section 33(1) \nof the Constitution. It is furthermore so inconsistent with the values which \nunderlie an open and democratic society based on freedom and equality that it \ncannot be said to be justifiable. In view of this finding, it is not necessary to \ncanvass the question whether the essential content of the right is negated, nor \nwhether the limiting provision is necessary within the meaning of section 33(1) of \nthe Constitution. Section 40(1) of the Act is unconstitutional inasmuch as it is an \nunreasonable and unjustifiable violation of the presumption of innocence. \n\n \n[28] During argument, some time was devoted to a question that keeps cropping up \nin matters before us and that is the problem of improper referrals. This Court has \nexpressed itself on a number of occasions on the correctness or otherwise of \nreferrals made under section 102(1) of the Constitution. Some of the remarks \nneed to be repeated. In Zuma=s case at paragraph 10, Kentridge AJ points out \nthat A[e]ven if a rapid resort to this Court were convenient, that would not relieve \nthe Judge from making his own decision on a constitutional issue within his \njurisdiction.@ In S v Mhlungu and Others 1995(3) SA 867 (CC); 1995(7) BCLR \n\n\f \n \n\n \n\n \n\n \n \n[29] \n\n17 \n\n793(CC) at paragraph 59, Kentridge AJ cautioned against premature referrals to \nthis Court and observed: \n\nThe fact that an issue within the exclusive jurisdiction of this \ncourt arises in a provincial or local division does not \nnecessitate an immediate referral to this court. Even if the \nissue appears to be a substantial one, the court hearing the \ncase is required to refer it only \n\n(i) \n(ii) \n\nif the issue is one which may be decisive for the case; and \nif it considers it to be in the interest of justice to do so ... \n\n... I would lay it down as a general principle that where it is \npossible to decide any case, civil or criminal, without reaching a \nconstitutional issue, that is the course which should be followed. \n\nIt is by no means clear whether or not the conviction of Mbatha was on the basis \nof the presumption in section 40(1) of the Act; nor is it clear that this is a matter \nwhich could not have been disposed of without reaching the constitutional issue. \n The referral was therefore not a proper one. During argument, counsel for this \napplicant made an oral request from the bar for Adirect access@ in terms of Rule \n17 of the Rules of this Court, read with section 100(2) of the Constitution. The \napplication was not opposed. ADirect access@ provisions have received their fair \nshare of attention in this Court. As stated in Zuma=s case at paragraph 11, what \nis contemplated is that direct access should be allowed Ain only the most \nexceptional cases, and it is certainly not intended to be used to legitimate an \nincompetent reference.@ In terms of Rule 17(1), the special circumstances \nenvisaged Awill ordinarily exist only where the matter is of such urgency, or \notherwise of such public importance, that the delay necessitated by the use of \nthe ordinary procedures would prejudice the public interest or prejudice the ends \nof justice and good government.@ Clarity with regard to the presumption is of \nimmense public importance. There are any number of trials either pending or \nproceeding, in which the presumption is liable to be invoked. It is therefore \nnecessary that legal certainty should be achieved as soon as possible. I am \naccordingly of the view that this is a matter in which direct access should be \ngranted. Because Prinsloo's case was concerned with an identical issue, the \ntwo matters were set down for one date. Both sets of counsel prepared \n\n\f \n \n\n \n[30] \n\n18 \n\nexhaustive and very helpful argument and the two matters were argued together \nbefore us. The issue in Prinsloo=s case is clearly decisive for the case with regard \nto some of the accused. Flemming DJP considered it to be in the interests of \njustice for the issue to be referred and cogent reasons have been furnished to \nsupport the referral. The issue in Prinsloo=s case was, in the circumstances, \nproperly before this Court. \n\nI now turn to consider the appropriate order. Section 98(5) of the Constitution \nempowers this Court to suspend a declaration of invalidity Ain the interests of \njustice and good government@ until Parliament corrects the defect in the \nlegislation concerned. The effect of such a suspension would be to prolong the \nrisk inherent in a reverse onus provision until the legislature intervenes. What this \namounts to is that an unsatisfactory state of affairs, where accused persons \ncould be convicted despite the existence of a reasonable doubt, would be \nallowed to continue until new legislation is enacted to deal with the issue. There \nis no knowing when this legislative intervention might come. On the other hand, \nshould the declaration of invalidity operate with immediate effect, the prosecution \nwould be able to deal with contraventions of the Act in the normal manner, as in \nall other prosecutions where there is no reliance on a presumption. There do not \nappear to be any compelling considerations of Ajustice and good government@ \nrequiring that the infringement of this constitutionally protected right should \ncontinue beyond the date of this order. On the contrary, it would be undesirable \nfor the courts to continue applying a provision which is not only manifestly \nunconstitutional, but which also results in grave consequences for potentially \ninnocent persons in view of the serious penalties prescribed. \n\n \n[31] Section 98(6)(a) of the Constitution prescribes that unless this Court orders \notherwise, in the interests of justice and good government, the order of invalidity \nshall not invalidate anything done or permitted in terms of the unconstitutional \nprovision. In Mbatha=s case, the matter is on appeal to the Witwatersrand Local \nDivision and that court will be able to take this judgment and order into account \nwhen it proceeds with the matter. In Prinsloo=s case, the trial is still in progress \n\n\f \n \n\n19 \n\nand giving effect to the order should present no problems. The order made \nshould, however, be operative in the cases of any other litigants who might be \nsimilarly placed. The general considerations set out above were present in \nBhulwana=s case supra and I see no reason to depart from the approach adopted \nby this Court in that matter. The order that I propose to make will protect not only \nthe rights of accused persons in pending cases (S v Mhlungu supra at paragraph \n48), but also the rights of the persons referred to in paragraph two of the Order. \n\n \n[32] Flemming DJP has pointed out that a declaration of invalidity by this Court would \nnot, in itself, entitle the trial Judge to immediately discharge those accused who \nwould have been acquitted at the end of the case for the prosecution but for the \noperation of the presumption. His view is that he is functus officio and cannot \nrecall his judgment; consequently, the applicant Prinsloo and the relevant co-\naccused would be forced to endure the unsatisfactory prospect of continuing to \nbe part of the trial which still has a long way to go before conclusion. The Judge \ntherefore proposed that if the presumption were found to be unconstitutional, this \nCourt should make an appropriate order to enable the trial court to end the \nproceedings against those who should have been discharged. I express no \nopinion on whether or not the trial Judge is functus officio as regards the \nparticular issue. This is a matter entirely within his jurisdiction which he must \ndetermine on a proper construction of the relevant provisions. It was not argued \nbefore us that we had the jurisdiction to set aside the judgment of the trial court \nrefusing to discharge Prinsloo. The Attorney-General of the Transvaal, however, \ngave a firm undertaking during argument that should the presumption be \ndeclared unconstitutional he would stop the prosecution against the relevant \naccused. It therefore becomes unnecessary to take this matter any further. \n\n \n[33] Finally, I wish to express the Court's appreciation to Mr M R Hellens SC and Mr \nP R Jammy who assisted him for preparing and presenting argument on behalf \nof the applicant in the first case at the request of the Court. \n\n \n \n\n\f \n \n \n[34] The following order is accordingly made: \n \n\n20 \n\nSection 40(1) of the Arms and Ammunition Act 75 of 1969 is inconsistent \n1. \nwith the Republic of South Africa Constitution Act 200 of 1993 and is, with effect \nfrom the date of this judgment, invalid and of no force or effect. \n\n2. \nIn terms of section 98(6) of the Constitution, this declaration of invalidity \nshall invalidate any application of section 40(1) of the Arms and Ammunition Act \n75 of 1969 in any criminal trial in which the verdict of the trial court was or will be \nentered after the Constitution came into force, and in which, as at the date of this \njudgment, either an appeal or review is pending or the time for noting such \nappeal has not yet expired. \n\n \n\n \n\n3. \nThe matters of S v Mbatha and S v Prinsloo are referred back to the \nWitwatersrand Local Division of the Supreme Court to be dealt with in \naccordance with this judgment. \n\n \n \n \n \nPN Langa, Judge of the Constitutional Court \n \nChaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Madala \nJ, Mokgoro J, O=Regan J and Sachs J concur in the judgment of Langa J. \n \n\n\f \n \nCASE NO: \n \nCOUNSEL FOR APPLICANT: \n\n \n\n \n\n \n\n21 \n\n \n\n \n\n \n\n \n\nCCT 19/95 \n\nM R Hellens SC \nP R Jammy \nAt the request of the Court \n\n \nCOUNSEL FOR RESPONDENT: \n\nJ A van S D=Oliviera \n\nE Leonard \nE Erasmus \n\n \n\n \n\n \n\n \n\n \n \nCASE NO: \n \nCOUNSEL FOR APPLICANT: \nINSTRUCTED BY: \n \nCOUNSEL FOR RESPONDENT: \n\n \n \n\n \n\n \n \n\n \n\n \n\n \n\n \n\nDATE OF HEARING: \n \nDATE OF JUDGMENT: \n \n \n \n \n\n \n\n \n \n\n \n\n \n\n \n\nCCT 35/95 \n\nL van der Walt \nOdendal & Kruger, Delmas \n\nR J Chinner \nJ A L Pretorius \n\n16 November 1996 \n\n \n\n9 February 1996 \n\n\f"}, "id": "04d1dff4-316d-4d14-abe3-f2e16e4ac944", "update_date": "2021-03-15 17:08:56.815743", "year": "1996", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO CCT 19/95 In the matter between: The STATE and WELLINGTON MBATHA and CASE NO. CCT 35/95 In the matter between: The STATE and NICOLAAS MARTHINUS PRINSLOO Heard on: Delivered on: 9 FEBRUARY 1996 16 NOVEMBER 1995 JUDGMENT LANGA J: [1] Two matters come to this Court by way of referrals from the Witwatersrand Local Division of the Supreme Court. The accused in the first case is Wellington Mbatha who was tried and convicted in the Regional Court at Germiston. Nicolaas Marthinus Prinsloo, an accused in the second matter, is standing trial in \f [2] [3] [4] 2 the Witwatersrand Local Division with 25 others in the case of the S v Le Roux and Others. I shall refer to the two accused persons as the applicants. In the first matter, the applicant appealed against his conviction on two counts under the provisions of the Arms and Ammunition Act 75 of 1969 (the Act). The charge concerned the unlawful possession of two AK47 rifles and twelve rounds of ammunition, in contravention of sections 32(1)(a) and 32(1)(e) of the Act respectively. The sentences imposed, of eight and two years= imprisonment respectively, were ordered to run concurrently. On appeal, the matter was in turn referred to this Court by Leveson J, with MacArthur J agreeing, for a decision on the constitutionality of the presumption contained in section 40(1) of the Act. The twenty-six (26) accused in the second matter were indicted on various charges, 96 counts in all, arising out of a series of bomb explosions which took place before the national elections in April 1994. After the close of the prosecution case, Flemming DJP refused an application for the discharge of all the accused on all counts. The applicant and six others were acquitted on all but four of the counts, namely, counts 80 to 83, which relate to the unlawful possession of machine guns, firearms and ammunition, in contravention respectively of sections 32(1)(a) and 32(1)(e) of the Act. In refusing to discharge the applicant on those remaining counts, the trial Judge stated that he relied solely on the presumption in section 40(1) of the Act. He then suspended the proceedings and made the referral order in terms of section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (the Constitution) on the basis that it was in the interests of justice that the issue be resolved at this stage of the proceedings. The case has been postponed to 16 February 1996. The issue in both matters is the validity of the presumption contained in section 40(1) of the Act in the light of the provisions of section 25(3)(c) and (d) of the Constitution. The applicants complain that the presumption offends against the >fair trial= provisions in the Constitution, in particular, the right to be presumed \f3 innocent and the privilege against self-incrimination. Section 40(1) of the Act provides: Whenever in any prosecution for being in possession of any article contrary to the provisions of this Act, it is proved that such article has at any time been on or in any premises, including any building, dwelling, flat, room, office, shop, structure, vessel, aircraft or vehicle or any part thereof, any person who at that time was on or in or in charge of or present at or occupying such premises, shall be presumed to have been in possession of that article at that time, until the contrary is proved. The first comprehensive statute to regulate arms and ammunition nationally was the Arms and Ammunition Act 28 of 1937. Prior to this, each of the four provinces had their own acts regulating the possession and distribution of arms and ammunition. Section 32 of the 1937 Act provided: Any occupier of premises and any person who is upon or in charge of or who accompanies any vehicle, vessel or animal upon which or in which there is any article mentioned in section one or any arm or ammunition shall, until the contrary is proved, be deemed for the purposes of this Act to be the possessor of such article or arm as the case may be. The Orange Free State (Act 23 of 1908) and Transvaal (Act 10 of 1907) had substantially similar provisions. Our courts, in an attempt to avoid obviously unintended results, interpreted the word Aoccupier@ in the 1937 Act strictly. Thus in S v Mnguni 1962(3) SA 662 (NPD) at 664D-E, the word was held to mean the person Awho is responsible for the premises and has the general control of them.@ It was held further that the word did not mean Aany person who is an occupant of premises@ because it was Aunlikely that the legislature would have deemed every person residing on the premises to be the possessor of arms.@ Section 40(1) of the present Act came into operation on 1 February 1972. The terms of the presumption are clearly wider in scope than those in the antecedent legislation, and now include not only occupants of premises but also persons Aon@, Ain@ or Apresent at@ such premises at any time when the Aarticle@ has been Aon@ or Ain@ such premises. [5] \f [6] [7] 4 Aspects of section 25(3)(c) and (d) of the Constitution have already been the subject of enquiry in some of the matters before this Court in which their impact on statutory presumptions in our criminal law was considered. The relevant part of the section reads: Every accused person shall have the right to a fair trial, which shall include the right ..... (c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial; to adduce and challenge evidence, and not to be a compellable witness against himself or herself ... (d) In S v Zuma and Others 1995(2) SA 642(CC); 1995(4) BCLR 401(CC), the issue was the constitutionality of a legal provision contained in section 217(1)(b)(ii) of the Criminal Procedure Act 51 of 1977 which placed a burden on the accused to rebut a presumed fact, namely, that a confession had been made freely and voluntarily. The phrase Aunless the contrary is proved@ which was used in the provision meant, in effect, that if the accused failed to discharge the burden of proof, that is, on a balance of probabilities, the confession would be admitted notwithstanding the existence of a reasonable doubt that it had been made freely and voluntarily. (See Ex Parte Minister of Justice: In re: R v Jacobson and Levy 1931 AD 466 at 471; Ex parte Minister of Justice: In re: R v Bolon 1941 AD 345 at 360 - 361; S v Mphahlele and Another 1982 (4) SA 505 (A) at 512C). Sections 25(2) and 25(3)(c) and (d) of the Constitution entrench as a fundamental constitutional value the fact that it is the duty of the prosecution to prove the guilt of an accused person in a criminal case. As Kentridge AJ at paragraph 25 pointed out, Athe presumption of innocence is derived from the centuries-old principle of English law, forcefully restated by Viscount Sankey in his celebrated speech in Woolmington v Director of Public Prosecutions (1935) AC 462 (HL) at 481, that it is always for the prosecution to prove the guilt of the accused person, and that the proof must be proof beyond a reasonable doubt.@ The rights to be presumed innocent, to remain silent during trial and not to be a compellable witness against oneself are entrenched in sections 25(3)(c) and (d). Constitutional recognition of these rights in criminal trials means that statutory \f [8] [9] 5 erosion of these rights and principles can no longer be accepted without question as they were before this Constitution came into force; statutory presumptions and other legislation which adversely affect the rights entrenched in Chapter 3 of the Constitution will now have to meet the limitations criteria of section 33(1) of the Constitution. (See S v Makwanyane and Another 1995(3) SA 391 (CC);1995(6) BCLR 665 (CC) at paragraphs 100 and 156; S v Williams and Others 1995(3) SA 632 (CC); 1995(7) BCLR 861 (CC) at paragraphs 8 and 54; S v Bhulwana; S v Gwadiso 1996(1) SALR 388 (CC); 1995(12) BCLR 1579 (CC) at paragraph 16.) This Court held in Zuma=s case that the presumption of innocence was infringed by the provision which imposed an onus on the accused to disprove the voluntariness of the confession. In S v Bhulwana; S v Gwadiso supra this Court was concerned with a provision in Section 21(1)(a)(i) of the Drugs and Drug Trafficking Act 140 of 1992 which required that an accused who was proved to be in unlawful possession of dagga in excess of 115 grams be presumed, Auntil the contrary is proved,@ to be dealing in such dagga. The effect of the presumption was that if the accused failed to prove on a preponderance of probabilities that he or she was not dealing or trafficking in dagga, a conviction for dealing would result, even if the evidence raised a reasonable doubt as to the innocence of such accused. O=Regan J (paragraph 15) pointed out on behalf of a unanimous court that the presumption of innocence was not new to our legal system but was in fact an established principle of our law. She referred, inter alia, to the general rule restated by the Appellate Division in R v Ndhlovu 1945 AD 369 at 386 that A[i]n all criminal cases it is for the Crown to establish the guilt of the accused, not for the accused to establish his innocence. The onus is on the Crown to prove all averments to establish his guilt.@ The only common law exception recognised was a defence of insanity which had to be proved by the accused. It is now well established that the enquiry into the constitutionality of the impugned section involves two stages. Firstly, whether the section is inconsistent with a fundamental right contained in Chapter 3 of the Constitution; if it is, then \f 6 secondly, whether the inconsistency is saved in terms of section 33(1) of the Constitution. In argument before us, the State was unable to indicate any reason for departing from the principles expressed in the first stage of the enquiry in S v Zuma. It was common cause that the provision amounts to a legal presumption; it is a reverse onus provision. As a presumption, it has similar features to that discussed in Bhulwana=s case. The effect of the provision is to relieve the prosecution of the burden of proof with regard to an essential element of the offence. It requires that the presumed fact must be disproved by the accused on a balance of probabilities. (See R v Bolon supra at 360-1; S v Nene and Others (2) 1979(2) SA 521(D) at 523H; S v Mkanzi en >n Ander 1979(2) SA 757(T) at 758H; S v Mphahlele supra 512B; S v Zuma supra at paragraph 4). As pointed out by O=Regan J in Bhulwana=s case (paragraph 15), a presumption of this nature is in breach of the presumption of innocence since it could result in the conviction of an accused person despite the existence of a reasonable doubt as to his or her guilt. [10] No legal system can guarantee that no innocent person can ever be convicted. Indeed, the provision of corrective action by way of appeal and review procedures is an acknowledgement of the ever-present possibility of judicial fallibility. Yet it is one thing for the law to acknowledge the possibility of wrongly but honestly convicting the innocent and then provide appropriate measures to reduce the possibility of this happening as far as is practicable; it is another for the law itself to heighten the possibility of a miscarriage of justice by compelling the trial court to convict where it entertains real doubts as to culpability and then to prevent the reviewing court from altering the conviction even if it shares in the doubts. [11] Counsel for the applicants also argued that the presumption violated the privilege or rule against self-incrimination. This was disputed by the State on the basis that the accused was not compelled to give evidence, self-incriminatory or otherwise. The Constitution does not mention a right or privilege against self- incrimination expressly, but the cluster of >fair trial= rights guaranteed in section \f 7 25(3)(c) and (d) of the Constitution includes the right of the accused Ato remain silent during plea proceedings or trial and not to testify during trial ... [and] ... not to be a compellable witness against himself or herself.@ In Ferreira and Others v Levin and Others CCT/5/95 (judgment delivered on 6 December 1995), this Court (per Ackermann J at paragraph 79 and Chaskalson P at paragraph 159) held that a right against self-incrimination is implicit in the provisions of section 25(3) of the Constitution. However, because of the view I take with regard to the decisiveness of the presumption of innocence for this enquiry, it is unnecessary, for purposes of this judgment, to canvass the precise scope of such right or privilege or its applicability to the facts of the present case. [12] The conclusion I come to, therefore, is that section 40(1) of the Act offends against the right of an accused person to be presumed innocent, in terms of section 25(3)(c) of the Constitution. The provision can accordingly only be permissible if it is saved by the provisions of section 33(1) of the Constitution. [13] Section 33(1) of the Constitution, in so far as it applies to section 25(3), provides as follows: [14] The rights entrenched in this Chapter may be limited by law of general application, provided that such limitation - (a) shall be permissible only to the extent that it is - (i) reasonable; and (ii)justifiable in an open and democratic society based on freedom and equality; and (b) shall not negate the essential content of the right in question, and ... shall ... also be necessary. In S v Makwanyane supra, Chaskalson P (at paragraph 104) stated that the enquiry involves the weighing up of competing values and ultimately an assessment based on proportionality. He named the factors to be considered in this process as including: the wider implications which the right has for our society (>an open and democratic society based on freedom and equality=); the purpose for which the right is limited; the importance of that purpose to our society; the extent of the limitation and its efficacy and, in cases where the limitation has to be necessary, whether the objectives of the limitation could reasonably be achieved by means less damaging to the right. \f8 [15] The State argued that the inroads which section 40(1) of the Act makes on the presumption of innocence are reasonable, justifiable and necessary and that they do not negate the essential content of the right. Relying on remarks in S v Zuma supra (at paragraph 41), it was argued that the reverse onus provisions in the present case are justifiable and therefore constitutionally permissible. In the passage referred to, Kentridge AJ pointed out that the effect of the judgment in that case was not to invalidate every legal presumption reversing the onus of proof as some presumptions Amay be justifiable as being rational in themselves, requiring an accused person to prove only facts to which he or she has easy access, and which it would be unreasonable to expect the prosecution to disprove ... Or there may be presumptions which are necessary if certain offences are to be effectively prosecuted, and the State is able to show that for good reason it cannot be expected to produce the evidence itself ...@ The State contended that circumstances existed which rendered section 40(1) of the Act justifiable, regard being had to the context and the manner in which its provisions were implemented.", "The State characterised the objective of the presumption in the present case as being to assist in combating the escalating levels of crime as part of the government=s duty to protect society generally. The contention was that the provision is intended to ensure effective policing and to facilitate the investigation and prosecution of crime as well as to ease the prosecution=s task of securing convictions for contraventions under the Act. Such an objective is truly laudable and its importance, in the current climate of very high levels of violent crime, cannot be overstated. Information in papers submitted to us reveals that during the period 1990 to 1994, there was a distressing increase in crimes of violence. The common denominator in most of them is the involvement of firearms. In a discussion document titled: Recent Crime Trends, Dr Lorraine Glanz of the Human Sciences Research Council observed that Athe face of crime is becoming increasingly violent and more serious,@ and that the rampant crime levels must have Aa profound negative effect on the quality of life in communities. If left unchecked, a protracted increase in violent crime in particular is a threat to social stability.@ I could not agree more. A further ugly feature allied to the actual deeds \f 9 of violence is the incidence of illegal smuggling, sale and possession of arms. We were told that trafficking in arms and drugs from neighbouring countries into South Africa is taking place on a significant scale. There is a proliferation of illegal firearms throughout the country and this, no doubt, contributes in no small measure to the high incidence of violent crime. This state of affairs is obviously a matter of serious concern, not only for the courts, but for the legislature, the police and the entire population which is affected by it. There is no doubt that, whatever the causes, crimes of violence particularly those involving firearms have reached an intolerably high level and that urgent corrective measures are warranted. [17] The problems which the government has to contend with in fulfilling its duty to protect society were given to us in some detail. We were informed that the detection of people in possession of illegal arms and ammunition is often very difficult. Police have to depend on informers or pure chance to trace offenders. The use of informers who infiltrate gun-smuggling networks is a helpful but often time-consuming and dangerous process. Gunrunners make extensive use of couriers to transport arms; some of the couriers, especially women and children, are used without their knowledge. Even vehicles such as ambulances and official government cars are sometimes used, without the people in control of the vehicles knowing it. Sometimes aircraft and motor vehicles equipped with false panels and compartments for storage are used in the illegal transportation of arms. The problem of policing is compounded by geographical factors; the borders of South Africa are extensive and impossible to patrol effectively 24 hours a day, making it easier for cross-border dealers and smugglers of arms to ply their trade and evade detection. The severe shortage of trained personnel has adverse effects on the capacity of the police to conduct raids and searches in places like hostels and informal settlements, to look for places used for concealment of illegal arms and to trap motor vehicles used in illegal conveyance of arms. Ordinary members of the community often withhold information because they are too terrified and intimidated by armed gangsters and traffickers in narcotic drugs and illegal arms. \f [18] 10 It is difficult not to have sympathy for representations of this nature, coming as they do from officials of the State whose task it is to deal with what has become a truly serious problem. These are real and pressing social concerns and it is imperative that proper attention should be given to finding urgent and effective solutions. The issue before us, however, is not simply whether there is a pressing social need to combat the crimes of violence - there clearly is - but also whether the instrument to be used in meeting this need is itself fashioned in accordance with specifications permitted by the Constitution. Although the relevant legislative provision was enacted before the Constitution came into force, the enquiry is whether the limitation it imposes on constitutionally protected rights is consistent with the provisions of the Constitution. This involves a consideration of the other factors referred to in Makwanyane=s case, and in particular, the importance of the impugned right in an open and democratic society, and the extent to which that right has been limited. As O=Regan J said in S v Bhulwana supra (at paragraph 18), Athe more substantial the inroad into fundamental rights, the more persuasive the ground of justification must be.@ [19] The presumption of innocence is clearly of vital importance in the establishment and maintenance of an open and democratic society based on freedom and equality. If, in particular cases, what is effectively a presumption of guilt is to be substituted for the presumption of innocence, the justification for doing so must be established clearly and convincingly. [20] It was argued that without the presumption it would be almost impossible for the prosecution to prove both the mental and physical elements of possession. I do not agree. The circumstances of each case will determine whether or not the elements of possession have been established beyond reasonable doubt. The evidence need not necessarily be direct. It may be, and often is, circumstantial and will often be sufficient to secure a conviction without the assistance of the presumption. There will no doubt be cases in which it will be difficult to prove that a particular person against whom the presumption would have operated, \f 11 was in fact in possession of the prohibited article. If that person was in fact guilty, the absence of the presumption might enable him or her to escape conviction. But this is inevitably a consequence of the presumption of innocence; this must be weighed against the danger that innocent people may be convicted if the presumption were to apply. In that process the rights of innocent persons must be given precedence. After all, the consequences of a wrong conviction are not trivial. Apart from the social disapprobation attached to it, heavy penalties are attached to contraventions of the Act. In the cases before us, the sentence prescribed by the Act for the illegal possession of a firearm is imprisonment for a period not exceeding 25 years with a minimum of five years. Illegal possession of ammunition attracts a sentence of imprisonment for a period not exceeding 25 years. [21] The presumption is couched in wide terms and no attempt has been made to tune its provisions finely so as to make them consistent with the Constitution and to avoid the real risk of convicting innocent persons, who happen to be in the wrong place at the wrong time. It may be invoked in a wide range of circumstances and against any number of categories of persons, as long as they have been in, on or at a particular place at the relevant time. The presumption becomes operative without the prosecution being required to show any connection between the accused and the prohibited article, and between such accused and the place where the article was. APremises@ is defined in the section as including Aany building, dwelling, flat, room, office, shop, structure, vessel, aircraft or vehicle or any part thereof@. The provision targets Aany person@ who was in, on or at the premises at the relevant time, regardless of that person=s possible connection (or lack of it) with such premises. It also targets any person in charge of or occupying the premises, however remote his or her connection with the particular part thereof where the offending article is proved to have been. Indeed, it very much looks as if the intention was to override the restrictions read into that section=s forerunner in cases like S v Mnguni supra. [22] The application of the presumption does not depend on there being a logical or \f 12 rational connection between the presumed fact and the basic facts proved, nor can it be claimed that in all cases covered by the presumption, the presumed fact is something which is more likely than not to arise from the basic facts proved. The mere presence of the accused in, on or at the premises at the same time as the prohibited article does not, as a matter of course, give rise to the inference of possession. There are clearly circumstances where this connection can be reasonably sustained. Circumstances may even arise where such an adverse inference would be warranted without the accused having been present in, on or at the particular premises when the firearm was found. An example is a case where it is proved beyond a reasonable doubt that a firemarm was found in the glove compartment of a locked car which had been driven by its owner and in which there had been no passengers. If the accused=s exculpatory version is found to be false (also beyond a reasonable doubt), the conviction would be defensible. That would be so, not because of the presumption created by section 40(1) of the Act, but as a matter of logical inference. The problem with the provision is that it contains no inherent mechanism to exclude those who are innocent and who would otherwise be included within its reach. If, for example, a single firearm were to be found on a crowded bus, each passenger on the bus would be liable to be arrested and prosecuted, and would be presumed guilty unless he or she were able to establish innocence. [23] Counsel for the State claimed that in practice, use of the presumption does not lead to absurd results because it is applied with circumspection by prosecutors. The contention is not convincing for a number of reasons. First, there is nothing to suggest that prosecutors in general and around the country agree with the view or, if they do, that it is invariably implemented. If a general directive to that effect has been issued, it has not been mentioned in argument. In the second instance, even if one were to accept that prosecutors adhere to such a policy there is no evidence that the police do so. On the contrary, counsel for the State submitted that the breadth of the presumption was a valuable investigative tool because it enabled the police to detain anyone found in the vicinity of an unlicensed firearm for questioning. Quite apart from the fact that the legality of \f13 detention for questioning may be suspect, and its constitutionality the more so, the submission underscores the fact that the very breadth of the presumption is regarded by the police as warranting the blanket arrest of groups of persons without any suspicion that each of them has committed any offence. In S v Shange and Others 1994(1) SACR 621(N), for instance, the police actually arrested and charged the eight appellants who were passengers in a vehicle from which a firearm and ammunition were thrown out as it approached a police roadblock. The prosecution proceeded against them and they were all convicted, on the basis of the presumption, notwithstanding the fact that each one of them gave evidence denying any knowledge of the articles in question. Apart from having been attending the same tribal celebration at a certain kraal and the fact that they had all spontaneously clambered on to the vehicle simply because it was going in their direction, there was nothing connecting them with each other, nor was there any evidence of any link between each one of them and the articles concerned. It was only when the appeal was heard by the Provincial Division that the convictions were reversed on the basis that the appellants had, in fact, discharged the onus cast on them by virtue of the presumption. One can readily accept that police conducting a raid of a hostel are in a quandary when they find a firearm in a place with no apparent link with any of the hostel- dwellers; or as the State suggested in argument, when a firearm was found in a vehicle wreck in the courtyard. One must also accept, as has been done in paragraphs 16 to 18 above, that the eradication of the cancer of illegal firearms is a pressing public concern calling for vigorous and concerted effort. Nevertheless such concern cannot render the wholesale arrest of ostensibly innocent people either reasonable or justifiable in an open and democratic society based on freedom and equality. Thirdly, and in itself conclusively, it is clear that the presumption could lead to the conviction of innocent persons. Their rights are enshrined in the Constitution and do not depend on the discretion of the police or the attorney-general to prosecute only in cases where the accused are in fact guilty. If the police and the attorney-general are satisfied of the guilt of the accused, they should be able to establish this in the ordinary way. \f14 If the purpose of the provision is to promote the legitimate law enforcement objective of separating innocent bystanders from genuine suspects, then it should be cast in terms limited to serving that function only. A legislative limitation motivated by strong societal need should not be disproportionate in its impact to the purpose for which that right is limited. If restrictions are warranted by such societal need, they should be properly focused and appropriately balanced. The foundations of effective law enforcement procedures should always be the thorough collection of evidence and the careful presentation of a prosecution case. The sweeping terms of the presumption, however, encourage dragnet searches followed by dragnet prosecutions in which innocent bystanders, occupants and travellers can be required to prove their innocence and the normal checks and balances operating at the pre-trial stage cease to operate. Immense discretionary power is given to the police, in the first instance and to the prosecuting authorities thereafter, as to whether or not to proceed with arrest and indictment. From a practical point of view, the focus of crucial decision-making on guilt or innocence thus shifts from the constitutionally controlled context of a trial to the unrestrained discretion of police and prosecutor. The possibility cannot be excluded that overworked police and prosecuting authorities would understandably be tempted to focus on merely getting sufficient evidence to raise the presumption of possession; they can then rely on a poor showing by the accused in the witness box to secure a conviction. Yet the law gives no guidance to investigators and prosecutors as to when it is appropriate to rely on the presumption to proceed with a case and when not. Innocent persons may be put to the inconvenience, indignity and expense of a trial simply because they were in a bus, on a ship, or in a taxi, restaurant or house where weapons happened to be discovered. At the same time, the objectivity and professionalism of the police and prosecution are undermined by the lack of principled criteria governing their actions. In my view, in order to catch offenders and secure their convictions, it is not reasonable and justifiable either to expose honest citizens to such open-ended jeopardy or to impose such ill-defined responsibility upon those charged with law enforcement. [24] \f15 [25] The presumption is not only too wide in its application with regard to persons, it also casts a heavy burden on those who are caught by it to disprove guilt. The facts in the case of S v Mtshemla and Others 1994(1) SACR 518 (A) give some indication of the seriousness of the task facing an accused person if he or she is to discharge the burden of proof. Of the three persons accused of possession of one firearm, in that matter, two elected to give evidence to rebut the presumption. They were both convicted, the magistrate ruling that their evidence was insufficient to dislodge the presumption. The third, who had decided to remain silent was also convicted, there being nothing in his case to gainsay the presumption. In another case, that of S v Makunga and Others 1977(1) SA 685 AD, the remarks of Wessels JA (at 699A) are illustrative of some of the problems inherent in the practical application of the presumption: ... [T]here was an onus on each one of the seven accused to establish by a preponderance of probabilities that he was not in possession of any one of the six firearms found in the hut. In my opinion, no one of the accused succeeded in discharging that onus. The mere fact that on the evidence it was probable that one unidentified accused was in possession of the toy pistol is wholly insufficient to discharge the onus which rested on each one of the seven accused. [26] Based on the assessment of the potential effect of the provision on innocent people, I am not persuaded that the presumption, as it stands, satisfies the requirements of reasonableness and justifiability. I am fortified in this conclusion by the fact that it has also not been demonstrated that its objective, that is, facilitating the conviction of offenders, could not reasonably have been achieved by other means less damaging to constitutionally entrenched rights. Although the choice of the appropriate measures to address the need is that of the legislature, it has not been shown that an evidentiary burden, for example, would not be as effective. I should not be understood as suggesting that any provision imposing an evidentiary burden, particularly if it is framed as broadly as the presumption in the present case, would be immune from constitutional attack. But by requiring the accused to provide evidence sufficient to raise a reasonable \f [27] 16 doubt, such a provision would be of assistance to the prosecution whilst at the same time being less invasive of section 25(3) rights. That it might impact on the right of an accused person to remain silent is true; but on the assumption that the rampant criminal abuse of lethal weapons in many parts of our country would justify some measured re-thinking about time-honoured rules and procedures, some limitation on the right to silence might be more defensible than the present one on the presumption of innocence. The accused could of course be exposed to the risk of being convicted if he or she fails to offer an explanation which could reasonably possibly be true, regarding physical association with the weapons; there would however be no legal presumption overriding any doubts that the court might have. At the end of the day and taking into account all the evidence, the court would still have to be convinced beyond a reasonable doubt that the accused was indeed guilty. I accordingly find that although the provision in question is a law of general application, it has not been shown to be reasonable as required by section 33(1) of the Constitution. It is furthermore so inconsistent with the values which underlie an open and democratic society based on freedom and equality that it cannot be said to be justifiable. In view of this finding, it is not necessary to canvass the question whether the essential content of the right is negated, nor whether the limiting provision is necessary within the meaning of section 33(1) of the Constitution. Section 40(1) of the Act is unconstitutional inasmuch as it is an unreasonable and unjustifiable violation of the presumption of innocence. [28] During argument, some time was devoted to a question that keeps cropping up in matters before us and that is the problem of improper referrals. This Court has expressed itself on a number of occasions on the correctness or otherwise of referrals made under section 102(1) of the Constitution. Some of the remarks need to be repeated. In Zuma=s case at paragraph 10, Kentridge AJ points out that A[e]ven if a rapid resort to this Court were convenient, that would not relieve the Judge from making his own decision on a constitutional issue within his jurisdiction.@ In S v Mhlungu and Others 1995(3) SA 867 (CC); 1995(7) BCLR \f [29] 17 793(CC) at paragraph 59, Kentridge AJ cautioned against premature referrals to this Court and observed: The fact that an issue within the exclusive jurisdiction of this court arises in a provincial or local division does not necessitate an immediate referral to this court. Even if the issue appears to be a substantial one, the court hearing the case is required to refer it only (i) (ii) if the issue is one which may be decisive for the case; and if it considers it to be in the interest of justice to do so ... ... I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed. It is by no means clear whether or not the conviction of Mbatha was on the basis of the presumption in section 40(1) of the Act; nor is it clear that this is a matter which could not have been disposed of without reaching the constitutional issue. The referral was therefore not a proper one. During argument, counsel for this applicant made an oral request from the bar for Adirect access@ in terms of Rule 17 of the Rules of this Court, read with section 100(2) of the Constitution. The application was not opposed. ADirect access@ provisions have received their fair share of attention in this Court. As stated in Zuma=s case at paragraph 11, what is contemplated is that direct access should be allowed Ain only the most exceptional cases, and it is certainly not intended to be used to legitimate an incompetent reference.@ In terms of Rule 17(1), the special circumstances envisaged Awill ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of the ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government.@ Clarity with regard to the presumption is of immense public importance. There are any number of trials either pending or proceeding, in which the presumption is liable to be invoked. It is therefore necessary that legal certainty should be achieved as soon as possible. I am accordingly of the view that this is a matter in which direct access should be granted. Because Prinsloo's case was concerned with an identical issue, the two matters were set down for one date. Both sets of counsel prepared \f [30] 18 exhaustive and very helpful argument and the two matters were argued together before us. The issue in Prinsloo=s case is clearly decisive for the case with regard to some of the accused. Flemming DJP considered it to be in the interests of justice for the issue to be referred and cogent reasons have been furnished to support the referral. The issue in Prinsloo=s case was, in the circumstances, properly before this Court. I now turn to consider the appropriate order. Section 98(5) of the Constitution empowers this Court to suspend a declaration of invalidity Ain the interests of justice and good government@ until Parliament corrects the defect in the legislation concerned. The effect of such a suspension would be to prolong the risk inherent in a reverse onus provision until the legislature intervenes. What this amounts to is that an unsatisfactory state of affairs, where accused persons could be convicted despite the existence of a reasonable doubt, would be allowed to continue until new legislation is enacted to deal with the issue. There is no knowing when this legislative intervention might come. On the other hand, should the declaration of invalidity operate with immediate effect, the prosecution would be able to deal with contraventions of the Act in the normal manner, as in all other prosecutions where there is no reliance on a presumption. There do not appear to be any compelling considerations of Ajustice and good government@ requiring that the infringement of this constitutionally protected right should continue beyond the date of this order. On the contrary, it would be undesirable for the courts to continue applying a provision which is not only manifestly unconstitutional, but which also results in grave consequences for potentially innocent persons in view of the serious penalties prescribed. [31] Section 98(6)(a) of the Constitution prescribes that unless this Court orders otherwise, in the interests of justice and good government, the order of invalidity shall not invalidate anything done or permitted in terms of the unconstitutional provision. In Mbatha=s case, the matter is on appeal to the Witwatersrand Local Division and that court will be able to take this judgment and order into account when it proceeds with the matter. In Prinsloo=s case, the trial is still in progress \f 19 and giving effect to the order should present no problems. The order made should, however, be operative in the cases of any other litigants who might be similarly placed. The general considerations set out above were present in Bhulwana=s case supra and I see no reason to depart from the approach adopted by this Court in that matter. The order that I propose to make will protect not only the rights of accused persons in pending cases (S v Mhlungu supra at paragraph 48), but also the rights of the persons referred to in paragraph two of the Order. [32] Flemming DJP has pointed out that a declaration of invalidity by this Court would not, in itself, entitle the trial Judge to immediately discharge those accused who would have been acquitted at the end of the case for the prosecution but for the operation of the presumption. His view is that he is functus officio and cannot recall his judgment; consequently, the applicant Prinsloo and the relevant co- accused would be forced to endure the unsatisfactory prospect of continuing to be part of the trial which still has a long way to go before conclusion. The Judge therefore proposed that if the presumption were found to be unconstitutional, this Court should make an appropriate order to enable the trial court to end the proceedings against those who should have been discharged. I express no opinion on whether or not the trial Judge is functus officio as regards the particular issue. This is a matter entirely within his jurisdiction which he must determine on a proper construction of the relevant provisions. It was not argued before us that we had the jurisdiction to set aside the judgment of the trial court refusing to discharge Prinsloo. The Attorney-General of the Transvaal, however, gave a firm undertaking during argument that should the presumption be declared unconstitutional he would stop the prosecution against the relevant accused. It therefore becomes unnecessary to take this matter any further. [33] Finally, I wish to express the Court's appreciation to Mr M R Hellens SC and Mr P R Jammy who assisted him for preparing and presenting argument on behalf of the applicant in the first case at the request of the Court. \f [34] The following order is accordingly made: 20 Section 40(1) of the Arms and Ammunition Act 75 of 1969 is inconsistent 1. with the Republic of South Africa Constitution Act 200 of 1993 and is, with effect from the date of this judgment, invalid and of no force or effect. 2. In terms of section 98(6) of the Constitution, this declaration of invalidity shall invalidate any application of section 40(1) of the Arms and Ammunition Act 75 of 1969 in any criminal trial in which the verdict of the trial court was or will be entered after the Constitution came into force, and in which, as at the date of this judgment, either an appeal or review is pending or the time for noting such appeal has not yet expired. 3. The matters of S v Mbatha and S v Prinsloo are referred back to the Witwatersrand Local Division of the Supreme Court to be dealt with in accordance with this judgment. PN Langa, Judge of the Constitutional Court Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Madala J, Mokgoro J, O=Regan J and Sachs J concur in the judgment of Langa J. \f CASE NO: COUNSEL FOR APPLICANT: 21 CCT 19/95 M R Hellens SC P R Jammy At the request of the Court COUNSEL FOR RESPONDENT: J A van S D=Oliviera E Leonard E Erasmus CASE NO: COUNSEL FOR APPLICANT: INSTRUCTED BY: COUNSEL FOR RESPONDENT: DATE OF HEARING: DATE OF JUDGMENT: CCT 35/95 L van der Walt Odendal & Kruger, Delmas R J Chinner J A L Pretorius 16 November 1996 9 February 1996"], "max_length_judgement_paras": 4800}, {"title": "Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CT5/95) [1996] ZACC 27; 1996 (2) SA 621 (CC); 1996 (4) BCLR 441 (CC) (19 March 1996)", "url": "http://www.saflii.org/za/cases/ZACC/1996/27.html", "summary_document": {"filename": "summary-for-case-27.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/27media.pdf", "file_content": " \n\n Case CCT 5/95 \n\nFerreira v Levin NO and others \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nThe applicants had applied to the Witwatersrand Local Division of the Supreme Court for \ninterdicts pending the determination by the Constitutional Court of the constitutionality of \nsection 417(2)(b) of the Companies Act (the Act). The applications were dismissed by Van \nSchalkwyk J. The appeals of all the applicants to the Full Bench of the Witwatersrand Local \nDivision against such dismissals were upheld with costs, the Full Bench ordering that the \ncosts of the applications in the court of first instance were to be costs in the cause in the \nmatter before the Constitutional Court. Van Schalkwyk J referred five issues to the \nConstitutional Court in terms of s 102(1) of the Constitution of the Republic of South Africa \nAct 200 of 1993. The first related to the constitutionality of s 417(2)(b); the other four related \nto declaratory orders relating to the admissibility of evidence in subsequent criminal and civil \nproceedings against the applicants and the correct procedures to be followed at enquiries in \nterms of s 417 of the Act. There was nothing to suggest that the respondents opposed any of \nthese referrals. The Constitutional Court held in Ferreira v Levin NO and others; Vryenhoek \nand others v Powell NO and others (1) that none of the five issues had been correctly referred \nbut, in the exceptional circumstances of the case, heard the first issue by way of direct access \nin terms of section 100(2) of the Constitution. The Court declared section 417(2)(b) of the \nCompanies Act invalid to the extent indicated in the order. No order was made as to costs but \nthe parties were afforded an opportunity of pursuing the matter further. The applicants in the \nFerreira and Vryenhoek matters duly availed themselves of this opportunity. \n\nHeld that the approach to costs developed by the Supreme Court over the years offers a useful \npoint of departure to the question of costs in constitutional litigation. This approach proceeds \nfrom two basic principles, the first being that the award of costs, unless expressly otherwise \nenacted, is in the discretion of the presiding judicial officer and the second that the successful \nparty should, as a general rule, have his or her costs. The second principle is subject to the \nfirst, and to a large number of exceptions where the successful party is deprived of his or her \ncosts. The principles which have been developed in relation to the award of costs are by their \nnature sufficiently flexible and adaptable to meet new needs which may arise in regard to \nconstitutional litigation. If the need arises the rules may have to be substantially adapted; this \nshould however be done on a case by case basis. It is unnecessary, if not impossible, at this \nstage to attempt to formulate comprehensive rules regarding costs in constitutional litigation. \n\nHeld further that relevant factors in relation to whether the applicants were entitled to their \ncosts were that the applicants had not been successful in substance in their dispute with the \nrespondents, and that even if the respondents had offered no opposition to the applicants, the \napplicants would in any event have been obliged to come to the Constitutional Court to \nobtain the relief in respect whereof they were successful, inasmuch as the striking down of an \nAct of Parliament falls within the exclusive jurisdiction of the Constitutional Court. It had not \n\n1 \n\n\fbeen demonstrated that the applicants incurred any more costs than they would have incurred \nif the matter had not been opposed by the respondents. A further relevant consideration was \nthat the Court found that none of the issues was properly referred to it and only decided to \nhear the section 417(2)(b) issue by way of direct access as an indulgence and in view of the \nexceptional circumstances of the case. In all these circumstances it appeared just and \nequitable not to award the applicants their costs. \n\nHeld further, that no good reason suggested itself why the second general rule as to costs, \nnamely that the successful party is entitled to his or her costs, should not be the point of \ndeparture for considering whether the respondents were entitled to their costs, inasmuch as \nthey were in substance successful in opposing the relief sought by the applicants. However, \nhad the respondents opposed more critically the matters which were referred to the Court and, \nin particular, applied their minds more carefully to the question whether such matters passed \ns 102(1) scrutiny, it may well be that the matters would not have been referred to us at all, or \nat least not all of them. Parties, and respondents in particular, should not be encouraged to \nconsent supinely to matters being referred to the Constitutional Court in the mistaken belief \nthat an applicant's failure to achieve substantial success on referral will automatically entitle \nthe respondents to their costs. If parties are of a mind to oppose the relief being sought in a \nreferral they should in the first place be astute to prevent matters being incorrectly referred \nand should oppose inappropriate referrals at the time when they are sought; they should not \nsit back and raise their opposition for the first time in this Court after the referral has been \nmade. \n\nHeld accordingly that justice and fairness would best be served if all parties were ordered to \npay their own costs. \n\nThe judgment of the Court was delivered by Ackermann J and was concurred in by the other \nmembers of the Court. \n\n \n\n2 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-27.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/27.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA \n\nCASE NUMBER CCT \n5/95 \n\n \n\n \n\nApplicant \n\n \n\n \n\n \n\n \n\n \n \n \n\n \n \n\n \n\n 1st Respondent \n\n \n\n \n\n 2nd Respondents \n\n \n\n \n\n 3rd Respondent \n\n \n \n \n\n 1st Applicant \n 2nd Applicant \n3rd Applicant \n\n \n \n\n \n\n 1st Respondent \n \n2nd \nRespondent \n\n3rd Respondent \n\n \n\n \n\n \n\n \n\n \n\n \n \n \n\n \n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n \n \n\n \n \n\n \n\n \n \n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n \nIn the matter of \n \nFerreira, Clive \n \nand \n \nLevin, Allan NO \n \nWilkens, Andrew David \nCooper, Brian St Clair \nVan Der Merwe, Schalk Willem NO \nIn their capacities as the joint \nprovisional liquidators of Prima \nBank Holdings Limited \n \nThe Master of the Supreme Court \n \nand \n \nVryenhoek, Ann \nVryenhoek, Luke John \nVryenhoek, Andrew \n \nv \n \nPowell, Oliver NO \nBrett, JJ NO \n\n \n \n \n\n \n \n \n\n \n \n\n \n \n\n \n \n\n \n\n9 May 1995 \n\nAvfin Industrial Finance (Pty) Ltd \n \n(No. 2) \n \nHeard on: \n \nDelivered on: 19 March 1996 \n \n \n \n \n \n \n\n\f \n_____________________________________________________________________________ \n \n \n___________________________________________________________________ \n \n[1] ACKERMANN J: On 6 December 1995 this Court declared section 417(2)(b) of the \n\nJUDGMENT \n\n \n\n \n\nCompanies Act invalid to the extent indicated in the order.1 No order was made as \n\nto costs but the parties were afforded an opportunity of pursuing this matter further.2 \n\nOnly the applicants in the Ferreira and Vryenhoek matters have availed themselves of \n\nthis opportunity. \n\n \n\n \n\npara 157(1). \n\n1 Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others 1996 1 BCLR (CC) 1 \n\n2 Id para 157(3) and see also para 155. \n\n\f[2] The following are the salient facts relating to costs. The applicants\u2019 applications to the \n\nWitwatersrand Local Division of the Supreme Court for interdicts pending the \n\ndetermination by this Court of the constitutionality of section 417(2)(b) of the Companies \n\nAct (\u201cthe Act\u201d) were dismissed by Van Schalkwyk J. The appeals of all the applicants to \n\nthe Full Bench of the Witwatersrand Local Division against such dismissals were upheld \n\nwith costs, that Court ordering that the costs of the applications in the court of first \n\ninstance were to be \u201ccosts in the cause in the matter before the Constitutional Court.\u201d3 \n\nThe predominant reason for the applicants\u2019 approach both to the Witwatersrand Local \n\nDivision and to this Court was their objection to answering questions which might tend \n\nto incriminate them and the coercive features of section 417(2)(b) of the Act which not \n\nonly compelled them to answer such questions but expressly provided that such evidence, \n\nthough self-incriminating, could subsequently be used in proceedings against the \n\napplicants (which by implication included criminal proceedings). Van Schalkwyk J \n\nreferred five issues to this Court in terms of section 102(1) of the Constitution of the \n\nRepublic of South Africa Act 200 of 1993 (as amended)(\u201cthe Constitution\u201d). The first \n\nrelated to the constitutionality of the subsection of the Act referred to; the other four \n\nrelated to declaratory orders relating to the admissibility of evidence in subsequent \n\ncriminal and civil proceedings against the applicants and the correct procedures to be \n\nfollowed at enquiries in terms of section 417 of the Act. There is nothing to suggest that \n\nthe respondents opposed any of these referrals. This Court held that none of these matters \n\nhad been correctly referred but, in the exceptional circumstances of the case, heard the \n\n \n\n \n\n3Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others 1995 2 SA 813(W) \n\n845G. \n\n \n \n\n3 \n\n\ffirst matter by way of direct access in terms of section 100(2) of the Constitution.4 \n\n \n\n \n\n \n\n4Ferreira v Levin supra note 1 paras 9 to 19. \n\n \n \n\n4 \n\n\f[3] The Supreme Court has, over the years, developed a flexible approach to costs which \n\nproceeds from two basic principles, the first being that the award of costs, unless \n\nexpressly otherwise enacted, is in the discretion of the presiding judicial officer5 and the \n\nsecond that the successful party should, as a general rule, have his or her costs.6 Even \n\nthis second principle is subject to the first.7 The second principle is subject to a large \n\nnumber of exceptions where the successful party is deprived of his or her costs. Without \n\nattempting either comprehensiveness or complete analytical accuracy, depriving \n\nsuccessful parties of their costs can depend on circumstances such as, for example, the \n\nconduct of parties,8 the conduct of their legal representatives,9 whether a party achieves \n\ntechnical success only,10 the nature of the litigants11 and the nature of the proceedings.12 I \n\nmention these examples to indicate that the principles which have been developed in \n\nrelation to the award of costs are by their nature sufficiently flexible and adaptable to \n\nmeet new needs which may arise in regard to constitutional litigation. They offer a useful \n\npoint of departure. If the need arises the rules may have to be substantially adapted; this \n\nshould however be done on a case by case basis. It is unnecessary, if not impossible, at \n\nthis stage to attempt to formulate comprehensive rules regarding costs in constitutional \n\n \n \n\n5Kruger Bros. and Wasserman v Ruskin 1918 AD 63 at 69. \n\n6Fripp v Gibbon & Co 1913 AD 354 at 357; Merber v Merber 1948 1 SA 446 (A) 452. \n\n7Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 at 484; Mofokeng v \n\nGeneral Accident Versekering Beperk 1990 2 SA 712 (W) 716D. \n\n8Cilliers Law of Costs (1972) 40-51. \n\n9Id 51. \n\n10Id 52. \n\n11Id 178-206. \n\n12Id 228-242. \n\n \n \n\n5 \n\n\flitigation. \n\n \n\n[4] Mr. Unterhalter in the heads of argument filed on behalf of the applicants submitted that \n\nthe applicants had no choice but to seek relief from the courts and that their complaint, \n\nnamely that section 417(2)(b) of the Act infringed their right against self-incrimination, \n\nwas upheld by this Court. The fact that they were unsuccessful in respect of four of the \n\nmatters referred did not detract from the fact that their success in having section \n\n417(2)(b) struck down to the extent indicated in the order was substantial. In this regard \n\nreliance was placed on the dictum in Giuliani v Diesel Pump Injector Services (Pvt) Ltd \n\nto the effect that \n\n[t]he fact that defendant succeeded in reducing the amount claimed by plaintiff \ndoes not, in my view, alter the fact that in these circumstances the plaintiff is \nthe successful party in considering the question of costs, because he had to \ncome to court in order to succeed to the extent that he did. (See Fripp v Gibbon \n& Co 1913 AD 354 at 361).13\n\n \n\n \n\n[5] \n\nIn relation to section 417(2)(b) of the Act the issue between the applicants and the \n\nrespondents was whether the former were obliged to answer self-incriminating questions \n\nat the section 417 enquiry. The respondents wanted the applicants\u2019 evidence in this \n\nregard; the applicants refused. The order granted by this Court does not assist the \n\napplicants in their real dispute with the respondents on this part of the case. They are still \n\nobliged to answer self-incriminating questions. The fact that such answers can no longer \n\nbe used against the applicants in any criminal proceedings that might be brought against \n\nthem in no way concerns or affects the dispute between them and the respondents. The \n\napplicants are still obliged to answer all the questions put to them as they would have \n\n \n \n131966 3 SA 451 (R) 452H. \n\n \n \n\n6 \n\n\fbeen obliged to do if the constitutional challenge had not been raised. It is of no concern \n\nto the respondents that self-incriminating evidence extracted at the enquiry cannot be \n\nused against the applicants in criminal proceedings against them. That would be a matter \n\nbetween the applicants and the Attorney-General which would arise only if the applicants \n\n were charged and such evidence tendered. This consequence in no way affects the \n\nconduct of the section 417 enquiry, was never a substantive issue between the \n\nrespondents and the applicants at the enquiry, and was not an issue over which the \n\nrespondents had any control. They had neither the interest nor the power to \u201cconsent\u201d to \n\nthe evidence not being used against the applicants in subsequent criminal proceedings. \n\n[6] Mr Unterhalter referred in his written argument to certain Canadian authorities in \n\nsupport of the applicants\u2019 claim for costs.14 These cases do not assist the applicants \n\nbecause they are, on the facts, not comparable to the present case. In Big M Drug Mart \n\nthe Crown had twice appealed unsuccessfully against a finding that a statute was \n\nunconstitutional and the Supreme Court ordered it to pay the costs of the second \n\nunsuccessful appeal.15 In Operation Dismantle, the cruise missile testing case, the \n\nplaintiff organisation had successfully pursued a Charter challenge against an agreement \n\nbetween Canada and the United States and obtained an injunction to prevent the testing \n\nof the cruise missile. This was set aside on appeal to the Federal Court of Appeal. The \n\nplaintiff\u2019s appeal to the Canadian Supreme Court was dismissed and plaintiff ordered to \n\n \n\n \n\n14Regina v Big M Drug Mart Ltd [1985] 18 DLR (4th) 321; Operation Dismantle Inc et al v The Queen et al \n[1985] 18 DLR (4th) 481; Retail, Wholesale & Department Store Union, Local 580 et al v Dolphin Delivery Ltd \n[1986] 33 DLR (4th) 174 and Re Lavigne & Ontario Public Service Employees Union et al (No 2) [1987] 41 DLR \n(4th) 86. \n \n\n15Supra note 14 at 369. \n\n \n \n\n7 \n\n\fpay the costs.16 In Dolphin Delivery the defendant union had unsuccessfully invoked a \n\nCharter right against the granting of an injunction. The defendant union\u2019s appeals to both \n\nthe British Columbia Court of Appeal and the Canadian Supreme Court were dismissed \n\nand the Supreme Court ordered it to pay the plaintiff\u2019s costs.17 In Lavigne the appellant \n\nhad successfully invoked a Charter right and succeeded on appeal. The issue on costs was \n\nwhether the fact that the Charter point successfully raised by the appellant constituted a \n\nso-called \u201cnovel issue\u201d was sufficient to deprive the successful appellant of its costs. \n\nThere were cases going both ways. The appellant was awarded 60% of its costs (the \n\nreason for the partial award not being relevant to the present issue), the Court exercising \n\nits discretion on the basis that: \n\n[i]ndividual Canadians, who would otherwise find the costs of Charter \n\nlitigation beyond their means, should not be discouraged from asserting their \n\nCharter rights simply because, if they accept third party financial assistance, \nthey will be deprived of the costs of the litigation.18 \n\n \n\n \n\n16Supra note 14 at 494. \n\n \n\n17Supra note 14 at 199. \n\n18Supra note 14 at 129 per White J. \n\n \n \n\n8 \n\n\f[7] \n\nThe applicants have not been successful in substance in their dispute with the \n\nrespondents. A further relevant consideration is the fact that even if the respondents had \n\noffered no opposition to the applicants, the applicants would in any event have been \n\nobliged to come to this Court to obtain the relief in respect whereof they were successful. \n\nEven if the respondents had conceded the unconstitutionality of section 417(2)(b) of the \n\nAct to the extent found by this Court, the applicants would still have been obliged to \n\ncome to this Court for relief, inasmuch as the striking down of an Act of Parliament falls \n\nwithin its exclusive jurisdiction in terms of section 98(2)(c) of the Constitution. I have \n\nlittle doubt that the Court would still have required full argument, would have admitted \n\nthe amici curiae that it did admit and would have solicited the memoranda it did solicit. \n\nIt has not been demonstrated that the applicants incurred any more costs than they would \n\nhave incurred if the matter had not been opposed by the respondents. The parties could \n\nhave conferred jurisdiction on the Witwatersrand Local Division in terms of section \n\n101(6) of the Constitution but this was not a matter in issue or debated before us. There is \n\nin any event nothing to show that ultimately this Court would not have been approached \n\nfor a definitive order on section 417(2)(b). A further relevant consideration is the fact \n\nthat we have found that none of the issues was properly referred to us and only decided to \n\nhear the section 417(2)(b) issue by way of direct access as an indulgence and in view of \n\nthe exceptional circumstances of the case.19 In all these circumstances it appears just and \n\nequitable not to award the applicants their costs. \n\n \n\n[8] \n\nThe remaining issue is whether the respondents are entitled to their costs. None of the \n\nrespondents filed any written argument, as they were entitled to do. No good reason \n\n \n\n \n\n19Ferreira v Levin supra note 1 para 10. \n\n \n \n\n9 \n\n\fsuggests itself why, in the present case, the second general rule as to costs, namely that \n\nthe successful party is entitled to his or her costs, should not be the point of departure for \n\nconsidering whether the respondents are entitled to their costs in this Court, inasmuch as \n\nthey have in substance been successful in opposing the relief sought by the applicants. \n\n \n\n[9] \n\nOne is left with the strong impression, however, that the respondents were as anxious as \n\nthe applicants to obtain a definitive ruling on the issues which Van Schalkwyk J referred \n\nto us. Had the respondents opposed more critically the matters which were referred to \n\nthis Court and, in particular, applied their minds more carefully to the question whether \n\nsuch matters passed section 102(1) scrutiny, it may well be that the matters would not \n\nhave been referred to us at all, or at least not all of them. Parties, and respondents in \n\nparticular, should not be encouraged to consent supinely to matters being referred to this \n\nCourt in the mistaken belief that an applicant\u2019s failure to achieve substantial success on \n\nreferral will automatically entitle the respondents to their costs. It has been pointed out in \n\nseveral judgments of this Court20 that the power and duty to refer under section 102(1) of \n\nthe Constitution only arises when three conditions are fulfilled: \n\n \n\n(a) \n\nthere is an issue in the matter before the court in question which may be decisive \n\nfor the case; \n\n(b) \n\nsuch issue falls within the exclusive jurisdiction of the Constitutional Court; and, \n\n(c) \n\nthe court in question considers it to be in the interests of justice to refer such issue \n\nto the Constitutional Court. For this third leg of the test to be satisfied there must \n\n \n \n\n20For example S v Mhlungu 1995 3 SA 867 (CC); 1995 7 BCLR 793 (CC) para 59; S v Vermaas, S v Du \n\nPlessis 1995 3 SA 292 (CC); 1995 7 BCLR 851 (CC) paras 7-12 and Ferreira v Levin supra note 1 paras 6-8. \n\n \n \n\n10 \n\n\fbe a reasonable prospect that the relevant law or provision will be held to be \n\ninvalid and the court must also be satisfied that the referral is being made at the \n\nappropriate stage in the proceedings. \n\nIf parties are of a mind to oppose the relief being sought in a referral they should in the \n\nfirst place be astute to prevent matters being incorrectly referred and should oppose \n\ninappropriate referrals at the time when they are sought; they should not sit back and \n\nraise their opposition for the first time in this Court after the referral has been made. \n\n \n\n \n\n[10] Mr Unterhalter referred in his argument, albeit in a somewhat different context, to the \n\n\u201cchilling effect\u201d which an adverse order as to costs would have on private individuals \n\nwho wish to, and have a constitutional right to, invoke their constitutional rights against \n\nthe state. This is a very important policy issue which deserves anxious consideration, but \n\nit does not arise in the present case and must properly be left to the appropriate case and \n\noccasion. Whatever the ultimate view may be, however, it does not necessarily follow \n\nthat the same approach should be adopted in litigation between private persons. \n\n[11] \n\nJustice and fairness in the present case would, in my view, best be served if all parties \n\nwere ordered to pay their own costs. I believe that to be in harmony also with the \n\napproach that would be adopted in the Supreme Court.21 It is unnecessary to make any \n\nexplicit order regarding the costs referred to in the judgment of the Full Bench of the \n\nWitwatersrand Local Division; those costs were ordered to be costs in the cause of the \n\nmatter before this Court and will, as an order of the Full Bench, automatically follow the \n\norder made by this Court. \n\n \n \n\n21See, for example, Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A) 352f-h. \n\n \n \n\n11 \n\n\f \n\n[12] The parties were informed yesterday that judgment in this matter would be given today. \n\nAfter they had been so informed, the attorneys for the applicant in the Ferreira matter \n\nfiled with the Registrar of this Court a document purporting to be a \u201cNotice of \n\nWithdrawal\u201d intimating that the applicant in the Ferreira matter \u201chereby withdraws\u201d his \n\napplication for costs against the second respondent \u201cthe matter having been settled \n\nbetween the parties.\u201d There is no indication on the notice lodged with the Registrar that it \n\nhad been served on the second respondent or on any other party. Constitutional Court \n\nRule 30 provides as follows: \n\nWhenever all parties, at any stage of the proceedings, lodge with the registrar \nan agreement in writing that a case be withdrawn, specifying the terms relating \nto the payment of costs and payment to the registrar of any fees that may be \ndue, the registrar shall without further reference to the Court enter such \nwithdrawal. \n\nIn the absence of compliance with rule 30 or service of any notice on the other parties, a \n\nmatter in this Court cannot validly be withdrawn. Nothing accompanied the so-called \n\n\u201cNotice of Withdrawal\u201d to indicate when the matter had been settled nor why the Court \n\nhad not been informed earlier of any such settlement. We consider this to be a \n\ndiscourtesy to the Court. \n\n \n\n \n\n[13] \n\nIt is accordingly ordered that all parties are to pay their own costs. \n\n \n\n \n\n \n\n \n \n\n \n\n \n\n12 \n\n\fChaskalson P, Mahomed DP, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O\u2019Regan J, \n\nSachs J and Trengove AJ concurred in the above judgment of Ackermann J. \n\n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nCounsel for the Applicants: \n\n \n\n \n\n \n\n \n \nInstructed by: \n \n \n \nCounsel for the 2nd Respondents in the \nFerreira Matter: \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \nInstructed by: \n \n \n \nCounsel for the 3rd Respondent in the \nVryenhoek Matter: \n \n \nInstructed by: \n \n \n\n \n\n \n\n \n\n \n\n \n\nR.D. Levin S.C. \nD. Unterhalter \n\nMoss-Morris Inc. \n\nS.A. Cilliers S.C. \nR. Strydom \n\nHofmeyr Inc. \n\nC. Edeling \n\nAllan Levin & Associates \n\n13 \n\n\f \n\n \n\nW.H. Trengove S.C. \nG.J. Marcus \n\nDeneys Reitz \n \n\n \n \n \nCounsel for the Amicus Curiae - \nFourie, J.S.N. and Others: \n\n \n\n \n\n \n\n \nInstructed by: \n\n \n\n \n\n\f"}, "id": "f1d5f947-03c8-46db-9d52-bd91627d6a31", "update_date": "2021-03-15 17:08:56.815768", "year": "1996", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NUMBER CCT 5/95 Applicant 1st Respondent 2nd Respondents 3rd Respondent 1st Applicant 2nd Applicant 3rd Applicant 1st Respondent 2nd Respondent 3rd Respondent In the matter of Ferreira, Clive and Levin, Allan NO Wilkens, Andrew David Cooper, Brian St Clair Van Der Merwe, Schalk Willem NO In their capacities as the joint provisional liquidators of Prima Bank Holdings Limited The Master of the Supreme Court and Vryenhoek, Ann Vryenhoek, Luke John Vryenhoek, Andrew v Powell, Oliver NO Brett, JJ NO 9 May 1995 Avfin Industrial Finance (Pty) Ltd (No. 2) Heard on: Delivered on: 19 March 1996 \f _____________________________________________________________________________ ___________________________________________________________________ [1] ACKERMANN J: On 6 December 1995 this Court declared section 417(2)(b) of the JUDGMENT Companies Act invalid to the extent indicated in the order.1 No order was made as to costs but the parties were afforded an opportunity of pursuing this matter further.2 Only the applicants in the Ferreira and Vryenhoek matters have availed themselves of this opportunity. para 157(1). 1 Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others 1996 1 BCLR (CC) 1 2 Id para 157(3) and see also para 155. \f[2] The following are the salient facts relating to costs. The applicants\u2019 applications to the Witwatersrand Local Division of the Supreme Court for interdicts pending the determination by this Court of the constitutionality of section 417(2)(b) of the Companies Act (\u201cthe Act\u201d) were dismissed by Van Schalkwyk J. The appeals of all the applicants to the Full Bench of the Witwatersrand Local Division against such dismissals were upheld with costs, that Court ordering that the costs of the applications in the court of first instance were to be \u201ccosts in the cause in the matter before the Constitutional Court.\u201d3 The predominant reason for the applicants\u2019 approach both to the Witwatersrand Local Division and to this Court was their objection to answering questions which might tend to incriminate them and the coercive features of section 417(2)(b) of the Act which not only compelled them to answer such questions but expressly provided that such evidence, though self-incriminating, could subsequently be used in proceedings against the applicants (which by implication included criminal proceedings). Van Schalkwyk J referred five issues to this Court in terms of section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (as amended)(\u201cthe Constitution\u201d). The first related to the constitutionality of the subsection of the Act referred to; the other four related to declaratory orders relating to the admissibility of evidence in subsequent criminal and civil proceedings against the applicants and the correct procedures to be followed at enquiries in terms of section 417 of the Act. There is nothing to suggest that the respondents opposed any of these referrals. This Court held that none of these matters had been correctly referred but, in the exceptional circumstances of the case, heard the 3Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others 1995 2 SA 813(W) 845G. 3 \ffirst matter by way of direct access in terms of section 100(2) of the Constitution.4 4Ferreira v Levin supra note 1 paras 9 to 19. 4 \f[3] The Supreme Court has, over the years, developed a flexible approach to costs which proceeds from two basic principles, the first being that the award of costs, unless expressly otherwise enacted, is in the discretion of the presiding judicial officer5 and the second that the successful party should, as a general rule, have his or her costs.6 Even this second principle is subject to the first.7 The second principle is subject to a large number of exceptions where the successful party is deprived of his or her costs. Without attempting either comprehensiveness or complete analytical accuracy, depriving successful parties of their costs can depend on circumstances such as, for example, the conduct of parties,8 the conduct of their legal representatives,9 whether a party achieves technical success only,10 the nature of the litigants11 and the nature of the proceedings.12 I mention these examples to indicate that the principles which have been developed in relation to the award of costs are by their nature sufficiently flexible and adaptable to meet new needs which may arise in regard to constitutional litigation. They offer a useful point of departure. If the need arises the rules may have to be substantially adapted; this should however be done on a case by case basis. It is unnecessary, if not impossible, at this stage to attempt to formulate comprehensive rules regarding costs in constitutional 5Kruger Bros. and Wasserman v Ruskin 1918 AD 63 at 69. 6Fripp v Gibbon & Co 1913 AD 354 at 357; Merber v Merber 1948 1 SA 446 (A) 452. 7Union Government (Minister of Railways and Harbours) v Heiberg 1919 AD 477 at 484; Mofokeng v General Accident Versekering Beperk 1990 2 SA 712 (W) 716D. 8Cilliers Law of Costs (1972) 40-51. 9Id 51. 10Id 52. 11Id 178-206. 12Id 228-242. 5 \flitigation.", "Mr. Unterhalter in the heads of argument filed on behalf of the applicants submitted that the applicants had no choice but to seek relief from the courts and that their complaint, namely that section 417(2)(b) of the Act infringed their right against self-incrimination, was upheld by this Court. The fact that they were unsuccessful in respect of four of the matters referred did not detract from the fact that their success in having section 417(2)(b) struck down to the extent indicated in the order was substantial. In this regard reliance was placed on the dictum in Giuliani v Diesel Pump Injector Services (Pvt) Ltd to the effect that [t]he fact that defendant succeeded in reducing the amount claimed by plaintiff does not, in my view, alter the fact that in these circumstances the plaintiff is the successful party in considering the question of costs, because he had to come to court in order to succeed to the extent that he did. (See Fripp v Gibbon & Co 1913 AD 354 at 361).13", "In relation to section 417(2)(b) of the Act the issue between the applicants and the respondents was whether the former were obliged to answer self-incriminating questions at the section 417 enquiry. The respondents wanted the applicants\u2019 evidence in this regard; the applicants refused. The order granted by this Court does not assist the applicants in their real dispute with the respondents on this part of the case. They are still obliged to answer self-incriminating questions. The fact that such answers can no longer be used against the applicants in any criminal proceedings that might be brought against them in no way concerns or affects the dispute between them and the respondents. The applicants are still obliged to answer all the questions put to them as they would have 131966 3 SA 451 (R) 452H. 6 \fbeen obliged to do if the constitutional challenge had not been raised. It is of no concern to the respondents that self-incriminating evidence extracted at the enquiry cannot be used against the applicants in criminal proceedings against them. That would be a matter between the applicants and the Attorney-General which would arise only if the applicants were charged and such evidence tendered. This consequence in no way affects the conduct of the section 417 enquiry, was never a substantive issue between the respondents and the applicants at the enquiry, and was not an issue over which the respondents had any control. They had neither the interest nor the power to \u201cconsent\u201d to the evidence not being used against the applicants in subsequent criminal proceedings.", "Mr Unterhalter referred in his written argument to certain Canadian authorities in support of the applicants\u2019 claim for costs.14 These cases do not assist the applicants because they are, on the facts, not comparable to the present case. In Big M Drug Mart the Crown had twice appealed unsuccessfully against a finding that a statute was unconstitutional and the Supreme Court ordered it to pay the costs of the second unsuccessful appeal.15 In Operation Dismantle, the cruise missile testing case, the plaintiff organisation had successfully pursued a Charter challenge against an agreement between Canada and the United States and obtained an injunction to prevent the testing of the cruise missile. This was set aside on appeal to the Federal Court of Appeal. The plaintiff\u2019s appeal to the Canadian Supreme Court was dismissed and plaintiff ordered to 14Regina v Big M Drug Mart Ltd [1985] 18 DLR (4th) 321; Operation Dismantle Inc et al v The Queen et al [1985] 18 DLR (4th) 481; Retail, Wholesale & Department Store Union, Local 580 et al v Dolphin Delivery Ltd [1986] 33 DLR (4th) 174 and Re Lavigne & Ontario Public Service Employees Union et al (No 2) [1987] 41 DLR (4th) 86. 15Supra note 14 at 369. 7 \fpay the costs.16 In Dolphin Delivery the defendant union had unsuccessfully invoked a Charter right against the granting of an injunction. The defendant union\u2019s appeals to both the British Columbia Court of Appeal and the Canadian Supreme Court were dismissed and the Supreme Court ordered it to pay the plaintiff\u2019s costs.17 In Lavigne the appellant had successfully invoked a Charter right and succeeded on appeal. The issue on costs was whether the fact that the Charter point successfully raised by the appellant constituted a so-called \u201cnovel issue\u201d was sufficient to deprive the successful appellant of its costs. There were cases going both ways. The appellant was awarded 60% of its costs (the reason for the partial award not being relevant to the present issue), the Court exercising its discretion on the basis that: [i]ndividual Canadians, who would otherwise find the costs of Charter litigation beyond their means, should not be discouraged from asserting their Charter rights simply because, if they accept third party financial assistance, they will be deprived of the costs of the litigation.18 16Supra note 14 at 494. 17Supra note 14 at 199. 18Supra note 14 at 129 per White J. 8 \f[7] The applicants have not been successful in substance in their dispute with the respondents. A further relevant consideration is the fact that even if the respondents had offered no opposition to the applicants, the applicants would in any event have been obliged to come to this Court to obtain the relief in respect whereof they were successful. Even if the respondents had conceded the unconstitutionality of section 417(2)(b) of the Act to the extent found by this Court, the applicants would still have been obliged to come to this Court for relief, inasmuch as the striking down of an Act of Parliament falls within its exclusive jurisdiction in terms of section 98(2)(c) of the Constitution. I have little doubt that the Court would still have required full argument, would have admitted the amici curiae that it did admit and would have solicited the memoranda it did solicit. It has not been demonstrated that the applicants incurred any more costs than they would have incurred if the matter had not been opposed by the respondents. The parties could have conferred jurisdiction on the Witwatersrand Local Division in terms of section 101(6) of the Constitution but this was not a matter in issue or debated before us. There is in any event nothing to show that ultimately this Court would not have been approached for a definitive order on section 417(2)(b). A further relevant consideration is the fact that we have found that none of the issues was properly referred to us and only decided to hear the section 417(2)(b) issue by way of direct access as an indulgence and in view of the exceptional circumstances of the case.19 In all these circumstances it appears just and equitable not to award the applicants their costs.", "The remaining issue is whether the respondents are entitled to their costs. None of the respondents filed any written argument, as they were entitled to do. No good reason 19Ferreira v Levin supra note 1 para 10. 9 \fsuggests itself why, in the present case, the second general rule as to costs, namely that the successful party is entitled to his or her costs, should not be the point of departure for considering whether the respondents are entitled to their costs in this Court, inasmuch as they have in substance been successful in opposing the relief sought by the applicants.", "One is left with the strong impression, however, that the respondents were as anxious as the applicants to obtain a definitive ruling on the issues which Van Schalkwyk J referred to us. Had the respondents opposed more critically the matters which were referred to this Court and, in particular, applied their minds more carefully to the question whether such matters passed section 102(1) scrutiny, it may well be that the matters would not have been referred to us at all, or at least not all of them. Parties, and respondents in particular, should not be encouraged to consent supinely to matters being referred to this Court in the mistaken belief that an applicant\u2019s failure to achieve substantial success on referral will automatically entitle the respondents to their costs. It has been pointed out in several judgments of this Court20 that the power and duty to refer under section 102(1) of the Constitution only arises when three conditions are fulfilled: (a) there is an issue in the matter before the court in question which may be decisive for the case; (b) such issue falls within the exclusive jurisdiction of the Constitutional Court; and, (c) the court in question considers it to be in the interests of justice to refer such issue to the Constitutional Court. For this third leg of the test to be satisfied there must 20For example S v Mhlungu 1995 3 SA 867 (CC); 1995 7 BCLR 793 (CC) para 59; S v Vermaas, S v Du Plessis 1995 3 SA 292 (CC); 1995 7 BCLR 851 (CC) paras 7-12 and Ferreira v Levin supra note 1 paras 6-8. 10 \fbe a reasonable prospect that the relevant law or provision will be held to be invalid and the court must also be satisfied that the referral is being made at the appropriate stage in the proceedings. If parties are of a mind to oppose the relief being sought in a referral they should in the first place be astute to prevent matters being incorrectly referred and should oppose inappropriate referrals at the time when they are sought; they should not sit back and raise their opposition for the first time in this Court after the referral has been made.", "Mr Unterhalter referred in his argument, albeit in a somewhat different context, to the \u201cchilling effect\u201d which an adverse order as to costs would have on private individuals who wish to, and have a constitutional right to, invoke their constitutional rights against the state. This is a very important policy issue which deserves anxious consideration, but it does not arise in the present case and must properly be left to the appropriate case and occasion. Whatever the ultimate view may be, however, it does not necessarily follow that the same approach should be adopted in litigation between private persons.", "Justice and fairness in the present case would, in my view, best be served if all parties were ordered to pay their own costs. I believe that to be in harmony also with the approach that would be adopted in the Supreme Court.21 It is unnecessary to make any explicit order regarding the costs referred to in the judgment of the Full Bench of the Witwatersrand Local Division; those costs were ordered to be costs in the cause of the matter before this Court and will, as an order of the Full Bench, automatically follow the order made by this Court. 21See, for example, Isaacs v Minister van Wet en Orde [1996] 1 All SA 343 (A) 352f-h. 11", "The parties were informed yesterday that judgment in this matter would be given today. After they had been so informed, the attorneys for the applicant in the Ferreira matter filed with the Registrar of this Court a document purporting to be a \u201cNotice of Withdrawal\u201d intimating that the applicant in the Ferreira matter \u201chereby withdraws\u201d his application for costs against the second respondent \u201cthe matter having been settled between the parties.\u201d There is no indication on the notice lodged with the Registrar that it had been served on the second respondent or on any other party. Constitutional Court Rule 30 provides as follows: Whenever all parties, at any stage of the proceedings, lodge with the registrar an agreement in writing that a case be withdrawn, specifying the terms relating to the payment of costs and payment to the registrar of any fees that may be due, the registrar shall without further reference to the Court enter such withdrawal. In the absence of compliance with rule 30 or service of any notice on the other parties, a matter in this Court cannot validly be withdrawn. Nothing accompanied the so-called \u201cNotice of Withdrawal\u201d to indicate when the matter had been settled nor why the Court had not been informed earlier of any such settlement. We consider this to be a discourtesy to the Court.", "It is accordingly ordered that all parties are to pay their own costs. 12 \fChaskalson P, Mahomed DP, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O\u2019Regan J, Sachs J and Trengove AJ concurred in the above judgment of Ackermann J. Counsel for the Applicants: Instructed by: Counsel for the 2nd Respondents in the Ferreira Matter: Instructed by: Counsel for the 3rd Respondent in the Vryenhoek Matter: Instructed by: R.D. Levin S.C. D. Unterhalter Moss-Morris Inc. S.A. Cilliers S.C. R. Strydom Hofmeyr Inc. C. Edeling Allan Levin & Associates 13 \f W.H. Trengove S.C. G.J. Marcus Deneys Reitz Counsel for the Amicus Curiae - Fourie, J.S.N. and Others: Instructed by:"], "max_length_judgement_paras": 831}, {"title": "Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996)", "url": "http://www.saflii.org/za/cases/ZACC/1996/2.html", "summary_document": {"filename": "summary-for-case-2.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/2media.pdf", "file_content": "Bernstein and others v Bester and others \n\n \n\n Case CCT 23/95 \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n\nThe applicants challenged the constitutionality of ss 417 and 418 of the Companies Act \nwhich permit the summoning and examination of any person as to the affairs of a \ncompany being wound up. The sections permit the imprisonment of anyone failing to \ncomply with the summons and to submit to examination. In a previous decision (Ferreira \nv Levin NO and others; Vryenhoek and others v Powell NO and others 1996 (1) SA 984 \n(CC)) the Court had held that the provisions of the Companies Act were unconstitutional \nonly to the extent that the Act permitted compelled self-incriminating answers given at an \nss 417 and 418 examination to be used against such an examinee in subsequent criminal \nproceedings against him or her. The applicant's attack on the Act in the present case was \nmuch broader and sought to strike down the examination mechanism in its entirety on the \ngrounds that it infringed an examinee's rights to freedom and security of the person, to \npersonal privacy and freedom from seizure of private possessions, to fair administrative \nprocedures, to fairness in civil litigation and to equality. \n\nThe Court unanimously rejected each of these arguments. It found that, except for the \nextent of unconstitutionality identified in Ferreira v Levin NO, ss 417 and 418 of the Act \nwere not unconstitutional. The constitutionality of these section was considered in the \nlight of the duty of the Supreme Court to prevent the oppressive, vexatious and unfair use \nof the examination procedures. The examination mechanism furthered very important \npublic policy objectives, such as the honest conduct of the affairs of a company. \n\nConsidering first the allegation that the provisions violated the right to freedom, the Court \nheld that the obligation to honour a subpoena was a civic duty recognised in all open and \ndemocratic societies and was not an invasion of freedom. Following the interpretation of \nfreedom favoured by the majority in Ferreira v Levin NO, the Court held that \nimprisonment for failing to comply with a subpoena did not infringe upon the right not to \nbe detained without trial, a right related to the freedom right. \n\nTurning to the challenge based on the right to privacy and not to be subject to seizure of \nprivate possessions, the Court noted that in terms of the Companies Act an examinee is \nexcused from answering questions if he or she has 'sufficient cause'. The Court held that \nthe relevant section had to be interpreted in such a way that if answering a question \nwould unjustifiably infringe or threaten to infringe any of the examinee's Chapter 3 \nrights, that would constitute 'sufficient cause' for refusing to answer. The same applied to \nthe production of documents. Thus interpreted, ss 417 and 418 were consistent with the \nConstitution. The majority of the Court expressed the opinion that, on the available facts, \n\n\fit was in any event difficult to say how there could be an infringement of the right to \nprivacy. The benefits of limited liability brought with them corresponding obligations of \ndisclosure and accountability. Moreover, the right of privacy acknowledged in the truly \npersonal sphere was curtailed in relation to a person's business dealings. The same went \nfor the contention that the obligation to produce documents constitutes an \nunconstitutional seizure of private possessions. \n\nThe majority of the Court expressed doubt, but did not decide, whether a right to a fair \ncivil trial had been constitutionalised. Even assuming the existence of such a right, the \nonly possible basis for a breach thereof by the challenged provisions of the Act would be \nan infringement of the right to equality applied to such a civil trial. The Court held that \nthere was no such infringement. The sections of the Act were designed to place the \ncompany being wound up on an equal footing with directors, officers, debtors and others \nagainst whom the company might be obliged to litigate in order to recover its property, \nand not to secure an unfair advantage. \n\nTo the extent that the attack in the present case surpassed the challenge successfully \nraised in Ferreira v Levin NO, the application was dismissed and the constitutionality of \nthe relevant sections of the Act confirmed. \n\nThe judgment of the majority of the Court was delivered by Ackermann J. O'Regan J \nconcurred in the order, but dissented from the majority's interpretation of the right to \nfreedom. Kriegler J (with whom Didcott J concurred) concurred in the order, but reserved \njudgment on certain aspects of the majority judgment. \n\n \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-2.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/2.pdf", "file_content": " \n\nIN THE CONSTITUTIONAL COURT OF SOUTH AFRICA \n\nApplicants \n\nCASE NO CCT 23/95 \n\n \n \n \n \n \nIn the matter of \n \n \n \nHarold Bernstein and Others \n \n \n \nv \n \n \n \nL. Von Wielligh Bester NO and Others \n \n \n \nHeard on: \n \nDelivered on: 27 March 1996 \n \n___________________________________________________________________________ \n \n \n \n___________________________________________________________________________ \n \n \n\n19 September 1995 \n\nJUDGMENT \n\nRespondents \n\n[1] \n\nACKERMANN J: \n\nThe issues \n\nThe case before us is a referral pursuant to the provisions of section 102(1) of the \n\nConstitution of the Republic of South Africa Act 200 of 1993 (\u201cthe Constitution\u201d) and \n\narose from a dispute between Mr Bernstein and other partners and employees of Kessel \n\nFeinstein, a partnership of chartered accountants (\u201cthe applicants\u201d) and Mr Bester and \n\n\fACKERMANN J \n\nother liquidators of Tollgate Holdings Limited (\u201cthe respondents\u201d). The essence of the \n\ndispute between the parties is whether the respondents are precluded by the Constitution \n\nfrom continuing with the examination of the applicants in terms of sections 417 and 418 \n\nof the Companies Act 61 of 1973 (as amended) (\u201cthe Act\u201d). The parties agreed before \n\nFagan DJP in the Cape Provincial Division of the Supreme Court to have the issue \n\nwhether these sections of the Act are inconsistent with the Constitution referred to this \n\nCourt. On 28 April 1995 Fagan DJP granted a referral order \u201cby agreement\u201d as follows: \n\n1. \n\n2. \n\n3. \n\n 4. \n\nThe issue whether sections 417 and 418 of the Companies \nAct, 61 of 1973 (as amended) are inconsistent with the \nConstitution of South Africa Act, 200 of 1993, and are \nconsequently invalid and of no force and effect is referred to \nthe Constitutional Court for determination, in terms of \nsection 102(1) of the Constitution. \n\nThe agreed material facts relevant to such determination are \nthose set out in annexure 'X' hereto. \n\nThe costs of such referral shall be costs in the proceedings in \nthe Constitutional Court. \n\nPending the determination of the above proceedings, the \napplication and all other issues are to stand over. \n\n \n\n \n\n \n\n \n\n \n\n \n\n[2] \n\nSection 102(1) of the Constitution does not empower a Provincial or Local Division of \n\nthe Supreme Court to refer a matter by agreement to the Constitutional Court, but only \n\nwhen the requirements set forth in the subsection are met. I am not suggesting that in the \n\npresent case Fagan DJP in fact referred the matter simply by agreement without applying \n\nhis mind to these requirements. It is clear from the reasons furnished by the learned \n\n \n \n\n2 \n\n\f \n\nACKERMANN J \n\nDeputy Judge President pursuant to the provisions of Constitutional Court Rule 22(2) and \n\n(3)(a) that he did so apply his mind and, therefore, the presence of the words \u201cby \n\nagreement\u201d in the referral order is perhaps unfortunate. The impression should be \n\navoided that referrals can take place simply because parties have agreed thereto. In \n\ncertain referrals to this Court, the conclusion is difficult to avoid that this is in fact what \n\nhas happened. Problems which had arisen in connection with such referrals were \n\ncommented on in S v Vermaas, S v Du Plessis1 and in Ferreira v Levin2 this Court \n\npointed out that the power and the duty to refer only arises when three conditions are \n\nfulfilled: \n\n(a) \n\nthere is an issue in the matter before the court in question which may be decisive \n\nfor the case; \n\n \n\n(b) \n\nsuch issue falls within the exclusive jurisdiction of the Constitutional Court; and \n\n \n\n(c) the court in question considers it to be in the interests of justice to refer such issue \n\n \n\n11995 3 SA 292 (CC); 1995 7 BCLR 851 (CC) paras 7 - 12. \n\n2Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others 1996 1 BCLR 1 (CC) \n\nparas 6 - 8. \n\n \n \n\n3 \n\n\f \n\n \n\nto the Constitutional Court. \n\nACKERMANN J \n\nThis Court has further held that it is implicit in section 102(1) that there should be a \n\nreasonable prospect that the relevant law or provision will be held to be invalid and while \n\nthis is a sine qua non of a referral it is not in itself a sufficient ground, because it is not \n\nalways in the interest of justice to make a referral as soon as the relevant issue has been \n\nraised.3 I hasten to point out that when Fagan DJP made the referral in the present matter \n\nthe judgments in the above cases had not yet been delivered. In the present referral these \n\nconditions are all fulfilled and the referral is a proper one in terms of section 102(1), \n\ndespite purporting to be by agreement. While Provincial and Local Divisions might \n\ninitially have been hesitant to grapple with the implications and application of the new \n\nConstitution and might have preferred to refer constitutional issues to this Court, it must \n\nbe stressed that, for the proper development of our law under the Constitution, it is \n\nessential that these courts and indeed all other courts empowered to do so, play their full \n\nrole in developing our post-constitutional law. It would greatly assist the task of the \n\nProvincial and Local Divisions of the Supreme Court, and in so doing ultimately the task \n\n \n\n3S v Mhlungu 1995 3 SA 867 (CC); 1995 7 BCLR 793 (CC) para 59 and Ferreira v Levin supra note 2 para \n\n7. \n\n \n \n\n4 \n\n\fACKERMANN J \n\nof this Court, if counsel were called upon to justify rigorously why it was contended that \n\nthe particular provision of the Constitution relied upon renders the law or provision in \n\nquestion invalid and why it is necessary or advisable to refer the issue in question to the \n\nConstitutional Court at that particular juncture. This would lead to narrower and more \n\nclosely focused referrals and enable the Provincial and Local Divisions to furnish more \n\ncomprehensive reasons for any particular referral which would in turn assist the task of \n\nthis Court and the development of our constitutional jurisprudence. Such an approach \n\nwould also decrease the risk of wrong referrals and avoid the unsatisfactory expedient in \n\nsuch cases of having to try to invoke, at the last moment, in a forced manner and in \n\nunsatisfactory circumstances, the direct access procedure provided for in Constitutional \n\nCourt Rule 17. \n\n \n\n \n\n[3] \n\nSections 417 and 418 of the Act provide as follows: \n\n \n\n \n\n \n\n \n \n\n417. \n\nSummoning and examination of persons as to affairs of company - \n\n(1) \n\nIn any winding-up of a company unable to pay its debts, the Master or \nthe Court may, at any time after a winding-up order has been made, \nsummon before him or it any director or officer of the company or \nperson known or suspected to have in his possession any property of \nthe company or believed to be indebted to the company, or any person \nwhom the Master or the Court deems capable of giving information \nconcerning the trade, dealings, affairs or property of the company. \n\n(1A) \n\nAny person summoned under subsection (1) may be represented at his \nattendance before the Master or the Court by an attorney with or \nwithout counsel. \n\n(2A)(a) The Master or the Court may examine any person summoned under \nsub-section (1) on oath or affirmation concerning any matter referred \n\n5 \n\n\f \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n \n\n \n\n \n\n \n\n \n \n\nACKERMANN J \n\nto in that subsection, either orally or on written interrogatories, and \nmay reduce his answers to writing and require him to sign them. \n\n (b) Any such person may be required to answer any question put to him at \nthe examination, notwithstanding that the answer might tend to \nincriminate him, and any answer given to any such question may \nthereafter be used in evidence against him. \n\n(3) \n\n(4) \n\n(5) \n\n(6) \n\n(7) \n\nThe Master or the Court may require any such person to produce any \nbooks or papers in his custody or under his control relating to the \ncompany but without prejudice to any lien claimed with regard to any \nsuch books or papers, and the Court shall have power to determine all \nquestions relating to any such lien. \n\nIf any person who has been duly summoned under subsection (1) and \nto whom a reasonable sum for his expenses has been tendered, fails to \nattend before the Master or the Court at the time appointed by the \nsummons without lawful excuse made known to the Master or the \nCourt at the time of the sitting and accepted by the Master or the \nCourt, the Master or the Court may cause him to be apprehended and \nbrought before him or it for examination. \n\nAny person summoned by the Master under subsection (1) shall be \nentitled to such witness fees as he would have been entitled to if he \nwere a witness in civil proceedings in a magistrate's court. \n\nAny person who applies for an examination or enquiry in terms of this \nsection or section 418 shall be liable for the payment of the costs and \nexpenses incidental thereto, unless the Master or the Court directs that \nthe whole or any part of such costs and expenses shall be paid out of \nthe assets of the company concerned. \n\nAny examination or enquiry under this section or section 418 and any \napplication therefore shall be private and confidential, unless the \nMaster or the Court, either generally or in respect of any particular \nperson, directs otherwise. \n\n418. \n\nExamination by Commissioners - \n\n(1)(a) Every magistrate and every other person appointed for the purpose by \nthe Master or the Court shall be a Commissioner for the purpose of \ntaking evidence or holding any enquiry under this Act in connection \nwith the winding-up of any company. \n\n (b) \n\n (c) \n\nThe Master or the Court may refer the whole or any part of the \nexamination of any witness or of any enquiry under this Act to any \nsuch Commissioner, whether or not he is within the jurisdiction of the \nCourt which issued the winding-up order. \n\nThe Master, if he has not himself been appointed under paragraph (a), \nthe liquidator or any creditor, member or contributory of the company \nmay be represented at such an examination or enquiry by an attorney, \nwith or without counsel, who shall be entitled to interrogate any \nwitness: provided that a Commissioner shall disallow any question \n\n6 \n\n\f (d) \n\n(2) \n\n(3) \n\n(4) \n\n(5) \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n\n \n \n\nACKERMANN J \n\nwhich is irrelevant or would in his opinion prolong the interrogation \nunnecessarily. \n\nThe provisions of section 417 (1A), (2)(b) and (5) shall apply mutatis \nmutandis in respect of such an examination or enquiry. \n\nA Commissioner shall in any matter referred to him have the same \npowers of summoning and examining witnesses and of requiring the \nproduction of documents, as the Master who or the Court which \nappointed him, and, if the Commissioner is a magistrate, of punishing \ndefaulting or recalcitrant witnesses, or causing defaulting witnesses to \nbe apprehended, and of determining questions relating to any lien with \nregard to documents, as the Court referred to in section 417. \n\nIf a Commissioner - \n \n(a) \n\n(b) \n\nhas been appointed by the Master, he shall, in such manner \nas the Master may direct, report to the Master; or \nhas been appointed by the Court, he shall, in such manner as \nthe Court may direct, report to the Master and the Court, on \nany examination or enquiry referred to him. \n\nAny witness who has given evidence before the Master or the Court \nunder section 417 or before a Commissioner under this section, shall \nbe entitled, at his cost, to a copy of the record of his evidence. \n\nAny person who - \n \n(a) \n\nhas been duly summoned under this section by a \nCommissioner who is not a magistrate and who fails, \nwithout sufficient cause, to attend at the time and place \nspecified in the summons; \nor \nhas been duly summoned under section 417 (1) by the \nMaster or under this section by a Commissioner who is not a \nmagistrate and who- \n\n(b) \n\n(i) \n\n(ii) \n(iii) \n\nfails, without sufficient cause, to remain in \nattendance until excused by the Master or such \nCommissioner, as the case may be, from further \nattendance; \nrefuses to be sworn or to affirm as a witness; or \nfails, without sufficient cause - \n\n(aa) \n\n(bb) \n\nto answer fully and satisfactorily any \nquestion lawfully put to him in terms of \nsection 417 (2) or this section; or \nto produce books or papers in his custody \nor under his control which he was \nrequired to produce in terms of section \n417 (3) or this section, \n\n \n\nshall be guilty of an offence. \n\n7 \n\n\f \n \n\nACKERMANN J \n\n[4] \n\nIn Ferreira v Levin this Court considered the constitutional validity of section 417(2)(b) \n\nof the Act and declared the provisions of section 417(2)(b) to be invalid, \n\nto the extent only that the words 'and any answer given to any such question \nmay thereafter be used in evidence against him' in section 417(2)(b) apply to \nthe use of any such answer against the person who gave such answer, in \ncriminal proceedings against such person, other than proceedings where that \nperson stands trial on a charge relating to the administering or taking of an oath \nor the administering or making of an affirmation or the giving of false evidence \nor the making of a false statement in connection with such questions or answers \nor a failure to answer lawful questions fully and satisfactorily.4 \n\nThis disposes of an important part of the applicants\u2019 argument, but inasmuch as the attack \n\nin this case went broader than in Ferreira v Levin and sought the striking down of \n\nsections 417 and 418 in their entirety a number of additional grounds of invalidity have \n\nto be considered. \n\n \n\n \n\n[5] \n\nAs appears from the order of Fagan DJP the parties also agreed upon certain facts as \n\nbeing relevant to the enquiry into the constitutional validity of sections 417 and 418 of \n\nthe Companies Act. For present purposes the following are the salient agreed facts. \n\n \n\n \n4Supra note 2 at para 157. \n\n \n \n\n8 \n\n\fACKERMANN J \n\nTollgate Holdings Ltd (\"the company\") was a public investment company listed on both \n\nthe Johannesburg and London Stock Exchanges. The company was placed under final \n\nliquidation on 13 January 1993. This led to one of the largest corporate collapses in \n\nSouth African history as the principal subsidiary companies, indeed most companies \n\nforming part of the Tollgate Group (the company and its subsidiaries), were also placed \n\nunder provisional winding-up orders by the Cape Provincial Division of the Supreme \n\nCourt. The collapse of the Tollgate Group left unpaid debts to creditors of almost R400 \n\nmillion. The market capitalization of Tollgate Holdings at December 1991 was R222 \n\nmillion comprising 40.5 million shares of R5.50 each. These shares are now worthless. \n\nThe demise of the company seems to have started in February 1988 when the Duros \n\nGroup Limited, of which Messrs M Key and G Mackintosh were controlling members \n\nand directors, acquired control over the Tollgate Group. For the roughly 140 years before \n\nthe take-over the company was essentially owned and controlled by a Cape Town family. \n\nThe first published financial statements of the Tollgate Group after the take-over \n\nindicated a loss of R45 million for the 18 month period ending 31 December 1989. At \n\nthis stage Mr J Claasen held the position of chairman of the Duros Group and had \n\nbecome its largest single shareholder. Mr H Diedericks was also a director of the Duros \n\nGroup as well as managing director and chief executive of Tollgate Holdings. Shortly \n\n9 \n\n \n[6] \n\n \n\n[7] \n\n \n \n\n\fACKERMANN J \n\nafterwards, in March of 1990, the Duros Group was in turn acquired by a consortium led \n\nby Messrs J Askin and H Bierman and including Messrs Key and Mackintosh. On 21 \n\nJanuary 1991 the Duros Group changed its name to Tollgate Holdings Ltd, with the \n\ncompany originally bearing that name also changing its name. Tollgate Holdings was \n\ncontrolled by this consortium until it was placed under provisional liquidation in \n\nDecember 1992. Warrants for the arrest of both Messrs Askin and Mackintosh have been \n\nissued in connection with charges of fraud and theft and Mr Key is presently facing \n\nvarious criminal charges relating to the collapse of the Tollgate Group. The respondents \n\nare satisfied that both Messrs Diedericks and Claasen are indebted to the liquidators of \n\nthe Tollgate Group for substantial sums arising from unlawful acts. An application for \n\nthe sequestration of Mr Diedericks' estate has been made and a settlement was reached \n\nbetween Mr Claasen and the liquidators of Tollgate Holdings. \n\nKessel Feinstein were the auditors of the Duros Group when it acquired control of \n\nTollgate Holdings in February 1988, but only became the main auditors of the Tollgate \n\nGroup after the Askin-led consortium took control in 1990. As the auditors of the \n\nTollgate Group, Kessel Feinstein certified, without qualification, that the consolidated \n\nannual financial statement of the Tollgate Holdings and its subsidiary companies fairly \n\npresented the financial affairs of the group for the years ended 1990 and 1991. \n\n10 \n\n \n\n \n\n[8] \n\n \n \n\n\fInvestigations have satisfied the respondents that large scale irregularities by the \n\ndirectors and other officials of the Tollgate Group had taken place prior to the group's \n\nACKERMANN J \n\ncollapse causing losses of a very substantial nature to the group. \n\n \n\n \n\n[9] \n\nIn March 1993, shortly after Tollgate Holdings was placed under final liquidation and \n\nfollowing an application by the liquidators of Tollgate Holdings and other companies in \n\nthe Tollgate Group, the Cape Provincial Division of the Supreme Court ordered that a \n\ncommission of enquiry be held into the affairs of certain companies in the group. Adv B \n\nHobermann SC, of the Cape Bar, was appointed commissioner. The Commission has \n\nbeen in session ever since and some 55 witnesses have thus far appeared before the \n\nCommission. The respondents are satisfied by the evidence that the affairs of the Tollgate \n\nGroup were mismanaged and manipulated by certain directors under two successive \n\ncorporate administrations. During May of 1993 the commissioner issued summonses \n\nrequiring Messrs H Bernstein, R Klotz and D Nicola (the first to third applicants) to \n\nappear before him and to produce documentation in terms of sections 417 and 418 of the \n\nCompanies Act. Prior to the commencement of Mr Bernstein's examination, the \n\nrespondents' attorneys sent the applicants' attorneys a memorandum with a list of issues \n\nwhich were anticipated to be canvassed with the Kessel Feinstein witnesses. However, \n\nthe respondents did not inform the applicants that they considered Kessel Feinstein to be \n\n11 \n\n \n \n\n\fACKERMANN J \n\ncivilly liable in consequence of the manner in which the firm had performed its \n\nprofessional duties as auditors for the companies in the Tollgate Group, or that the \n\nexamination would be aimed at gathering evidence to support such a claim against Kessel \n\nFeinstein. A material object in the examination of Mr Bernstein turned out to be an \n\nexploration of this potential liability. This was done by calling for explanations and \n\ninterrogating Mr Bernstein with a view to obtaining concessions and admissions \n\nconcerning the applicants' alleged negligence in the performance of their duties. On the \n\nthird day of Mr Bernstein's examination his legal representatives objected to the \n\nconstitutionality of the proceedings. The examination was then deferred by agreement. \n\n \n\n \n\n[10] On 31 March 1995 the applicants approached the Cape Provincial Division of the \n\nSupreme Court seeking relief by way of notice of motion. The applicants sought to \n\nrescind the order given by the Supreme Court two years earlier for the holding of the \n\nenquiry to the extent that it authorised the partners and employees of Kessel Feinstein to \n\nbe summoned before the Commission pursuant to section 417 and 418 of the Companies \n\nAct. The applicants further sought, upon such rescission, an order to set aside the \n\nsummonses served on Mr Bernstein and other partners and employees of Kessel \n\nFeinstein and an order to interdict the respondents and the commissioner, Adv \n\nHobermann SC, from using or disposing of or in any way disclosing to others any \n\n12 \n\n \n \n\n\fACKERMANN J \n\nevidence given or documents obtained from the applicants. In the alternative the \n\napplicants sought an order interdicting the respondents from proceeding with the \n\nexamination of Messrs Bernstein, Klotz and Nicola (the first to third applicants) or any \n\npartners or employees of Kessel Feinstein, an order interdicting the respondents or the \n\ncommissioner from using or in any way disposing of or disclosing to others evidence \n\ngiven or documents obtained from the applicants and, with a view to these prayers, an \n\norder referring to the Constitutional Court pursuant to section 102(1) of the Constitution \n\nthe issue whether or not sections 417 and 418 of the Companies Act are inconsistent with \n\nthe Constitution or whether the manner in which the rights and powers conferred by these \n\nsections have been exercised, violates the applicants' fundamental rights. Finally, the \n\napplicants sought an interim interdict to prevent the respondents from proceeding with \n\nthe examination of the Kessel Feinstein partners or employees, pending the final \n\ndetermination of the relief sought. \n\n \n\n \n\n[11] The parties then agreed that the Cape Provincial Division of the Supreme Court should \n\nrefer the issue whether sections 417 and 418 of the Companies Act are consistent with \n\nthe Constitution to the Constitutional Court in terms of section 102(1) of the \n\nConstitution. This agreement resulted in the order of Fagan DJP referred to above. \n\n \n \n \n\n13 \n\n\f \n[12] The applicants have attacked the constitutionality of sections 417 and 418 of the Act on \n\nACKERMANN J \n\nfour different bases, contending that they are wholly or in part inconsistent with various \n\nrights in Chapter 3 of the Constitution and that such violations cannot be justified in \n\nterms of section 33(1) of the Constitution or cured by interpretation in terms of sections \n\n35(2) or 35(3). The attack is advanced on the following grounds: \n\n1. \n\nThe whole mechanism created under sections 417 and 418 violates a cluster of \n\ninter-related and overlapping constitutional rights, namely, \n\n(a) \n\nthe right to freedom and security of the person (section 11(1)); \n\n(b) \n\nthe general right to personal privacy (section 13); \n\n(c) \n\nthe particular aspect of the right to personal privacy not to be subject to \n\nseizure of private possessions or the violation of private communications. \n\n2. \n\nThe mechanism violates section 24 in that it permits an administrative \n\ninterrogation in violation of the provisions of that section. \n\n3. \n\nInsofar as section 417(2)(b) deprives witnesses of their privilege against self-\n\nincrimination and renders their self-incriminating evidence admissible against \n\nthem in subsequent criminal proceedings, it violates both the general as well as \n\nparticular rights to a fair trial in terms of section 25(3). \n\n4. \n\nInsofar as the mechanism permits the liquidator and the creditors of the company \n\nin liquidation to gain an unfair advantage over their adversaries in civil litigation, \n\n14 \n\n \n \n\n\fthat they would not have enjoyed but for the liquidation of the company, it \n\nACKERMANN J \n\nviolates: \n\n(a) \n\nan implied constitutional right to fairness in civil litigation, and, \n\n(b) \n\nthe guarantee of equality in terms of section 8. \n\n \n\n \n\n[13] The third basis of unconstitutionality has, in effect, already been decided in the \n\napplicants\u2019 favour (at least partially) in Ferreira v Levin where this Court declared \n\nsection 417(2)(b) to be inconsistent with the Constitution to the extent indicated in \n\nparagraph 4 above. Two of the judges found that the provision was unconstitutional \n\nbecause of its inconsistency with section 11(1) of the Constitution5 and eight of the \n\njudges found it unconstitutional because of its inconsistency with section 25(3) of the \n\nConstitution.6 \n\n \n\n \n\n5Id per Ackermann J para 127 and Sachs J paras 245, 249, 261, 269. \n\n6Id per Chaskalson P paras 168, 186 (Mahomed DP, Didcott J, Langa J, Madala J and Trengove J \n\nconcurring), Mokgoro J para 208 and O\u2019Regan J para 244. \n\n \n \n\n15 \n\n\f \n[14] Before dealing with the remaining bases of the attack on the constitutionality of the \n\nACKERMANN J \n\nsections of the Act in question, it is necessary to examine the legislative setting in which \n\nthe attack must be evaluated, the purpose of the enquiries and the examination of persons \n\nprovided for in sections 417 and 418 of the Act and the extent of the control, both \n\nconstitutional and non-constitutional, which the commissioner and the Provincial and \n\nLocal Divisions are competent to exercise over the conduct of such enquiries and \n\nexaminations. Many of these matters were extensively dealt with in Ferreira v Levin and \n\nit is unnecessary to traverse the same ground here. What follows is a summary of the \n\nconclusions reached in Ferreira v Levin.7 \n\n \n\n[15] Some of the major statutory duties of the liquidator in any winding up are:- \n\n(a) \n\nto proceed forthwith to recover and reduce into possession all the assets and \n\nproperty of the company, movable and immovable; \n\n(b) \n\nto give the Master such information and generally such aid as may be requisite \n\nfor enabling that officer to perform his or her duties under the Act; \n\n(c) \n\nto examine the affairs and transactions of the company before its winding-up in \n\n \n\n7Id paras 122 to 124. \n\n \n\n \n \n\n16 \n\n\fACKERMANN J \n\norder to ascertain - \n\n(i) \n\nwhether any of the directors and officers or past directors and officers of \n\nthe company have contravened or appear to have contravened any \n\nprovision of the Act or have committed or appear to have committed any \n\nother offence; and \n\n(ii) \n\nin respect of any of the persons referred to in subparagraph (i), whether \n\nthere are or appear to be any grounds for an order by the court under \n\nsection 219 of the Act disqualifying a director from office as such; \n\n(d) \n\nexcept in the case of a member\u2019s voluntary winding-up, to report to the general \n\nmeeting of creditors and contributories of the company the causes of the \n\ncompany's failure, if it has failed; \n\n(e) \n\nif the liquidator's report contains particulars of contraventions or offences \n\ncommitted or suspected to have been committed or of any of the grounds \n\nmentioned in (c) above, the Master must transmit a copy of the report to the \n\nattorney-general.8 \n\n \n\n \n\n \n\n8Id para 122. \n\n \n \n\n17 \n\n\f \n[16] The enquiry under sections 417 and 418 has many objectives. \n\nACKERMANN J \n\n(a) \n\nIt is undoubtedly meant to assist liquidators in discharging these abovementioned \n\nduties so that they can determine the most advantageous course to adopt in regard \n\nto the liquidation of the company. \n\n(b) \n\nIn particular it is aimed at achieving the primary goal of liquidators, namely to \n\ndetermine what the assets and liabilities of the company are, to recover the assets \n\nand to pay the liabilities and to do so in a way which will best serve the interests \n\nof the company's creditors. \n\n(c) \n\nLiquidators have a duty to enquire into the company's affairs. \n\n(d) \n\nThis is as much one of their functions as reducing the assets of the company into \n\ntheir possession and dealing with them in the prescribed manner, and is an \n\nancillary power in order to recover properly the company's assets. \n\n(e) \n\nIt is only by conducting such enquiries that liquidators can: \n\n(i) \n\ndetermine what the assets and who the creditors and contributories of the \n\ncompany are; \n\n(ii) \n\nproperly investigate doubtful claims against outsiders before pursuing \n\nthem as well as claims against the company before pursuing them. \n\n(f) \n\nIt is permissible for the interrogation to be directed exclusively at the general \n\ncredibility of an examinee, where the testing of such person's veracity is \n\n18 \n\n \n \n\n\fnecessary in order to decide whether to embark on a trial to obtain what is due to \n\nACKERMANN J \n\nthe company being wound up. \n\n(g) \n\nNot infrequently the very persons who are responsible for the mismanagement of \n\nand depradations on the company are the only persons who have knowledge of \n\nthe workings of the company prior to liquidation (such as directors, other officers \n\nand certain outsiders working in collaboration with the former) and are, for this \n\nvery reason, reluctant to assist the liquidator voluntarily. In these circumstances it \n\nis in the interest of creditors and the public generally to compel such persons to \n\nassist. \n\n(h) \n\nThe interrogation is essential to enable the liquidator, who most frequently comes \n\ninto the company with no previous knowledge and finds that the company's \n\nrecords are missing or defective, to get sufficient information to reconstitute the \n\nstate of knowledge that the company should possess; such information is not \n\nlimited to documents because it is almost inevitable that there will be transactions \n\nwhich are difficult to discover or understand from the written materials of the \n\ncompany alone. \n\n(i) \n\nThe liquidator must, in such circumstances, be enabled to put the affairs of the \n\ncompany in order and to carry out the liquidation in all its varying aspects. \n\n(j) \n\nThe interrogation may be necessary in order to enable the liquidator, who thinks \n\n19 \n\n \n\n \n \n\n\fACKERMANN J \n\nthat he may be under a duty to recover something from an officer or employee of \n\na company, or even from an outsider concerned with the company's affairs, to \n\ndiscover as swiftly, easily and inexpensively as possible the facts surrounding \n\nany such possible claim.9 \n\n(k) \n\nThere is a responsibility on those who use companies to raise money from the \n\npublic and to conduct business on the basis of limited liability to account to \n\nshareholders and creditors for the failure of the business, if the company goes \n\ninsolvent. Giving evidence at a section 417 enquiry is part of this responsibility. \n\nThis responsibility is not limited to officers of the company, in the strict sense, \n\nbut extends also to the auditors of the company.10 \n\n \n\n \n\n \n\n9Id paras 123 - 124. \n\n10Id para 151. \n\n \n \n\n20 \n\n\f \n[17] Courts in many foreign jurisdictions have recognised the (potentially) oppressive nature \n\nACKERMANN J \n\nof a section 417 type enquiry, while at the same time pointing out that there is a need for \n\na speedy process through which the liquidator is enabled to obtain the necessary \n\ninformation about the company\u2019s affairs and dealings, and to trace the whereabouts of \n\nassets and possibly recover some assets for the financial benefit of creditors. Courts \n\nnormally exercise control over the enquiry in two ways. First, courts have scrutinised \n\napplications to hold the enquiry. It has been held that an application for a private \n\nexamination ought not to be granted if it would be oppressive, vexatious or unfair11. \n\nSecond, courts have intervened to prevent the oppressive or unfair conduct of \n\nproceedings in the enquiry itself. \n\n \n\n[18] More than a century ago the Court of Appeal in England came to the assistance of an \n\nexaminee and held that, in the circumstances of the case, he could not be summoned to be \n\nexamined and was not obliged to answer questions. In In re North Australian Territory \n\nCompany Bowen LJ, commenting on the powers under section 115 of the Companies Act \n\n1862, gave the following warning: \n\nIt is an extraordinary power; it is a power of an inquisitorial kind which enables \nthe Court to direct to be examined - not merely before itself, but before the \nexaminer appointed by the Court - some third person who is no party to a \nlitigation. That is an inquisitorial power, which may work with great severity \n\n \n\n \n\n11Re Rolls Razor Ltd (No. 2) [1970]1 Ch 576 at 592 C. \n\n \n \n\n21 \n\n\fACKERMANN J \n\nagainst third persons, and it seems to me to be obvious that such a section ought \nto be used with the greatest care, so as not unnecessarily to put in motion the \nmachinery of justice where it is not wanted, or to put it in motion at a stage \nwhen it is not clear that it is wanted, and certainly not to put it in motion if \nunnecessary mischief is going to be done or hardship inflicted upon the third \nperson who is called upon to appear and give information.12 \n\n \n\n \n\n \n\n[19] \n\nIn Cloverbay Ltd (joint administrators) v Bank of Credit and Commerce International \n\nS.A. the Court of Appeal outlined the following criteria for the exercise of the court\u2019s \n\ndiscretion whether to order an examination: \n\n \n\n12(1890) 45 Ch 87 at 93. \n\n \n \n\n22 \n\n\fACKERMANN J \n\nIt is clear that in exercising the discretion the court has to balance the \nrequirements of the liquidator against any possible oppression to the person to \nbe examined. Such balancing depends on the relationship between the \nimportance to the liquidator of obtaining the information on the one hand and \nthe degree of oppression to the person sought to be examined on the other. If \nthe information required is fundamental to any assessment of whether or not \nthere is a cause of action and the degree of oppression is small (for example in \nthe case of ordering the premature discovery of documents) the balance will \nmanifestly come down in favour of making the order. Conversely, if the \nliquidator is seeking merely to dot the i\u2019s and cross the t\u2019s of a fairly clear claim \nby examining the proposed defendant to discover his defence, the balance \nwould come down against making the order. Of course, few cases will be so \nclear: it will be for the judge in each case to reach his own conclusion.13 \n\n \n\n \n\n \n\n13[1991] Ch 90 at 102a. See also British and Commonwealth Holdings plc (joint administrators) v Spicer & \nOppenheim (a firm) [1992] 4 All ER 876 (HL). In this case the House of Lords held at 886G-H that, having regard to \nthe size of the financial crash, the possible oppression of the examinees did not outweigh the needs of the company\u2019s \nadministrators, which were held to be reasonable under the circumstances. \n\n \n \n\n23 \n\n\f \n[20] The court went on in Cloverbay to mention a number of considerations which should \n\nACKERMANN J \n\nspecifically be taken into account in exercising the discretion. The first consideration is \n\nthat the purpose of the provisions is to enable the liquidator to reconstitute the state of \n\nknowledge of the company in order to make informed decisions. The purpose is not to \n\nplace the company in a stronger position in civil litigation than it would have enjoyed in \n\nthe absence of liquidation. Second, the appropriate standard is not to require proof of the \n\nabsolute need for information before an order for examination will be granted, but proof \n\nof the reasonable requirement of the information. Third, the case for examination is \n\nusually much stronger against officers or former officers of the company, who owe the \n\ncompany a fiduciary duty, than it is against third parties. Fourth, an order for oral \n\nexamination is much more likely to operate oppressively against an examinee than an \n\norder for the production of documents.14 The court is also likely to treat an application \n\nfor a holding of a section 417 enquiry from an office holder, such as the liquidator, with \n\n \n\n \n\n14Cloverbay id at 102D - 103E. \n\n \n \n\n24 \n\n\fmore sympathy than it would treat a similar request from a contributor15. \n\nACKERMANN J \n\n \n\n \n\n \n\n \n\n15Re Embassy Art Products Ltd [1987] 3 BCC 292. See also H Rajak (ed) Company Liquidations (1988) \n\n306-7. \n\n \n \n\n25 \n\n\fACKERMANN J \n\nIn British and Commonwealth Holdings plc (joint administrators) v Spicer16 the House of \n\nLords had occasion to comment on the approach laid down in the Cloverbay case. \n\nHoffmann J had construed the judgment of Browne-Wilkinson V-C in Cloverbay as \n\nrestricting the availability of an order under section 236 to enable a liquidator or an \n\nadministrator \"to get sufficient information to reconstitute the state of knowledge that the \n\ncompany should possess\".17 The House of Lords did not consider that \"reading the \n\njudgment [in Cloverbay] overall such a limitation to 'reconstituting the company's \n\nknowledge' was intended to be laid down in the Cloverbay case\u201d and in any event did not \n\nthink that such a limitation existed.18 \n\n \n[21] \n\n \n\n[22] \n\nIn this connection Lord Slynn also referred with approval to the following observations \n\nof Jessel MR in Re Gold Co (1879) 12 Ch D 77 at 85 in a case under section 115 of the \n\nCompanies Act 1862: \n\n... the whole object of the section is to assimilate the practice in winding-up to \nthe practice in bankruptcy, which was established in order to enable assignees, \nwho are now called trustees, in bankruptcy to find out facts before they brought \nan action, so as to avoid incurring the expense of some hundreds of pounds in \n\n \n\n \n\n16Supra note 13. The appellants in the case were the auditors of a company (\"Atlantic\") that had been placed \nunder administration. A very wide order to produce books, papers and other records had been issued against the \nappellants by the registrar pursuant to section 236(2) of the Insolvency Act 1986. On an application by the appellants \nHoffmann J discharged the registrar\u2019s order. The Court of Appeal (Ralph Gibson and Woolf LJJ (Norse LJ \ndissenting)) allowed the appeal and restored the order of the registrar (see [1992] 2 All ER 801, [1992] Ch 342). On \na further appeal, the House of Lords affirmed the decision of the Court of Appeal. \n\n17Id 880g. \n\n18Id 883a per Lord Slynn, who delivered the opinion of the House. \n\n \n \n\n26 \n\n\fbringing an unsuccessful action, when they might, by examining a witness or \ntwo, have discovered at a trifling expense that an action could not succeed.19 \n\nACKERMANN J \n\nThe following remarks of Chitty J in Re Imperial Continental Water Corp (1886) 33 Ch \n\nD 314 at 316 were also quoted with approval: \n\nThose extensive powers are conferred upon the Court for the beneficial \nwinding-up of the company, for sometimes it happens that the liquidator is \nunable to obtain from unwilling persons the information which he requires.20 \n\n \n\n \n\n \n\n \n\n[23] \n\nIt was also pointed out by Lord Slynn that an application such as the one in question was \n\nnot necessarily unreasonable: \n\n \n\n19Id 883d - e. \n\n20Id 883f. \n\n \n \n\n27 \n\n\fbecause it is inconvenient for the addressee of the application or causes him a \nlot of work or may make him vulnerable to future claims, or is addressed to a \nperson who is not an officer or employee of or a contractor with the company in \nadministration, but all these will be relevant factors, together no doubt with \nmany others.21 \n\nACKERMANN J \n\nThe extent and complexity of the company's failure is not an irrelevant consideration. In \n\nthis regard Lord Slynn said the following: \n\nThis may well be an exceptional order. The size of the financial crash, \nhowever, gives rise to an exceptional case. Creditors and investors stood to lose \nvast sums. It was the administrator's task to investigate 'what was the true \nfinancial position of Atlantic at the time of its acquisition and, if it was \ndifferent from the way it was represented, how and why the truth was \nconcealed' (see [1992] BCLC 314 at 317 per Hoffmann J). They need in this \nvery complex situation to check the accuracy of the various financial \ndocuments and to know not only what representations were made but how \naccurate they were.22 \n\nThe following remarks of Hoffmann J in Re JT Rhodes Ltd are also apposite to the \n\npresent case: \n\nThe Victorian cases on ... [the English equivalent of section 417] contain \nemotive language which invokes the images of the Inquisition and the Court of \nStar Chamber. This language was used against the background of a company \nlaw which required very little public disclosure and placed a much higher value \nthan today on the protection of the privacy of business transactions and a lower \nvalue on the protection of creditors and shareholders. Today we have no \ndifficulty with the proposition that persons who have had what was perhaps no \nmore than the misfortune to be involved in the affairs of an insolvent company \nowe a public duty to assist the liquidator to investigate the affairs of that \ncompany in the interests of the creditors.23 \n\n \n\n \n\n \n\n \n\n \n\n21Id 885e. \n\n22Id 886g - h. \n\n \n \n\n28 \n\n\f \n \n\nACKERMANN J \n\n \n\n23[1987] BCLC 77 at 80. \n\n \n \n\n29 \n\n\f \n[24] Moreover, judicial control over the manner in which the examination is conducted \n\nACKERMANN J \n\ncomplements the control which the court exercises over whether the examination should \n\ntake place in the first place. Courts have long recognised that the examination is open to \n\nabuse and that the proceedings ought to be watched carefully.24 It has been held that the \n\njudiciary is to ensure that the \u201cexamination is not made an instrument of oppression, \n\ninjustice or of needless injury to the individual\u201d.25 In one Australian case, Mortimer v \n\nBrown,26 the court held that even though a witness could rarely be excused from \n\n \n\n \n\n24In re London and Northern Bank Limited [1902] 2 Ch 73 at 82; In Re Imperial Continental Water \nCorporation (1886) 33 Ch D 314 at 318 - 319; In Re British Building Stone Company Ltd [1908] 2 Ch 450 at 454; Re \nRolls Razor Ltd (No 2) [1969] 3 All ER 1386 at 1397; Re Kimberley Carpet Mills (Aust) Pty Ltd (in liq) (1979) 4 \n(Australian Company Law Reports) 50 at 52. \n\n25Per Barwick CJ in Rees v Kratzmann [1966] ALR 3. Much earlier, in Re London & Globe Finance Co. \n[1902] (Weekly Notes) 16, the court held that it will disallow questions which were put merely for the purpose of \nsatisfying personal spite or vindictiveness, and not bona fide for the benefit of creditors, contributories or the public. \n\n26[1972] ALR 723. \n\n \n \n\n30 \n\n\fanswering a question on the basis that an answer might incriminate him, there may be \n\nquestions so remotely relevant that the harm done to the individual in compelling him to \n\nACKERMANN J \n\nanswer outweighs any benefit that the answer may afford. \n\n \n\n \n\n[25] As Mr Gauntlett, on behalf of the respondents, pointed out, the courts in England have, in \n\ndetermining the permissible bounds of investigation by liquidators or administrators \n\nunder section 236 of the 1986 Insolvency Act, been influenced by the recent pattern of \n\nmassive and unparalleled corporate collapses and the heavy duty which this places on \n\nthe liquidators to unravel the complex affairs of companies which often form part of large \n\ngroups or conglomerates with extensive cross-border activities. As appears from the \n\ndiscussion in paragraphs 17 - 24 above, the courts have responded with a flexible \n\napproach in which the reasonable requirements of liquidators in carrying out their duties \n\nare carefully balanced against the hardship which the order might cause to the person \n\nconcerned. The scale of the financial collapse may well give rise to an exceptional case \n\nwhich shifts the balance in favour of the liquidator.27 \n\n \n\n \n\n27See the passages from Lord Slynn\u2019s speech in the Spicer and Oppenheim case quoted in paragraph 23 \n\nabove. \n\n \n \n\n31 \n\n\f \n[26] \n\nACKERMANN J \n\nIn Bishopsgate Investment Management Ltd v Maxwell28 the Court of Appeal held that a \n\ndirector was not entitled to rely on the privilege against self-incrimination in refusing to \n\nanswer questions put to him under sections 235 and 236 of the Insolvency Act 1986. In \n\nthe course of his judgment Dillon LJ stressed that this was justified by the public policy \n\nconsiderations that the law should be able to deal adequately with dishonesty or \n\nmalpractice on the part of company directors: \n\n \n28[1992] 2 All ER 856 (CA). \n\n \n \n\n32 \n\n\fACKERMANN J \n\nIt is plain to my mind - and not least from the Cork Report - that part of the mischief in \nthe old law before the Insolvency Act 1985 was the apparent inability of the law to deal \nadequately with dishonesty or malpractice on the part of bankrupts or company directors. \n(I take the words gratefully from the judgment of Vinelott J.29) That was a matter of \npublic concern, and there is a public interest in putting it right. As steps to that end, \nParliament has, by the 1986 Act, greatly extended the investigative powers available to \noffice-holders, with the assistance of the court, and has expressly placed the officers of \nthe company, and others listed in s 235(3), under a duty to assist the office-holder. That \nis a direct parallel of the duty owed by a bankrupt which is relied on by Lord Eldon LC \nin Ex P Cossets, re Warrell (1820) Buck 531 for his conclusion that the bankrupt could \nnot rely on the privilege against self-incrimination so as to refuse to answer questions put \nto him in his bankruptcy. \n\nA company cannot act except by individuals, and, in the particular field of law with \nwhich the Bishopsgate appeals are concerned, it is illogical that the directors of a \ncompany should be entitled to rely on the privilege against self-incrimination on a \nprivate examination under s 236, whereas the individual insolvent is not so entitled on a \nprivate examination under s 366.30 \n\n \n\n \n\n \n\n \n\n[27] \n\nIn Re Arrows Ltd (No 4) Hamilton v Naviede31 the public interest in successfully \n\npursuing and recovering the fruits of company fraud was highlighted. Lord Browne-\n\nWilkinson commented as follows: \n\nThe inevitable effect of a witness in civil proceedings claiming the privilege against self-\nincrimination is to deprive the opposite party and the court of evidence relevant to the \ndispute under consideration. Until recently, this has not given rise to much litigation. But \nthe recent upsurge of financial fraud, particularly in relation to companies, has raised in \nan acute form the conflict between the witness\u2019s basic right to rely on the privilege on \nthe one hand and the public interest in successfully pursuing and recovering the fruits of \nsuch fraud. \n\nThus in relation to claims for Mareva injunctions and Anton Piller orders, the defendant \nrelies on the privilege to refuse disclosure or discovery of documents which would \n\n \n\n \n\n \n\n29Dillon LJ was referring to the judgment of Vinelott J in Re Jeffrey S Levitt Ltd [1992] 2 All ER 509. \n\n30Id 876d - j. \n\n31[1994] 3 All ER 814 (HL). \n\n \n \n\n33 \n\n\fACKERMANN J \n\nenable the assets to be traced. He is entitled to claim the privilege ... . The serious \nconsequences flowing from a successful claim to the privilege has lead Parliament in \ncertain cases to override the privilege but to substitute an alternative protection ... . \n\nThe primary purpose of an inspection under s 432 of the Companies Act 1985 or an \nexamination by liquidators under s 236 of the 1986 Act is to enable the true facts to be \nelicited from those who know them. Frequently it is suspected fraud which has given rise \nto the investigation or examination. If witnesses in such proceedings were able to rely on \nthe privilege against self-incrimination, the whole investigation could be frustrated by a \nrefusal to answer sensitive questions. Although the statutes establishing such \ninquisitorial rights for the purpose of discovering the true facts about the conduct of a \ncompany are silent on the question whether the privilege is to apply, the courts have \nbeen ready in recent years to hold that Parliament has impliedly overridden the ancient \nprivilege against self-incrimination... . \n\nThis recent erosion of the privilege against self-incrimination in the interests of aiding \nthe tracing and recovery of property extracted from companies by fraud is taken one \nstage further in this case.32 \n\nIn even more trenchant terms Lord Nolan said the following in the same case: \n\nThe type of fraud which lead to the passing of the Criminal Justice Act 1987 is an \nexceptionally pernicious form of crime, and those who commit it tend to be as devious as \nthey are wicked. It is not in the least surprising or regrettable that Parliament should have \nentrusted the Serious Fraud Office with the power to call upon a suspected person to \ncome into the open, and to disclose information which may incriminate him.33 \n\n \n\n \n\n \n\n \n\n \n\n \n\n[28] Because South African and Australian company law share a common ancestry it is \n\ninstructive to consider the approach of the Australian courts to comparable problems \n\narising out of Australian companies legislation which make provision for the examination \n\nby a liquidator or administrator of persons who have knowledge of the affairs of a \n\n \n\n32Id 821d - 822c. \n\n33Id 834h. \n\n \n \n\n34 \n\n\fcompany. \n\n \n\n \n\nACKERMANN J \n\n[29] The comparable Australian legislation is the Corporations Amendment Act, 1990. It has \n\nfeatures which are similar to the mechanism created by sections 417 and 418 of the South \n\nAfrican Act. Examination provisions are embodied, inter alia in sections 596 and 597. \n\nSection 597(12)34 excludes the privilege against self-incrimination and section \n\n597(12)(A) provides only a direct use immunity. Express provision is made for the use of \n\nthe examination record against the examinee in civil proceedings.35 \n\n \n\n[30] The judicial development of Australian law relating to examinations is also to be seen in \n\nthe context of the large corporate collapses in that country and a growing view that \n\ndirectors and others concerned with the management and affairs of a failed company owe \n\na duty of accounting to creditors and shareholders. In Spedly Securities v Bond \n\n \n\n34Which reads as follows: \u201cA person is not excused from answering a question put to the person at an \nexamination ... on the ground that the answer might tend to incriminate the person or make the person liable to a \npenalty.\u201d \n\n35Sections 597(13) and 597(14). \n\n \n \n\n35 \n\n\f \n\nCorporation Holdings Ltd36 Rogers CJ said the following: \n\nACKERMANN J \n\n \n\n361 ACSR (1990) 726 (Supreme Court of New South Wales - Commercial Division). \n\n \n \n\n36 \n\n\fACKERMANN J \n\nI can see considerable justification for an argument that, in particular, directors, but also \nothers, concerned with the management and affairs of a failed company owe a duty to \ncreditors and shareholders to provide a candid, full and truthful account of their \nstewardship. This question was not debated, but I would ask why, with the number and \nmagnitude of company collapses we are seeing daily, the generally uninformative \nstatement of affairs should be all that is required to be provided? Has the time come \nwhen it should be an implied contractual term in the appointment of directors and \nexecutives of public companies that in the event of the company going into liquidation \nthey should provide, within a limited time, a full and proper account of such matters as \nare customarily extracted, at considerable expense to the creditors, in the course of s 541 \nexaminations?37 \n\nIn Lombard Nash International Pty Ltd v Berentsen38 Bryson J, after quoting with \n\napproval from the passage just quoted, added the following: \n\nIn my view there is such a duty and as well as being owed to creditors and shareholders \nit is owed to the whole community which has an interest, not only in attaining civil \njustice in particular pieces of litigation, but also in the emergence to public knowledge of \ninformation relating to the affairs of companies which fail although clothed in privileges \nby the law, including the limited liability of their members. \n\n* * * \n\nIn relation to litigation between companies in liquidation and their former officers there \nis another significant matter, that is, that the company has no mind or brain but its \nofficers, nowhere to resort to for knowledge in human minds but to them, or to whatever \nrecords they may have left behind; that the company in a fair sense ought to be thought \nof as the owner of the knowledge in their minds, which should not be available solely to \nsuch persons to the exclusion of the company merely because they are engaged in \nlitigation with the company.39 \n\n \n\n \n\n \n\n \n\n \n\n[31] The Australian High Court has held that one of the important public purposes that the \n\nexamination procedure under the Corporations Act is designed to serve is to enable \n\nliquidators to gather information which will assist them in the winding-up; that involves \n\n \n \n\n37Id 738. \n\n383 ACSR (1990) 343 (Supreme Court of New South Wales - Equity Division). \n\n39Id 346. \n\n \n \n\n37 \n\n\fprotecting the interests of creditors.40 \n\n \n\n \n\nACKERMANN J \n\n \n\n \n\n40Hamilton v Oades (1988) 15 ACLR 123 (HC) 128. \n\n \n \n\n38 \n\n\f \n[32] The Australian courts draw no distinction in principle between the stages at which the \n\nACKERMANN J \n\nliquidator is entitled to seek information; whether it is sought in relation to proceedings \n\nmerely contemplated or proceedings which the liquidator has definitely decided to \n\ncommence. The relevance of the commencement of litigation or a decision to embark \n\nupon it is that it \u201crequires the court to approach the assessment of the liquidator\u2019s \n\npurpose with greater caution.\u201d41 \n\n \n\n \n\nIn Hamilton v Oades42 Mason CJ pointed out that the very purpose of the section was to \n\ncreate a system of discovery which may cause defences to be disclosed and that to hold \n\notherwise would, adopting the language of Kitto J in Mortimer v Brown,43 \u201crender the \n\nprovision relatively valueless in the very cases which call most loudly for investigation.\u201d \n\n[33] \n\nIn The Duke Group Ltd v Arthur Young (Reg) & Anor Perry J, dealing with analogous \n\nexaminations under section 541 of the Companies (South Australia) Code, pointed out \n\n \n \n\nsee also Hamilton v Oades supra note 40 at 129. \n\n41Re Rothwells Ltd (Prov Liq Apptd) (1989) 15 ACLR 168 (Supreme Court of Western Australia) 181 and \n\n42Supra note 40 at 129. \n\n43(1970) 122 CLR 493 at 496. \n\n \n \n\n39 \n\n\f \n\n \n\n \n\nACKERMANN J \n\nthat these examinations: \n\nare designed to enable interested parties to elicit the facts concerning, among other \nthings, the circumstances giving rise to the liquidation of a company, in order to provide \na proper basis for consideration of other consequential legal remedies which thereafter \nmay be sought.44 \n\nAnd in Hong Kong Bank of Australia and Others v Murphy and Others45 Gleason CJ \n\npointed out that: \n\n[w]hile the court would not permit a liquidator, or other eligible person, to abuse its \nprocess by using an examination solely for the purpose of obtaining a forensic advantage \nnot available from ordinary pre-trial procedures, such as discovery or inspection, on the \nother hand, the possibility that a forensic advantage will be gained does not mean that \nthe making of an order will not advance a purpose intended to be secured by the \nlegislation.46 \n\nThe liquidator is entitled to obtain information, not only to ascertain whether she/he has a \n\ncause of action, but also in order to assess whether the case is sufficiently strong to \n\njustify spending the creditors\u2019 money in pursuit of it, and, conversely, whether there is an \n\nadequate defence to a claim against the company.47 \n\n \n\n44(1991) 9 ACLC 49 (Supreme Court of South Australia) 53. \n\n45(1992) 8 ACSR 736 (Supreme Court of New South Wales - Court of Appeal). \n\n46Id 742. \n\n47Re Spedley Securities Ltd: Ex Parte Potts & Gardiner (1990) 2 ACSR 152 (Supreme Court of New South \n\nWales) 155 - 156. \n\n \n \n\n40 \n\n\f \n \n\nACKERMANN J \n\n[34] The courts in Australia will come to the assistance of an examinee to ensure that the \n\nprovisions of the statute compelling the testimony are not used for purposes of \n\noppression or vexation and will use their powers to control and supervise examinations \n\nand to prevent injustice.48 This power is not restricted to defined and closed categories.49 \n\nIt is important to note, in the context of the present case, that in relation to an \n\nexamination under section 597(3) of the Australian corporations law, it has been held that \n\nan examination of a company\u2019s auditor was permissible even though it could lead to the \n\ninstitution of proceedings against the auditor as a consequence of information thus \n\nobtained.50 The powers in section 597 may be used to enable a creditor to sue a stranger \n\nto a company, that is, a person who is neither an officer nor an employee.51 \n\n \n\n48See, for example, Hamilton v Oades supra note 40 at 129 - 130, 131 - 133 and Spedley Securities Ltd v \n\nBond Corporation Holdings Ltd supra note 36 at 732 - 737. \n\n49Hamilton v Oades supra note 40 at 132. \n\n50Whelan v Australian Securities Commission (1993) 12 ACSR 239 (Federal Court of Australia) 255 lines \n\n30 - 45. \n\n51Douglas-Brown (The official liquidator of Woomera Holdings Pty Ltd) (rec and mgr apptd) v Furzer \n(1994) 13 ACSR 184 (Supreme Court of Western Australia) 191 - 193 where the Australian and English authorities \n\n \n \n\n41 \n\n\f \n \n\nACKERMANN J \n\n \nare reviewed. \n\n \n \n\n42 \n\n\fACKERMANN J \n\nIn South Africa the control which courts normally exercise over the application for the \n\nholding of the enquiry has been effected by the amendment of the Companies Act in \n\n1985. Earlier, judges in several divisions of the Supreme Court pointed out that the \n\nsection 417 enquiry is \u201cthe Court\u2019s enquiry\u201d.52 Since the amendment, however, the \n\ncourt does not necessarily entertain the application for the holding of the enquiry. As \n\nexplained in Van der Berg v Schulte: \n\nWhile it may have been correct to describe the enquiry as the Court\u2019s enquiry \nprior to the amendment to the Act in 1985 I am of the view that this is not the \ncase where the inquiry is ordered by the Master. Prior to the amendment an \napplication for an inquiry had to be made to the Court. That is no longer \nnecessary. ...The Court may not come into the picture at all where the Master \nacts in terms of s 417. This is made quite clear by the provisions of s 418 (3) \nwhich provide that if a Commissioner has been appointed by the Master he \nmust report to the Master and not the Court. ... The Legislature has made a \nclear distinction between an inquiry ordered by the Master on the one hand and \none ordered by the Court on the other and even if the Master be regarded as an \nofficer of the Court, he is, in my view, in an inquiry ordered by him and in \nwhich he appoints a Commissioner to conduct it on his behalf, acting \nindependently of the Court.53 \n\n \n[35] \n\n \n\n \n\n \n\n52See Lok and Others v Venter NO and Others 1982 1 SA 53 (W) 58A; Venter v Williams and Another 1982 \n\n2 SA 310 (N) 313E; Foot NO v Alloyex (Pty) Ltd 1982 3 SA 378 (D & CLD) 383F. \n\n531990 1 SA 500 (C) 509B. \n\n \n \n\n43 \n\n\f \n\nACKERMANN J \n\nIt is important to point out, however, that Van der Berg's case was concerned with the \n\nquestion whether a commissioner, who is not a magistrate, has any power apart from that \n\ncontained in section 418(5) of the Act to deal with a recalcitrant witness. The court held \n\nthat he did not and, further, that the court's powers to deal with such recalcitrant witness \n\nother than on the basis of contempt in facie curiae were to be found in sections 30 and 31 \n\nof the Supreme Court Act. The latter sections are only applicable to \u201ccivil proceedings\u201d \n\nand not to the type of enquiry envisaged by sections 417 and 418 of the Companies Act. \n\nIt was therefore not for the court to deal with such recalcitrant witnesses. The judgment is \n\nnot authority for the proposition that, merely because the master of the Supreme Court \n\norders such an enquiry, the Supreme Court loses its power to prevent oppressive or \n\notherwise improper enquiries being instituted or to prevent enquiries from being \n\nconducted in an oppressive or otherwise improper manner. This cannot be the \n\nconsequence of the amendment.54 Whether the order is made by the master or by a judge, \n\nit is still an order issuing from the Supreme Court.55 Our Supreme Courts have over \n\n \n\n54See the remarks of Heher J in the Full Bench judgment in Ferreira v Levin NO & Others, 1995 2 SA 813 \n(W) 843G; Friedland & Others v The Master & Others 1992 2 SA 370 (W) 379; Botha v Strydom & Others 1992 2 \nSA 155 (N) 159 and Meskin et al Henochsberg on the Companies Act Vol I 890. \n\n55See Re Rolls Razor Ltd. (No. 2) supra note 24 at 1395(i) per Megarry J: \n\n\"One must remember, too, that what is made is an order of the High Court; and \nin that court the judge and the registrar both hold office. A litigant who moves \nfrom one to the other remains within the court. He is not moving to a different \ncourt, as he would be if he went to the Court of Appeal. What the order of the \nHigh Court is to be in any case is to be determined by the officer of the court \nwho exercises the jurisdiction of the court.\" \n\n \n \n\n44 \n\n\f \n\n \n\n \n\nACKERMANN J \n\nmany years taken the view, based on the English and other authorities, that they have the \n\npower to prevent section 417 type enquiries which would result in oppression56 or \n\nintervene where enquiries are conducted in an oppressive or vexatious manner57 or result \n\nin hardship to the examinee or where unusual, special or exceptional circumstances are \n\npresent.58 In James v Magistrate Wynberg and Others59 Thring J, relying inter alia on the \n\nrelevant English and Australian authorities, pointed to various ways in which an \n\nexaminee could be improperly interrogated in terms of section 415 of the Act and in \n\nrespect whereof a Court would have the power to intervene: \n\nAn examinee might be improperly interrogated by a creditor for the purpose of \ninvestigating an issue which did not relate to the winding-up or to the financial \ninterests of the creditors of the company in liquidation, but solely for the \nimproper purpose of obtaining ammunition for use by that particular creditor in \nlitigation which the creditor proposed to bring against the examinee. See \nSimon's case supra at 718C-H, Anderson and Others v Dickson and Another \nNNO (Intermenua (Pty) Ltd Intervening) 1985 (1) SA 93 (N) at 111F - H, and \nthe Hugh J Roberts case supra. \n\nIn short, an examinee might be compelled to submit to an examination which \nwas oppressive or vexatious, inasmuch as the proceedings might be 'seriously \nand unfairly burdensome, prejudicial and damaging' or 'productive of serious \nand unjustified trouble and harassment' (Spedley Securities Ltd (in liq) v Bond \nCorporation Holdings Ltd (supra at 732, 733)). Where this may happen, the \nCourt has a discretion to intervene to prevent it: see Re Imperial Continental \nWater Corporation (1886) 33 ChD 314 (CA) at 320-1.60 \n\nAlthough these remarks were made in the context of an enquiry held in terms of section \n\n \n\n \n\n56Ex Parte Liquidators Ismail Suliman & Co (Pty) Ltd 1941 WLD 33 34. \n\n57Ex Parte Brivik 1950 3 SA 790 (W) 791G. \n\n58Friedland\u2019s case supra note 54 at 379D-H. \n\n591995 1 SA 1 (C). \n\n \n \n\n45 \n\n\f415 of the Act, there is no reason why the court's approach should be any different in \n\nACKERMANN J \n\nregard to a section 417 enquiry. \n\n \n\n \n\n[36] The purpose of this brief survey is not to lay down or develop the legal principles which \n\nthe Supreme Court in this country should apply in controlling section 417 enquiries. It is \n\nnot the function of this Court, but that of the Supreme Court, to do so. The purpose is to \n\npoint out that the Supreme Court has the power to prevent the oppressive, vexatious and \n\nunfair use of section 417 proceedings, for it is against the background of such power that \n\nthe applicants' remaining attack on the unconstitutionality of sections 417 and 418 of the \n\nAct must be considered. \n\n \n\n[37] As a prelude to the first basis of attack Mr Marcus, on behalf of the applicants, analysed \n\nin his written argument the nature and effect of the section 417 and 418 mechanisms as \n\napplied to the conduct of the enquiry in the present case, highlighting the secret nature of \n\nthe enquiry, the examinee\u2019s lack of information and general inability to prepare for the \n\ninterrogation. Before analysing these criticisms further it must be pointed out that, for \n\n \n\n60Id 16C-E. \n\n \n \n\n46 \n\n\f \n\npurposes of the present case, the section 417 and 418 mechanisms must be evaluated in \n\nthe light of this Court\u2019s judgment in Ferreira v Levin and in particular paragraph 2 of its \n\nACKERMANN J \n\norder to the effect that: \n\nAs from the date of this order, no incriminating answer given pursuant to the provisions \nof section 417(2)(b) of the Companies Act on or after 27 April 1994 shall be used \nagainst the person who gave such answer, in criminal proceedings against such person, \nother than proceedings excepted in 1. above.61 \n\n \n \n \n[38] Mr Marcus pointed to the fact that the mechanisms constituted an extraordinary and \n\nsecret mode of obtaining information. The examinee is not entitled as of right to know \n\nwhat the topics of interrogation will be, whose conduct is to be the focus of interrogation, \n\nwhether allegations or suspicions of civil or criminal liability are to be investigated and if \n\nso, what they are. The examinee is not entitled as of right to access to evidence or \n\nexhibits of the Commission and often enters the witness stand wholly unprepared for \n\ninterrogation. \n\n \n\n \n\n61Supra note 2 para 157. \n\n \n \n\n47 \n\n\fACKERMANN J \n\nInasmuch as the subject matter of the enquiry is the affairs of the company taken in the \n\nvery widest sense,62 the examinee may be interrogated on a very wide range of matters \n\nand may be compelled to disclose any of his books or papers, however confidential or \n\nincriminating they might be. The mechanism is available, not only against the directors, \n\nofficers, employees or agents of the failed company and against those suspected of being \n\nresponsible for its failure, but also against innocent third parties whose \u201cmisfortune\u201d it is \n\nto know something about the trade, dealings, affairs or property of the company. \n\n \n[39] \n\n \n\n \n\nMarais and Others 1981 1 SA 1051 (A) 1063A. \n\n62Yiannoulis v Grobler and Others 1963 1 SA 599 (T) 601C-D as approved in Pretorius and Others v \n\n \n \n\n48 \n\n\f \n[40] Relying on decisions such as Cloverbay63 and Spicer & Oppenheim, 64 Mr Marcus \n\nACKERMANN J \n\nsubmitted that, whereas English courts generally do not permit a liquidator to invoke this \n\nmechanism when a firm decision has been taken to institute proceedings or once they are \n\npending, the position in South Africa65 is that a person who might be a witness in a \n\npending civil trial relating to the subject-matter of the proposed interrogation is not \n\nexempt from interrogation and that the interrogation might even be conducted at a very \n\nlate stage in the proceedings when the trial was ripe for hearing. The distinction is not, in \n\nmy view, as marked as Mr Marcus suggested. In Re Castle New Homes Ltd66 Slade J, in \n\ndealing with the exercise of a court\u2019s discretion to order an examination and with the \n\nbalancing of the requirements of the liquidator or administrator to obtain information on \n\nthe one hand against the possible oppression to the person sought to be examined on the \n\nother, had stated a rather more detailed rule to the effect, inter alia, that \n\n[i]f the evidence shows that the purpose of a liquidator in seeking the examination is to \nachieve an advantage beyond that available to the ordinary litigant, in litigation which he \nhas already commenced or which he has definitely decided to commence, the \npredisposition of the court may well be to refuse an immediate order for examination, \nunless the liquidator can show special grounds to the contrary.67 \n\n \n\n63Supra note 13 . \n\n \n\n64Supra note 13. \n\n65Levin v Ensor NO & Others 1975 2 SA 118 (D) 121; Corporate Finance Ltd & Another v Liquidator Two \nPlus (Pvt) Ltd (in liq) & Another 1978 4 SA 42 (R) 45; Pretorius v Marais 1981 1 SA 1051 (A) 1063G-H and \nAnderson v Dickson 1985 1 SA 93 (N) 112A-C. \n\n66[1979] 2 All ER 775. \n\n67Id 789a. \n\n \n \n\n49 \n\n\f \n \n\nACKERMANN J \n\nIn Cloverbay,68 Browne-Wilkinson V-C, commenting on the importance attached by \n\nSlade J to the question whether or not the applicant had reached a firm decision to sue, \n\nsaid the following: \n\n \n \n\n68Supra note 13. \n\n \n \n\n50 \n\n\fACKERMANN J \n\nThe more information there is as to the facts and possible defences to a claim the better \ninformed will be any decision and the greater the likelihood of such decision being \ncorrect. It is the function of a liquidator or administrator to do his best for the creditors. \nTrue he is an officer of the court and must not act in any improper way but, like the \njudge, I can see nothing improper in a liquidator or administrator seeking to obtain as \nmuch information as possible before committing himself to proceedings. Moreover a test \nbased on the subjective state of mind of the liquidator or administrator inevitably leads to \nundesirable disputes of fact, such as have arisen in this case, as to what is his state of \nmind. In my judgment therefore the test propounded in Re Castle New Homes Ltd [1979] \n1 WLR 1075 has not proved to be satisfactory and should not in future be applied. Nor \ndo I think that there is any other simple test that can be substituted. The words of the \nInsolvency Act 1986 do not fetter the court\u2019s discretion in any way. Circumstances may \nvary infinitely. It is clear that in exercising the discretion the court has to balance the \nrequirements of the liquidator against any possible oppression to the person to be \nexamined. Such balancing depends on the relationship between the importance to the \nliquidator of obtaining the information on the one hand and the degree of oppression to \nthe person sought to be examined on the other.69 \n\nThis approach was confirmed in the Spicer & Oppenheim case.70 \n\n \n\n \n\n \n\n[41] \n\nIt was also pointed out in argument that the liquidator had the additional benefit of the \n\ntranscript of the interrogation which could be used as evidence against and for purposes \n\nof cross-examining the examinee in a subsequent criminal or civil trial. This submission \n\nmust of course now be read subject to the judgment in Ferreira v Levin71 as must the \n\nsubmission regarding the duty imposed on a liquidator by section 400(1) of the \n\nCompanies Act to ascertain whether the company\u2019s directors and officers have been \n\n \n\n69Id 101H - 102A. \n\n \n\n70Supra note 13 at 882d - e. \n\n71Supra note 2. \n\n \n \n\n51 \n\n\f \n\nguilty of any criminal offence. \n\nACKERMANN J \n\n[42] \n\nIn regard to the particular circumstances of the present case (as embodied in the agreed \n\nstatement of facts) Mr Marcus highlighted a number of features. Since December 1992 \n\nthe applicants have co-operated fully with and rendered assistance to the liquidators and \n\ntheir attorneys and the investigating accountants. The applicants have furnished them \n\nwith all their working papers and such explanations and further information as they \n\nrequired. At no stage prior to the commencement of Mr Bernstein\u2019s examination on 2 \n\nAugust 1994 (the first of the applicant\u2019s to be examined) did the respondents inform the \n\napplicants that they considered Kessel Feinstein to be civilly liable in consequence of the \n\nmanner in which the firm had performed its professional duties as auditors of the \n\ncompanies in the Tollgate Group or that the examination would be aimed inter alia at \n\ngathering evidence to support a possible claim against Kessel Feinstein. The liquidators \n\naddressed a memorandum to the applicants of issues which would be canvassed in their \n\ninterrogation. Although they were warned that the list was not exhaustive, there was no \n\nintimation from the liquidators that the civil liability of Kessel Feinstein would in any \n\nway be canvassed. Yet the liquidators had, prior to Mr Bernstein\u2019s examination, \n\ninstructed their investigative accountants to conduct an investigation into the potential \n\nliability of Kessel Feinstein and had decided that one of the objects of the interrogation \n\n52 \n\n \n \n\n\fACKERMANN J \n\nwas to explore their potential liability and to obtain concessions and admissions \n\nconcerning their alleged negligence in the performance of their duties. When Mr \n\nBernstein came to be questioned, his interrogation was indeed designed to elicit \n\nconcessions and admissions regarding his and the firm\u2019s civil liability. The liquidators \n\nwere assisted in the interrogation by the very attorneys and investigative accountants \n\nwith whom the applicants had so closely co-operated since 1992. As a result of rulings by \n\nthe commissioner which deny Mr Bernstein access to his legal representatives during his \n\ninterrogation and to documentation relevant to his interrogation, it is contended that the \n\napplicants could not meaningfully prepare or have the benefit of legal advice on the \n\nsurprise attack on themselves. \n\n \n\n \n\n[43] The mechanism of sections 417 and 418 and its employment in the present case was \n\naccordingly characterised by the applicants as one whereby innocent outsiders, who \n\nplayed no part in the management of the company or its demise, are forced to go to a \n\nplace where they do not want to be; are forced to give evidence by their own oral \n\ntestimony and by the production of documents by which they incriminate themselves and \n\nwhich can then be used to vest them with civil or criminal liability; are forced to reveal \n\nconfidential information that they want to keep private; are forced to produce their \n\nprivate books and documents, that they want to keep confidential; are forced to do so \n\n53 \n\n \n \n\n\fACKERMANN J \n\nwithout being heard on the decision to subject them to the mechanism; are forced to do \n\nso in circumstances which render meaningful and effective legal representation all but \n\nimpossible; and are exposed to criminal conviction or civil liability on their own \n\nevidence extracted under legal compulsion in a process devoid of the normal checks and \n\nbalances built into criminal or civil litigation. \n\n \n\n \n\n[44] \n\nIt was against this general background that Mr Marcus submitted that the whole \n\nmechanism of sections 417 and 418 violates the cluster of rights comprising the right to \n\nfreedom and security of the person in terms of section 11(1); the right to personal privacy \n\nin terms of section 13; and the right not to be subject to the seizure of private possessions \n\nor the violation of private communications, as a component of the right to personal \n\nprivacy in terms of section 13. \n\n \n\nThe attack based on section 11(1) \n\n[45] \n\nIt is to be borne in mind that the applicants\u2019 third basis of attack is focused on section \n\n417(2)(b) of the Act and its inconsistency with the fair criminal trial rights embodied in \n\nsection 25(3) of the Constitution. The present attack based on section 11(1) is \n\n \n \n\n54 \n\n\fACKERMANN J \n\naccordingly a much narrower attack than the section 11(1) attack in Ferreira v Levin,72 \n\nfor in that case the section 11(1) attack was also directed at section 417(2)(b) and in \n\nparticular the ouster of the privilege against self-incrimination. Moreover, the present \n\nattack must be considered in the light of the effect which the judgment and order in \n\nFerreira v Levin has on the mechanism of sections 417 and 418, namely that answers \n\nwhich tend to incriminate the examinee may not be used against the examinee in \n\nsubsequent criminal proceedings (except in those special cases exempted in the order and \n\nwhich are not relevant to the present proceedings). \n\n \n\n \n\n \n\n72Supra note 2. \n\n \n \n\n55 \n\n\f \n[46] Mr Marcus\u2019 attack based on section 11(1) (and indeed his attack based on the other \n\nACKERMANN J \n\nprovisions of the Constitution) ignores the fact that the provisions of sections 417 and \n\n418 are not, in their application, completely open-ended. As already indicated, the courts \n\nin this country have (as have the courts in other countries) developed a considerable body \n\nof case law the design of which is to prevent the mechanism of sections 417 and 418 (and \n\nthe mechanisms of comparable statutory provisions in foreign jurisdictions) being used \n\noppressively, vexatiously or unfairly towards the examinee. I have no doubt that our \n\nSupreme Courts will continue to develop that body of law having due regard to the spirit, \n\npurport and objects of the Constitution\u2019s chapter of fundamental rights.73 It is \n\naccordingly not open to argue that, because the provisions of sections 417 and 418 are \n\ngeneral in terms and contain no express limitations as to their application, the \n\nconstitutionality of these sections is to be adjudicated on the basis that they permit \n\nanything which is not expressly excluded. It is trite law that a statutory power may only \n\nbe used for a valid statutory purpose.74 The constitutionality of sections 417 and 418 \n\nmust therefore be assessed in the light of the control which the Supreme Court exercises \n\nover their implementation. \n\n \n\n \n\n73Section 35(3) of the Constitution. \n\n74See for example, Van Eck NO and Van Rensburg NO v Etna Stores 1947 2 SA 984 (A) 996 - 1000. \n\n \n \n\n56 \n\n\f \n \n\nACKERMANN J \n\n[47] A large number of Mr Marcus\u2019 complaints (particularly in regard to Mr Bernstein\u2019s \n\nactual examination and the circumstances surrounding it, the alleged trap that was laid \n\nfor him, his inability to prepare and the various other limitations to which he was \n\nsubjected) relate to the manner in which the examination was conducted by the \n\nCommissioner and not to any provision in the sections of the Act under attack. There is \n\nnothing in the sections which mandates that the examination be conducted in this way. In \n\nrespect of all these complaints the applicants\u2019 correct remedy was to approach the \n\nSupreme Court for relief on the basis that the examination was being conducted in an \n\noppressive, vexatious or unfair manner. I deliberately refrain from expressing any view \n\nas to the validity of any of the complaints on this score. The only point I make is that the \n\nSupreme Court has jurisdiction to deal with complaints of this nature. It is a jurisdiction \n\nwhich (on the facts and circumstances of this case and in relation to these specific \n\ncomplaints) should first have been exhausted before any approach was made to this \n\nCourt. It is unnecessary for purposes of this case to express any view as to how this Court \n\nwould deal with an ultimate complaint that the Supreme Court\u2019s interpretation of a \n\nstatute or its enunciation or development of the common law is unconstitutional. \n\n \n\n[48] There is accordingly little left of the attack based on section 11(1) of the Constitution to \n \n \n\n57 \n\n\fACKERMANN J \n\ndeal with. In Ferreira v Levin,75 it was only myself and Sachs J who based our judgments \n\non an infringement of section 11(1).76 The President and five members of the Court \n\ndecided the case on the basis of an infringement of section 25(3) but also disagreed with \n\nmy broad construction of the section 11(1) residual right to freedom.77 They expressed \n\nthe view that the \u201cprimary, though not necessarily the only, purpose of section 11(1) of \n\nthe Constitution is to ensure that the physical integrity of every person is protected\u201d,78 \n\nbut added that they could \u201csee no objection to accepting provisionally that section 11(1) \n\nis not confined to the protection of physical integrity and that in a proper case it may be \n\nrelied upon to support a fundamental freedom that is not otherwise protected adequately \n\nunder Chapter 3.\u201d79 \n\n \n\n \n\n[49] The order in Ferreira v Levin, and the view of the majority who found section 417(2)(b) \n\nof the Act to be inconsistent with section 25(3) of the Constitution, does not assist the \n\n \n\n75Supra note 2. \n\n76Id paras 90 and 245 respectively, although we disagreed as to the ambit of the section 11(1) residual right \n\nto freedom. \n\n77Id per Chaskalson P (Mahomed DP, Didcott J, Langa J, Madala J and Trengove AJ, concurring) paras 169 \nto 185. O\u2019Regan J, para 244, decided the case with the majority on the basis of an infringement of section 25(3), but \nexpressed no view on the correct interpretation of section 11(1). \n\n78Id per Chaskalson P (the other members of the Court as supra concurring) para 170. \n\n79Id per Chaskalson P para 185. Mokgoro J ( with the majority) decided the case para 208, on the basis of an \ninfringement of section 25(3) but was of the view, at para 209, that \u201cfreedom\u201d in section 25(3) was limited to \n\u201cfreedom in the sense of physical integrity\u201d. \n\n \n \n\n58 \n\n\fACKERMANN J \n\napplicants in their broader attack on sections 417 and 418 which goes beyond an \n\nobjection to the use of self-incriminating answers in subsequent criminal proceedings \n\nagainst the examinee. It is an attack based, in the first instance, on the section 11(1) \n\nfreedom rights. \n\n \n\n \n\n[50] \n\nIt is unnecessary to elaborate any further on what I have already said concerning the \n\nobjectives sought to be achieved by the mechanism embodied in sections 417 and 418. \n\nThey are all very important public policy objectives. I would endorse the following \n\nobservation of Windeyer J in Rees v Kratzmann,80 as quoted with approval by Mason CJ \n\nin Hamilton v Oades: \n\nThe honest conduct of the affairs of companies is a matter of great public concern \ntoday.81 \n\n \n\nThis is particularly the case in South Africa at present. Such honest conduct cannot be \n\nensured unless dishonest conduct, when it occurs, is exposed and punished and ill-gotten \n\ngains restored to the company. Such exposure cannot, in its turn, effectively take place \n\nunless the affairs of companies which fail are thoroughly investigated and reconstructed, \n\nan objective which is difficult, and often impossible, to achieve without the full co-\n\n \n80(1965) 114 CLR 63 at 80. \n\n81Supra note 40 at 127. \n\n \n \n\n59 \n\n\foperation of the directors, office bearers and auditors of the company who are, after all, \n\nthe brains, eyes and ears of the company. On the obligations resting on such persons, I \n\nACKERMANN J \n\nsaid the following in Ferreira v Levin: \n\nCompanies are used to raise money from the public and to conduct business on the basis \nof limited liability. There are obvious advantages to doing so. But there are \nresponsibilities which go with it. Part of the responsibility is to account to shareholders \nfor the way in which the company conducts its affairs and, if the company goes \ninsolvent, to account to shareholders and creditors for the failure of the business. These \nresponsibilities are well known to all who participate in the running of public companies. \n... Although it has been held that an auditor is not an officer of the company within the \nmeaning of that expression in section 184(1) of the 1926 Act (corresponding to section \n423(1) of the present Act) and it has been suggested that there is no basis for regarding \nan auditor as being an officer of the company for any purpose of the Act, in my view the \nsame public policy considerations apply to the use of derivative evidence of an auditor of \nthe company compelled to testify under section 417(2)(b) of the Act. The auditor has, \ninter alia, many statutory duties under the Companies Act and the Public Accountants' \nand Auditors Act, the purpose of which duties is, inter alia, to protect shareholders and \ncreditors. The knowledge and expertise of the auditor is of particular importance in \nreconstructing the affairs of the company in liquidation and in achieving the other aims \nof the section 417 enquiry. An auditor is not obliged to become the auditor of a particular \ncompany nor to discharge the attendant duties without remuneration. In accepting \nappointment as an auditor of any particular company the auditor is aware of these \nduties.82 \n\n \n\n \n\nIt is clear from the authorities cited earlier in this judgment83 that there are occasions \n\nwhen these mechanisms are essential in order to obtain information from complete \n\noutsiders. The examinee in the section 417 enquiry is not so differently situated from \n\n \n\n82Supra note 2 para 151 (footnotes omitted). \n\n83Supra paras 16 (j), 19 - 23, 26 - 27, 32 - 34. \n\n60 \n\n \n \n \n \n \n \n \n \n \n \n \n \n\n\fwitnesses in any other proceedings, especially in the light of this Court\u2019s judgment in \n\nFerreira v Levin, which in effect established a direct use immunity in criminal \n\nACKERMANN J \n\nproceedings in respect of self-incriminating testimony. \n\n \n\n \n\n[51] Against this background I proceed to deal with the attack based on section 11(1) of the \n\nConstitution. I do so on the basis of the views expressed by the majority of the Court in \n\nFerreira v Levin on the construction of section 11(1), referred to in para 48 above. No \n\ngood purpose would be served, so soon after that judgment, by repeating my arguments \n\nfor giving section 11(1) a wider construction. The obligation to respond to a subpoena \n\nand to be present at the appointed time and place would not, on the majority view, \n\ncompromise the physical integrity of the subpoenaed witness. In all democratic societies \n\nthe state has the duty to establish independent tribunals for the resolution of civil disputes \n\nand the prosecution of persons charged with having committed crimes. In a constitutional \n\nstate that obligation is of fundamental importance and it is clearly recognised as such in \n\nour constitution. Our Constitution is the supreme law of the land and makes provision in \n\nChapter 7 for the judicial authority to vest in the courts. The use of subpoenas to require \n\nwitnesses to attend courts, to produce documents and where necessary to give evidence is \n\nessential to the functioning of the court system. It is no doubt possible for the rule \n\ngoverning the issuing of subpoenas to be misused. The courts have the power to set aside \n\n61 \n\n \n \n\n\fACKERMANN J \n\nsubpoenas which have been issued for an improper purpose, or which are vexatious in \n\nother respects, but in its practical application that power is limited, and the possibility of \n\nthe process of the court being abused in particular cases cannot be excluded.84 \n\n \n\n \n\n[52] The fact that the power of subpoena may possibly be abused in a particular case to the \n\nprejudice of the person subjected to such abuse, does not mean that the power should, for \n\nthis reason, be characterised as infringing section 11(1) of the Constitution. The law does \n\nnot sanction such abuse; it merely recognises that it is difficult to control it and that a \n\nclear case of abuse must be established in order to secure a discharge from a subpoena. \n\nAbsent such proof it is the duty of persons who are subpoenaed to co-operate with the \n\ncourts, and to attend court for the purpose of giving evidence or producing documents \n\nwhen required to do so. The fact that the present case is concerned with enquiries under \n\nsections 417 and 418 of the Companies Act, and not with a trial, does not affect the \n\ncharacterisation of the obligation to honour a subpoena to attend the enquiry. It is a civic \n\nobligation recognised in all open and democratic societies and not an invasion of \n\nfreedom. \n\n \n\n84Sher & Others v Sadowitz 1970 1 SA 193 (C) 195; S v Matisonn 1981 3 SA 302 (A) 313. \n\n \n \n\n62 \n\n\f \n \n\nACKERMANN J \n\n[53] Witnesses who ignore subpoenas or who refuse to answer questions put to them may be \n\nsubjected to the sanction of imprisonment. That is true of all persons who contravene \n\nlegislation that has been lawfully passed. The execution of the sanction implicates the \n\nphysical integrity of the person who is imprisoned for the breach of the law. Section \n\n11(1), which pointedly refers to detention without trial, does not include within its scope \n\nimprisonment consequent upon the sentence of a court. Legislation invariably makes \n\nprovision for sanctions, including the possibility of imprisonment, and it could never \n\nhave been the intention of the framers of the Constitution to require all laws which \n\ncontain such a sanction to meet the test of necessity prescribed by section 33(1) for any \n\nlimitation of a section 11(1) right. \n\n \n\n[54] \n\nIt is perfectly clear that the sanction of imprisonment properly imposed by a court in \n\nrespect of legislation which is otherwise constitutional, is justifiable in an open and \n\ndemocratic society. Sanctions are necessary to make legislation effective, for without \n\nthem laws could be broken with impunity. Thus, even if section 11(1) was to be \n\nconstrued as applying to a statutory provision authorising a court to impose a sentence of \n\nimprisonment upon a person convicted of contravening the law, such a provision would \n\nalmost always be justifiable under section 33. There may be cases in which the sanction \n\n63 \n\n \n \n\n\f \n\nACKERMANN J \n\nauthorised or required by the statute is out of proportion to the offence. But even then it \n\nis doubtful whether section 11(1) would be implicated. Such cases would more properly \n\nbe dealt with under section 11(2) of the Constitution, which is concerned with excessive \n\npunishments, than under Section 11(1). That question does not, however, arise in the \n\npresent case. \n\n[55] The sanction of imprisonment for ignoring, or failing without sufficient cause to give \n\neffect to a subpoena issued under section 417 or 418 of the Companies Act, is a \n\nreasonable and necessary sanction. So too is the power to cause a person in breach of \n\nsuch a subpoena to be arrested and brought before the Master or other person appointed \n\nto conduct the enquiry. Imprisonment follows in accordance with the normal procedural \n\nsafeguards, therefore neither section 11(1) nor section 25 is impaired; and it is not a \n\nsanction which is disproportionate to the offence, therefore sections 11(1) and 11(2) are \n\nnot impaired. The sanctions are necessary to enforce the legislation, and in so far as they \n\nhave to comply with Section 11(1) read with Section 33, they clearly do so. The same \n\nconclusion, regarding justification under section 33(1), would be reached on the broad \n\ninterpretation I placed on the right to freedom under section 11(1) in Ferreira v Levin. \n\nThe mechanism provided by sections 417 and 418 is absolutely essential, and therefore \n\nnecessary, to achieve these important public policy objectives. They cannot be achieved \n\n64 \n\n \n \n\n\fACKERMANN J \n\nin any other way which would impinge less on an examinee\u2019s right of freedom, \n\nparticularly when regard is had to the Supreme Court\u2019s power to control an examination \n\nand prevent it from being vexatious, oppressive or unfair. The limitation of the \n\nexaminee\u2019s right of freedom is also clearly reasonable and justifiable in an open and \n\ndemocratic society based on freedom and equality. The duty to testify is well recognised \n\nin such societies whether it be in the context of a criminal or civil trial or in investigatory \n\nproceedings such as inquests or bankruptcy enquiries. (On the approach favoured by me \n\nin Ferreira v Levin I would have found that the statutory compulsion to obey a subpoena \n\ninfringed section 11(1) but that this was a limitation manifestly justified under section \n\n33(1)). \n\n \n\n \n\nThe attack based on the section 13 right to personal privacy and the right not to be subject to the \n\nseizure of private possessions or the violation of private communications \n\n[56] As part of their attack on the constitutionality of section 417 and 418 of the Act the \n\napplicants submit that \u201ca witness\u2019s privacy is clearly invaded when he is forced to \n\ndisclose his books and documents that he wants to keep confidential and to reveal \n\ninformation that he wants to keep to himself.\u201d In addition, the applicants contend that the \n\n\u201ccompulsory production of documents under section 417(3) constitute a \u2018seizure\u2019 within \n\nthe meaning of the right not to be subject to the \u2018seizure of private possessions\u2019 in terms \n\n65 \n\n \n \n\n\fof section 13 of the Constitution.\u201d These are different attacks and will be dealt with \n\nACKERMANN J \n\nseparately. \n\n \n\n \n\n[57] Section 13 of the Constitution entrenches the right to privacy as follows: \n\nEvery person shall have the right to his or her personal privacy, which shall include the \n\nright not to be subject to searches of his or her person, home or property, the seizure of \n\nprivate possessions or the violation of private communications. \n\n \n\n[58] A distinction must be drawn between the compulsion to respond to a subpoena and the \n\ncompulsion to answer particular questions at a section 417 enquiry in consequence of \n\nresponding to the subpoena. The mere compulsion to be physically present at a particular \n\nplace at a particular time in response to a subpoena cannot in itself be regarded as an \n\nintrusion on a person\u2019s privacy, however widely that concept is defined. It could be \n\nexamined in relation to concepts such as freedom or perhaps even dignity, but it cannot \n\nnotionally be categorised as interfering with one\u2019s privacy. It may of course be that, in \n\nparticular circumstances, the disclosure of the person\u2019s identity might constitute a breach \n\nof the right to privacy, but that does not arise in this case. It is the compulsion to respond \n\nto particular questions about oneself and one\u2019s activities, for example, which could lead \n\nto an infringement of one\u2019s right to personal privacy. Before this stage is reached a \n\n \n \n\n66 \n\n\fperson\u2019s privacy is not compromised. \n\n \n\n \n\nACKERMANN J \n\n[59] Before considering whether and to what extent the answering of particular questions at a \n\nsection 417 enquiry could constitute an infringement of an examinee\u2019s section 13 right to \n\npersonal privacy, it is essential to consider and analyse the source of such compulsion. \n\nThis must be done, however, in the light of two relevant and interrelated provisions of the \n\nConstitution. Section 35(2) provides for the \u201creading down\u201d85 of a statute86 in the \n\nfollowing terms- \n\nNo law which limits any of the rights entrenched in this Chapter, shall be \nconstitutionally invalid solely by reason of the fact that the wording used prima \nfacie exceeds the limits imposed in this Chapter, provided such a law is \nreasonably capable of a more restricted interpretation which does not exceed \nsuch limits, in which event such law shall be construed as having a meaning in \naccordance with the said more restricted interpretation.87 \n\n \n\n \n\nSection 35(3) moreover provides that in the interpretation of any statute88 and the \n\n \n\n85See Hogg Constitutional Law of Canada 3 ed para 15.7. \n\n86Although the word \u201claw\u201d is used in the subsection it is clear from the use of the word \u201cwet\u201d in the \n\nAfrikaans text that a statutory provision is intended. \n\n87The formulation of this subsection bears a close resemblance to the rule of construction adopted by the \nUnited States Supreme Court as formulated by Justice Brandeis in Ashwander et al v Tennessee Valley Authority et \nal 297 US 288 (1936) 346 as the seventh principle enunciated in that case. An analogous rule is employed in Canada. \nSee Hogg id footnote 20 supra. A similar rule of construction, known as verfassungskonforme Auslegung is \nemployed by the German Federal Constitutional Court. Where it is reasonably possible to do so the statute will be \nconstrued so as to save it from unconstitutionality but not where this would distort its meaning. See BverGE 2, 266 \n(282); BverGE 18, 97 (111); BverGE 53, 135 (147) and, generally, v Mangoldt, Klein, Starck Das Bonner \nGrungesetz 3ed Art.3 Rdnr.205 et seq. According to Benda, Maihofer, Vogel Handbuch des Verfassungsrechts 2ed \n34 Rdnr. 53 other European constitutional courts also apply a similar principle. \n\n88Supra note 73. \n\n \n \n\n67 \n\n\f \n\nACKERMANN J \n\napplication and development of the common law \u201ca court shall have due regard to the \n\nspirit, purport and objects of this Chapter.\u201d One of the objects of Chapter 3, apart from \n\nentrenching the fundamental rights it does, is to ensure through section 7(4) that any \n\nperson whose Chapter 3 rights are infringed or threatened with infringement will have an \n\n\u201cappropriate\u201d remedy, without specifying or limiting the nature of such remedy. \n\n[60] \n\nI return to the significance of the source of the compulsion to answer specific questions at \n\nthe section 417 enquiry. Section 417(2)(b), before it was declared invalid to the extent \n\nindicated in the order of this Court in Ferreira v Levin, in express and unequivocal terms \n\ncompelled an examinee to answer a question even though this might tend to incriminate \n\nthe examinee and further provided that such incriminating answer could be used \n\nthereafter in evidence against the examinee, inter alia in criminal proceedings. On the \n\nclear wording the provision could simply not be read down so as not to exceed the \n\nexaminee\u2019s Chapter 3 rights. Accordingly, the court could not avoid declaring the \n\nprovision in question invalid to the extent indicated in its order. There is no other \n\nprovision in section 417 or 418, or for that matter in any other provision of the Act which \n\nexpressly or by necessary implication, compels the examinee to answer a specific \n\nquestion which, if answered, would threaten any of the examinee\u2019s Chapter 3 rights. It \n\nmust in my view follow from this that the provisions of sections 417 and 418 can and \n\n68 \n\n \n \n\n\fACKERMANN J \n\nmust be construed in such a way that an examinee is not compelled to answer a question \n\nwhich would result in the unjustified infringement of any of the examinee\u2019s Chapter 3 \n\nrights. Fidelity to section 35(2) of the Constitution requires such a construction and \n\nfidelity to section 35(3) read with section 7(4) of the Constitution requires an appropriate \n\nremedy; in the present case that the examinee should not be compelled to answer a \n\nquestion which would result in the infringement of a Chapter 3 right. \n\n \n\n \n\n[61] \n\nIn this context the provisions of section 418(5)(b)(iii)(aa) of the Act are important. The \n\nsubparagraph in question provides that a person who, having been duly summoned under \n\nsection 417 or 418 to the examination- \n\nfails, without sufficient cause ... to answer fully and satisfactorily any question \nlawfully put to him in terms of section 417(2) or this section ... shall be guilty \nof an offence. (emphasis supplied) \n\nNothing could be clearer, in my view, than this. If the answer to any question put at such \n\nexamination would infringe or threaten to infringe any of the examinee\u2019s Chapter 3 \n\nrights, this would constitute \u201csufficient cause\u201d, for purposes of the above provision, for \n\nrefusing to answer the question unless such right of the examinee has been limited in a \n\nway which passes section 33(1) scrutiny. By the same token the question itself would not \n\nbe one \u201clawfully put\u201d and the examinee would not, in terms of this very provision, be \n\nobliged to answer it. The answer to this leg of Mr Marcus\u2019 argument is that there is, on a \n\n69 \n\n \n\n \n \n\n\f \n\nACKERMANN J \n\nproper construction of these sections, and in the light of this Court\u2019s order in Ferreira v \n\nLevin, no provision in section 417 or 418 of the Act which is inconsistent with the \n\nexaminee\u2019s right to privacy in terms of section 13 of the Constitution now under \n\nconsideration. \n\n[62] The Constitution has in principle brought about a fundamental change to the way in \n\nwhich the evidential privileges of a witness or those of an examinee at any statutory \n\nenquiry (for purposes of the present case it is unnecessary to go further than this) should \n\nbe approached. It is not, however, in the first instance, the task of this Court to determine \n\nwhat effect such approach will have on the law of evidence relating to privilege, save in \n\nthose cases (of which section 417(2)(b) is an example) where there is an explicit statutory \n\nprovision which cannot be read down as required by section 35(2) of the Constitution. \n\n \n\n[63] \n\nIn the case of common law privilege which has not been limited by statute it is the \n\nfunction of all the courts who are empowered to do so, and in particular that of the \n\nSupreme Court, in execution of the duty imposed on them by section 35(3) of the \n\nConstitution to \u201chave due regard to the spirit, purport and objects of\u201d Chapter 3 in the \n\n\u201cdevelopment of the common law\u201d of privilege. Such development can consist of the \n\nextension or the limitation of a privilege. \n\n \n \n \n\n70 \n\n\f \n[64] The present attack is in the vaguest terms, namely, an assertion that the privacy of \n\nACKERMANN J \n\nwitnesses are invaded when they are forced to disclose their books and documents that \n\nthey want to keep confidential and to reveal information that they want to keep to \n\nthemselves. No real information is furnished as to the nature or content of the documents \n\nor information in respect whereof the claim to privacy is being made. In the present \n\ncontext a claim to privacy can surely only be founded on the content of the information \n\nwhich the examinee is being forced to disclose, not on his desire not to disclose it. It is \n\nsimply not possible to pronounce on the issue of privacy unless the content of the \n\ndocument or information in respect whereof privacy is claimed is disclosed. Under these \n\ncircumstances it would be most inadvisable, if not in fact impossible, to give a detailed \n\nexposition on the constitutional right to privacy at section 417 proceedings, quite apart \n\nfrom the fact that I am of the view that this is, in the first instance, an exercise which the \n\nSupreme Courts ought to work out on a case to case basis. It is sufficient for the \n\ndisposition of this part of the case to repeat that there is no provision in section 417 or \n\nsection 418 which, when properly construed in the light of section 35(2) and (3) of the \n\nConstitution, is inconsistent with such right. \n\n \n\n[65] The aforegoing conclusion renders it unnecessary, strictly speaking, to consider whether \n\nthe compulsion to answer the questions which the applicants complain of do infringe \n\n71 \n\n \n \n\n\f \n\nACKERMANN J \n\ntheir constitutional right to privacy. It would nonetheless be appropriate, I believe, to \n\nventure some preliminary observations on the scope of this right. The concept of privacy \n\nis an amorphous and elusive one which has been the subject of much scholarly debate.89 \n\nThe scope of privacy has been closely related to the concept of identity and it has been \n\nstated that \u201crights, like the right to privacy, are not based on a notion of the \n\n \n\n89Scholars such as Dionisopoulos and Ducat, The Right to Privacy (West Publishing Co) (1976) as referred \nto in Barker Civil Liberties and the Constitution 6 ed 577 and following, have suggested three cores to the concept. \nThe first constitutes the \u201cplace-oriented conceptions of privacy\u201d defining the right in spacial terms, of which \nOlmstead v US 277 US 438 (1928) would be an illustration. The second the \u201cperson-oriented conceptions of \nprivacy\u201d, where the emphasis is shifted from place or property to the person involved (See Schmerber v California \n384 US 757 (1966)). The third concept has to do with how the \u201cright inheres in certain relationships\u201d such as the \nmarriage relationship but not necessarily others (See Griswold v Connecticut 381 US 479 (1965)). \n\n \n \n\n72 \n\n\funencumbered self, but on the notion of what is necessary to have one\u2019s own autonomous \n\nACKERMANN J \n\nidentity\u201d.90 \n\n \n\n \n\n \n\n90Rainer Forst formulated this statement in reaction to Michael J. Sandel\u2019s communitarian critique of the \n\u201cliberal self\u201d: firstly, liberalism is said to rely on the concept of the atomistic self, individualised prior to communal \nrelations and constitutive goods and, secondly, to subsume this individual under universalist and individualistic \nnotions of \u201cright\u201d that, despite their intention, destroy the real individuality of a communal being, rendering the \n\u201cunencumbered self\u201d to become the disempowered citizen of the modern state. (See: Rainer Frost \u201cHow not to speak \nabout identity: the concept of the person in a theory of justice.\u201d in Philosophy and Social Criticism 1992 Vol 18 No1 \nand M. Sandel \u201cThe Procedural Republic and the Unencumbered Self.\u201d in Political Theory 1984 Vol 12 No 1). \n\n \n \n\n73 \n\n\f \n[66] \n\nACKERMANN J \n\nIn expanding upon this notion Forst91 acknowledges that communal bonds are not to be \n\nsubstituted with abstract relations, but argues beyond this for a multi-levelled recognition \n\nof identity. Besides the concrete and abstract realms, this thirdly also pertains to societal \n\nmembership92 and fourthly to the community of humanity93 itself \n\n \n\n[67] The relevance of such an integrated approach to the interpretation of the right to privacy \n\n \n\n91Id. \n\n \n\n92Id. This is, according to Forst, the third level of political discourse between citizens, where concrete \ndifference and common equality are reconciled, and requires an acceptance of one\u2019s obligations towards the right of \nevery member of the polity not to be excluded. \n\n93Id. Forst points out that this community is spoken of by both Kant and Mead, and demands mutual respect \nas a universal moral duty towards persons as moral persons. Without this notion of the moral person fundamental \nrights are meaningless, just as they are meaningless if not institutionalized and secured within a political community. \nFundamental rights, although originating on the level of morality, need to be sustained on the level of political \ndiscourse and has implications for both the concrete and the abstract self. \n\n \n \n\n74 \n\n\fACKERMANN J \n\nis that this process of creating context cannot be confined to any one sphere, and \n\nspecifically not to an abstract individualistic approach. The truism that no right is to be \n\nconsidered absolute, implies that from the outset of interpretation each right is always \n\nalready limited by every other right accruing to another citizen. In the context of privacy \n\nthis would mean that it is only the inner sanctum of a person, such as his/her family life, \n\nsexual preference and home environment, which is shielded from erosion by conflicting \n\nrights of the community. This implies that community rights and the rights of fellow \n\nmembers place a corresponding obligation on a citizen, thereby shaping the abstract \n\nnotion of individualism towards identifying a concrete member of civil society. Privacy \n\nis acknowledged in the truly personal realm, but as a person moves into communal \n\nrelations and activities such as business and social interaction, the scope of personal \n\nspace shrinks accordingly. \n\n \n\n \n\n[68] \n\nIn South African common law the \u201cright to privacy is recognised as an independent \n\npersonality right which the courts have included within the concept of dignitas\u201d.94 \n\n\u201cPrivacy is an individual condition of life characterised by seclusion from the public and \n\npublicity. This implies an absence of acquaintance with the individual or his personal \n\n \n\n94Neethling Potgieter and Visser Law of Delict 2 ed. 333. See also O\u2019Keeffe v Argus Printing and \nPublishing Co Ltd1954 3 SA 244 (C) 247F-249D and Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk \n1979 1 SA 441 (A) 455H-456H. \n \n \n\n75 \n\n\fACKERMANN J \n\naffairs in this state\u201d.95 In Financial Mail (Pty) Ltd v Sage Holdings Ltd96 it was held that \n\nbreach of privacy could occur either by way of an unlawful intrusion upon the personal \n\nprivacy of another, or by way of unlawful disclosure of private facts about a person. The \n\nunlawfulness of a (factual) infringement of privacy is adjudged \u201cin the light of \n\ncontemporary boni mores and the general sense of justice of the community as perceived \n\nby the Court\u201d.97 \n\n \n\n \n\n \n\n95Neethling supra note 15 at 333. This approach accords with that followed by the US Supreme Court in US \nv Dionisio 410 US 1 (1975) 14 and US v Mara 410 US 19 (1973) 21 and, where the court held that a person had no \nreasonable expectation of privacy with respect to physical characteristics which he/she exposes to the public on a \ndaily basis. \n\n961993 2 SA 451 (A) 462F. \n\n97Id 462G. \n\n \n \n\n76 \n\n\f \n[69] Examples of wrongful intrusion and disclosure which have been acknowledged at \n\nACKERMANN J \n\ncommon law are entry into a private residence,98 the reading of private documents,99 \n\nlistening in to private conversations,100 the shadowing of a person,101 the disclosure of \n\nprivate facts which have been acquired by a wrongful act of intrusion,102 and the \n\ndisclosure of private facts contrary to the existence of a confidential relationship.103 \n\n \n\n \n\n98S v I 1976 1 SA 781 (RA); S v Boshoff 1981 1 SA 393 (T) 396. \n\n99Reid-Daly v Hickman 1981 2 SA 315 (ZA) 323. \n\n100S v A 1971 2 SA 293 (T); Financial Mail supra note 96 at 463. \n\n101Epstein v Epstein 1906 TH 87. \n\n102Such as the publishing of information obtained from illegally tapping telephone conversations; Financial \n\nMail supra note 96 at 463. See also Neethling Persoonlikheidsreg 223. \n\n103Neethling Persoonlikheidsreg 234-238; Neethling Potgieter and Visser Law of Delict 334. \n\n \n \n\n77 \n\n\fThese examples are all clearly related to either the private sphere, or relations of legal \n\nprivilege and confidentiality. There is no indication that it may be extended to include the \n\nACKERMANN J \n\ncarrying on of business activities. \n\n \n\n \n\n[70] \n\nIn S v Naud\u00e9104 Corbett JA said with regard to the inquisitorial power of a commission of \n\ninquiry that the exercise thereof \u201cmakes an important inroad upon the right of the \n\nindividual to \u2018the tranquil enjoyment of his peace of mind\u2019... and such privacy as the law \n\nallows him\u201d. The learned judge of appeal defined the risk inherent in such proceedings as \n\nthat of \u201chaving aspects of [one\u2019s] private [life] exposed\u201d105 (emphasis added). It is clear \n\nthat these dicta do not provide any authority for the notion that the right to privacy \n\nextends beyond the private sphere of an individual\u2019s existence. By qualifying the right as \n\n\u201csuch privacy as the law allows him\u201d (emphasis added), Corbett JA acknowledges that \n\nthe law as it stands embodies a quantification of diverse interests, ranging from that of \n\nthe individual, to those of his fellow community members. Such an interpretation would \n\naccord with the conceptual analysis advanced supra. Such an approach is also supported \n\nby O\u2019Keeffe\u2019s case.106 \n\n \n\n1041975 1 SA 681 (A) 704A-B. \n\n105Id 704D. \n\n106Supra note 94 at 249C-D where Watermeyer AJ followed the American approach which proscribes \ninvasions of privacy which can reasonably be considered offensive to persons of ordinary sensibilities. This case \n \n \n\n78 \n\n\fACKERMANN J \n\nSimilarly the statement of Macdonald JA in R v Parker107 that \u201c[t]he procedure laid down \n\nin section 102 is exceptional ... and constitutes an inroad into the right of privacy \n\npossessed by every member of the public\u201d, should be read in the light of his subsequent \n\nstatement qualifying the scope thereof to the \u201creasonable and proper limits of privacy\u201d.108 \n\n \n \n\n \n\n \nconcerned the unauthorised publication of a person\u2019s photograph; this has been classified as a wrongful invasion of \nprivacy in terms of the Nordic Conference on the Right to Respect for Privacy of 1967. \n\n1071966 2 SA 57 (RA) 58D-E. \n\n108Id 58H. \n\n \n \n\n79 \n\n\f \n[71] Caution must be exercised when attempting to project common law principles onto the \n\nACKERMANN J \n\ninterpretation of fundamental rights and their limitation; it is important to keep in mind \n\nthat at common law the determination of whether an invasion of privacy has taken place \n\nconstitutes a single enquiry, including an assessment of its unlawfulness. As in the case \n\nof other iniuriae the presence of a ground of justification excludes the wrongfulness of an \n\ninvasion of privacy.109 In constitutional adjudication under the Constitution, by contrast, \n\na two-stage approach must be employed in deciding constitutionality of a statute. \n\n \n\n \n\n \n\n109Neethling Persoonlikheidsreg 247 et seq. It is also significant that public interest in information plays a \nrole in determining whether the publication of private facts by the media is justified. Financial Mail (Pty) Ltd v Sage \nHoldings (Pty) Ltd supra note 96 at 462-463. \n\n \n \n\n80 \n\n\f \n[72] Article 8(1) of the European Convention on Human Rights provides that \u201ceveryone has \n\nACKERMANN J \n\nthe right to respect for his private and family life, his home and his correspondence\u201d. \n\nThis right is limited by article 8(2) on the basis that interference may only occur in \n\naccordance with the law, and must be necessary in a democratic society. It is difficult to \n\ndistinguish clearly between the right to private life on the one hand, and the rights \n\nbelonging to the private sphere on the other. The commission has however held that such \n\na clear delimitation was unnecessary since a complaint concerning violation of the \n\nprivate sphere could be based on the provision as a whole. The difficulty that remains is \n\nthe determination of the scope of \u201cthe provision as a whole\u201d or as it is commonly called \n\n\u201cthe right to privacy\u201d.110 \n\n \n\n[73] Use of this term has not been unproblematic, since in terms of a resolution of the \n\nconsultative Assembly of the Council of Europe this right has been defined as follows: \n\nThe right to privacy consists essentially in the right to live one\u2019s own life with a \nminimum of interference. It concerns private, family and home life, physical \nand moral integrity, honour and reputation, avoidance of being placed in a false \nlight, non-revelation of irrelevant and embarrassing facts, unauthorised \npublication of private photographs, protection from disclosure of information \ngiven or received by the individual confidentially. \n\n \n\n \n\n110Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2 ed0 (1990) \n\n368. \n\n \n \n\n81 \n\n\fACKERMANN J \n\nAnd in the final conclusions of the Nordic Conference on the Right to Respect for \n\nPrivacy of 1967 the following additional elements of the right to privacy are listed: the \n\nprohibition to use a person\u2019s name, identity or photograph without his/her consent, the \n\nprohibition to spy on a person, respect for correspondence and the prohibition to disclose \n\nofficial information. The Commission has connected the right to privacy of Article 8 also \n\nwith the right to freedom of expression of Article 10 by stating that \u201cthe concept of \n\nprivacy in Article 8 also includes, to a certain extent, the right to establish and maintain \n\nrelations with other human beings for the fulfilment of one\u2019s personality.111 This \n\nexpansion of the concept by the European Commission is strongly reminiscent of Forst\u2019s \n\nexplanation, supra, as to his use of the concept of \u201cidentity\u201d, namely that it refers to the \n\nability of a person to relate to him or herself and to be able to relate to others in a \n\nmeaningful way. \n\n \n \n\n \n\n \n\n111Appl. 8962/80, X and Y v Belgium, D & R 28 (1982), p 112 (124); see also Van Dijk 369. \n\n \n \n\n82 \n\n\f \n[74] \n\nACKERMANN J \n\n In Fayed v the United Kingdom 112 the investigation into the affairs of a public company \n\nand the subsequent publication of the Inspectors\u2019 report by the Secretary of State for \n\nTrade and Industry in terms of sections 432(2) and 437(3) of the English Companies Act, \n\nwas considered by the European Court of Human Rights in the light of articles 6(1) and 8 \n\nof the European Convention. Article 6(1) embodies the right to a fair and public hearing, \n\nwhile article 8 guarantees the right to respect for private life. The final report of the \n\nInspectors, containing findings to the effect that the Fayeds had made dishonest \n\nrepresentations in the course of a takeover bid and in the investigation itself, was widely \n\nreported in the communication media. The Fayeds were never prosecuted. One of the \n\nclaims brought to the European Court by the applicants was that publication of the \n\nInspectors\u2019 report had unjustifiably interfered with their honour and reputation, protected \n\nas part of their right to respect for private life under article 8 of the Convention. \n\nAlthough not directly in point, the judgment of the court dismissing the complaint \n\ncontains instructive dicta on privacy and public policy. The court gave little attention to \n\nwhether there had been a facial infringement of any of the rights and proceeded almost \n\ndirectly to the second leg of the enquiry, and, holding that the result would be the same \n\nregardless of whether the complaint was construed as an infringement of article 6(1) or \n\n \n \n\n112Series A. No 294 B; Application No 17101/90; (1994) 18 EHRR 393. \n\n \n \n\n83 \n\n\f \n\n \n\n \n\nthe article 8 right to privacy, tested the legitimacy and proportionality of the \n\nACKERMANN J \n\ninfringement. In this context the court found that:- \n\n[t]he underlying aim of this system is clearly the furtherance of the public \ninterest in the proper conduct of the affairs of public companies whose owners \nbenefit from limited liability ... The system contributes to safeguarding the \ninterests of various parties concerned in the affairs of public companies such as \ninvestors, shareholders, especially small shareholders, creditors, customers, \ntrading partners and employees, as well as ensuring the structures.113 \n\nRegarding the right to a good reputation, the Court remarked that : \n\nThe individual\u2019s interest in full protection of his or her reputation\u201d must, to \nvarying extents, \u201cyield to the requirements of the community\u2019s interest in \nindependent investigation of the affairs of large public companies.114 \n\nand, more pertinently for present purposes, that: \n\n \n\n113Id para 69. \n\n \n\n114Id para 81. \n\n \n \n\n84 \n\n\fACKERMANN J \n\n... the limits of acceptable criticism are wider with regard to businessmen \nactively involved in the affairs of large public companies than with regard to \nprivate individuals ... Persons, such as the applicants, who fall into the former \ncategory of businessmen inevitably and knowingly lay themselves open to \nclose scrutiny of their acts, not only by the press but also and above all by \nbodies representing the public interest ... . 115 \n\nAs will be seen in the following paragraphs, this echoes to some extent the approach of \n\nthe US courts in determining the existence of a \u201creasonable expectation of privacy\u201d, but \n\nit must of course be noted that the above comment was in regard to the limitation and not \n\nthe scope of the right in question. \n\n \n\n \n\n \n\n \n\n115Id para 75. \n\n \n\n \n \n\n85 \n\n\f \n[75] The question corresponding to determining the \u201cscope of the right to privacy\u201d in United \n\nACKERMANN J \n\nStates constitutional inquiry, is whether a search or seizure has occurred. The US \n\nSupreme Court has defined \u201csearch\u201d to mean a \u201cgovernmental invasion of a person\u2019s \n\nprivacy\u201d and it has constructed a two part test to determine whether such an invasion has \n\noccurred. The party seeking suppression of the evidence must establish both that he or \n\nshe has a subjective expectation of privacy and that the society has recognized that \n\nexpectation as objectively reasonable. In determining whether the individual has lost \n\nhis/her legitimate expectation of privacy, the court will consider such factors as whether \n\nthe item was exposed to the public, abandoned, or obtained by consent.116 It must of \n\ncourse be remembered that the American constitutional interpretative approach poses \n\nonly a single inquiry, and does not follow the two-stage approach of Canada and South \n\nAfrica. Nevertheless it seems to be a sensible approach to say that the scope of a person\u2019s \n\nprivacy extends a fortiori only to those aspects in regard to which a legitimate \n\nexpectation of privacy can be harboured. \n\n \n\n[76] The Canadian Charter of Rights and Freedoms does not specifically provide for the \n\nprotection of personal privacy. As in the United States the issue arises in connection with \n\n \n \n\n116See Katz v US 389 US 347 (1967) 361, Abel v US 362 US 217 (1960) 241. \n\n \n \n\n86 \n\n\fACKERMANN J \n\nthe protection of persons against unreasonable search and seizure, which in Canada is \n\nafforded by section 8 of the Charter. In defining the scope of this protection the Canadian \n\nCourts have adopted an approach similar to that followed in United States jurisprudence. \n\nIn McKinley Transport Ltd et al v The Queen117 Wilson J quoted with approval the \n\nfollowing exposition of Dickson J in Hunter et al v Southam Inc:118 \n\nThe guarantee of security from unreasonable search and seizure only protects a \nreasonable expectation. This limitation on the right guaranteed by section 8, \nwhether it is expressed negatively as freedom from \u2018unreasonable\u2019 search or \nseizure, or positively as an entitlement to a \u2018reasonable\u2019 expectation of privacy, \nindicates that an assessment must be made as to whether in a particular \nsituation the public\u2019s interest to be left alone by government must give way to \ngovernment\u2019s interest in intruding on the individual\u2019s privacy in order to \nadvance its goals, notably those of law enforcement. \n\n \n\n \n\n \n\n \n\n117[1990] 68 D.L.R. (4th) 568 at 578. \n\n118[1984] 11 D.L.R. (4th) 641 at 652-3. \n\n \n \n\n87 \n\n\fACKERMANN J \n\nWilson J pointed out119 that one of the purposes underlying the section 8 right is the \n\n\u201cprotection of the individual\u2019s reasonable expectation of privacy.\u201d Since an enquiry into \n\nprivacy constitutes an important component in determining the scope of an unreasonable \n\nsearch or seizure, the courts have had to develop a test to determine the scope and \n\ncontent of the right to privacy. The \u201creasonable expectation of privacy\u201d test comprises \n\ntwo questions. Firstly there must at least be a subjective expectation of privacy120 and, \n\nsecondly, the expectation must be recognized as reasonable by society.121 \n\n \n\n \n\n \n \n\n119In McKinley supra note 119 at 578 a-c. \n\n120R v Wong (1987) 41 CCC (3d) 163 OntCA. \n\n121James A Fontana The Law of Search and Seizure in Canada 3 ed (1992) 19. \n\n \n \n\n88 \n\n\f \n[77] The German Basic Law does not in express terms entrench a general right to privacy \n\nACKERMANN J \n\nalthough isolated aspects of privacy are protected in, for example, Art 4 (freedom of \n\nbelief), Art 10 (protection of postal communications) and Art 13 (inviolability of the \n\nhome). The protection of a general right to privacy has been developed by the Federal \n\nConstitutional Court (FCC) on a case to case basis.122 It has held that the constitutional \n\nobligation to respect the sphere of intimacy of individuals is based on the right to the \n\nunfettered development of personality embodied in Art 2(1) of the Basic Law123 and in \n\ndetermining the content and ambit of this fundamental right, regard must be had to the \n\ninviolability of dignity in terms of Art 1(1), which must be respected and protected by the \n\njudicial system.124 Privacy is also protected out of respect for dignity and this linking up \n\nof Art 2(1) and Art 1 results in the limitation provisions of Art 2(1) being applied more \n\nstrictly in the case of infringement of the right to privacy.125 A very high level of \n\nprotection is given to the individual\u2019s intimate personal sphere of life and the \n\nmaintenance of its basic preconditions and there is a final untouchable sphere of human \n\nfreedom that is beyond interference from any public authority.126 So much so that, in \n\n \n\n \n\n122Von M\u00fcnch/Kunig Grundgesetz-Kommentar (4aufl) Band 1, Art 1 Rn 10; Art 2 Rn 30-31. \n\n123See also Ferreira v Levin supra note 2 paras 84-85. \n\n124BVerfGE 27, 344[350]. \n\n125Von M\u00fcnch/Kunig supra note 122, Art 1 Rn 10. \n\n126BVerfGE 54, 148[153]; BVerfGE 6, 32[41]. \n\n89 \n\n \n \n\n\f \n\nACKERMANN J \n\nregard to this most intimate core of privacy, no justifiable limitation thereof can take \n\nplace.127 But this most intimate core is narrowly construed. This inviolable core is left \n\nbehind once an individual enters into relationships with persons outside this closest \n\nintimate sphere; the individual\u2019s activities then acquire a social dimension and the right \n\nof privacy in this context becomes subject to limitation.128 \n\n[78] \n\nIn BVerfGE 34, 238 the FCC was concerned with the objection to the admissibility of \n\nsecretly made tape recordings indicating that the complainant was guilty of fraud and tax \n\nevasion. While upholding the objection, the FCC pointed out that there were \n\ncircumstances in which a tape recording made without the knowledge of the speaker \n\nwould fall outside the area of protection afforded by Art 2(1) read with Art 1(1) - \n\n \n\n127BVerfGE 27, 344[351]; BVerfGE 34, 238[245]; BVerfGE 80, 367[373]. \n\n128BVerfGE 6, 389[433]. \n\n \n \n\n90 \n\n\fACKERMANN J \n\nBecause in these cases it is the general consensus that the right to one\u2019s own \nwords no longer enters the question. For example, insofar as it has become \ncommon practice in commercial dealings to keep a record of telephone \nmessages, orders or stock-exchange reports by means of a tape recording, the \nright of the speaker to the unfettered development of the personality will, \ngenerally speaking, not be affected. In communications of this sort the \nobjective content of the statement is so much in the foreground that the \npersonality of the speaker is almost completely obscured by it and the spoken \nword thereby loses its private character.129 \n\n \n\n \n\n \n\n129At 247: \u201c...weil in diesen Faellen nach allgemeiner Auffassung von einem Recht am eigenen Wort nicht \nmehr die Rede sein kann. Soweit es z. B. im geschaeftlichen Verkehr ueblich geworden ist, fernmuendliche \nDurchsagen, Bestellungen oder Boersennachrichten mittels eines Tonabnehmers festzuhalten, ist in aller Regel das \nRecht auf freie Entfaltung der Persoenlichkeit des Sprechers noch nicht betroffen. Bei derartigen Mitteilungen steht \nder objektive Gehalt des Gesagten so sehr im Vordergrund, dass die Persoenlichkeit des Sprechenden nahezu \nvollends dahinter zuruecktritt und das gesprochene Wort damit seinen privaten Charakter einbuesst.\u201d \n\n \n \n\n91 \n\n\f \n\nACKERMANN J \n\nIn principle this approach resembles the \u201creasonable expectation of privacy\u201d test, referred \n\nto above. In German law when insolvents130 are examined on the causes of their \n\ninsolvency, they are obliged to answer all questions put, even though the questions might \n\ntend to incriminate them, but the FCC has however, in its judgments, crafted a use \n\nimmunity in respect of such answers if they are sought to be used against insolvents in \n\nsubsequent criminal proceedings against them.131 The justification for the compulsion is \n\ninstructive. The nature and extent of the Art 2(1) right \u201calso depends on whether and to \n\nwhat extent other people depend on the information provided by the person in question; \n\nin particular whether the information belongs to a sphere of duties which the person in \n\nquestion has taken up voluntarily.\u201d132 The insolvent is regarded as having specific duties \n\n \n \n\n130The German law treats the insolvency of persons and the liquidation of companies in the same way. \nGerman insolvency law is governed by the Konkursordnung. The equivalent of section 417 is \u00a775 of the \nKonkursordnung. Apart from the special provisions in \u00a7207 ff of the Konkursordnung, all provisions, including \u00a775 \napply both to natural and to juristic persons. (See G. Robbers Einf\u00fchrung in das deutsche Recht 275). \n\n131BVerfGE 56, 37[49-51]. \n\n132Id 42: \u201cauch davon abhaengen, ob und inwieweit andere auf die Information der Auskunftsperson \nangewiesen sind, ob insbesondere die Auskunft Teil eines durch eigenen Willensentschluss uebernommenen \nPflichtenkreises ist.\u201d \n\n \n \n\n92 \n\n\ftowards the creditors, who have been harmed by his actions;133 there are not only state or \n\npublic interests at stake but those of third parties, who have suffered damage and demand \n\nACKERMANN J \n\ninformation.134 \n\n \n\n \n\n[79] The German, European and American approach seems to accord with the analysis \n\nattempted above, namely that the nature of privacy implicated by the \u201cright to privacy\u201d \n\nrelates only to the most personal aspects of a person\u2019s existence, and not to every aspect \n\nwithin his/her personal knowledge and experience. The two-stage approach requires, as \n\nthe first step, a definition of the scope of the relevant right. At this stage already, in \n\ndefining the right to privacy, it is necessary to recognise that the content of the right is \n\ncrystallized by mutual limitation. Its scope is already delimited by the rights of the \n\ncommunity as a whole (including its members). \n\n \n\n \n\n133Id 48. \n\n134Id 50. \n\n \n \n\n93 \n\n\f \n[80] The facts operative in the present case concern neither the invasion of private living \n\nACKERMANN J \n\nspace, nor any specific protected relationship. Against the background of the approach \n\nalluded to above, the relevant core to be considered appears to be the one defining \n\nprivacy as inhering in the person, suggested above.135 \n\n \n\n[81] The present judgment has been at pains to point out, in the light of Ferreira v Levin, that \n\ndirectors, officers of the company generally, auditors of the company and certain \n\noutsiders, have a duty to assist a section 417 enquiry achieve its objects. This duty has \n\nbeen voluntarily assumed by such persons entering into their respective relationships \n\nwith the company. \n\n \n\n[82] Section 417(2) permits interrogation concerning any matter referred to in section 417(1). \n\nThe latter section refers to \u201cany director or officer of the company or person known or \n\nsuspected to have in his possession any property of the company or believed to be \n\nindebted to the company, or any person whom the Master or the court deems capable of \n\ngiving information concerning the trade, dealings, affairs or property of the company.\u201d In \n\n \n\n135See note 89 above. \n\n \n \n\n94 \n\n\fACKERMANN J \n\neffect the section permits questions to be asked in connection with property, claims or the \n\n\u201ctrade, dealings, affairs or property of the company\u201d. The scope of the interrogation in \n\nterms of section 417(2) of the Act must, however, be informed by the purpose of the \n\nenquiry. In so far as the purpose is concerned with the discovery of information which \n\nmay be to the financial benefit of the company and relates to the proper winding-up of \n\nthe company, as more fully analysed above, the scope of the questioning is limited to this \n\npurpose. \n\n \n\n \n\n[83] Although the phrase \u201cinformation concerning the ... affairs ... of the company\u201d appears to \n\nbe quite broad facially, it must be construed in conformity with the aforementioned \n\npurpose of the enquiry. It is difficult to see how any information which an individual \n\npossesses which is relevant to the purpose of the enquiry can truly be said to be private. \n\nOne is after all concerned here with the affairs of an artificial person with no mind or \n\nother senses of its own; it depends entirely on the knowledge, senses and mental powers \n\nof humans for all its activities. In the words of Rogers CJ in Spedly Securities v Bond \n\nCorporation Holdings Ltd directors and others concerned with the management and \n\naffairs of a failed company (in which category of persons I would certainly include the \n\nauditors) \u201cowe a duty to creditors and shareholders to provide a candid, full and truthful \n\n \n \n\n95 \n\n\faccount of their stewardship.\u201d136 This duty arises from the very fact that the company has \n\nACKERMANN J \n\nno mental or sensory capacities of its own. \n\n \n\n \n\n[84] \n\nIn this regard I find the following observation of Bryson J in Lombard Nash \n\nInternational Pty Ltd v Berentsen, when made in relation to precisely this corporate \n\ndeficiency, acute, sound and relevant: \n\nthe company in a fair sense ought to be thought of as the owner of the knowledge in their \n[the officers\u2019 of the company] minds.137 \n\n \n\nIf that is so, and I agree that it is for purposes of present analysis, then it can hardly be \n\nsaid that the knowledge of the director, official or auditor bearing relevantly on the \n\naffairs of the company that has failed can be said to fall within such person\u2019s domain of \n\npersonal privacy. I would hold the same in relation to a mere debtor or creditor of the \n\ncompany. If such knowledge is relevant, it is relevant because of some legal relationship \n\nbetween such person and the company, which can hardly be said to be private. \n\n \n\n136Supra note 36 at 738 and see also para [30] supra. \n\n137Supra note 38 at 346. \n\n \n \n\n96 \n\n\f \n[85] The establishment of a company as a vehicle for conducting business on the basis of \n\nACKERMANN J \n\nlimited liability is not a private matter. It draws on a legal framework endorsed by the \n\ncommunity and operates through the mobilization of funds belonging to members of that \n\ncommunity. Any person engaging in these activities should expect that the benefits \n\ninherent in this creature of statute, will have concomitant responsibilities. These include, \n\namongst others, the statutory obligations of proper disclosure and accountability to \n\nshareholders. It is clear that any information pertaining to participation in such a public \n\nsphere, cannot rightly be held to be inhering in the person, and it cannot consequently \n\nbe said that in relation to such information a reasonable expectation of privacy exists. \n\nNor would such an expectation be recognised by society as objectively reasonable. This \n\napplies also to the auditors and the debtors of the company. On the facts of this case the \n\nconclusion seems to be unavoidable that no threat to or infringement of any of the \n\napplicants\u2019 right to privacy as protected by section 13 of the Constitution has been \n\nestablished. The application of the Constitution to the issue of \u201csufficient cause\u201d in the \n\npresent context would operate as follows. The first part of the enquiry is whether \n\nanswering the particular question would infringe the applicant\u2019s right to privacy. If it \n\nwould, this would constitute \u201csufficient cause\u201d for declining to answer the question \n\nunless the section 418(5)(b)(iii)(aa) compulsion to answer the question would, in all the \n\ncircumstances, constitute a limitation on the right to privacy which is justified under \n\n97 \n\n \n \n\n\fsection 33(1) of the Constitution \n\n \n\n \n\nACKERMANN J \n\n[86] The applicants further contended that the compulsion to produce documents in terms of \n\nsection 417(3) of the Act constitutes a \u201cseizure of private possessions\u201d within the \n\nmeaning of section 13 of the Constitution. For the sake of convenience section 417(3) of \n\nthe Act is repeated here: \n\nThe Master or the Court may require any such person to produce any books or papers in \nhis custody or under his control relating to the company but without prejudice to any lien \nclaimed with regard to any such books or papers, and the Court shall have power to \ndetermine all questions relating to any such lien. \n\n \n\n \n\n[87] Reference should in this regard also be made to subparagraph 418(5)(b)(iii)(bb), which \n\nprovides that any person who has been duly summoned under section 417 or 418 to an \n\nenquiry and who:- \n\nFails, without sufficient cause ... to produce books or papers in his custody or \nunder his control which he was required to produce in terms of section 417(3) \nor this section, shall be guilty of an offence. (Emphasis added) \n\n \n\n \n\n[88] \n\nIt seems to me that this part of the argument must be disposed of in exactly the same way \n\nas the previous argument based on the general right to personal freedom in section 13. \n\nSections 417 and 418, and in particular subparagraph 418(5)(b)(iii)(bb), are capable of \n\n \n \n\n98 \n\n\fACKERMANN J \n\nbeing read down, and must be read down, in such a way that they do not compel a person \n\nto produce books or papers which would result in an infringement of such person\u2019s \n\nsection 13 right \u201cnot to be subject to ... the seizure of private possessions...\u201d. Similarly, \n\nnothing could be clearer, in my view, than that if the production of any book or paper \n\nwould infringe the producer\u2019s right not to be subject to the seizure of private \n\npossessions, this would, for purposes of the above provision, constitute \u201csufficient cause\u201d \n\nfor refusing to produce such books or papers unless such right of the producer is subject \n\nto limitation under section 33(1) of the Constitution. In this regard it is also in my \n\nopinion the task of the Supreme Court, in the first instance, to develop the concept of the \n\nright not be subject to the seizure of private possessions, its content and limits. \n\n \n\n \n\n[89] A few general observations may not, however, be out of place. In the normal course, the \n\nsection would hardly be used to compel examinees to produce \u201cprivate possessions\u201d \n\nsince such possessions would hardly relate to company affairs. But, in so far as private \n\nbooks and papers might relate to the company, the section is open to an interpretation \n\nwhich would permit the Master or the court to compel the production of such documents. \n\nThe compulsion to produce such private documentation would also constitute a \u201cseizure\u201d \n\nwithin the meaning of section 13 of the Constitution. As pointed out by some of the \n\nCanadian judges referred to below, no sound distinction can be made in theory or \n\n99 \n\n \n \n\n\fACKERMANN J \n\npractice between compelling a person to produce documentation and the physical \n\nremoval of such documentation from a person. Again the infringement of section 13 \n\nwould result as an incidental effect rather than the purpose of employing sections 417 \n\nand 418. Moreover, examinees could also approach the courts to control oppressive, \n\nvexatious or unfair use of the section. It is likewise difficult to see how a document \n\nwhich was truly relevant to the matters legitimately being examined, could be said to be a \n\nprivate document. \n\n \n\n \n\n[90] Even if it could be established that, in certain circumstances, and despite a proper \n\nconstruction of sections 417 and 418 of the Act and proper control of their \n\nimplementation by the Supreme Court, the production of private possessions or private \n\ncommunications could be compelled under section 417(3) or 418(2) of the Act, and in \n\nparticular that they were relevant to the enquiry and the achievement of its objects, in the \n\nsense that I have outlined in this judgment, such production would clearly be justifiable \n\nin terms of section 33 of the Constitution. In South Africa, the right not to be subjected to \n\nseizure of private possessions forms part of every person\u2019s right to personal privacy. The \n\nright against seizure must therefore be interpreted in the light of the general right to \n\npersonal privacy. So much is also clear from the qualification of the right, ie the right \n\nagainst seizure of private possessions. I have repeatedly emphasised that privacy \n\n100 \n\n \n \n\n\fACKERMANN J \n\nconcerns are only remotely implicated through the use of the enquiry. The public\u2019s \n\ninterest in ascertaining the truth surrounding the collapse of the company, the liquidator\u2019s \n\ninterest in a speedy and effective liquidation of the company and the creditors\u2019 and \n\ncontributors\u2019 financial interests in the recovery of company assets must be weighed \n\nagainst this, peripheral, infringement of the right not to be subjected to seizure of private \n\npossessions. Seen in this light, I have no doubt that sections 417(3) and 418(2) constitute \n\na legitimate limitation of the right to personal privacy in terms of section 33 of the \n\nConstitution. \n\n \n\n \n\n[91] The US Supreme Court has held that corporate officers cannot invoke the protection \n\nwhich the Fourth Amendment affords against searches and seizures. In Hale v Henkel \n\nthe Court stated: \n\nUpon the other hand, the corporation is a creature of the State. It is presumed to be \nincorporated for the benefit of the public. It receives certain special privileges and \nfranchises, and holds them subject to the laws of the State and the limitations of its \ncharter. Its powers are limited by law. It can make no contract not authorized by its \ncharter. Its rights to act as a corporation are only preserved to it so longs as it obeys the \nlaws of its creation. There is a reserved right in the legislature to investigate its contracts \nand find out whether it has exceeded its powers. It would be a strange anomaly to hold \nthat a State, having chartered a corporation to make use of certain franchises, could not \nin the exercise of its sovereignty inquire how these franchises had been employed, and \nwhether they had been abused, and demand the production of the corporate books and \npapers for that purpose.138 \n\n \n\nThe Court also held as follows: \n\n \n\n138201 US 43 (1906) 74-5; See also US v White 322 US 694 (1944) 698. \n\n \n \n\n101 \n\n\fWe think it quite clear that the search and seizure of the Fourth Amendment was not \nintended to interfere with the power of the court to compel, through a subpoena duces \ntecum, the production, upon a trial in court, of documentary evidence.139 \n\nACKERMANN J \n\n \n\n \n\n \n\n[92] \n\nIt is, as already indicated, notionally possible that under sections 417(3) and 418(2) of the \n\nSouth African Companies Act the production of documents which are not company \n\ndocuments or records in the strict sense might be compelled. Nevertheless, provided the \n\ndocuments were relevant to any legitimate enquiry under section 417, their compelled \n\nproduction would be justified for the very same reason that the compelled answers to \n\nsimilarly relevant questions would be justified. Sections 417 and 418 of the Act are \n\naccordingly not inconsistent with any of the section 13 rights. \n\n \n\nThe alleged violation of section 24 of the Constitution \n\n[93] Section 24 of the Constitution reads: \n\n \n\n \n\n \n\n \n\nEvery person shall have the right to - \n\n(a) \n\n(b) \n\n(c) \n\nlawful administrative action where any of his or her rights or interests is \naffected or threatened; \n\nprocedurally fair administrative action where any of his or her rights or \nlegitimate expectations is affected or threatened; \n\nbe furnished with reasons in writing for administrative action which affects any \nof his or her rights or interests unless the reasons for such action have been \nmade public; and \n\n(d) \n\nadministrative action which is justifiable in relation to the reasons given for it \n\n \n\n139Id 73. See also White supra note 138 at 698. Special problems of privacy may be presented by subpoena \n\nof a personal diary. See Fisher et al v United States et al 425 US 391 1976) at 401 note 7. \n\n \n \n\n102 \n\n\fwhere any of his or her rights is affected or threatened \n\nACKERMANN J \n\nIt was submitted in this regard that the whole mechanism set up by sections 417 and 418 \n\nof the Act violates section 24 in that it permits an inquiry in violation of paragraphs (b) \n\nand (c) of section 24. Both paragraphs are triggered when someone\u2019s \u201crights\u201d are \n\n\u201caffected\u201d by \u201cadministrative action\u201d. Paragraph (b) is also triggered whenever \n\nsomeone\u2019s \u201crights\u201d are \u201cthreatened\u201d or \u201clegitimate expectations\u201d are \u201caffected or \n\nthreatened\u201d. Paragraph (c) is also triggered whenever someone\u2019s \u201cinterests\u201d are \n\n\u201caffected\u201d. \n\n \n\n \n\n \n\n[94] There is certainly an argument to be made for the proposition that enquiries conducted \n\npursuant to the provisions of sections 417 and 418 of the Act and the performance by \n\nCommissioners of their duties to report thereunder constitute administrative action within \n\nthe meaning of section 24 of the Constitution. The Court of Appeal in England in the \n\nPergamon Press case140 a decision relied upon by Mr Marcus, held that enquiries of this \n\nkind, although merely investigative in nature, do adversely impact on the rights and \n\ninterests of the witness and accordingly have to be conducted in accordance with the \n\nprinciples of natural justice. Lord Denning said the following in this regard: \n\n \n\n140Re Pergamon Press Ltd [1971] Ch 388 (CA). \n\n \n \n\n103 \n\n\fACKERMANN J \n\nIt is true, of course, that the inspectors are not a court of law. Their proceedings are not \njudicial proceedings: see Re Grosvenor & West End Railway Terminus Hotel Co Ltd \n(1897) 76 LT 337. They are not even quasi-judicial, for they decide nothing; they \ndetermine nothing. They only investigate and report. They sit in private and are not \nentitled to admit the public to their meetings: see Hearts of Oak Assurance Co Ltd v \nAttorney-General [1932] A.C. 392. They do not even decide whether there is a prima \nfacie case, as was done in Wiseman v Borneman [1971] A.C. 297. \n\nBut this should not lead us to minimise the significance of their task. They have to make \na report which may have wide repercussions. They may, if they think fit, make findings \nof fact which are very damaging to those whom they name. They may accuse some; they \nmay condemn others; they may ruin reputations or careers. Their report may lead to \njudicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It \nmay bring about the winding up of the company, and be used itself as material for the \nwinding up: see Re SBA Properties Ltd [1967] 1 WLR 799. Even before the inspectors \nmake their report, they may inform the Board of Trade of facts which tend to show that \nan offence has been committed: see section 41 of the Act of 1967. When they do make \ntheir report, the Board are bound to send a copy of it to the company; and the board may, \nin their discretion, publish it, if they think fit, to the public at large. \n\nSeeing that their work and their report may lead to such consequences, I am clearly of \nthe opinion that the inspectors must act fairly. This is a duty which rests on them, as on \nmany other bodies, even though they are not judicial, nor quasi-judicial, but only \nadministrative: see Reg. v Gaming Board for Great Britain, Ex parte Benaim and Khaida \n[1970] 2 QB 417.141 \n\n \n\n \n\n \n\n \n\nSachs LJ expressed himself as follows: \n\n \n\n141Id 399D - H. \n\n \n \n\n104 \n\n\fACKERMANN J \n\nThe nature of the proceeding, the purposes for which the reports may be used, the matter \nwhich may be found in them and the extent of the publication being respectively as \ndescribed, it seems to me, as well as to Lord Denning MR, very clear that in the conduct \nof the proceedings there must be displayed that measure of natural justice which Lord \nReid in Ridge v Baldwin [1964] AC 40 at 65, described as \u2018insusceptible of exact \ndefinition, but what a reasonable man would regard as fair procedure in particular \ncircumstances. . . .\u2019 To come to that conclusion it is, as recent decisions have shown, not \nnecessary to label the proceedings \u2018judicial,\u2019 \u2018quasi-judicial,\u2019 \u2018administrative\u2019 or \n\u2018investigatory\u2019: it is the characteristics of the proceeding that matter, not the precise \ncompartment or compartments into which it falls - and one of the principal \ncharacteristics of the proceedings under consideration is to be found in the inspectors\u2019 \nduty, in their statutory fact-finding capacity, to produce a report which may be made \npublic and may thus cause severe injury to an individual by its findings.142 \n\n \n\n \n\n \n\n[95] \n\nI have no quarrel with the judgment, as far as it goes. But the problem which faced the \n\nCourt of Appeal in the Pergamon Press case differs from the problem confronting us. In \n\nthat case the issue was whether, at common law, the inspectors conducting the enquiry \n\nhad to act in accordance with the principles of procedural fairness. For this reason it was \n\nunnecessary for the Pergamon court to characterize the nature of the proceedings. On Mr \n\nMarcus\u2019 argument it is essential for us to do so, for the issue before us is not the common \n\nlaw one, but the constitutional question as to whether paragraphs (b) and (c) of section 24 \n\nof the Constitution apply to an enquiry under sections 417 and 418 of the Act. They only \n\napply if the nature of the enquiry is characterized as being \u201cadministrative action\u201d \n\nbecause it is only in relation to \u201cadministrative action\u201d that section 24 rights arise. \n\n \n \n\n142Id 402G - 403A. \n\n \n \n\n105 \n\n\f \n \n\nACKERMANN J \n\n[96] \n\nI have difficulty in seeing how the enquiry in question can be characterized as \n\nadministrative action. It forms an intrinsic part of the liquidation of a company, in the \n\npresent case the liquidation of a company unable to pay its debts. Cilliers, Benade et al \n\nsuccinctly describe the role of winding-up or liquidation as follows: \n\nThe existence of a company as a separate legal entity, which commences upon its \nincorporation, is terminated by dissolution of the company. In the course of its existence, \nhowever short, the company may have acquired rights and incurred liabilities which have \nto be dealt with before the company\u2019s existence can be terminated by dissolution. The \nprocess of dealing with or administering a company\u2019s affairs prior to its dissolution by \nascertaining and realising its assets and applying them firstly in the payment of creditors \nof the company according to their order of preference and then by distributing the \nresidue (if any) among the shareholders of the company in accordance with their rights, \nis known as the winding-up or liquidation of the company.143 (Footnotes omitted) \n\n \n\nIn Woodley v Guardian Assurance Co of SA Ltd144 Colman J, commenting on the \n\nsimilarity between insolvency and liquidation, said the following: \n\nI would go further and suggest that it is socially desirable that, as far as is practicable, all \nthe consequences of the liquidation of an insolvent company should be similar to those \n[of] the insolvency of an individual ... The winding-up of a company unable to pay its \ndebts is something closely akin to the winding-up of the estate of an insolvent \n\n \n\n143Corporate Law 2 ed at 28.01. \n\n1441976 1 SA 758 (W). \n\n \n \n\n106 \n\n\findividual.145 \n\n \n\n \n\n \n\nACKERMANN J \n\n[97] The enquiry in question is an integral part of the liquidation process pursuant to a court \n\norder and in particular that part of the process aimed at ascertaining and realising assets \n\nof the company. Creditors have an interest in their claims being paid and the enquiry can \n\nthus at least in part, be seen as part of this execution process. I have difficulty in fitting \n\nthis into the mould of administrative action. I also have some difficulty in seeing how \n\nsection 24(c) of the Constitution can be applied to the enquiry, because it is hard to \n\nenvisage an \u201cadministrative action\u201d taken by the Commissioner in respect whereof it \n\nwould make any sense to furnish reasons. The enquiry after all is to gather information to \n\nfacilitate the liquidation process. It is not aimed at making decisions binding on others. \n\n \n\n[98] Section 7(1) of the Constitution provides that Chapter 3 (and thus also section 24) binds \n\n\u201call legislative and executive organs of state at all levels of government\u201d. I again have \n\ndifficulty in seeing how a commissioner, appointed to conduct a section 417 enquiry, can \n\nbe described as an executive organ of state. This observation does not, and is not \n\n \n\n145Id 763E-F. \n\n \n \n\n107 \n\n\fintended to, anticipate the issue of the so-called \u201chorizontal\u201d application of Chapter 3 in \n\nlegal proceedings between individuals, an issue which is currently under consideration by \n\nACKERMANN J \n\nthis Court. \n\n \n\n \n\n[99] \n\nIt is in my view unnecessary, however, in the circumstances of this case, to provide an \n\nanswer to the question and to decide whether section 24, or any part thereof, applies to \n\nsection 417 and 418 enquiries and whether it applies to all such enquiries, whether \n\nconducted by the court, the Master or the commissioner.146 It is unnecessary, in my view, \n\nbecause even assuming that the enquiry constitutes administrative action, this does not \n\nassist the applicants in establishing that the provisions of sections 417 and 418 are \n\ninconsistent with section 24(b) or (c) of the Constitution. \n\n \n\n[100] The applicants say they are entitled to procedural fairness in terms of section 24(b) of the \n\nConstitution. Assuming that to be so, I can see nothing in any of the provisions of section \n\n417 or 418 which is inconsistent (either expressly or by implication) with such claim. If \n\nthe applicants are entitled to procedural fairness and were not accorded such fairness by \n\nthe commissioner, their remedy was to enforce this claim through the ordinary courts. \n\n \n\n146It is accordingly unnecessary to consider the correctness of the view expressed in Jeeva v Receiver of \nRevenue, Port Elizabeth 1995 2 SA 433 (SE) 443I where Jones J held that an enquiry under sections 417 and 418 \nconstituted administrative action for purposes of section 24 of the Constitution. \n \n \n\n108 \n\n\f \n \n\nACKERMANN J \n\n[101] The applicants also contend that they should at least have been afforded:- \n\n(a) \n\ndisclosure in terms of sections 24(b) and (c) of the reasons why they were being \n\nsummonsed, to have enabled them to make meaningful representations to the \n\ncourt, the Master or the Commissioner to dispense with their evidence or to test \n\nthe decision to summons them by appeal or review, if need be; and \n\n(b) \n\ndisclosure in terms of section 24(b) of the information required from them, to \n\nenable them to avoid interrogation by furnishing the requested information, \n\nrequested, or to prepare for their interrogation, if need be. \n\nOnce again I see nothing in the provisions of section 417 or 418 which stands in the way \n\nof this claim (assuming the applicants to be entitled to this demand) which they could not \n\nhave sought to enforce through the ordinary courts. The position, as I see it, is simply \n\nthis: there is nothing in these sections which is inconsistent with sections 24(b) or (c) of \n\nthe Constitution or the applicants\u2019 claims. If applicants have a remedy, and I express no \n\nopinion on that question, it lies along another course and in other courts; it does not lie in \n\nstriking down these sections in this Court. \n\n \n\nThe attack based on the right to fairness in civil litigation \n\n[102] The applicants contend that the mechanism under section 417 and particularly the second \n \n \n\n109 \n\n\fACKERMANN J \n\npart of section 417(2)(b), violates the Constitution to the extent that it enables the \n\nliquidator and creditors of a company in liquidation, to gain an unfair advantage over \n\ntheir adversaries in civil litigation, in violation of an implied constitutional right to \n\nfairness in civil litigation. \n\n \n\n \n\n[103] The appellants\u2019 argument proceeds as follows. The right of access to the courts is \n\nconstitutionally entrenched. In terms of section 22 of the Constitution, every person has \n\nthe right \u201cto have justiciable disputes settled by a court of law or, where appropriate, \n\nanother independent and impartial forum.\u201d Where an infringement of or threat to any \n\nentrenched right is alleged, the victim is moreover entitled in terms of section 7(4)(a) \u201cto \n\napply to a competent court of law for appropriate relief ...\u201d. These provisions do not \n\nexpressly provide for a fair trial, but imply it. The right of access to court cannot mean \n\nsimply the right to formally engage in a judicial process, however unfair it might be. In \n\norder to have substance and be meaningful, the right of access to court must imply the \n\nright of access to a fair judicial process. Because the parties in civil litigation usually \n\nseek to enforce claims for payment of money or delivery of some other form of property, \n\nthe civil judicial process is used to deprive an adversary of property despite its protection \n\nby section 28 of the Constitution. Other civil claims requiring the defendant to do or \n\n110 \n\n \n \n\n\fACKERMANN J \n\nrefrain from doing something will invariably bring into play other constitutionally \n\nentrenched rights. Consequently, because civil litigation is almost invariably directed at \n\nintrusion upon the parties\u2019 constitutionally protected rights, they are entitled to demand \n\nthat the process by which it is done, be procedurally fair. If not, the deprivation of the \n\nentrenched right is unconstitutional. The need for civil judicial process to be fair is \n\nemphasised by the Constitution\u2019s insistence that the judiciary be independent and \n\nimpartial,147 the prescribed oath of office,148 and the endorsement by the General \n\nAssembly of the United Nations of the principle that the judiciary should be independent \n\nand impartial.149 \n\n \n\n \n\n[104] These submissions seem to rest on the far-reaching assumption (to which, perhaps not \n\nsurprisingly, no argument was addressed) that all the rights entrenched in the \n\nConstitution operate directly and immediately on all legal relationships between private \n\nindividuals. This is certainly not the case in which to pronounce on this contention. I \n\nshall assume, purely hypothetically, in the applicants\u2019 favour, that this assumption is \n\n \n\n147Sections 96(2) and 99(5)(d) of the Constitution. \n\n148In schedule 3 to the Constitution which requires a commitment from judges to \u201cadminister justice to all \n\npersons alike without fear, favour or prejudice\u201d. \n\n149By resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, the UN endorsed the Basic \nPrinciples on the Independence of the Judiciary as adopted by the Seventh United Nations Congress on the \nPrevention of Crime and the Treatment of Offenders in 1985. \n\n \n \n\n111 \n\n\f \n\nsound. \n\n \n\nACKERMANN J \n\n[105] The applicants\u2019 attack in this regard fails to address the really crucial issue, namely, \n\nwhether the Constitution has constitutionalised civil procedure, wholly or in part. No-one \n\nwould dispute that civil procedure ought to aim at fairness between contending parties. \n\nThat is, however, not the issue. The question is whether the Constitution enacts such a \n\nnorm as an entrenched right. Over the years our courts \u201chave consistently adopted the \n\nview that words cannot be read into a statute by implication unless the implication is a \n\nnecessary one in the sense that without it effect cannot be given to the statute as it \n\nstands\u201d.150 It must be necessary in order \u201cto realise the ostensible legislative intention or \n\nto make the Act workable\u201d.151 It is also necessary to bear in mind that we are not \n\nconstruing a Constitution which was framed centuries ago, but one which came into force \n\non 27 April 1994. The Constitution as a whole and section 22 in particular, appears to be \n\nworkable and to realise the ostensible legislative intention, without the implication the \n\nappellants seek to rely upon. When section 22 is read with section 96(2), which provides \n\nthat \u201c[t]he judiciary shall be independent, impartial and subject only to this Constitution \n\n \n\n150Rennie NO v Gordon NNO 1988 1 SA 1 (A) 21E per Corbett JA. \n\n151Palvie v Motale Bus Service (Pty) Ltd 1993 4 SA 742 (A) 749C per Howie AJA. \n\n112 \n\n \n \n\n\f \n\nACKERMANN J \n\nand the law\u201d, the purpose of section 22 seems to be clear. It is to emphasise and protect \n\ngenerally, but also specifically for the protection of the individual, the separation of \n\npowers, particularly the separation of the judiciary from the other arms of the state. \n\nSection 22 achieves this by ensuring that the courts and other fora which settle justiciable \n\ndisputes are independent and impartial. It is a provision fundamental to the upholding of \n\nthe rule of law, the constitutional state, the \u201cregstaatidee\u201d, for it prevents legislatures, at \n\nwhatever level, from turning themselves by acts of legerdemain into \u201ccourts\u201d. One recent \n\nnotorious example of this was the High Court of Parliament Act.152 By constitutionalising \n\nthe requirements of independence and impartiality the section places the nature of the \n\ncourts or other adjudicating fora beyond debate and avoids the dangers alluded to by Van \n\n \n\n152See Minister of the Interior v Harris 1952 4 SA 769 (A). Another example is the Soviet Constitution of \n1977 which enacted a wide panoply of individual rights but which made wholly inadequate provision for their \nenforcement through independent courts. See Henkin The Rights of Man Today 66 - 70. \n\n \n \n\n113 \n\n\f \n\nden Heever JA in the Harris case.153 \n\n \n\nACKERMANN J \n\n \n\n153Id 792A-C where the learned Judge of Appeal said the following: \n\n\u201cFrom the second preamble to the South Africa Act it is clear that the authors of our \nconstitution had in mind the doctrine of the tria politica and the existence of some \njudicial power to enforce the constitutional guarantees. That seems to follow by \nnecessary intendment. But I do not think the further inference is justified that they had in \ncontemplation that the judicial power had for ever to be exercised by Courts constituted \nin a manner which satisfies certain criteria to the end that the independence, competence \nand justness of these tribunals be manifest and secured. I do not think they intended that \nCourts should always be of the kind to which they were accustomed. We have had many \nkinds of Courts; we have had trial by battle, by fire and by flood. We have heard of \nmodern \u2018people\u2019s Courts\u2019, in which the standard of justice was perhaps no higher than in \nthe judicium ferri candentis of the Lombards (Gengler, Germanische R-Denkm\u00e4ler, p. \n759).\u201d \n\n \n \n\n114 \n\n\f \n[106] A provision cannot ordinarily be implied if all the surrounding circumstances point to the \n\nACKERMANN J \n\nfact that it was deliberately omitted. That the framers of the Constitution were alert to \n\nissues of constitutionalising rules of procedural law and justice is evident from the \n\ndetailed criminal fair trial provisions in section 25(3). The internal evidence of the \n\nConstitution itself suggests that the drafters were well informed regarding provisions in \n\ninternational, regional and domestic human and fundamental rights instruments. Section \n\n6 of the European Convention on Human Rights explicitly confers the right to a fair and \n\npublic hearing, not only in a criminal trial, but also in regard to the determination of civil \n\nrights and obligations.154 Nearer home, article 12(1)(a) of the Namibian Constitution \n\nexpressly provides that \u201c[i]n the determination of their civil rights and obligations ... all \n\npersons shall be entitled to a fair and public hearing by an independent, impartial and \n\ncompetent Court or Tribunal established by law ...\u201d. In these circumstances an argument \n\ncould be made out that the framers deliberately elected not to constitutionalise the right \n\nto a fair civil trial. It is, however, unnecessary for purposes of deciding the present case \n\nto decide this issue. The only complaint that the applicants have raised on the fair trial \n\nissue is that the provisions of sections 417 and 418 result in their being treated unequally \n\nin respect of subsequent litigation between themselves and the company. This in \n\n \n\n \n\n154The principle of \u201cequality of arms\u201d, implicit in the right to a fair trial, has not been applied to situations \nsuch as the one we are considering in the case before us. See, in this regard, Van Dijk and Van Hoof Theory and \nPractice of the European Convention on Human Rights 2 ed (1990) 319 and Dombo Beheer BV v Netherlands 18 \n \n \n\n115 \n\n\fsubstance raises an equality issue which is best dealt with as such. \n\nACKERMANN J \n\n \n\n \n\nThe attack based on the right to equality in terms of section 8 \n\n[107] The applicants submit that the mechanism under section 417 of the Act, and in particular, \n\nthat part of section 417(2)(b) which provides that any answer given to any question at an \n\nenquiry may thereafter be used against the examinee, violates the Constitution to the \n\nextent that it enables the liquidator and creditors of a company in liquidation, to gain an \n\nunfair advantage over their adversaries in civil litigation in violation of the right to \n\nequality in terms of section 8. \n\n \n\n \nEHRR 213. \n\n \n \n\n116 \n\n\f \n[108] In Ferreira v Levin155 the abovementioned part of section 417(2)(b) was declared invalid \n\nACKERMANN J \n\nto the extent that it provided that an incriminatory answer could be used in criminal \n\nproceedings against the examinee,156 but the constitutionality of the use of such answer in \n\ncivil proceedings against the examinee was left open.157 \n\n \n\n[109] It was submitted on behalf of the applicants that sections 417 and 418 of the Act permit \n\nthe liquidator and creditors of the company in liquidation to invoke the inquiry \n\nmechanism with a view to civil litigation which is contemplated or even pending and that \n\nthey are entitled to do so in order to decide whether to institute or continue with the \n\nlitigation. Thus far the submission is unexceptionable. \n\n \n\n[110] It continues, however, by propounding that the impugned sections enable the liquidator \n\n \n\n155Supra note 2. \n\n156Id para 157. \n\n157Id para 154. \n\n \n \n\n117 \n\n\fACKERMANN J \n\nand creditors to get a complete preview of their opponent\u2019s case and to ensnare the \n\nlatter\u2019s witnesses in a procedure devoid of the normal mechanisms designed to identify \n\nand define issues, prepare for trial and receive meaningful legal advice on all stages of \n\nthe process. In this way, so the argument continues, the liquidator and creditors are \n\nafforded an overwhelming advantage in civil litigation, that they would never have \n\nenjoyed but for the company\u2019s liquidation, which inequality offends section 8 of the \n\nConstitution. \n\n \n\n \n\n[111] I would, by way of preliminary observation, point out once again that the latter part of \n\nthe submission ignores the supervisory roll of the Supreme Court to ensure that the \n\nexamination is not conducted oppressively, vexatiously or unfairly to which I have made \n\nreference more than once in this judgment. \n\n \n\n[112] Nevertheless it is true to say that liquidators are by means of this mechanism, entitled to \n\nexamine their opponents in civil litigation (actual or prospective) or their opponents\u2019 \n\nwitnesses or recalcitrant potential witnesses and to obtain discovery of documents from \n\nsuch persons at a time and in a way not open to their opponents or prospective opponents. \n\nThe question is whether this consequence offends section 8 of the Constitution. \n\n \n \n \n\n118 \n\n\f \n[113] In my opinion the enquiry is concerned with investigating whether the \u201cright to equality \n\nACKERMANN J \n\nbefore the law\u201d in section 8(1) is compromised by the statutory mechanisms in question. \n\nAdopting an approach similar to that of Didcott J in giving judgment for this Court in S v \n\nNtuli,158 I consider it unnecessary for present purposes to consider the question whether \n\nsubsections (1) and (2) of section 8 embody separate rights, or to look at the prohibition \n\nagainst unfair discrimination which subsection (2) pronounces or to consider whether the \n\nlatter is an independent provision or a corollary or concretization of the former. I also \n\nconsider it unnecessary to consider the relationship between the right to equality before \n\nthe law and the right to equal protection of the law in section 8(1). \n\n \n\n[114] No example, foreign or otherwise, was cited to us where, by way of legislation or judicial \n\npronouncement, the use in civil proceedings of compelled testimony in interrogation \n\nproceedings analogous to those under sections 417 and 418 of the Act, has been \n\nprohibited. \n\n \n\n \n\n158Case CCT 17/95 of 8 December 1995 para 18. \n\n \n \n\n119 \n\n\f \n[115] At English common law the privilege against self-incrimination does not protect \n\nACKERMANN J \n\nwitnesses from answering questions which might have the effect of exposing them to \n\ncivil liability.159 The privilege against self-incrimination has been specifically abrogated \n\nin bankruptcy proceedings by rule 6.175 of the Insolvency Rules 1986 which provides \n\nthat at public examinations the bankrupt is required to answer all questions put by the \n\ncourt or which the court allowed to be put and, by virtue of section 433 of the Insolvency \n\nAct 1986, the written record of a bankrupt\u2019s public examination could then be used in \n\nevidence in any proceedings against him.160 \n\n \n\n[116] In Australia the possible liability of accountants to the company based on the negligent \n\npreparation of a financial report has been held to be a legitimate subject of the enquiry \n\nand there is no objection in principle to the use of section 597 of the Australian \n\nCorporations Law to obtain information to be used in litigation proposed or even \n\n \n\n \n\n159Re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235 (No 2) [1977] \n3 All ER 717 (CA) at 721c - h. See also Blunt v Park Lane Hotel Limited and Another [1942] 2 KB 253 and \nHalsbury\u2019s Laws of England 4 ed (1976) Vol 17 para 240. \n\n160See R v Kansal [1992] 3 All ER 844 (CA) 850a - f. See also Schmitthoff (ed) Palmer\u2019s Company Law vol \n\n2 15222 to 15222/1. \n\n \n \n\n120 \n\n\fpending.161 \n\n \n\n \n\nACKERMANN J \n\n \n\n \n\n161Supra note 50 at 255 - 256. \n\n \n \n\n121 \n\n\f \n[117] In Canada questions concerning the use of forced testimony in civil proceedings do not \n\nACKERMANN J \n\nreally arise. The reason for this is that the privilege against self-incrimination has been \n\ncomprehensively replaced in that country with a use immunity. There is indeed very little \n\nroom for reliance on the privilege against self-incrimination at all in Canada. Section 5(1) \n\nof the Canada Evidence Act162 makes it very clear that \u201cno witness shall be excused from \n\nanswering any question on the ground that the answer may tend to incriminate him, or \n\nmay tend to establish his liability to a civil proceeding at the instance of the Crown or \n\nany person.\u201d In exchange, a use immunity in respect of criminal proceedings is granted \n\nby section 5(2). Section 13 of the Charter, similarly, only confers a use immunity in \n\nrelation to \u201cother proceedings\u201d where there is a possibility of incrimination, ie \n\nproceedings with penal consequences.163 \n\n \n\n[118] The position seems to be the same in the United States at least in so far as a use immunity \n\nis conferred on examinees. That is, the use immunity merely protects the examinee from \n\n \n\n162R.S.C. 1985, c. C-5. \n\n \n\n163Hogg Constitutional Law of Canada 3 ed (1992) 1142. \n\n \n \n\n122 \n\n\fACKERMANN J \n\nuse and derivative use in subsequent criminal proceedings. United States Bankruptcy \n\nmatters are regulated by the Bankruptcy Reform Act of 1978. The Federal Rules of \n\nBankruptcy Procedure, Rule 2004 provides for the examination of persons with \n\ninformation relating to a bankruptcy. The scope of the examination is extremely broad \n\nand wide-ranging. The Fifth Amendment privilege applies in respect of the examination, \n\nbut section 6003 of Title 18 of the United States Code provides that a court may issue an \n\norder compelling a witness to testify even when the Fifth Amendment privilege against \n\nself-incrimination is claimed. Part V of Title 18 governs the granting of immunity to \n\nwitnesses before Federal tribunals, including administrative and some independent \n\nfederal agencies. Section 6002 then provides for immunity from prosecution in the \n\nfollowing way: \n\n... the witness may not refuse to comply with the order on the basis of his privilege \nagainst self-incrimination; but no testimony or other information compelled under the \norder (or any information directly or indirectly derived from such testimony or other \ninformation) may be used against the witness in a criminal case, except a prosecution for \nperjury, giving a false statement, or otherwise failing to comply with the order. \n(Emphasis added) \n\n \n\n \n\n \n\n[119] The constitutionality of Title 18 of the US Code was clearly established by the Supreme \n\nCourt in Kastigar et al v United States.164 The court, in considering the constitutionality \n\nof the Organized Crime Control Act of 1970, of which part V of Title 18 is a part, held \n\n \n \n\n123 \n\n\fthat the government may compel testimony from a witness who invokes the Fifth \n\nAmendment by conferring on the witness use and derivative use immunity in criminal \n\nACKERMANN J \n\nproceedings only. \n\n \n\n \n\n[120] There is accordingly no indication that the use of compelled testimony in civil \n\nproceedings is prohibited or held to be unconstitutional in other open and democratic \n\nsocieties based on freedom and equality. \n\n \n\n[121] Turning them to principle and the application of section 8(1) of the Constitution, I fail to \n\nsee how the applicants\u2019 submission can be sustained. As I have endeavoured to show in \n\nthis judgment, the very purpose of the proceedings under sections 417 and 418 of the Act \n\nis in order to provide the company with information about itself, its own affairs, its own \n\nclaims and its own liabilities, which it cannot get from its erstwhile \u201cbrain\u201d and other \n\n\u201csensory organs\u201d or other persons who have a public duty to furnish such information but \n\nare unwilling or reluctant to do so fully and frankly. I remain alive to the thrust of the \n\napplicants\u2019 argument that, as erstwhile auditors of the company, they co-operated fully \n\n \n\n164406 US 441 (1972) 453. \n\n \n \n\n124 \n\n\fACKERMANN J \n\nand were at all times prepared to co-operate fully with the liquidators and their legal and \n\nother advisors to supply all relevant information required. If in the light hereof it was \n\noppressive, or vexatious or unfair to summons or interrogate the applicants in the way \n\nthey were summoned or interrogated, their remedy was, as I have repeatedly stated, to \n\napproach the Supreme Court. Their alleged harassment and unfair treatment would not be \n\nin consequence of the substantive content of the provisions of sections 417 and 418 of the \n\nAct, but the result of their improper application. \n\n \n\n \n\n[122] As I see the matter, neither the purpose nor the effect of sections 417 or 418, is to place \n\nthe company in a better position than its debtors or creditors. The purpose is the opposite, \n\nnamely to place the company in liquidation (because of its resulting disabilities) on such \n\na footing that it can litigate on equal terms with its debtors and creditors. Sections 417 \n\nand 418 do not result in the applicants\u2019 being denied the section 8(1) right to equality or \n\nthe equal protection of the law or the section 8(2) right not to be unfairly discriminated \n\nagainst. These sections are not inconsistent with section 8 and accordingly the applicants\u2019 \n\nattack on this ground cannot succeed. \n\n \n\n[123] The applicants\u2019 discrete and narrow challenge of section 417(2)(b) on the basis that it \n\nauthorises the use of compelled self-incriminating testimony at the enquiry in subsequent \n\n125 \n\n \n \n\n\fcriminal proceedings against the examinee would, in the light of the judgment in \n\nFerreira v Levin, have been successful to the extent found and ordered in that judgment. \n\nACKERMANN J \n\nNo point would be served by repeating that order. \n\n \n\nCosts \n\n[124] As far as the question of costs is concerned the applicant is not, for the same reasons \n\nmentioned in Ferreira v Levin (No 2),165 substantially successful, for the extent to which \n\nsection 417(2)(b) of the Act is unconstitutional does not achieve anything for the \n\napplicant in his dispute with the respondents, for he is obliged to answer all questions \n\notherwise lawfully put to him even if the answers thereto might tend to incriminate him. \n\nThe respondents, it is true, have successfully opposed all other grounds of attack on the \n\nconstitutionality of sections 417 and 418 of the Act. But in this case too, the respondents \n\ndid nothing to oppose the referral of the other issues to this Court; in fact they consented \n\nto the referral. Had the matter been opposed and full argument addressed to Fagan DJP, \n\nthe other issues might not have been referred.166 Under these circumstances justice and \n\nfairness would also best be served in this case if all the parties were to pay their own \n\ncosts. \n\n \n\n165Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others (No 2) CCT 5/95, the \n\njudgment on costs delivered on 19 March 1996, paras 5 and 7. \n\n166Ferreira v Levin (No2) supra note 2 para 10. \n\n126 \n\n \n\n \n \n\n\f \n \n\nThe order \n\nACKERMANN J \n\n[125] In the result, the following order is made: \n\n1. \n\n Save to the extent that the provisions of section 417(2)(b) of the Companies Act \n\n61 of 1973 (as amended) were declared to be invalid by this Court\u2019s order of 6 \n\nDecember 1995 in Ferreira v Levin NO and Others, Vryenhoek and Others v \n\nPowell NO and Others (CCT 5/95), the provisions of sections 417 and 418 of the \n\nCompanies Act are declared to be not inconsistent with the Constitution of the \n\nRepublic of South Africa Act, 200 of 1993 (as amended). \n\n \n\n \n\n2. \n\nAll the parties are to pay their own costs. \n\nChaskalson P, Mahomed DP, Madala J, Langa J, Mokgoro J, Ngoepe AJ and Sachs J concur in \n\nthe above judgment of Ackermann J. \n\n \n\n[126] KRIEGLER J: I have had the privilege of studying the learned and comprehensive \n\njudgment prepared in this matter by my colleague Ackermann J. I concur in the order as \n\nformulated by him; I also subscribe to his rejection of each of the lines of attack on the \n\n \n \n\n127 \n\n\fconstitutional validity of the sections in question.1 Although I am in substantial \n\nagreement with my colleague, I do wish to reserve my position in respect of those parts \n\nof his reasoning which I specify below. \n\nKRIEGLER J \n\n \n\n \n\n[127] AD paragraphs [17] to [34] \n\n \n\n1Sections 417 and 418 of the Companies Act 61 of 1973, henceforth referred to as \u201cthe sections\u201d. \n\n \n\n \n \n\n128 \n\n\fKRIEGLER J \n\nThe differences between our Companies Act and those of the countries reviewed are so \n\nmaterial that I prefer to seek no guidance in those quarters.2 In any event Ackermann J \n\nexpresses views (in paragraphs [46] and [47] of his judgment) regarding the power and \n\nduty of the Supreme Court, at common law and now under Chapter 3 of the Constitution, \n\nwhich in my respectful view are dispositive. Consequently I prefer to base my \n\nconcurrence solely on the reasoning contained in paragraphs [46] and [47]. \n\n \n\n \n\n[128] The attack based on section 11(1) of the Constitution \n\n \n\n2I have in mind particularly that the sections were amended (by sections 9 and 10 of Act 29 of 1985) so as \n\nto afford the Master extensive powers in relation to examinations. \n\n \n \n\n129 \n\n\fKRIEGLER J \n\nIn Ferreira v Levin3 there was a difference of opinion as between my colleagues \n\nregarding the content and scope of \u201cthe right to freedom and security of the person\u201d \n\ncontained in section 11(1) of the Constitution, as also regarding its applicability to \n\nsection 417(2)(b) of the Companies Act. The line I took rendered it unnecessary to \n\nparticipate in that debate. The issue arises again in the present case, Ackermann J \n\naccepting, albeit for the time being, the majority view in Ferreira v Levin. My colleague \n\nO\u2019Regan J, who had reserved her position in relation to the purview of section 11(1) in \n\nthat case, has now prepared a judgment in the instant case making plain why, and to what \n\nextent, her perception of the particular part of section 11(1) differs from that of the \n\nmajority in Ferreira v Levin. I adhere to the view I expressed in that case.4 \u201cIt is only if \n\nand when the production of evidence obtained pursuant to a section 417 enquiry \n\njeopardizes the fairness of the trial that the Constitution can be invoked.\u201d That however, \n\ndoes not stand in the way of my endorsing what Ackermann J says in paragraphs [51] to \n\n[55] of his judgment in this case. Whatever the scope and content of section 11(1) may \n\nbe, and whatever my view on the standing of an examinee under section 417 to invoke \n\nconstitutional protection under section 25(3), I concur with the reasoning and conclusion \n\nof Ackermann J in relation to the argument advanced on behalf of the applicants under \n\nthe rubric of section 11(1). \n\n \n\n \n\n[129] The attack based on section 13 of the Constitution \n\nAckermann J deals with this topic in paragraphs [56] to [92] of his judgment. He \n\n \n\n \n\n3Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) BCLR 1 (CC). \n\n4In paragraph [195]. \n\n \n \n\n130 \n\n\fKRIEGLER J \n\ncommences with a discussion of the impact of sections 35(2) and 35(3) of the \n\nConstitution on the proper interpretation and application of the sections. This leads him \n\nto the conclusion (in paragraph [64] of the judgment) that \u201cthere is no provision in \n\nsection 417 or section 418 which, when properly construed in the light of sections 35(2) \n\nand (3) of the Constitution, is inconsistent with such right\u201d. I agree with that conclusion \n\nand with the reasoning on which it is based. I also agree with the extension of that \n\nreasoning (in paragraph [92] of the judgment) to the compulsory production of \n\ndocuments relevant to a legitimate enquiry under section 417. \n\n \n\n \n\n[130] In paragraphs [65] to [97], however, my colleague conducts an investigation of privacy, a \n\nconcept which he aptly calls \u201camorphous and elusive\u201d. In the course thereof he also \n\nconsiders the related question, equally vexing, of seizure of private possessions. I have \n\nno doubt that the research and analysis he has done will in due course prove invaluable, \n\nbut at this juncture I do not consider it necessary to accompany him. And considering it \n\nunnecessary, it is necessary that I do not do so. I am content to rest with the conclusion \n\nfounded on a proper reading of the sections in the light of the provisions of sections 35(2) \n\nand (3) of the Constitution. \n\n \n\n[131] The attack based on section 24 of the Constitution \n\nMy learned colleague addresses this topic in paragraphs [93] to [101] of his judgment, \n\nconcluding that there is nothing in the sections which is inconsistent with the protection \n\nof procedural fairness contained in sections 24(b) or (c) of the Constitution. I agree with \n\nthat conclusion and with the foundational reasons set out in paragraphs [100] and [101] \n\n \n \n\n131 \n\n\fKRIEGLER J \n\nof the judgment. Properly applied, the mechanism of the sections should entail no \n\nunfairness; if its improper application threatens to do so, the Supreme Court can \n\nintervene prophylactically. I would, however, prefer not to endorse the doubts expressed \n\nby Ackermann J (in paragraphs [96] to [98] of his judgment) on the question whether an \n\nenquiry under the sections is \u201cadministrative action\u201d as contemplated by section 24 of the \n\nConstitution. Nor do I wish to commit myself to agreeing, if only with a doubt, as to \n\nwhether a commissioner appointed under section 417 is an executive organ of state. My \n\nesteemed colleague\u2019s misgivings may be well founded, but I wish to reserve my \n\njudgment on the two points for the day when either may be decisive. \n\n \n\n \n\n[132] The attack based on section 8 of the Constitution \n\nWith regard to this aspect of the case (dealt with in paragraphs [107] to [122] of the \n\njudgment of Ackermann J) my approach is much the same as it was regarding the section \n\n11(1) attack. I agree with the conclusion; I agree with the identification and logical \n\nanalysis of the principle involved (in paragraphs [121] and [122]) but prefer to express no \n\nview on the possible lessons to be learnt from other jurisdictions. That I do, not because \n\nof a disregard for section 35(1) of the Constitution, nor in a spirit of parochialism. My \n\nreason is twofold. First, because the subtleties of foreign jurisdictions, their practices and \n\nterminology require more intensive study than I have been able to conduct. Even on a \n\nsuperficial view, there seem to me to be differences of such substance between the \n\nstatutory, jurisprudential and societal contexts prevailing in those countries and in South \n\nAfrica as to render ostensible analogies dangerous without a thorough understanding of \n\nthe foreign systems. For the present I cannot claim that degree of proficiency. In any \n\n \n \n\n132 \n\n\fevent the logical analysis by Ackermann J of the interaction between the sections and the \n\nconstitutional provisions sought in aid is really dispositive of the claim. \n\nKRIEGLER J \n\n \n\n \n\n[133] The second reason is that I wish to discourage the frequent - and, I suspect, often facile - \n\nresort to foreign \u201cauthorities\u201d. Far too often one sees citation by counsel of, for instance, \n\nan American judgment in support of a proposition relating to our Constitution, without \n\nany attempt to explain why it is said to be in point. Comparative study is always useful, \n\nparticularly where courts in exemplary jurisdictions have grappled with universal issues \n\nconfronting us. Likewise, where a provision in our Constitution is manifestly modelled \n\non a particular provision in another country\u2019s constitution, it would be folly not to \n\nascertain how the jurists of that country have interpreted their precedential provision. The \n\nprescripts of section 35(1) of the Constitution are also clear: where applicable, public \n\ninternational law in the field of human rights must be considered, and regard may be had \n\nto comparable foreign case law. But that is a far cry from blithe adoption of alien \n\nconcepts or inapposite precedents. My colleague has been at pains to discern the \n\nprinciples applied by comparable courts in foreign jurisdictions, to establish whether they \n\ncan be applied here and, if so, to what extent and subject to what modifications. That is \n\nwhat section 35(1) of the Constitution enjoins and sound comparative law study dictates. \n\nIt is merely because I have not independently verified the exercise, that I refrain from \n\nconcurring. \n\n \n\nDidcott J concurs in the above judgment of Kriegler J. \n\n \n\n \n \n\n133 \n\n\f \n[134] O\u2019REGAN J: I have had the opportunity of reading the judgment of Ackermann J. I \n\n \n\nconcur in the order that he proposes for the reasons given in this judgment. The facts in \n\nthis case are set out in the judgment of Ackermann J. \n\n \n\n[135] The applicants challenge sections 417 and 418 on the grounds that the procedure \n\nauthorised by those provisions violates the right to freedom and security of the person \n\n(section 11(1)); the right to personal privacy (section 13); the right to administrative \n\njustice (section 24); an implied right to fairness in civil litigation and the equality \n\nguarantee (section 8). This judgment is concerned, in the main, with the challenge based \n\non section 11(1). \n\n \n\n[136] The applicants pointed to the following aspects of sections 417 and 418 examinations \n\nwhich they argued render such examinations unconstitutional. Witnesses before such \n\nenquiries may be \n\n\u2022 \n\n\u2022 \n\n\u2022 \n\n\u2022 \n\nforced to go to a place where they do not want to be; \n\nforced to produce private books and documents that they want to keep \n\nconfidential; \n\nforced to reveal confidential information that they want to keep private; \n\nforced to give evidence by the production of documents and by their own oral \n\ntestimony, by which they incriminate themselves, and which can then be used to \n\nvest them with civil liability; \n\n\u2022 \n\nforced to do so without being heard on the decision which subjected them to the \n\nmechanism; \n\n \n \n\n134 \n\n\f \n\n\u2022 \n\n\u2022 \n\n \n\nforced to do so in circumstances which render meaningful and effective legal \n\nrepresentation all but impossible; and \n\nexposed to civil liability on their own evidence, extracted under legal compulsion \n\nin a process devoid of the normal checks and balances built into litigation. \n\n[137] Section 417 of the Act has already been the subject of constitutional challenge before this \n\ncourt. In Ferreira v Levin NO and Others 1996 1 BCLR 1 (CC), this court held that the \n\nprovisions of section 417(2)(b) of the Act were invalid to the extent that the words \n\n`and any answer given to any such question may thereafter be used in evidence against \nhim' in section 417(2)(b) apply to the use of any such answer against the person who \ngave such answer, in criminal proceedings against such person, other than proceedings \nwhere that person stands trial on a charge relating to the administering or taking of an \noath or the administering or making of an affirmation or the giving of false evidence or \nthe making of a false statement in connection with such questions and answers or a \nfailure to answer lawful questions fully and satisfactorily. (At para 157.) \n\n \n\n \n\n[138] The applicants argued that the obligation placed upon witnesses to go to an enquiry and \n\ngive evidence and produce documents at that enquiry against their will, which may result \n\nin exposing those witnesses to civil liability, was in breach of section 11(1) of the \n\nConstitution. Section 11(1) of the Constitution provides that: \n\nEvery person shall have the right to freedom and security of the person, which shall \ninclude the right not to be detained without trial. \n\n \n\n \n\n[139] In Ferreira v Levin NO and Others 1996 1 BCLR 1 (CC), two judges of this court held \n\nthat the portion of section 417(2)(b) which provided that incriminating evidence given by \n\na witness at a section 417 enquiry would be admissible in a subsequent prosecution of \n\nsuch witness was in breach of section 11(1). Ackermann J held that freedom as \n\n \n \n\n135 \n\n\f \n\nentrenched in section 11(1) should be interpreted as follows: \n\nAlthough freedom is indispensable for the protection of dignity, it has an intrinsic \nconstitutional value of its own. It is likewise the foundation of many of the other rights \nthat are specifically entrenched. Viewed from this perspective, the starting point must be \nthat an individual\u2019s right to freedom must be defined as widely as possible, consonant \nwith a similar breadth of freedom for others. (At para 49.) \n\n \n\nLater in the judgment he states that: \n\nEven though the freedom rights in section 11(1) are residual freedom rights, there is no \njustification for not giving these residual freedom rights the broad and generous \ninterpretation I have suggested. They constitute the residual rights of individuals (where \nsuch or similar rights are not protected elsewhere in Chapter 3) not to have \u2018obstacles to \npossible choices and activities\u2019 placed in their way by (for present purposes we need \nnot, as already indicated, go any further) the State. (At para 69.) \n\nAckermann J held that the challenged portion of section 417(2)(b) restricted the choices \n\navailable to witnesses at a section 417 enquiry in breach of section 11(1). Such limitation \n\nhe found not to be justifiable in terms of section 33. \n\n \n\n \n\n \n\n[140] Sachs J agreed that the challenged portion of section 417(2)(b) offended against \n\nsection 11(1) of the Constitution although he approached section 11(1) somewhat \n\ndifferently to Ackermann J: \n\nThe words of section 11 should then be construed in such a manner as to provide \nconstitutionally defensible space against invasions of freedom of a kind analogous in \ncharacter and intensity to the imposition of physical restraint. Legal traditions, both \npositive and negative, would help to define what this analogous or penumbral area would \ninclude: legal institutions developed and applied in the past with a view to curtailing \nabusive State action, would readily fit; similarly, negative memories of past oppressive \nState behaviour in our country and elsewhere, would help define whether or not a \nfreedom issue is being raised. The first step is to establish the existence of what is a real \nor substantial invasion of freedom, and not a normal regulatory act; only when this is \ndone should the need to justify the infringement arise. Once a substantial breach of this \nkind has been shown to exist, however, the scrutiny for justification required by section \n33(1) can be truly stringent. (At para 257.) \n\n \n\nLike Ackermann J, Sachs J held that the challenged portion of section 417(2)(b) \n\nconstituted an unjustifiable infringement of section 11. \n\n \n \n\n136 \n\n\f \n \n\n \n\n[141] Eight members of the court, however, held that the challenged portion of \n\nsection 417(2)(b) was in breach of section 25(3), the right to a fair trial, in that it \n\npermitted the admission of self incriminating evidence given by a witness at a section \n\n417 enquiry at a subsequent criminal trial. Seven members of the court held that the \n\nprovision was not in breach of section 11(1). Chaskalson P, speaking for the majority, \n\ntook a narrower view of section 11(1) than that adopted by Ackermann J and Sachs J. \n\nThis narrow view was premised upon the level of justification stipulated for section 11(1) \n\nby section 33 of the Constitution. Chaskalson P stated: \n\nIn terms of our Constitution we are enjoined to protect the freedom guaranteed by \nsection 11(1) against all governmental action that cannot be justified as being necessary. \nIf we define freedom in the context of section 11(1) in sweeping terms we will be called \nupon to scrutinise every infringement of freedom in this broad sense as being \n\u2018necessary\u2019. We cannot regulate this power by mechanisms of different levels of scrutiny \nas the courts of the United States do, nor can we control it through the application of the \nprinciple that freedom is subject to laws that are consistent with the principles of \n\u2018fundamental justice\u2019, as the Canadian courts do. (At para 181.) \n\nLater in his judgment he held: \n\nThis does not mean that we must necessarily confine the application of section 11(1) to \nthe protection of physical integrity. Freedom involves much more than that, and we \nshould not hesitate to say so if the occasion demands it. But, because of the detailed \nprovisions of chapter 3, such occasions are likely to be rare. If despite the detailed \nprovisions of Chapter 3 a freedom of a fundamental nature which calls for protection is \nidentified, and if it cannot find adequate protection under any of the other provisions in \nChapter 3, there may be a reason to look to section 11(1) to protect such a right. But to \nsecure such protection, the otherwise unprotected freedom should at least be \nfundamental and of a character appropriate to the strict scrutiny to which all limitations \nof section 11 are subjected. (At para 184.) \n\n \n\n \n\n \n\n[142] Mokgoro J also did not accept the approach adopted by Ackermann J. She stated: \n\nAttributing so broad a meaning to \u201cfreedom\u201d in this section, has the effect of extending \nit too far beyond the perimeters of \nphysical integrity. That \u201cfreedom\u201d in \nsection 11(1) means freedom in the sense \n\n \n \n\n137 \n\n\f \n\nof physical integrity emerges from the \nplain meaning of the text and not from the \nnarrowing of an all-embracing freedom \nright. This, however, does not mean that \nsection 11(1) cannot be given a broad \nmeaning sufficient to provide protection \nto an unenumerated right akin to freedom \nof the person, within the context of the \nrest of Chapter 3. (At para 209.) \n\n \n\nShe supported the approach taken by Chaskalson P, subject to the reservations that, in her \n\nview, section 11(1) should be restricted to physical integrity (at para 210) and that the \n\nsection could not generally be interpreted to give protection to unenumerated freedom \n\nrights (at para 212). Like the majority of the court, I considered section 417(2)(b) to be in \n\nbreach of section 25(3). I expressed no view as to whether section 417(2)(b) was in \n\nbreach of section 11(1) (at para 244.) \n\n \n\n \n\n \n\n[143] In this case, it is necessary to determine whether sections 417 and 418 are in breach of \n\nsection 11(1). Ackermann J, writing for the majority, has for the purposes of this case, \n\nbased his reasoning to a large extent on the approach approved by the majority in \n\nFerreira\u2019s case. My approach to section 11(1) is different to that adopted by the majority \n\nin Ferreira\u2019s case. \n\n \n\n[144] Section 11(1) protects the freedom and security of the person and specifically provides \n\nthat no person may be detained without trial. The specific prohibition of detention \n\nwithout trial reminds us of the government\u2019s frequent violation of individual freedom in \n\nthe years of apartheid. There were many statutes passed by the former government which \n\nauthorised detention without trial. Those statutes were extensively used and substantial \n\n \n \n\n138 \n\n\fnumbers of people were detained without trial. Fundamental to the new Constitution, \n\nthen, is a rejection of such deprivation of freedom. However, section 11(1) cannot be \n\nconfined to the terms of the specific prohibition of detention without trial. The section \n\nhas a greater ambit. \n\n \n\n \n\n \n\n[145] In my view, freedom has two inter-related constitutional aspects: the first is a procedural \n\naspect which requires that no-one be deprived of physical freedom unless fair and lawful \n\nprocedures have been followed. Requiring deprivation of freedom to be in accordance \n\nwith procedural fairness is a substantive commitment in the Constitution. The other \n\nconstitutional aspect of freedom lies in a recognition that, in certain circumstances, even \n\nwhen fair and lawful procedures have been followed, the deprivation of freedom will not \n\nbe constitutional, because the grounds upon which freedom has been curtailed are \n\nunacceptable. \n\n \n\n[146] Both these aspects of freedom find recognition in clauses of the Constitution other than \n\nsection 11(1). To that extent, section 11(1) is a residual clause. Section 25 is the principal \n\nprovision in chapter 3 that requires procedural fairness when a person is deprived of \n\nphysical freedom. It contains detailed rules which must be followed to protect the rights \n\nof persons who have been detained, arrested or charged. Section 11(1), which contains no \n\ndetailed procedures or rules, other than the prohibition of detention without trial, is \n\nsupplementary to section 25. In cases where people are deprived of physical freedom in \n\ncircumstances not directly governed by section 25, section 11(1) will require that fair \n\nprocedures be followed, as was held in Coetzee v Government of the Republic of \n\n \n \n\n139 \n\n\f \n\nSouth Africa 1995 4 SA 631 (CC); 1996 1 BCLR 1 (CC). Of course, the nature of the fair \n\nprocess required in each case will depend on a variety of factors including the ground \n\nupon which the deprivation of freedom is based. \n\n \n\n[147] Similarly, the other aspect of freedom finds express recognition in specific rights clauses \n\nsuch as expression (section 15), assembly (section 16), association (section 17), religion \n\n(section 14) and others. Section 11(1), however, will protect a residual arena of freedom. \n\nI do not believe that this residual scope of the right should be interpreted as broadly and \n\ngenerously as possible. To this extent I disagree, respectfully, with Ackermann J. I also \n\ndisagree, respectfully, with Mokgoro J that the right to freedom in section 11(1) should \n\nbe limited to physical freedom. It is likely, given the clear entrenchment of freedoms \n\nsuch as expression, belief and association, that the residual scope of section 11(1) will \n\nlargely concern physical freedom, but I am unconvinced that it should be limited to \n\nphysical freedom. \n\n \n\n[148] In my view, a purposive interpretation of this right would focus on the general \n\ninterpretation provision in chapter 3 - section 35(1). Section 35(1) states: \n\nIn interpreting the provisions of this Chapter a court of law shall promote the values \nwhich underlie an open and democratic society based on freedom and equality ...\u2019. \n\n \n\nIn interpreting the scope of section 11(1), it will be necessary to identify the values which \n\nunderpin an open and democratic society based on freedom and equality. In undertaking \n\nthat exercise, I agree with Ackermann J1 and Sachs J 2 that section 11(1) needs to be \n\n \n\n1 Ferreira v Levin NO and others 1996 1 BCLR 1 (CC) at paragraphs 47 - 51. \n\n2 Coetzee v Government of Republic of South Africa 1996 1 SA 631 (CC); 1995 10 BCLR 1382 (CC) at \n\nparagraph 43. \n \n \n\n140 \n\n\f \n\nunderstood in the context of the fundamental commitment to dignity expressed in our \n\nConstitution in section 10. Our Constitution represents an emphatic rejection of a past in \n\nwhich human dignity was denied repeatedly by an authoritarian and racist government. \n\nThe Constitution commits our society to a transition to a new society based on principles \n\nof democracy, freedom and equality. The recognition of the value of human beings is a \n\ncardinal principle of the Constitution and one which will inform the interpretation of \n\nmany of the specific rights in the Constitution. \n\n \n\n \n\n[149] However, the rights in chapter 3 need to be interpreted in the understanding too that a \n\ndemocratic society based on freedom and equality remains an aspiration. The freedom \n\nand equality which the Constitution values has not yet been realised for all South \n\nAfricans. An enduring legacy of the past is profound inequality. The poverty in which \n\nmany of our citizens live materially compromises their enjoyment of rights of freedom \n\nand equality. There is much to be done, by the state and citizens, to ensure that the \n\nentrenched rights have meaning in the lives of all South Africans. \n\n \n\n[150] In my view, the democratic society contemplated by the Constitution is not one in which \n\n freedom would be interpreted as licence, in the sense that any invasion of the capacity of \n\nan individual to act is necessarily and inevitably a breach of that person\u2019s constitutionally \n\nentrenched freedom.3 Such a conception of freedom fails to recognise that human beings \n\nlive within a society and are dependent upon one another. The conception of freedom \n\nunderlying the Constitution must embrace that interdependence without denying the \n\n \n\n3 See R M Dworkin Taking Rights Seriously (1977) 262 -3. \n\n \n \n\n141 \n\n\f \n\nvalue of individual autonomy. It must recognise the important role that the state, and \n\nothers, will play in seeking to enhance individual autonomy and dignity and the \n\nenjoyment of rights and freedoms. The preamble to the Constitution states: \n\nWhereas there is a need to create a new order in which all South Africans will be entitled \nto a common South African citizenship in a sovereign and democratic constitutional state \nin which there is equality between men and women and people of all races so that all \ncitizens shall be able to enjoy and exercise their fundamental rights and freedoms. \n\n \n\n \n\n \n\n[151] It acknowledges the need to develop a new society in which all citizens can exercise their \n\nfundamental rights and freedoms. We know that this will not be an easy task. The \n\ninterpretation of the rights in chapter 3 must be in sympathy with that undertaking. \n\nAccordingly, I agree with the following statement of Sachs J in Ferreira\u2019s case: \n\nThe reality is that meaningful personal interventions and abstinences in modern society \ndepend not only on the State refraining from interfering with individual choice, but on \nthe State helping to create conditions within which individuals can effectively make such \nchoices. Freedom and personal security are thus achieved both by protecting human \nautonomy on the one hand, and by acknowledging human interdependence on the other. \n(At para 251.) \n\nIt does not seem to me that this approach will render all regulatory laws or criminal \n\nprohibitions subject to constitutional challenge in terms of section 11(1). A purposive \n\napproach to section 11(1) recognises that it is aimed not at rendering constitutionally \n\nsuspect all criminal prohibitions or governmental regulation. Our society, as all others in \n\nthe late twentieth century, clearly requires government regulation in many areas of social \n\nlife. It requires a criminal justice system based on the prohibition of criminal conduct. \n\nThe need for effective government which can facilitate the achievement of autonomy and \n\nequality is implicit within the constitutional framework. Only when it can be shown that \n\nfreedom has been limited in a manner hostile to the values of our Constitution will a \n\n142 \n\n \n\n \n \n\n\fbreach of section 11(1) be established. \n\n \n\n \n\n \n\n[152] The approach to the interpretation of section 11(1) that I have proposed may not \n\nnecessarily produce a different result to the construction proposed by Ackermann J in \n\nFerreira\u2019s case, although it seems clear that Ackermann J takes a broader view of the \n\nscope of section 11(1) than I do. Nor will my approach necessarily produce a different \n\nresult to that proposed by Chaskalson P and adopted by the majority in Ferreira\u2019s case \n\nand this case. In this case, it does not. \n\n \n\n[153] The applicants argue that sections 417 and 418 are in breach of section 11(1) for several \n\nreasons. First, they state that witnesses may be compelled to attend and give evidence at \n\nan enquiry without being given an opportunity to be heard on the question of whether \n\nthey should be coerced in this way. This challenge to the provision is a challenge \n\naddressed to procedural fairness. In my view, it cannot be said that it is a necessary \n\nrequirement of an obligation to give evidence that a potential witness first be given an \n\nopportunity to state why he or she should not be compelled to give evidence. If it \n\nbecomes clear in the course of the witness\u2019s evidence that he or she knows nothing of the \n\naffairs of the company, no further questions will be put. Or, if it is established that a \n\nwitness has a sufficient excuse not to answer the questions, as contemplated by section \n\n418, then he or she will be under no obligation to answer the questions. Similarly, if it is \n\nclear that the purpose of calling the witness was abusive or oppressive, then appropriate \n\nrelief can be sought from the Supreme Court. Ackermann J has set out in great detail the \n\njurisprudence of, in particular, the United Kingdom and Australia, in regard to the \n\n \n \n\n143 \n\n\f \n\nobligation upon judges in those countries to prevent an abuse of procedures similar to the \n\nprocedure governed by sections 417 and 418. I am not convinced that this jurisprudence \n\nis directly relevant in the light of the differences between the statutory provisions upon \n\nwhich that jurisprudence is based and our own. Nevertheless, there can be little doubt \n\nthat the Supreme Court may grant relief to prevent the abuse of the procedures provided \n\nfor in sections 417 and 418. Accordingly, there can be no doubt that there are adequate \n\nsafeguards in our own legal system to protect witnesses. Beyond these safeguards, the \n\nargument that section 11(1) requires notice and an opportunity to be heard prior to the \n\ngiving of evidence cannot be supported. \n\n \n\n \n\n[154] The second ground upon which the applicants base their section 11(1) argument is that \n\nsections 417 and 418 impose an obligation upon witnesses to attend enquiries and to \n\nanswer questions and disclose documents to that enquiry. I cannot accept that a \n\nsubpoena which requires compliance in terms of these provisions can be said to be a \n\nbreach of freedom as contemplated by section 11(1). All modern societies require the \n\nassistance of members of the community in facilitating the administration of justice. \n\nInevitably the obligations thus placed on witnesses can be inconvenient and, at times, \n\nunpleasant. In certain circumstances, giving evidence to a court or commission may even \n\nput the witness at the risk of some disadvantage, such as civil liability. The \n\noverwhelming interest of society is, however, that citizens nevertheless co-operate to \n\nensure that the administration of justice is not prevented. Such an interest is clearly \n\npresent in the context of section 417 enquiries as well. In this case, it seems to me that \n\nthe applicants have failed to show that section 417 and 418 are in breach of section 11(1). \n\n \n \n\n144 \n\n\f \n \n\n \n\n[155] The applicants also base their objections to sections 417 and 418 on the right to privacy \n\nin section 13 and on an implied right to a fair civil trial and the right to equality in section \n\n8. For the reasons given by Ackermann J, I consider that the applicants have not \n\nestablished that sections 417 and 418 are in breach of any of these constitutional \n\nprovisions. Finally, the applicants argued that sections 417 and 418 are in breach of \n\nsection 24 of the Constitution which is concerned with administrative justice. I agree \n\nwith Ackermann J that the applicants have not shown sections 417 and 418 to be in \n\nbreach of section 24 of the Constitution. He expresses considerable doubts as to whether \n\nan enquiry in terms of sections 417 and 418 is administrative action as contemplated by \n\nthe Constitution. It is not necessary for the purposes of the case to decide this question, \n\nhowever, and I prefer to express no view at all upon it. \n\n \n\n[156] For the above reasons, I concur in the order proposed by Ackermann J. \n\n \n\n \n\n \n\n \n\n \n\n \n\nCase No: \n\n \n\n \n\nCounsel for the Applicants: \n\n \n\n \n\n \n\n \n\n \n \n\nCCT 23/1995 \n\nGJ Marcus \n\nO Rogers \n\n145 \n\n\f \n\n \n \n\nInstructed By: \n\n \n\n \n\n \n\nDenys Reitz \n\n \n\n \n\n \n\n \n\n \n\nCounsel for the Respondents: \n\nJJ Gauntlett S.C. \n\nGW Woodland \n\n \n\nInstructed By: \n\n \n\n \n\n \n\nFluxman Rabinowitz - Raphaely Weiner \n\n \n\n \n\n \n\n \n \n\n146 \n\n\f"}, "id": "e3cd25d6-f1f8-4d4a-a01b-9367ba86b794", "update_date": "2021-03-15 17:08:56.815793", "year": "1996", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Applicants CASE NO CCT 23/95 In the matter of Harold Bernstein and Others v L. Von Wielligh Bester NO and Others Heard on: Delivered on: 27 March 1996 ___________________________________________________________________________ ___________________________________________________________________________ 19 September 1995 JUDGMENT Respondents", "ACKERMANN J: The issues The case before us is a referral pursuant to the provisions of section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (\u201cthe Constitution\u201d) and arose from a dispute between Mr Bernstein and other partners and employees of Kessel Feinstein, a partnership of chartered accountants (\u201cthe applicants\u201d) and Mr Bester and \fACKERMANN J other liquidators of Tollgate Holdings Limited (\u201cthe respondents\u201d). The essence of the dispute between the parties is whether the respondents are precluded by the Constitution from continuing with the examination of the applicants in terms of sections 417 and 418 of the Companies Act 61 of 1973 (as amended) (\u201cthe Act\u201d). The parties agreed before Fagan DJP in the Cape Provincial Division of the Supreme Court to have the issue whether these sections of the Act are inconsistent with the Constitution referred to this Court. On 28 April 1995 Fagan DJP granted a referral order \u201cby agreement\u201d as follows: 1. 2. 3. 4. The issue whether sections 417 and 418 of the Companies Act, 61 of 1973 (as amended) are inconsistent with the Constitution of South Africa Act, 200 of 1993, and are consequently invalid and of no force and effect is referred to the Constitutional Court for determination, in terms of section 102(1) of the Constitution. The agreed material facts relevant to such determination are those set out in annexure 'X' hereto. The costs of such referral shall be costs in the proceedings in the Constitutional Court. Pending the determination of the above proceedings, the application and all other issues are to stand over.", "Section 102(1) of the Constitution does not empower a Provincial or Local Division of the Supreme Court to refer a matter by agreement to the Constitutional Court, but only when the requirements set forth in the subsection are met. I am not suggesting that in the present case Fagan DJP in fact referred the matter simply by agreement without applying his mind to these requirements. It is clear from the reasons furnished by the learned 2 \f ACKERMANN J Deputy Judge President pursuant to the provisions of Constitutional Court Rule 22(2) and (3)(a) that he did so apply his mind and, therefore, the presence of the words \u201cby agreement\u201d in the referral order is perhaps unfortunate. The impression should be avoided that referrals can take place simply because parties have agreed thereto. In certain referrals to this Court, the conclusion is difficult to avoid that this is in fact what has happened. Problems which had arisen in connection with such referrals were commented on in S v Vermaas, S v Du Plessis1 and in Ferreira v Levin2 this Court pointed out that the power and the duty to refer only arises when three conditions are fulfilled: (a) there is an issue in the matter before the court in question which may be decisive for the case; (b) such issue falls within the exclusive jurisdiction of the Constitutional Court; and (c) the court in question considers it to be in the interests of justice to refer such issue 11995 3 SA 292 (CC); 1995 7 BCLR 851 (CC) paras 7 - 12. 2Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others 1996 1 BCLR 1 (CC) paras 6 - 8. 3 \f to the Constitutional Court. ACKERMANN J This Court has further held that it is implicit in section 102(1) that there should be a reasonable prospect that the relevant law or provision will be held to be invalid and while this is a sine qua non of a referral it is not in itself a sufficient ground, because it is not always in the interest of justice to make a referral as soon as the relevant issue has been raised.3 I hasten to point out that when Fagan DJP made the referral in the present matter the judgments in the above cases had not yet been delivered. In the present referral these conditions are all fulfilled and the referral is a proper one in terms of section 102(1), despite purporting to be by agreement. While Provincial and Local Divisions might initially have been hesitant to grapple with the implications and application of the new Constitution and might have preferred to refer constitutional issues to this Court, it must be stressed that, for the proper development of our law under the Constitution, it is essential that these courts and indeed all other courts empowered to do so, play their full role in developing our post-constitutional law. It would greatly assist the task of the Provincial and Local Divisions of the Supreme Court, and in so doing ultimately the task 3S v Mhlungu 1995 3 SA 867 (CC); 1995 7 BCLR 793 (CC) para 59 and Ferreira v Levin supra note 2 para 7. 4 \fACKERMANN J of this Court, if counsel were called upon to justify rigorously why it was contended that the particular provision of the Constitution relied upon renders the law or provision in question invalid and why it is necessary or advisable to refer the issue in question to the Constitutional Court at that particular juncture. This would lead to narrower and more closely focused referrals and enable the Provincial and Local Divisions to furnish more comprehensive reasons for any particular referral which would in turn assist the task of this Court and the development of our constitutional jurisprudence. Such an approach would also decrease the risk of wrong referrals and avoid the unsatisfactory expedient in such cases of having to try to invoke, at the last moment, in a forced manner and in unsatisfactory circumstances, the direct access procedure provided for in Constitutional Court Rule 17.", "Sections 417 and 418 of the Act provide as follows: 417. Summoning and examination of persons as to affairs of company - (1) In any winding-up of a company unable to pay its debts, the Master or the Court may, at any time after a winding-up order has been made, summon before him or it any director or officer of the company or person known or suspected to have in his possession any property of the company or believed to be indebted to the company, or any person whom the Master or the Court deems capable of giving information concerning the trade, dealings, affairs or property of the company. (1A) Any person summoned under subsection (1) may be represented at his attendance before the Master or the Court by an attorney with or without counsel. (2A)(a) The Master or the Court may examine any person summoned under sub-section (1) on oath or affirmation concerning any matter referred 5 \f ACKERMANN J to in that subsection, either orally or on written interrogatories, and may reduce his answers to writing and require him to sign them. (b) Any such person may be required to answer any question put to him at the examination, notwithstanding that the answer might tend to incriminate him, and any answer given to any such question may thereafter be used in evidence against him. (3) (4) (5) (6) (7) The Master or the Court may require any such person to produce any books or papers in his custody or under his control relating to the company but without prejudice to any lien claimed with regard to any such books or papers, and the Court shall have power to determine all questions relating to any such lien. If any person who has been duly summoned under subsection (1) and to whom a reasonable sum for his expenses has been tendered, fails to attend before the Master or the Court at the time appointed by the summons without lawful excuse made known to the Master or the Court at the time of the sitting and accepted by the Master or the Court, the Master or the Court may cause him to be apprehended and brought before him or it for examination. Any person summoned by the Master under subsection (1) shall be entitled to such witness fees as he would have been entitled to if he were a witness in civil proceedings in a magistrate's court. Any person who applies for an examination or enquiry in terms of this section or section 418 shall be liable for the payment of the costs and expenses incidental thereto, unless the Master or the Court directs that the whole or any part of such costs and expenses shall be paid out of the assets of the company concerned. Any examination or enquiry under this section or section 418 and any application therefore shall be private and confidential, unless the Master or the Court, either generally or in respect of any particular person, directs otherwise. 418. Examination by Commissioners - (1)(a) Every magistrate and every other person appointed for the purpose by the Master or the Court shall be a Commissioner for the purpose of taking evidence or holding any enquiry under this Act in connection with the winding-up of any company. (b) (c) The Master or the Court may refer the whole or any part of the examination of any witness or of any enquiry under this Act to any such Commissioner, whether or not he is within the jurisdiction of the Court which issued the winding-up order. The Master, if he has not himself been appointed under paragraph (a), the liquidator or any creditor, member or contributory of the company may be represented at such an examination or enquiry by an attorney, with or without counsel, who shall be entitled to interrogate any witness: provided that a Commissioner shall disallow any question 6 \f (d) (2) (3) (4) (5) ACKERMANN J which is irrelevant or would in his opinion prolong the interrogation unnecessarily. The provisions of section 417 (1A), (2)(b) and (5) shall apply mutatis mutandis in respect of such an examination or enquiry. A Commissioner shall in any matter referred to him have the same powers of summoning and examining witnesses and of requiring the production of documents, as the Master who or the Court which appointed him, and, if the Commissioner is a magistrate, of punishing defaulting or recalcitrant witnesses, or causing defaulting witnesses to be apprehended, and of determining questions relating to any lien with regard to documents, as the Court referred to in section 417. If a Commissioner - (a) (b) has been appointed by the Master, he shall, in such manner as the Master may direct, report to the Master; or has been appointed by the Court, he shall, in such manner as the Court may direct, report to the Master and the Court, on any examination or enquiry referred to him. Any witness who has given evidence before the Master or the Court under section 417 or before a Commissioner under this section, shall be entitled, at his cost, to a copy of the record of his evidence. Any person who - (a) has been duly summoned under this section by a Commissioner who is not a magistrate and who fails, without sufficient cause, to attend at the time and place specified in the summons; or has been duly summoned under section 417 (1) by the Master or under this section by a Commissioner who is not a magistrate and who- (b) (i) (ii) (iii) fails, without sufficient cause, to remain in attendance until excused by the Master or such Commissioner, as the case may be, from further attendance; refuses to be sworn or to affirm as a witness; or fails, without sufficient cause - (aa) (bb) to answer fully and satisfactorily any question lawfully put to him in terms of section 417 (2) or this section; or to produce books or papers in his custody or under his control which he was required to produce in terms of section 417 (3) or this section, shall be guilty of an offence. 7 \f ACKERMANN J", "In Ferreira v Levin this Court considered the constitutional validity of section 417(2)(b) of the Act and declared the provisions of section 417(2)(b) to be invalid, to the extent only that the words 'and any answer given to any such question may thereafter be used in evidence against him' in section 417(2)(b) apply to the use of any such answer against the person who gave such answer, in criminal proceedings against such person, other than proceedings where that person stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions or answers or a failure to answer lawful questions fully and satisfactorily.4 This disposes of an important part of the applicants\u2019 argument, but inasmuch as the attack in this case went broader than in Ferreira v Levin and sought the striking down of sections 417 and 418 in their entirety a number of additional grounds of invalidity have to be considered.", "As appears from the order of Fagan DJP the parties also agreed upon certain facts as being relevant to the enquiry into the constitutional validity of sections 417 and 418 of the Companies Act. For present purposes the following are the salient agreed facts. 4Supra note 2 at para 157. 8 \fACKERMANN J Tollgate Holdings Ltd (\"the company\") was a public investment company listed on both the Johannesburg and London Stock Exchanges. The company was placed under final liquidation on 13 January 1993. This led to one of the largest corporate collapses in South African history as the principal subsidiary companies, indeed most companies forming part of the Tollgate Group (the company and its subsidiaries), were also placed under provisional winding-up orders by the Cape Provincial Division of the Supreme Court. The collapse of the Tollgate Group left unpaid debts to creditors of almost R400 million. The market capitalization of Tollgate Holdings at December 1991 was R222 million comprising 40.5 million shares of R5.50 each. These shares are now worthless. The demise of the company seems to have started in February 1988 when the Duros Group Limited, of which Messrs M Key and G Mackintosh were controlling members and directors, acquired control over the Tollgate Group. For the roughly 140 years before the take-over the company was essentially owned and controlled by a Cape Town family. The first published financial statements of the Tollgate Group after the take-over indicated a loss of R45 million for the 18 month period ending 31 December 1989. At this stage Mr J Claasen held the position of chairman of the Duros Group and had become its largest single shareholder. Mr H Diedericks was also a director of the Duros Group as well as managing director and chief executive of Tollgate Holdings. Shortly 9 [6]", "ACKERMANN J afterwards, in March of 1990, the Duros Group was in turn acquired by a consortium led by Messrs J Askin and H Bierman and including Messrs Key and Mackintosh. On 21 January 1991 the Duros Group changed its name to Tollgate Holdings Ltd, with the company originally bearing that name also changing its name. Tollgate Holdings was controlled by this consortium until it was placed under provisional liquidation in December 1992. Warrants for the arrest of both Messrs Askin and Mackintosh have been issued in connection with charges of fraud and theft and Mr Key is presently facing various criminal charges relating to the collapse of the Tollgate Group. The respondents are satisfied that both Messrs Diedericks and Claasen are indebted to the liquidators of the Tollgate Group for substantial sums arising from unlawful acts. An application for the sequestration of Mr Diedericks' estate has been made and a settlement was reached between Mr Claasen and the liquidators of Tollgate Holdings. Kessel Feinstein were the auditors of the Duros Group when it acquired control of Tollgate Holdings in February 1988, but only became the main auditors of the Tollgate Group after the Askin-led consortium took control in 1990. As the auditors of the Tollgate Group, Kessel Feinstein certified, without qualification, that the consolidated annual financial statement of the Tollgate Holdings and its subsidiary companies fairly presented the financial affairs of the group for the years ended 1990 and 1991. 10", "Investigations have satisfied the respondents that large scale irregularities by the directors and other officials of the Tollgate Group had taken place prior to the group's ACKERMANN J collapse causing losses of a very substantial nature to the group.", "In March 1993, shortly after Tollgate Holdings was placed under final liquidation and following an application by the liquidators of Tollgate Holdings and other companies in the Tollgate Group, the Cape Provincial Division of the Supreme Court ordered that a commission of enquiry be held into the affairs of certain companies in the group. Adv B Hobermann SC, of the Cape Bar, was appointed commissioner. The Commission has been in session ever since and some 55 witnesses have thus far appeared before the Commission. The respondents are satisfied by the evidence that the affairs of the Tollgate Group were mismanaged and manipulated by certain directors under two successive corporate administrations. During May of 1993 the commissioner issued summonses requiring Messrs H Bernstein, R Klotz and D Nicola (the first to third applicants) to appear before him and to produce documentation in terms of sections 417 and 418 of the Companies Act. Prior to the commencement of Mr Bernstein's examination, the respondents' attorneys sent the applicants' attorneys a memorandum with a list of issues which were anticipated to be canvassed with the Kessel Feinstein witnesses. However, the respondents did not inform the applicants that they considered Kessel Feinstein to be 11 \fACKERMANN J civilly liable in consequence of the manner in which the firm had performed its professional duties as auditors for the companies in the Tollgate Group, or that the examination would be aimed at gathering evidence to support such a claim against Kessel Feinstein. A material object in the examination of Mr Bernstein turned out to be an exploration of this potential liability. This was done by calling for explanations and interrogating Mr Bernstein with a view to obtaining concessions and admissions concerning the applicants' alleged negligence in the performance of their duties. On the third day of Mr Bernstein's examination his legal representatives objected to the constitutionality of the proceedings. The examination was then deferred by agreement.", "On 31 March 1995 the applicants approached the Cape Provincial Division of the Supreme Court seeking relief by way of notice of motion. The applicants sought to rescind the order given by the Supreme Court two years earlier for the holding of the enquiry to the extent that it authorised the partners and employees of Kessel Feinstein to be summoned before the Commission pursuant to section 417 and 418 of the Companies Act. The applicants further sought, upon such rescission, an order to set aside the summonses served on Mr Bernstein and other partners and employees of Kessel Feinstein and an order to interdict the respondents and the commissioner, Adv Hobermann SC, from using or disposing of or in any way disclosing to others any 12 \fACKERMANN J evidence given or documents obtained from the applicants. In the alternative the applicants sought an order interdicting the respondents from proceeding with the examination of Messrs Bernstein, Klotz and Nicola (the first to third applicants) or any partners or employees of Kessel Feinstein, an order interdicting the respondents or the commissioner from using or in any way disposing of or disclosing to others evidence given or documents obtained from the applicants and, with a view to these prayers, an order referring to the Constitutional Court pursuant to section 102(1) of the Constitution the issue whether or not sections 417 and 418 of the Companies Act are inconsistent with the Constitution or whether the manner in which the rights and powers conferred by these sections have been exercised, violates the applicants' fundamental rights. Finally, the applicants sought an interim interdict to prevent the respondents from proceeding with the examination of the Kessel Feinstein partners or employees, pending the final determination of the relief sought.", "The parties then agreed that the Cape Provincial Division of the Supreme Court should refer the issue whether sections 417 and 418 of the Companies Act are consistent with the Constitution to the Constitutional Court in terms of section 102(1) of the Constitution. This agreement resulted in the order of Fagan DJP referred to above. 13 \f [12] The applicants have attacked the constitutionality of sections 417 and 418 of the Act on ACKERMANN J four different bases, contending that they are wholly or in part inconsistent with various rights in Chapter 3 of the Constitution and that such violations cannot be justified in terms of section 33(1) of the Constitution or cured by interpretation in terms of sections 35(2) or 35(3). The attack is advanced on the following grounds: 1. The whole mechanism created under sections 417 and 418 violates a cluster of inter-related and overlapping constitutional rights, namely, (a) the right to freedom and security of the person (section 11(1)); (b) the general right to personal privacy (section 13); (c) the particular aspect of the right to personal privacy not to be subject to seizure of private possessions or the violation of private communications. 2. The mechanism violates section 24 in that it permits an administrative interrogation in violation of the provisions of that section. 3. Insofar as section 417(2)(b) deprives witnesses of their privilege against self- incrimination and renders their self-incriminating evidence admissible against them in subsequent criminal proceedings, it violates both the general as well as particular rights to a fair trial in terms of section 25(3). 4. Insofar as the mechanism permits the liquidator and the creditors of the company in liquidation to gain an unfair advantage over their adversaries in civil litigation, 14 \fthat they would not have enjoyed but for the liquidation of the company, it ACKERMANN J violates: (a) an implied constitutional right to fairness in civil litigation, and, (b) the guarantee of equality in terms of section 8.", "The third basis of unconstitutionality has, in effect, already been decided in the applicants\u2019 favour (at least partially) in Ferreira v Levin where this Court declared section 417(2)(b) to be inconsistent with the Constitution to the extent indicated in paragraph 4 above. Two of the judges found that the provision was unconstitutional because of its inconsistency with section 11(1) of the Constitution5 and eight of the judges found it unconstitutional because of its inconsistency with section 25(3) of the Constitution.6 5Id per Ackermann J para 127 and Sachs J paras 245, 249, 261, 269. 6Id per Chaskalson P paras 168, 186 (Mahomed DP, Didcott J, Langa J, Madala J and Trengove J concurring), Mokgoro J para 208 and O\u2019Regan J para 244. 15 \f [14] Before dealing with the remaining bases of the attack on the constitutionality of the ACKERMANN J sections of the Act in question, it is necessary to examine the legislative setting in which the attack must be evaluated, the purpose of the enquiries and the examination of persons provided for in sections 417 and 418 of the Act and the extent of the control, both constitutional and non-constitutional, which the commissioner and the Provincial and Local Divisions are competent to exercise over the conduct of such enquiries and examinations. Many of these matters were extensively dealt with in Ferreira v Levin and it is unnecessary to traverse the same ground here. What follows is a summary of the conclusions reached in Ferreira v Levin.7", "Some of the major statutory duties of the liquidator in any winding up are:- (a) to proceed forthwith to recover and reduce into possession all the assets and property of the company, movable and immovable; (b) to give the Master such information and generally such aid as may be requisite for enabling that officer to perform his or her duties under the Act; (c) to examine the affairs and transactions of the company before its winding-up in 7Id paras 122 to 124. 16 \fACKERMANN J order to ascertain - (i) whether any of the directors and officers or past directors and officers of the company have contravened or appear to have contravened any provision of the Act or have committed or appear to have committed any other offence; and (ii) in respect of any of the persons referred to in subparagraph (i), whether there are or appear to be any grounds for an order by the court under section 219 of the Act disqualifying a director from office as such; (d) except in the case of a member\u2019s voluntary winding-up, to report to the general meeting of creditors and contributories of the company the causes of the company's failure, if it has failed; (e) if the liquidator's report contains particulars of contraventions or offences committed or suspected to have been committed or of any of the grounds mentioned in (c) above, the Master must transmit a copy of the report to the attorney-general.8 8Id para 122. 17 \f [16] The enquiry under sections 417 and 418 has many objectives. ACKERMANN J (a) It is undoubtedly meant to assist liquidators in discharging these abovementioned duties so that they can determine the most advantageous course to adopt in regard to the liquidation of the company. (b) In particular it is aimed at achieving the primary goal of liquidators, namely to determine what the assets and liabilities of the company are, to recover the assets and to pay the liabilities and to do so in a way which will best serve the interests of the company's creditors. (c) Liquidators have a duty to enquire into the company's affairs. (d) This is as much one of their functions as reducing the assets of the company into their possession and dealing with them in the prescribed manner, and is an ancillary power in order to recover properly the company's assets. (e) It is only by conducting such enquiries that liquidators can: (i) determine what the assets and who the creditors and contributories of the company are; (ii) properly investigate doubtful claims against outsiders before pursuing them as well as claims against the company before pursuing them. (f) It is permissible for the interrogation to be directed exclusively at the general credibility of an examinee, where the testing of such person's veracity is 18 \fnecessary in order to decide whether to embark on a trial to obtain what is due to ACKERMANN J the company being wound up. (g) Not infrequently the very persons who are responsible for the mismanagement of and depradations on the company are the only persons who have knowledge of the workings of the company prior to liquidation (such as directors, other officers and certain outsiders working in collaboration with the former) and are, for this very reason, reluctant to assist the liquidator voluntarily. In these circumstances it is in the interest of creditors and the public generally to compel such persons to assist. (h) The interrogation is essential to enable the liquidator, who most frequently comes into the company with no previous knowledge and finds that the company's records are missing or defective, to get sufficient information to reconstitute the state of knowledge that the company should possess; such information is not limited to documents because it is almost inevitable that there will be transactions which are difficult to discover or understand from the written materials of the company alone. (i) The liquidator must, in such circumstances, be enabled to put the affairs of the company in order and to carry out the liquidation in all its varying aspects. (j) The interrogation may be necessary in order to enable the liquidator, who thinks 19 \fACKERMANN J that he may be under a duty to recover something from an officer or employee of a company, or even from an outsider concerned with the company's affairs, to discover as swiftly, easily and inexpensively as possible the facts surrounding any such possible claim.9 (k) There is a responsibility on those who use companies to raise money from the public and to conduct business on the basis of limited liability to account to shareholders and creditors for the failure of the business, if the company goes insolvent. Giving evidence at a section 417 enquiry is part of this responsibility. This responsibility is not limited to officers of the company, in the strict sense, but extends also to the auditors of the company.10 9Id paras 123 - 124. 10Id para 151. 20 \f [17] Courts in many foreign jurisdictions have recognised the (potentially) oppressive nature ACKERMANN J of a section 417 type enquiry, while at the same time pointing out that there is a need for a speedy process through which the liquidator is enabled to obtain the necessary information about the company\u2019s affairs and dealings, and to trace the whereabouts of assets and possibly recover some assets for the financial benefit of creditors. Courts normally exercise control over the enquiry in two ways. First, courts have scrutinised applications to hold the enquiry. It has been held that an application for a private examination ought not to be granted if it would be oppressive, vexatious or unfair11. Second, courts have intervened to prevent the oppressive or unfair conduct of proceedings in the enquiry itself.", "More than a century ago the Court of Appeal in England came to the assistance of an examinee and held that, in the circumstances of the case, he could not be summoned to be examined and was not obliged to answer questions. In In re North Australian Territory Company Bowen LJ, commenting on the powers under section 115 of the Companies Act 1862, gave the following warning: It is an extraordinary power; it is a power of an inquisitorial kind which enables the Court to direct to be examined - not merely before itself, but before the examiner appointed by the Court - some third person who is no party to a litigation. That is an inquisitorial power, which may work with great severity 11Re Rolls Razor Ltd (No. 2) [1970]1 Ch 576 at 592 C. 21 \fACKERMANN J against third persons, and it seems to me to be obvious that such a section ought to be used with the greatest care, so as not unnecessarily to put in motion the machinery of justice where it is not wanted, or to put it in motion at a stage when it is not clear that it is wanted, and certainly not to put it in motion if unnecessary mischief is going to be done or hardship inflicted upon the third person who is called upon to appear and give information.12", "In Cloverbay Ltd (joint administrators) v Bank of Credit and Commerce International S.A. the Court of Appeal outlined the following criteria for the exercise of the court\u2019s discretion whether to order an examination: 12(1890) 45 Ch 87 at 93. 22 \fACKERMANN J It is clear that in exercising the discretion the court has to balance the requirements of the liquidator against any possible oppression to the person to be examined. Such balancing depends on the relationship between the importance to the liquidator of obtaining the information on the one hand and the degree of oppression to the person sought to be examined on the other. If the information required is fundamental to any assessment of whether or not there is a cause of action and the degree of oppression is small (for example in the case of ordering the premature discovery of documents) the balance will manifestly come down in favour of making the order. Conversely, if the liquidator is seeking merely to dot the i\u2019s and cross the t\u2019s of a fairly clear claim by examining the proposed defendant to discover his defence, the balance would come down against making the order. Of course, few cases will be so clear: it will be for the judge in each case to reach his own conclusion.13 13[1991] Ch 90 at 102a. See also British and Commonwealth Holdings plc (joint administrators) v Spicer & Oppenheim (a firm) [1992] 4 All ER 876 (HL). In this case the House of Lords held at 886G-H that, having regard to the size of the financial crash, the possible oppression of the examinees did not outweigh the needs of the company\u2019s administrators, which were held to be reasonable under the circumstances. 23 \f [20] The court went on in Cloverbay to mention a number of considerations which should ACKERMANN J specifically be taken into account in exercising the discretion. The first consideration is that the purpose of the provisions is to enable the liquidator to reconstitute the state of knowledge of the company in order to make informed decisions. The purpose is not to place the company in a stronger position in civil litigation than it would have enjoyed in the absence of liquidation. Second, the appropriate standard is not to require proof of the absolute need for information before an order for examination will be granted, but proof of the reasonable requirement of the information. Third, the case for examination is usually much stronger against officers or former officers of the company, who owe the company a fiduciary duty, than it is against third parties. Fourth, an order for oral examination is much more likely to operate oppressively against an examinee than an order for the production of documents.14 The court is also likely to treat an application for a holding of a section 417 enquiry from an office holder, such as the liquidator, with 14Cloverbay id at 102D - 103E. 24 \fmore sympathy than it would treat a similar request from a contributor15. ACKERMANN J 15Re Embassy Art Products Ltd [1987] 3 BCC 292. See also H Rajak (ed) Company Liquidations (1988) 306-7. 25 \fACKERMANN J In British and Commonwealth Holdings plc (joint administrators) v Spicer16 the House of Lords had occasion to comment on the approach laid down in the Cloverbay case. Hoffmann J had construed the judgment of Browne-Wilkinson V-C in Cloverbay as restricting the availability of an order under section 236 to enable a liquidator or an administrator \"to get sufficient information to reconstitute the state of knowledge that the company should possess\".17 The House of Lords did not consider that \"reading the judgment [in Cloverbay] overall such a limitation to 'reconstituting the company's knowledge' was intended to be laid down in the Cloverbay case\u201d and in any event did not think that such a limitation existed.18 [21]", "In this connection Lord Slynn also referred with approval to the following observations of Jessel MR in Re Gold Co (1879) 12 Ch D 77 at 85 in a case under section 115 of the Companies Act 1862: ... the whole object of the section is to assimilate the practice in winding-up to the practice in bankruptcy, which was established in order to enable assignees, who are now called trustees, in bankruptcy to find out facts before they brought an action, so as to avoid incurring the expense of some hundreds of pounds in 16Supra note 13. The appellants in the case were the auditors of a company (\"Atlantic\") that had been placed under administration. A very wide order to produce books, papers and other records had been issued against the appellants by the registrar pursuant to section 236(2) of the Insolvency Act 1986. On an application by the appellants Hoffmann J discharged the registrar\u2019s order. The Court of Appeal (Ralph Gibson and Woolf LJJ (Norse LJ dissenting)) allowed the appeal and restored the order of the registrar (see [1992] 2 All ER 801, [1992] Ch 342). On a further appeal, the House of Lords affirmed the decision of the Court of Appeal. 17Id 880g. 18Id 883a per Lord Slynn, who delivered the opinion of the House. 26 \fbringing an unsuccessful action, when they might, by examining a witness or two, have discovered at a trifling expense that an action could not succeed.19 ACKERMANN J The following remarks of Chitty J in Re Imperial Continental Water Corp (1886) 33 Ch D 314 at 316 were also quoted with approval: Those extensive powers are conferred upon the Court for the beneficial winding-up of the company, for sometimes it happens that the liquidator is unable to obtain from unwilling persons the information which he requires.20", "It was also pointed out by Lord Slynn that an application such as the one in question was not necessarily unreasonable: 19Id 883d - e. 20Id 883f. 27 \fbecause it is inconvenient for the addressee of the application or causes him a lot of work or may make him vulnerable to future claims, or is addressed to a person who is not an officer or employee of or a contractor with the company in administration, but all these will be relevant factors, together no doubt with many others.21 ACKERMANN J The extent and complexity of the company's failure is not an irrelevant consideration. In this regard Lord Slynn said the following: This may well be an exceptional order. The size of the financial crash, however, gives rise to an exceptional case. Creditors and investors stood to lose vast sums. It was the administrator's task to investigate 'what was the true financial position of Atlantic at the time of its acquisition and, if it was different from the way it was represented, how and why the truth was concealed' (see [1992] BCLC 314 at 317 per Hoffmann J). They need in this very complex situation to check the accuracy of the various financial documents and to know not only what representations were made but how accurate they were.22 The following remarks of Hoffmann J in Re JT Rhodes Ltd are also apposite to the present case: The Victorian cases on ... [the English equivalent of section 417] contain emotive language which invokes the images of the Inquisition and the Court of Star Chamber. This language was used against the background of a company law which required very little public disclosure and placed a much higher value than today on the protection of the privacy of business transactions and a lower value on the protection of creditors and shareholders. Today we have no difficulty with the proposition that persons who have had what was perhaps no more than the misfortune to be involved in the affairs of an insolvent company owe a public duty to assist the liquidator to investigate the affairs of that company in the interests of the creditors.23 21Id 885e. 22Id 886g - h. 28 \f ACKERMANN J 23[1987] BCLC 77 at 80. 29 \f [24] Moreover, judicial control over the manner in which the examination is conducted ACKERMANN J complements the control which the court exercises over whether the examination should take place in the first place. Courts have long recognised that the examination is open to abuse and that the proceedings ought to be watched carefully.24 It has been held that the judiciary is to ensure that the \u201cexamination is not made an instrument of oppression, injustice or of needless injury to the individual\u201d.25 In one Australian case, Mortimer v Brown,26 the court held that even though a witness could rarely be excused from 24In re London and Northern Bank Limited [1902] 2 Ch 73 at 82; In Re Imperial Continental Water Corporation (1886) 33 Ch D 314 at 318 - 319; In Re British Building Stone Company Ltd [1908] 2 Ch 450 at 454; Re Rolls Razor Ltd (No 2) [1969] 3 All ER 1386 at 1397; Re Kimberley Carpet Mills (Aust) Pty Ltd (in liq) (1979) 4 (Australian Company Law Reports) 50 at 52. 25Per Barwick CJ in Rees v Kratzmann [1966] ALR 3. Much earlier, in Re London & Globe Finance Co. [1902] (Weekly Notes) 16, the court held that it will disallow questions which were put merely for the purpose of satisfying personal spite or vindictiveness, and not bona fide for the benefit of creditors, contributories or the public. 26[1972] ALR 723. 30 \fanswering a question on the basis that an answer might incriminate him, there may be questions so remotely relevant that the harm done to the individual in compelling him to ACKERMANN J answer outweighs any benefit that the answer may afford.", "As Mr Gauntlett, on behalf of the respondents, pointed out, the courts in England have, in determining the permissible bounds of investigation by liquidators or administrators under section 236 of the 1986 Insolvency Act, been influenced by the recent pattern of massive and unparalleled corporate collapses and the heavy duty which this places on the liquidators to unravel the complex affairs of companies which often form part of large groups or conglomerates with extensive cross-border activities. As appears from the discussion in paragraphs 17 - 24 above, the courts have responded with a flexible approach in which the reasonable requirements of liquidators in carrying out their duties are carefully balanced against the hardship which the order might cause to the person concerned. The scale of the financial collapse may well give rise to an exceptional case which shifts the balance in favour of the liquidator.27 27See the passages from Lord Slynn\u2019s speech in the Spicer and Oppenheim case quoted in paragraph 23 above. 31 \f [26] ACKERMANN J In Bishopsgate Investment Management Ltd v Maxwell28 the Court of Appeal held that a director was not entitled to rely on the privilege against self-incrimination in refusing to answer questions put to him under sections 235 and 236 of the Insolvency Act 1986. In the course of his judgment Dillon LJ stressed that this was justified by the public policy considerations that the law should be able to deal adequately with dishonesty or malpractice on the part of company directors: 28[1992] 2 All ER 856 (CA). 32 \fACKERMANN J It is plain to my mind - and not least from the Cork Report - that part of the mischief in the old law before the Insolvency Act 1985 was the apparent inability of the law to deal adequately with dishonesty or malpractice on the part of bankrupts or company directors. (I take the words gratefully from the judgment of Vinelott J.29) That was a matter of public concern, and there is a public interest in putting it right. As steps to that end, Parliament has, by the 1986 Act, greatly extended the investigative powers available to office-holders, with the assistance of the court, and has expressly placed the officers of the company, and others listed in s 235(3), under a duty to assist the office-holder. That is a direct parallel of the duty owed by a bankrupt which is relied on by Lord Eldon LC in Ex P Cossets, re Warrell (1820) Buck 531 for his conclusion that the bankrupt could not rely on the privilege against self-incrimination so as to refuse to answer questions put to him in his bankruptcy. A company cannot act except by individuals, and, in the particular field of law with which the Bishopsgate appeals are concerned, it is illogical that the directors of a company should be entitled to rely on the privilege against self-incrimination on a private examination under s 236, whereas the individual insolvent is not so entitled on a private examination under s 366.30", "In Re Arrows Ltd (No 4) Hamilton v Naviede31 the public interest in successfully pursuing and recovering the fruits of company fraud was highlighted. Lord Browne- Wilkinson commented as follows: The inevitable effect of a witness in civil proceedings claiming the privilege against self- incrimination is to deprive the opposite party and the court of evidence relevant to the dispute under consideration. Until recently, this has not given rise to much litigation. But the recent upsurge of financial fraud, particularly in relation to companies, has raised in an acute form the conflict between the witness\u2019s basic right to rely on the privilege on the one hand and the public interest in successfully pursuing and recovering the fruits of such fraud. Thus in relation to claims for Mareva injunctions and Anton Piller orders, the defendant relies on the privilege to refuse disclosure or discovery of documents which would 29Dillon LJ was referring to the judgment of Vinelott J in Re Jeffrey S Levitt Ltd [1992] 2 All ER 509. 30Id 876d - j. 31[1994] 3 All ER 814 (HL). 33 \fACKERMANN J enable the assets to be traced. He is entitled to claim the privilege ... . The serious consequences flowing from a successful claim to the privilege has lead Parliament in certain cases to override the privilege but to substitute an alternative protection ... . The primary purpose of an inspection under s 432 of the Companies Act 1985 or an examination by liquidators under s 236 of the 1986 Act is to enable the true facts to be elicited from those who know them. Frequently it is suspected fraud which has given rise to the investigation or examination. If witnesses in such proceedings were able to rely on the privilege against self-incrimination, the whole investigation could be frustrated by a refusal to answer sensitive questions. Although the statutes establishing such inquisitorial rights for the purpose of discovering the true facts about the conduct of a company are silent on the question whether the privilege is to apply, the courts have been ready in recent years to hold that Parliament has impliedly overridden the ancient privilege against self-incrimination... . This recent erosion of the privilege against self-incrimination in the interests of aiding the tracing and recovery of property extracted from companies by fraud is taken one stage further in this case.32 In even more trenchant terms Lord Nolan said the following in the same case: The type of fraud which lead to the passing of the Criminal Justice Act 1987 is an exceptionally pernicious form of crime, and those who commit it tend to be as devious as they are wicked. It is not in the least surprising or regrettable that Parliament should have entrusted the Serious Fraud Office with the power to call upon a suspected person to come into the open, and to disclose information which may incriminate him.33", "Because South African and Australian company law share a common ancestry it is instructive to consider the approach of the Australian courts to comparable problems arising out of Australian companies legislation which make provision for the examination by a liquidator or administrator of persons who have knowledge of the affairs of a 32Id 821d - 822c. 33Id 834h. 34 \fcompany. ACKERMANN J", "The comparable Australian legislation is the Corporations Amendment Act, 1990. It has features which are similar to the mechanism created by sections 417 and 418 of the South African Act. Examination provisions are embodied, inter alia in sections 596 and 597. Section 597(12)34 excludes the privilege against self-incrimination and section 597(12)(A) provides only a direct use immunity. Express provision is made for the use of the examination record against the examinee in civil proceedings.35", "The judicial development of Australian law relating to examinations is also to be seen in the context of the large corporate collapses in that country and a growing view that directors and others concerned with the management and affairs of a failed company owe a duty of accounting to creditors and shareholders. In Spedly Securities v Bond 34Which reads as follows: \u201cA person is not excused from answering a question put to the person at an examination ... on the ground that the answer might tend to incriminate the person or make the person liable to a penalty.\u201d 35Sections 597(13) and 597(14). 35 \f Corporation Holdings Ltd36 Rogers CJ said the following: ACKERMANN J 361 ACSR (1990) 726 (Supreme Court of New South Wales - Commercial Division). 36 \fACKERMANN J I can see considerable justification for an argument that, in particular, directors, but also others, concerned with the management and affairs of a failed company owe a duty to creditors and shareholders to provide a candid, full and truthful account of their stewardship. This question was not debated, but I would ask why, with the number and magnitude of company collapses we are seeing daily, the generally uninformative statement of affairs should be all that is required to be provided? Has the time come when it should be an implied contractual term in the appointment of directors and executives of public companies that in the event of the company going into liquidation they should provide, within a limited time, a full and proper account of such matters as are customarily extracted, at considerable expense to the creditors, in the course of s 541 examinations?37 In Lombard Nash International Pty Ltd v Berentsen38 Bryson J, after quoting with approval from the passage just quoted, added the following: In my view there is such a duty and as well as being owed to creditors and shareholders it is owed to the whole community which has an interest, not only in attaining civil justice in particular pieces of litigation, but also in the emergence to public knowledge of information relating to the affairs of companies which fail although clothed in privileges by the law, including the limited liability of their members. * * * In relation to litigation between companies in liquidation and their former officers there is another significant matter, that is, that the company has no mind or brain but its officers, nowhere to resort to for knowledge in human minds but to them, or to whatever records they may have left behind; that the company in a fair sense ought to be thought of as the owner of the knowledge in their minds, which should not be available solely to such persons to the exclusion of the company merely because they are engaged in litigation with the company.39", "The Australian High Court has held that one of the important public purposes that the examination procedure under the Corporations Act is designed to serve is to enable liquidators to gather information which will assist them in the winding-up; that involves 37Id 738. 383 ACSR (1990) 343 (Supreme Court of New South Wales - Equity Division). 39Id 346. 37 \fprotecting the interests of creditors.40 ACKERMANN J 40Hamilton v Oades (1988) 15 ACLR 123 (HC) 128. 38 \f [32] The Australian courts draw no distinction in principle between the stages at which the ACKERMANN J liquidator is entitled to seek information; whether it is sought in relation to proceedings merely contemplated or proceedings which the liquidator has definitely decided to commence. The relevance of the commencement of litigation or a decision to embark upon it is that it \u201crequires the court to approach the assessment of the liquidator\u2019s purpose with greater caution.\u201d41 In Hamilton v Oades42 Mason CJ pointed out that the very purpose of the section was to create a system of discovery which may cause defences to be disclosed and that to hold otherwise would, adopting the language of Kitto J in Mortimer v Brown,43 \u201crender the provision relatively valueless in the very cases which call most loudly for investigation.\u201d", "In The Duke Group Ltd v Arthur Young (Reg) & Anor Perry J, dealing with analogous examinations under section 541 of the Companies (South Australia) Code, pointed out see also Hamilton v Oades supra note 40 at 129. 41Re Rothwells Ltd (Prov Liq Apptd) (1989) 15 ACLR 168 (Supreme Court of Western Australia) 181 and 42Supra note 40 at 129. 43(1970) 122 CLR 493 at 496. 39 \f ACKERMANN J that these examinations: are designed to enable interested parties to elicit the facts concerning, among other things, the circumstances giving rise to the liquidation of a company, in order to provide a proper basis for consideration of other consequential legal remedies which thereafter may be sought.44 And in Hong Kong Bank of Australia and Others v Murphy and Others45 Gleason CJ pointed out that: [w]hile the court would not permit a liquidator, or other eligible person, to abuse its process by using an examination solely for the purpose of obtaining a forensic advantage not available from ordinary pre-trial procedures, such as discovery or inspection, on the other hand, the possibility that a forensic advantage will be gained does not mean that the making of an order will not advance a purpose intended to be secured by the legislation.46 The liquidator is entitled to obtain information, not only to ascertain whether she/he has a cause of action, but also in order to assess whether the case is sufficiently strong to justify spending the creditors\u2019 money in pursuit of it, and, conversely, whether there is an adequate defence to a claim against the company.47 44(1991) 9 ACLC 49 (Supreme Court of South Australia) 53. 45(1992) 8 ACSR 736 (Supreme Court of New South Wales - Court of Appeal). 46Id 742. 47Re Spedley Securities Ltd: Ex Parte Potts & Gardiner (1990) 2 ACSR 152 (Supreme Court of New South Wales) 155 - 156. 40 \f ACKERMANN J", "The courts in Australia will come to the assistance of an examinee to ensure that the provisions of the statute compelling the testimony are not used for purposes of oppression or vexation and will use their powers to control and supervise examinations and to prevent injustice.48 This power is not restricted to defined and closed categories.49 It is important to note, in the context of the present case, that in relation to an examination under section 597(3) of the Australian corporations law, it has been held that an examination of a company\u2019s auditor was permissible even though it could lead to the institution of proceedings against the auditor as a consequence of information thus obtained.50 The powers in section 597 may be used to enable a creditor to sue a stranger to a company, that is, a person who is neither an officer nor an employee.51 48See, for example, Hamilton v Oades supra note 40 at 129 - 130, 131 - 133 and Spedley Securities Ltd v Bond Corporation Holdings Ltd supra note 36 at 732 - 737. 49Hamilton v Oades supra note 40 at 132. 50Whelan v Australian Securities Commission (1993) 12 ACSR 239 (Federal Court of Australia) 255 lines 30 - 45. 51Douglas-Brown (The official liquidator of Woomera Holdings Pty Ltd) (rec and mgr apptd) v Furzer (1994) 13 ACSR 184 (Supreme Court of Western Australia) 191 - 193 where the Australian and English authorities 41 \f ACKERMANN J are reviewed. 42 \fACKERMANN J In South Africa the control which courts normally exercise over the application for the holding of the enquiry has been effected by the amendment of the Companies Act in 1985. Earlier, judges in several divisions of the Supreme Court pointed out that the section 417 enquiry is \u201cthe Court\u2019s enquiry\u201d.52 Since the amendment, however, the court does not necessarily entertain the application for the holding of the enquiry. As explained in Van der Berg v Schulte: While it may have been correct to describe the enquiry as the Court\u2019s enquiry prior to the amendment to the Act in 1985 I am of the view that this is not the case where the inquiry is ordered by the Master. Prior to the amendment an application for an inquiry had to be made to the Court. That is no longer necessary. ...The Court may not come into the picture at all where the Master acts in terms of s 417. This is made quite clear by the provisions of s 418 (3) which provide that if a Commissioner has been appointed by the Master he must report to the Master and not the Court. ... The Legislature has made a clear distinction between an inquiry ordered by the Master on the one hand and one ordered by the Court on the other and even if the Master be regarded as an officer of the Court, he is, in my view, in an inquiry ordered by him and in which he appoints a Commissioner to conduct it on his behalf, acting independently of the Court.53 [35] 52See Lok and Others v Venter NO and Others 1982 1 SA 53 (W) 58A; Venter v Williams and Another 1982 2 SA 310 (N) 313E; Foot NO v Alloyex (Pty) Ltd 1982 3 SA 378 (D & CLD) 383F. 531990 1 SA 500 (C) 509B. 43 \f ACKERMANN J It is important to point out, however, that Van der Berg's case was concerned with the question whether a commissioner, who is not a magistrate, has any power apart from that contained in section 418(5) of the Act to deal with a recalcitrant witness. The court held that he did not and, further, that the court's powers to deal with such recalcitrant witness other than on the basis of contempt in facie curiae were to be found in sections 30 and 31 of the Supreme Court Act. The latter sections are only applicable to \u201ccivil proceedings\u201d and not to the type of enquiry envisaged by sections 417 and 418 of the Companies Act. It was therefore not for the court to deal with such recalcitrant witnesses. The judgment is not authority for the proposition that, merely because the master of the Supreme Court orders such an enquiry, the Supreme Court loses its power to prevent oppressive or otherwise improper enquiries being instituted or to prevent enquiries from being conducted in an oppressive or otherwise improper manner. This cannot be the consequence of the amendment.54 Whether the order is made by the master or by a judge, it is still an order issuing from the Supreme Court.55 Our Supreme Courts have over 54See the remarks of Heher J in the Full Bench judgment in Ferreira v Levin NO & Others, 1995 2 SA 813 (W) 843G; Friedland & Others v The Master & Others 1992 2 SA 370 (W) 379; Botha v Strydom & Others 1992 2 SA 155 (N) 159 and Meskin et al Henochsberg on the Companies Act Vol I 890. 55See Re Rolls Razor Ltd. (No. 2) supra note 24 at 1395(i) per Megarry J: \"One must remember, too, that what is made is an order of the High Court; and in that court the judge and the registrar both hold office. A litigant who moves from one to the other remains within the court. He is not moving to a different court, as he would be if he went to the Court of Appeal. What the order of the High Court is to be in any case is to be determined by the officer of the court who exercises the jurisdiction of the court.\" 44 \f ACKERMANN J many years taken the view, based on the English and other authorities, that they have the power to prevent section 417 type enquiries which would result in oppression56 or intervene where enquiries are conducted in an oppressive or vexatious manner57 or result in hardship to the examinee or where unusual, special or exceptional circumstances are present.58 In James v Magistrate Wynberg and Others59 Thring J, relying inter alia on the relevant English and Australian authorities, pointed to various ways in which an examinee could be improperly interrogated in terms of section 415 of the Act and in respect whereof a Court would have the power to intervene: An examinee might be improperly interrogated by a creditor for the purpose of investigating an issue which did not relate to the winding-up or to the financial interests of the creditors of the company in liquidation, but solely for the improper purpose of obtaining ammunition for use by that particular creditor in litigation which the creditor proposed to bring against the examinee. See Simon's case supra at 718C-H, Anderson and Others v Dickson and Another NNO (Intermenua (Pty) Ltd Intervening) 1985 (1) SA 93 (N) at 111F - H, and the Hugh J Roberts case supra. In short, an examinee might be compelled to submit to an examination which was oppressive or vexatious, inasmuch as the proceedings might be 'seriously and unfairly burdensome, prejudicial and damaging' or 'productive of serious and unjustified trouble and harassment' (Spedley Securities Ltd (in liq) v Bond Corporation Holdings Ltd (supra at 732, 733)). Where this may happen, the Court has a discretion to intervene to prevent it: see Re Imperial Continental Water Corporation (1886) 33 ChD 314 (CA) at 320-1.60 Although these remarks were made in the context of an enquiry held in terms of section 56Ex Parte Liquidators Ismail Suliman & Co (Pty) Ltd 1941 WLD 33 34. 57Ex Parte Brivik 1950 3 SA 790 (W) 791G. 58Friedland\u2019s case supra note 54 at 379D-H. 591995 1 SA 1 (C). 45 \f415 of the Act, there is no reason why the court's approach should be any different in ACKERMANN J regard to a section 417 enquiry.", "The purpose of this brief survey is not to lay down or develop the legal principles which the Supreme Court in this country should apply in controlling section 417 enquiries. It is not the function of this Court, but that of the Supreme Court, to do so. The purpose is to point out that the Supreme Court has the power to prevent the oppressive, vexatious and unfair use of section 417 proceedings, for it is against the background of such power that the applicants' remaining attack on the unconstitutionality of sections 417 and 418 of the Act must be considered.", "As a prelude to the first basis of attack Mr Marcus, on behalf of the applicants, analysed in his written argument the nature and effect of the section 417 and 418 mechanisms as applied to the conduct of the enquiry in the present case, highlighting the secret nature of the enquiry, the examinee\u2019s lack of information and general inability to prepare for the interrogation. Before analysing these criticisms further it must be pointed out that, for 60Id 16C-E. 46 \f purposes of the present case, the section 417 and 418 mechanisms must be evaluated in the light of this Court\u2019s judgment in Ferreira v Levin and in particular paragraph 2 of its ACKERMANN J order to the effect that: As from the date of this order, no incriminating answer given pursuant to the provisions of section 417(2)(b) of the Companies Act on or after 27 April 1994 shall be used against the person who gave such answer, in criminal proceedings against such person, other than proceedings excepted in 1. above.61 [38] Mr Marcus pointed to the fact that the mechanisms constituted an extraordinary and secret mode of obtaining information. The examinee is not entitled as of right to know what the topics of interrogation will be, whose conduct is to be the focus of interrogation, whether allegations or suspicions of civil or criminal liability are to be investigated and if so, what they are. The examinee is not entitled as of right to access to evidence or exhibits of the Commission and often enters the witness stand wholly unprepared for interrogation. 61Supra note 2 para 157. 47 \fACKERMANN J Inasmuch as the subject matter of the enquiry is the affairs of the company taken in the very widest sense,62 the examinee may be interrogated on a very wide range of matters and may be compelled to disclose any of his books or papers, however confidential or incriminating they might be. The mechanism is available, not only against the directors, officers, employees or agents of the failed company and against those suspected of being responsible for its failure, but also against innocent third parties whose \u201cmisfortune\u201d it is to know something about the trade, dealings, affairs or property of the company. [39] Marais and Others 1981 1 SA 1051 (A) 1063A. 62Yiannoulis v Grobler and Others 1963 1 SA 599 (T) 601C-D as approved in Pretorius and Others v 48 \f [40] Relying on decisions such as Cloverbay63 and Spicer & Oppenheim, 64 Mr Marcus ACKERMANN J submitted that, whereas English courts generally do not permit a liquidator to invoke this mechanism when a firm decision has been taken to institute proceedings or once they are pending, the position in South Africa65 is that a person who might be a witness in a pending civil trial relating to the subject-matter of the proposed interrogation is not exempt from interrogation and that the interrogation might even be conducted at a very late stage in the proceedings when the trial was ripe for hearing. The distinction is not, in my view, as marked as Mr Marcus suggested. In Re Castle New Homes Ltd66 Slade J, in dealing with the exercise of a court\u2019s discretion to order an examination and with the balancing of the requirements of the liquidator or administrator to obtain information on the one hand against the possible oppression to the person sought to be examined on the other, had stated a rather more detailed rule to the effect, inter alia, that [i]f the evidence shows that the purpose of a liquidator in seeking the examination is to achieve an advantage beyond that available to the ordinary litigant, in litigation which he has already commenced or which he has definitely decided to commence, the predisposition of the court may well be to refuse an immediate order for examination, unless the liquidator can show special grounds to the contrary.67 63Supra note 13 . 64Supra note 13. 65Levin v Ensor NO & Others 1975 2 SA 118 (D) 121; Corporate Finance Ltd & Another v Liquidator Two Plus (Pvt) Ltd (in liq) & Another 1978 4 SA 42 (R) 45; Pretorius v Marais 1981 1 SA 1051 (A) 1063G-H and Anderson v Dickson 1985 1 SA 93 (N) 112A-C. 66[1979] 2 All ER 775. 67Id 789a. 49 \f ACKERMANN J In Cloverbay,68 Browne-Wilkinson V-C, commenting on the importance attached by Slade J to the question whether or not the applicant had reached a firm decision to sue, said the following: 68Supra note 13. 50 \fACKERMANN J The more information there is as to the facts and possible defences to a claim the better informed will be any decision and the greater the likelihood of such decision being correct. It is the function of a liquidator or administrator to do his best for the creditors. True he is an officer of the court and must not act in any improper way but, like the judge, I can see nothing improper in a liquidator or administrator seeking to obtain as much information as possible before committing himself to proceedings. Moreover a test based on the subjective state of mind of the liquidator or administrator inevitably leads to undesirable disputes of fact, such as have arisen in this case, as to what is his state of mind. In my judgment therefore the test propounded in Re Castle New Homes Ltd [1979] 1 WLR 1075 has not proved to be satisfactory and should not in future be applied. Nor do I think that there is any other simple test that can be substituted. The words of the Insolvency Act 1986 do not fetter the court\u2019s discretion in any way. Circumstances may vary infinitely. It is clear that in exercising the discretion the court has to balance the requirements of the liquidator against any possible oppression to the person to be examined. Such balancing depends on the relationship between the importance to the liquidator of obtaining the information on the one hand and the degree of oppression to the person sought to be examined on the other.69 This approach was confirmed in the Spicer & Oppenheim case.70", "It was also pointed out in argument that the liquidator had the additional benefit of the transcript of the interrogation which could be used as evidence against and for purposes of cross-examining the examinee in a subsequent criminal or civil trial. This submission must of course now be read subject to the judgment in Ferreira v Levin71 as must the submission regarding the duty imposed on a liquidator by section 400(1) of the Companies Act to ascertain whether the company\u2019s directors and officers have been 69Id 101H - 102A. 70Supra note 13 at 882d - e. 71Supra note 2. 51 \f guilty of any criminal offence. ACKERMANN J", "In regard to the particular circumstances of the present case (as embodied in the agreed statement of facts) Mr Marcus highlighted a number of features. Since December 1992 the applicants have co-operated fully with and rendered assistance to the liquidators and their attorneys and the investigating accountants. The applicants have furnished them with all their working papers and such explanations and further information as they required. At no stage prior to the commencement of Mr Bernstein\u2019s examination on 2 August 1994 (the first of the applicant\u2019s to be examined) did the respondents inform the applicants that they considered Kessel Feinstein to be civilly liable in consequence of the manner in which the firm had performed its professional duties as auditors of the companies in the Tollgate Group or that the examination would be aimed inter alia at gathering evidence to support a possible claim against Kessel Feinstein. The liquidators addressed a memorandum to the applicants of issues which would be canvassed in their interrogation. Although they were warned that the list was not exhaustive, there was no intimation from the liquidators that the civil liability of Kessel Feinstein would in any way be canvassed. Yet the liquidators had, prior to Mr Bernstein\u2019s examination, instructed their investigative accountants to conduct an investigation into the potential liability of Kessel Feinstein and had decided that one of the objects of the interrogation 52 \fACKERMANN J was to explore their potential liability and to obtain concessions and admissions concerning their alleged negligence in the performance of their duties. When Mr Bernstein came to be questioned, his interrogation was indeed designed to elicit concessions and admissions regarding his and the firm\u2019s civil liability. The liquidators were assisted in the interrogation by the very attorneys and investigative accountants with whom the applicants had so closely co-operated since 1992. As a result of rulings by the commissioner which deny Mr Bernstein access to his legal representatives during his interrogation and to documentation relevant to his interrogation, it is contended that the applicants could not meaningfully prepare or have the benefit of legal advice on the surprise attack on themselves.", "The mechanism of sections 417 and 418 and its employment in the present case was accordingly characterised by the applicants as one whereby innocent outsiders, who played no part in the management of the company or its demise, are forced to go to a place where they do not want to be; are forced to give evidence by their own oral testimony and by the production of documents by which they incriminate themselves and which can then be used to vest them with civil or criminal liability; are forced to reveal confidential information that they want to keep private; are forced to produce their private books and documents, that they want to keep confidential; are forced to do so 53 \fACKERMANN J without being heard on the decision to subject them to the mechanism; are forced to do so in circumstances which render meaningful and effective legal representation all but impossible; and are exposed to criminal conviction or civil liability on their own evidence extracted under legal compulsion in a process devoid of the normal checks and balances built into criminal or civil litigation.", "It was against this general background that Mr Marcus submitted that the whole mechanism of sections 417 and 418 violates the cluster of rights comprising the right to freedom and security of the person in terms of section 11(1); the right to personal privacy in terms of section 13; and the right not to be subject to the seizure of private possessions or the violation of private communications, as a component of the right to personal privacy in terms of section 13. The attack based on section 11(1)", "It is to be borne in mind that the applicants\u2019 third basis of attack is focused on section 417(2)(b) of the Act and its inconsistency with the fair criminal trial rights embodied in section 25(3) of the Constitution. The present attack based on section 11(1) is 54 \fACKERMANN J accordingly a much narrower attack than the section 11(1) attack in Ferreira v Levin,72 for in that case the section 11(1) attack was also directed at section 417(2)(b) and in particular the ouster of the privilege against self-incrimination. Moreover, the present attack must be considered in the light of the effect which the judgment and order in Ferreira v Levin has on the mechanism of sections 417 and 418, namely that answers which tend to incriminate the examinee may not be used against the examinee in subsequent criminal proceedings (except in those special cases exempted in the order and which are not relevant to the present proceedings). 72Supra note 2. 55 \f [46] Mr Marcus\u2019 attack based on section 11(1) (and indeed his attack based on the other ACKERMANN J provisions of the Constitution) ignores the fact that the provisions of sections 417 and 418 are not, in their application, completely open-ended. As already indicated, the courts in this country have (as have the courts in other countries) developed a considerable body of case law the design of which is to prevent the mechanism of sections 417 and 418 (and the mechanisms of comparable statutory provisions in foreign jurisdictions) being used oppressively, vexatiously or unfairly towards the examinee. I have no doubt that our Supreme Courts will continue to develop that body of law having due regard to the spirit, purport and objects of the Constitution\u2019s chapter of fundamental rights.73 It is accordingly not open to argue that, because the provisions of sections 417 and 418 are general in terms and contain no express limitations as to their application, the constitutionality of these sections is to be adjudicated on the basis that they permit anything which is not expressly excluded. It is trite law that a statutory power may only be used for a valid statutory purpose.74 The constitutionality of sections 417 and 418 must therefore be assessed in the light of the control which the Supreme Court exercises over their implementation. 73Section 35(3) of the Constitution. 74See for example, Van Eck NO and Van Rensburg NO v Etna Stores 1947 2 SA 984 (A) 996 - 1000. 56 \f ACKERMANN J", "A large number of Mr Marcus\u2019 complaints (particularly in regard to Mr Bernstein\u2019s actual examination and the circumstances surrounding it, the alleged trap that was laid for him, his inability to prepare and the various other limitations to which he was subjected) relate to the manner in which the examination was conducted by the Commissioner and not to any provision in the sections of the Act under attack. There is nothing in the sections which mandates that the examination be conducted in this way. In respect of all these complaints the applicants\u2019 correct remedy was to approach the Supreme Court for relief on the basis that the examination was being conducted in an oppressive, vexatious or unfair manner. I deliberately refrain from expressing any view as to the validity of any of the complaints on this score. The only point I make is that the Supreme Court has jurisdiction to deal with complaints of this nature. It is a jurisdiction which (on the facts and circumstances of this case and in relation to these specific complaints) should first have been exhausted before any approach was made to this Court. It is unnecessary for purposes of this case to express any view as to how this Court would deal with an ultimate complaint that the Supreme Court\u2019s interpretation of a statute or its enunciation or development of the common law is unconstitutional.", "There is accordingly little left of the attack based on section 11(1) of the Constitution to 57 \fACKERMANN J deal with. In Ferreira v Levin,75 it was only myself and Sachs J who based our judgments on an infringement of section 11(1).76 The President and five members of the Court decided the case on the basis of an infringement of section 25(3) but also disagreed with my broad construction of the section 11(1) residual right to freedom.77 They expressed the view that the \u201cprimary, though not necessarily the only, purpose of section 11(1) of the Constitution is to ensure that the physical integrity of every person is protected\u201d,78 but added that they could \u201csee no objection to accepting provisionally that section 11(1) is not confined to the protection of physical integrity and that in a proper case it may be relied upon to support a fundamental freedom that is not otherwise protected adequately under Chapter 3.\u201d79", "The order in Ferreira v Levin, and the view of the majority who found section 417(2)(b) of the Act to be inconsistent with section 25(3) of the Constitution, does not assist the 75Supra note 2. 76Id paras 90 and 245 respectively, although we disagreed as to the ambit of the section 11(1) residual right to freedom. 77Id per Chaskalson P (Mahomed DP, Didcott J, Langa J, Madala J and Trengove AJ, concurring) paras 169 to 185. O\u2019Regan J, para 244, decided the case with the majority on the basis of an infringement of section 25(3), but expressed no view on the correct interpretation of section 11(1). 78Id per Chaskalson P (the other members of the Court as supra concurring) para 170. 79Id per Chaskalson P para 185. Mokgoro J ( with the majority) decided the case para 208, on the basis of an infringement of section 25(3) but was of the view, at para 209, that \u201cfreedom\u201d in section 25(3) was limited to \u201cfreedom in the sense of physical integrity\u201d. 58 \fACKERMANN J applicants in their broader attack on sections 417 and 418 which goes beyond an objection to the use of self-incriminating answers in subsequent criminal proceedings against the examinee. It is an attack based, in the first instance, on the section 11(1) freedom rights.", "It is unnecessary to elaborate any further on what I have already said concerning the objectives sought to be achieved by the mechanism embodied in sections 417 and 418. They are all very important public policy objectives. I would endorse the following observation of Windeyer J in Rees v Kratzmann,80 as quoted with approval by Mason CJ in Hamilton v Oades: The honest conduct of the affairs of companies is a matter of great public concern today.81 This is particularly the case in South Africa at present. Such honest conduct cannot be ensured unless dishonest conduct, when it occurs, is exposed and punished and ill-gotten gains restored to the company. Such exposure cannot, in its turn, effectively take place unless the affairs of companies which fail are thoroughly investigated and reconstructed, an objective which is difficult, and often impossible, to achieve without the full co- 80(1965) 114 CLR 63 at 80. 81Supra note 40 at 127. 59 \foperation of the directors, office bearers and auditors of the company who are, after all, the brains, eyes and ears of the company. On the obligations resting on such persons, I ACKERMANN J said the following in Ferreira v Levin: Companies are used to raise money from the public and to conduct business on the basis of limited liability. There are obvious advantages to doing so. But there are responsibilities which go with it. Part of the responsibility is to account to shareholders for the way in which the company conducts its affairs and, if the company goes insolvent, to account to shareholders and creditors for the failure of the business. These responsibilities are well known to all who participate in the running of public companies. ... Although it has been held that an auditor is not an officer of the company within the meaning of that expression in section 184(1) of the 1926 Act (corresponding to section 423(1) of the present Act) and it has been suggested that there is no basis for regarding an auditor as being an officer of the company for any purpose of the Act, in my view the same public policy considerations apply to the use of derivative evidence of an auditor of the company compelled to testify under section 417(2)(b) of the Act. The auditor has, inter alia, many statutory duties under the Companies Act and the Public Accountants' and Auditors Act, the purpose of which duties is, inter alia, to protect shareholders and creditors. The knowledge and expertise of the auditor is of particular importance in reconstructing the affairs of the company in liquidation and in achieving the other aims of the section 417 enquiry. An auditor is not obliged to become the auditor of a particular company nor to discharge the attendant duties without remuneration. In accepting appointment as an auditor of any particular company the auditor is aware of these duties.82 It is clear from the authorities cited earlier in this judgment83 that there are occasions when these mechanisms are essential in order to obtain information from complete outsiders. The examinee in the section 417 enquiry is not so differently situated from 82Supra note 2 para 151 (footnotes omitted). 83Supra paras 16 (j), 19 - 23, 26 - 27, 32 - 34. 60 \fwitnesses in any other proceedings, especially in the light of this Court\u2019s judgment in Ferreira v Levin, which in effect established a direct use immunity in criminal ACKERMANN J proceedings in respect of self-incriminating testimony.", "Against this background I proceed to deal with the attack based on section 11(1) of the Constitution. I do so on the basis of the views expressed by the majority of the Court in Ferreira v Levin on the construction of section 11(1), referred to in para 48 above. No good purpose would be served, so soon after that judgment, by repeating my arguments for giving section 11(1) a wider construction. The obligation to respond to a subpoena and to be present at the appointed time and place would not, on the majority view, compromise the physical integrity of the subpoenaed witness. In all democratic societies the state has the duty to establish independent tribunals for the resolution of civil disputes and the prosecution of persons charged with having committed crimes. In a constitutional state that obligation is of fundamental importance and it is clearly recognised as such in our constitution. Our Constitution is the supreme law of the land and makes provision in Chapter 7 for the judicial authority to vest in the courts. The use of subpoenas to require witnesses to attend courts, to produce documents and where necessary to give evidence is essential to the functioning of the court system. It is no doubt possible for the rule governing the issuing of subpoenas to be misused. The courts have the power to set aside 61 \fACKERMANN J subpoenas which have been issued for an improper purpose, or which are vexatious in other respects, but in its practical application that power is limited, and the possibility of the process of the court being abused in particular cases cannot be excluded.84", "The fact that the power of subpoena may possibly be abused in a particular case to the prejudice of the person subjected to such abuse, does not mean that the power should, for this reason, be characterised as infringing section 11(1) of the Constitution. The law does not sanction such abuse; it merely recognises that it is difficult to control it and that a clear case of abuse must be established in order to secure a discharge from a subpoena. Absent such proof it is the duty of persons who are subpoenaed to co-operate with the courts, and to attend court for the purpose of giving evidence or producing documents when required to do so. The fact that the present case is concerned with enquiries under sections 417 and 418 of the Companies Act, and not with a trial, does not affect the characterisation of the obligation to honour a subpoena to attend the enquiry. It is a civic obligation recognised in all open and democratic societies and not an invasion of freedom. 84Sher & Others v Sadowitz 1970 1 SA 193 (C) 195; S v Matisonn 1981 3 SA 302 (A) 313. 62 \f ACKERMANN J", "Witnesses who ignore subpoenas or who refuse to answer questions put to them may be subjected to the sanction of imprisonment. That is true of all persons who contravene legislation that has been lawfully passed. The execution of the sanction implicates the physical integrity of the person who is imprisoned for the breach of the law. Section 11(1), which pointedly refers to detention without trial, does not include within its scope imprisonment consequent upon the sentence of a court. Legislation invariably makes provision for sanctions, including the possibility of imprisonment, and it could never have been the intention of the framers of the Constitution to require all laws which contain such a sanction to meet the test of necessity prescribed by section 33(1) for any limitation of a section 11(1) right.", "It is perfectly clear that the sanction of imprisonment properly imposed by a court in respect of legislation which is otherwise constitutional, is justifiable in an open and democratic society. Sanctions are necessary to make legislation effective, for without them laws could be broken with impunity. Thus, even if section 11(1) was to be construed as applying to a statutory provision authorising a court to impose a sentence of imprisonment upon a person convicted of contravening the law, such a provision would almost always be justifiable under section 33. There may be cases in which the sanction 63 \f ACKERMANN J authorised or required by the statute is out of proportion to the offence. But even then it is doubtful whether section 11(1) would be implicated. Such cases would more properly be dealt with under section 11(2) of the Constitution, which is concerned with excessive punishments, than under Section 11(1). That question does not, however, arise in the present case.", "The sanction of imprisonment for ignoring, or failing without sufficient cause to give effect to a subpoena issued under section 417 or 418 of the Companies Act, is a reasonable and necessary sanction. So too is the power to cause a person in breach of such a subpoena to be arrested and brought before the Master or other person appointed to conduct the enquiry. Imprisonment follows in accordance with the normal procedural safeguards, therefore neither section 11(1) nor section 25 is impaired; and it is not a sanction which is disproportionate to the offence, therefore sections 11(1) and 11(2) are not impaired. The sanctions are necessary to enforce the legislation, and in so far as they have to comply with Section 11(1) read with Section 33, they clearly do so. The same conclusion, regarding justification under section 33(1), would be reached on the broad interpretation I placed on the right to freedom under section 11(1) in Ferreira v Levin. The mechanism provided by sections 417 and 418 is absolutely essential, and therefore necessary, to achieve these important public policy objectives. They cannot be achieved 64 \fACKERMANN J in any other way which would impinge less on an examinee\u2019s right of freedom, particularly when regard is had to the Supreme Court\u2019s power to control an examination and prevent it from being vexatious, oppressive or unfair. The limitation of the examinee\u2019s right of freedom is also clearly reasonable and justifiable in an open and democratic society based on freedom and equality. The duty to testify is well recognised in such societies whether it be in the context of a criminal or civil trial or in investigatory proceedings such as inquests or bankruptcy enquiries. (On the approach favoured by me in Ferreira v Levin I would have found that the statutory compulsion to obey a subpoena infringed section 11(1) but that this was a limitation manifestly justified under section 33(1)). The attack based on the section 13 right to personal privacy and the right not to be subject to the seizure of private possessions or the violation of private communications", "As part of their attack on the constitutionality of section 417 and 418 of the Act the applicants submit that \u201ca witness\u2019s privacy is clearly invaded when he is forced to disclose his books and documents that he wants to keep confidential and to reveal information that he wants to keep to himself.\u201d In addition, the applicants contend that the \u201ccompulsory production of documents under section 417(3) constitute a \u2018seizure\u2019 within the meaning of the right not to be subject to the \u2018seizure of private possessions\u2019 in terms 65 \fof section 13 of the Constitution.\u201d These are different attacks and will be dealt with ACKERMANN J separately.", "Section 13 of the Constitution entrenches the right to privacy as follows: Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.", "A distinction must be drawn between the compulsion to respond to a subpoena and the compulsion to answer particular questions at a section 417 enquiry in consequence of responding to the subpoena. The mere compulsion to be physically present at a particular place at a particular time in response to a subpoena cannot in itself be regarded as an intrusion on a person\u2019s privacy, however widely that concept is defined. It could be examined in relation to concepts such as freedom or perhaps even dignity, but it cannot notionally be categorised as interfering with one\u2019s privacy. It may of course be that, in particular circumstances, the disclosure of the person\u2019s identity might constitute a breach of the right to privacy, but that does not arise in this case. It is the compulsion to respond to particular questions about oneself and one\u2019s activities, for example, which could lead to an infringement of one\u2019s right to personal privacy. Before this stage is reached a 66 \fperson\u2019s privacy is not compromised. ACKERMANN J", "Before considering whether and to what extent the answering of particular questions at a section 417 enquiry could constitute an infringement of an examinee\u2019s section 13 right to personal privacy, it is essential to consider and analyse the source of such compulsion. This must be done, however, in the light of two relevant and interrelated provisions of the Constitution. Section 35(2) provides for the \u201creading down\u201d85 of a statute86 in the following terms- No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation.87 Section 35(3) moreover provides that in the interpretation of any statute88 and the 85See Hogg Constitutional Law of Canada 3 ed para 15.7. 86Although the word \u201claw\u201d is used in the subsection it is clear from the use of the word \u201cwet\u201d in the Afrikaans text that a statutory provision is intended. 87The formulation of this subsection bears a close resemblance to the rule of construction adopted by the United States Supreme Court as formulated by Justice Brandeis in Ashwander et al v Tennessee Valley Authority et al 297 US 288 (1936) 346 as the seventh principle enunciated in that case. An analogous rule is employed in Canada. See Hogg id footnote 20 supra. A similar rule of construction, known as verfassungskonforme Auslegung is employed by the German Federal Constitutional Court. Where it is reasonably possible to do so the statute will be construed so as to save it from unconstitutionality but not where this would distort its meaning. See BverGE 2, 266 (282); BverGE 18, 97 (111); BverGE 53, 135 (147) and, generally, v Mangoldt, Klein, Starck Das Bonner Grungesetz 3ed Art.3 Rdnr.205 et seq. According to Benda, Maihofer, Vogel Handbuch des Verfassungsrechts 2ed 34 Rdnr. 53 other European constitutional courts also apply a similar principle. 88Supra note 73. 67 \f ACKERMANN J application and development of the common law \u201ca court shall have due regard to the spirit, purport and objects of this Chapter.\u201d One of the objects of Chapter 3, apart from entrenching the fundamental rights it does, is to ensure through section 7(4) that any person whose Chapter 3 rights are infringed or threatened with infringement will have an \u201cappropriate\u201d remedy, without specifying or limiting the nature of such remedy.", "I return to the significance of the source of the compulsion to answer specific questions at the section 417 enquiry. Section 417(2)(b), before it was declared invalid to the extent indicated in the order of this Court in Ferreira v Levin, in express and unequivocal terms compelled an examinee to answer a question even though this might tend to incriminate the examinee and further provided that such incriminating answer could be used thereafter in evidence against the examinee, inter alia in criminal proceedings. On the clear wording the provision could simply not be read down so as not to exceed the examinee\u2019s Chapter 3 rights. Accordingly, the court could not avoid declaring the provision in question invalid to the extent indicated in its order. There is no other provision in section 417 or 418, or for that matter in any other provision of the Act which expressly or by necessary implication, compels the examinee to answer a specific question which, if answered, would threaten any of the examinee\u2019s Chapter 3 rights. It must in my view follow from this that the provisions of sections 417 and 418 can and 68 \fACKERMANN J must be construed in such a way that an examinee is not compelled to answer a question which would result in the unjustified infringement of any of the examinee\u2019s Chapter 3 rights. Fidelity to section 35(2) of the Constitution requires such a construction and fidelity to section 35(3) read with section 7(4) of the Constitution requires an appropriate remedy; in the present case that the examinee should not be compelled to answer a question which would result in the infringement of a Chapter 3 right.", "In this context the provisions of section 418(5)(b)(iii)(aa) of the Act are important. The subparagraph in question provides that a person who, having been duly summoned under section 417 or 418 to the examination- fails, without sufficient cause ... to answer fully and satisfactorily any question lawfully put to him in terms of section 417(2) or this section ... shall be guilty of an offence. (emphasis supplied) Nothing could be clearer, in my view, than this. If the answer to any question put at such examination would infringe or threaten to infringe any of the examinee\u2019s Chapter 3 rights, this would constitute \u201csufficient cause\u201d, for purposes of the above provision, for refusing to answer the question unless such right of the examinee has been limited in a way which passes section 33(1) scrutiny. By the same token the question itself would not be one \u201clawfully put\u201d and the examinee would not, in terms of this very provision, be obliged to answer it. The answer to this leg of Mr Marcus\u2019 argument is that there is, on a 69 \f ACKERMANN J proper construction of these sections, and in the light of this Court\u2019s order in Ferreira v Levin, no provision in section 417 or 418 of the Act which is inconsistent with the examinee\u2019s right to privacy in terms of section 13 of the Constitution now under consideration.", "The Constitution has in principle brought about a fundamental change to the way in which the evidential privileges of a witness or those of an examinee at any statutory enquiry (for purposes of the present case it is unnecessary to go further than this) should be approached. It is not, however, in the first instance, the task of this Court to determine what effect such approach will have on the law of evidence relating to privilege, save in those cases (of which section 417(2)(b) is an example) where there is an explicit statutory provision which cannot be read down as required by section 35(2) of the Constitution.", "In the case of common law privilege which has not been limited by statute it is the function of all the courts who are empowered to do so, and in particular that of the Supreme Court, in execution of the duty imposed on them by section 35(3) of the Constitution to \u201chave due regard to the spirit, purport and objects of\u201d Chapter 3 in the \u201cdevelopment of the common law\u201d of privilege. Such development can consist of the extension or the limitation of a privilege. 70 \f [64] The present attack is in the vaguest terms, namely, an assertion that the privacy of ACKERMANN J witnesses are invaded when they are forced to disclose their books and documents that they want to keep confidential and to reveal information that they want to keep to themselves. No real information is furnished as to the nature or content of the documents or information in respect whereof the claim to privacy is being made. In the present context a claim to privacy can surely only be founded on the content of the information which the examinee is being forced to disclose, not on his desire not to disclose it. It is simply not possible to pronounce on the issue of privacy unless the content of the document or information in respect whereof privacy is claimed is disclosed. Under these circumstances it would be most inadvisable, if not in fact impossible, to give a detailed exposition on the constitutional right to privacy at section 417 proceedings, quite apart from the fact that I am of the view that this is, in the first instance, an exercise which the Supreme Courts ought to work out on a case to case basis. It is sufficient for the disposition of this part of the case to repeat that there is no provision in section 417 or section 418 which, when properly construed in the light of section 35(2) and (3) of the Constitution, is inconsistent with such right.", "The aforegoing conclusion renders it unnecessary, strictly speaking, to consider whether the compulsion to answer the questions which the applicants complain of do infringe 71 \f ACKERMANN J their constitutional right to privacy. It would nonetheless be appropriate, I believe, to venture some preliminary observations on the scope of this right. The concept of privacy is an amorphous and elusive one which has been the subject of much scholarly debate.89 The scope of privacy has been closely related to the concept of identity and it has been stated that \u201crights, like the right to privacy, are not based on a notion of the 89Scholars such as Dionisopoulos and Ducat, The Right to Privacy (West Publishing Co) (1976) as referred to in Barker Civil Liberties and the Constitution 6 ed 577 and following, have suggested three cores to the concept. The first constitutes the \u201cplace-oriented conceptions of privacy\u201d defining the right in spacial terms, of which Olmstead v US 277 US 438 (1928) would be an illustration. The second the \u201cperson-oriented conceptions of privacy\u201d, where the emphasis is shifted from place or property to the person involved (See Schmerber v California 384 US 757 (1966)). The third concept has to do with how the \u201cright inheres in certain relationships\u201d such as the marriage relationship but not necessarily others (See Griswold v Connecticut 381 US 479 (1965)). 72 \funencumbered self, but on the notion of what is necessary to have one\u2019s own autonomous ACKERMANN J identity\u201d.90 90Rainer Forst formulated this statement in reaction to Michael J. Sandel\u2019s communitarian critique of the \u201cliberal self\u201d: firstly, liberalism is said to rely on the concept of the atomistic self, individualised prior to communal relations and constitutive goods and, secondly, to subsume this individual under universalist and individualistic notions of \u201cright\u201d that, despite their intention, destroy the real individuality of a communal being, rendering the \u201cunencumbered self\u201d to become the disempowered citizen of the modern state. (See: Rainer Frost \u201cHow not to speak about identity: the concept of the person in a theory of justice.\u201d in Philosophy and Social Criticism 1992 Vol 18 No1 and M. Sandel \u201cThe Procedural Republic and the Unencumbered Self.\u201d in Political Theory 1984 Vol 12 No 1). 73 \f [66] ACKERMANN J In expanding upon this notion Forst91 acknowledges that communal bonds are not to be substituted with abstract relations, but argues beyond this for a multi-levelled recognition of identity. Besides the concrete and abstract realms, this thirdly also pertains to societal membership92 and fourthly to the community of humanity93 itself", "The relevance of such an integrated approach to the interpretation of the right to privacy 91Id. 92Id. This is, according to Forst, the third level of political discourse between citizens, where concrete difference and common equality are reconciled, and requires an acceptance of one\u2019s obligations towards the right of every member of the polity not to be excluded. 93Id. Forst points out that this community is spoken of by both Kant and Mead, and demands mutual respect as a universal moral duty towards persons as moral persons. Without this notion of the moral person fundamental rights are meaningless, just as they are meaningless if not institutionalized and secured within a political community. Fundamental rights, although originating on the level of morality, need to be sustained on the level of political discourse and has implications for both the concrete and the abstract self. 74 \fACKERMANN J is that this process of creating context cannot be confined to any one sphere, and specifically not to an abstract individualistic approach. The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.", "In South African common law the \u201cright to privacy is recognised as an independent personality right which the courts have included within the concept of dignitas\u201d.94 \u201cPrivacy is an individual condition of life characterised by seclusion from the public and publicity. This implies an absence of acquaintance with the individual or his personal 94Neethling Potgieter and Visser Law of Delict 2 ed. 333. See also O\u2019Keeffe v Argus Printing and Publishing Co Ltd1954 3 SA 244 (C) 247F-249D and Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1979 1 SA 441 (A) 455H-456H. 75 \fACKERMANN J affairs in this state\u201d.95 In Financial Mail (Pty) Ltd v Sage Holdings Ltd96 it was held that breach of privacy could occur either by way of an unlawful intrusion upon the personal privacy of another, or by way of unlawful disclosure of private facts about a person. The unlawfulness of a (factual) infringement of privacy is adjudged \u201cin the light of contemporary boni mores and the general sense of justice of the community as perceived by the Court\u201d.97 95Neethling supra note 15 at 333. This approach accords with that followed by the US Supreme Court in US v Dionisio 410 US 1 (1975) 14 and US v Mara 410 US 19 (1973) 21 and, where the court held that a person had no reasonable expectation of privacy with respect to physical characteristics which he/she exposes to the public on a daily basis. 961993 2 SA 451 (A) 462F. 97Id 462G. 76 \f [69] Examples of wrongful intrusion and disclosure which have been acknowledged at ACKERMANN J common law are entry into a private residence,98 the reading of private documents,99 listening in to private conversations,100 the shadowing of a person,101 the disclosure of private facts which have been acquired by a wrongful act of intrusion,102 and the disclosure of private facts contrary to the existence of a confidential relationship.103 98S v I 1976 1 SA 781 (RA); S v Boshoff 1981 1 SA 393 (T) 396. 99Reid-Daly v Hickman 1981 2 SA 315 (ZA) 323. 100S v A 1971 2 SA 293 (T); Financial Mail supra note 96 at 463. 101Epstein v Epstein 1906 TH 87. 102Such as the publishing of information obtained from illegally tapping telephone conversations; Financial Mail supra note 96 at 463. See also Neethling Persoonlikheidsreg 223. 103Neethling Persoonlikheidsreg 234-238; Neethling Potgieter and Visser Law of Delict 334. 77 \fThese examples are all clearly related to either the private sphere, or relations of legal privilege and confidentiality. There is no indication that it may be extended to include the ACKERMANN J carrying on of business activities.", "In S v Naud\u00e9104 Corbett JA said with regard to the inquisitorial power of a commission of inquiry that the exercise thereof \u201cmakes an important inroad upon the right of the individual to \u2018the tranquil enjoyment of his peace of mind\u2019... and such privacy as the law allows him\u201d. The learned judge of appeal defined the risk inherent in such proceedings as that of \u201chaving aspects of [one\u2019s] private [life] exposed\u201d105 (emphasis added). It is clear that these dicta do not provide any authority for the notion that the right to privacy extends beyond the private sphere of an individual\u2019s existence. By qualifying the right as \u201csuch privacy as the law allows him\u201d (emphasis added), Corbett JA acknowledges that the law as it stands embodies a quantification of diverse interests, ranging from that of the individual, to those of his fellow community members. Such an interpretation would accord with the conceptual analysis advanced supra. Such an approach is also supported by O\u2019Keeffe\u2019s case.106 1041975 1 SA 681 (A) 704A-B. 105Id 704D. 106Supra note 94 at 249C-D where Watermeyer AJ followed the American approach which proscribes invasions of privacy which can reasonably be considered offensive to persons of ordinary sensibilities. This case 78 \fACKERMANN J Similarly the statement of Macdonald JA in R v Parker107 that \u201c[t]he procedure laid down in section 102 is exceptional ... and constitutes an inroad into the right of privacy possessed by every member of the public\u201d, should be read in the light of his subsequent statement qualifying the scope thereof to the \u201creasonable and proper limits of privacy\u201d.108 concerned the unauthorised publication of a person\u2019s photograph; this has been classified as a wrongful invasion of privacy in terms of the Nordic Conference on the Right to Respect for Privacy of 1967. 1071966 2 SA 57 (RA) 58D-E. 108Id 58H. 79 \f [71] Caution must be exercised when attempting to project common law principles onto the ACKERMANN J interpretation of fundamental rights and their limitation; it is important to keep in mind that at common law the determination of whether an invasion of privacy has taken place constitutes a single enquiry, including an assessment of its unlawfulness. As in the case of other iniuriae the presence of a ground of justification excludes the wrongfulness of an invasion of privacy.109 In constitutional adjudication under the Constitution, by contrast, a two-stage approach must be employed in deciding constitutionality of a statute. 109Neethling Persoonlikheidsreg 247 et seq. It is also significant that public interest in information plays a role in determining whether the publication of private facts by the media is justified. Financial Mail (Pty) Ltd v Sage Holdings (Pty) Ltd supra note 96 at 462-463. 80 \f [72] Article 8(1) of the European Convention on Human Rights provides that \u201ceveryone has ACKERMANN J the right to respect for his private and family life, his home and his correspondence\u201d. This right is limited by article 8(2) on the basis that interference may only occur in accordance with the law, and must be necessary in a democratic society. It is difficult to distinguish clearly between the right to private life on the one hand, and the rights belonging to the private sphere on the other. The commission has however held that such a clear delimitation was unnecessary since a complaint concerning violation of the private sphere could be based on the provision as a whole. The difficulty that remains is the determination of the scope of \u201cthe provision as a whole\u201d or as it is commonly called \u201cthe right to privacy\u201d.110", "Use of this term has not been unproblematic, since in terms of a resolution of the consultative Assembly of the Council of Europe this right has been defined as follows: The right to privacy consists essentially in the right to live one\u2019s own life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs, protection from disclosure of information given or received by the individual confidentially. 110Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2 ed0 (1990) 368. 81 \fACKERMANN J And in the final conclusions of the Nordic Conference on the Right to Respect for Privacy of 1967 the following additional elements of the right to privacy are listed: the prohibition to use a person\u2019s name, identity or photograph without his/her consent, the prohibition to spy on a person, respect for correspondence and the prohibition to disclose official information. The Commission has connected the right to privacy of Article 8 also with the right to freedom of expression of Article 10 by stating that \u201cthe concept of privacy in Article 8 also includes, to a certain extent, the right to establish and maintain relations with other human beings for the fulfilment of one\u2019s personality.111 This expansion of the concept by the European Commission is strongly reminiscent of Forst\u2019s explanation, supra, as to his use of the concept of \u201cidentity\u201d, namely that it refers to the ability of a person to relate to him or herself and to be able to relate to others in a meaningful way. 111Appl. 8962/80, X and Y v Belgium, D & R 28 (1982), p 112 (124); see also Van Dijk 369. 82 \f [74] ACKERMANN J In Fayed v the United Kingdom 112 the investigation into the affairs of a public company and the subsequent publication of the Inspectors\u2019 report by the Secretary of State for Trade and Industry in terms of sections 432(2) and 437(3) of the English Companies Act, was considered by the European Court of Human Rights in the light of articles 6(1) and 8 of the European Convention. Article 6(1) embodies the right to a fair and public hearing, while article 8 guarantees the right to respect for private life. The final report of the Inspectors, containing findings to the effect that the Fayeds had made dishonest representations in the course of a takeover bid and in the investigation itself, was widely reported in the communication media. The Fayeds were never prosecuted. One of the claims brought to the European Court by the applicants was that publication of the Inspectors\u2019 report had unjustifiably interfered with their honour and reputation, protected as part of their right to respect for private life under article 8 of the Convention. Although not directly in point, the judgment of the court dismissing the complaint contains instructive dicta on privacy and public policy. The court gave little attention to whether there had been a facial infringement of any of the rights and proceeded almost directly to the second leg of the enquiry, and, holding that the result would be the same regardless of whether the complaint was construed as an infringement of article 6(1) or 112Series A. No 294 B; Application No 17101/90; (1994) 18 EHRR 393. 83 \f the article 8 right to privacy, tested the legitimacy and proportionality of the ACKERMANN J infringement. In this context the court found that:- [t]he underlying aim of this system is clearly the furtherance of the public interest in the proper conduct of the affairs of public companies whose owners benefit from limited liability ... The system contributes to safeguarding the interests of various parties concerned in the affairs of public companies such as investors, shareholders, especially small shareholders, creditors, customers, trading partners and employees, as well as ensuring the structures.113 Regarding the right to a good reputation, the Court remarked that : The individual\u2019s interest in full protection of his or her reputation\u201d must, to varying extents, \u201cyield to the requirements of the community\u2019s interest in independent investigation of the affairs of large public companies.114 and, more pertinently for present purposes, that: 113Id para 69. 114Id para 81. 84 \fACKERMANN J ... the limits of acceptable criticism are wider with regard to businessmen actively involved in the affairs of large public companies than with regard to private individuals ... Persons, such as the applicants, who fall into the former category of businessmen inevitably and knowingly lay themselves open to close scrutiny of their acts, not only by the press but also and above all by bodies representing the public interest ... . 115 As will be seen in the following paragraphs, this echoes to some extent the approach of the US courts in determining the existence of a \u201creasonable expectation of privacy\u201d, but it must of course be noted that the above comment was in regard to the limitation and not the scope of the right in question. 115Id para 75. 85 \f [75] The question corresponding to determining the \u201cscope of the right to privacy\u201d in United ACKERMANN J States constitutional inquiry, is whether a search or seizure has occurred. The US Supreme Court has defined \u201csearch\u201d to mean a \u201cgovernmental invasion of a person\u2019s privacy\u201d and it has constructed a two part test to determine whether such an invasion has occurred. The party seeking suppression of the evidence must establish both that he or she has a subjective expectation of privacy and that the society has recognized that expectation as objectively reasonable. In determining whether the individual has lost his/her legitimate expectation of privacy, the court will consider such factors as whether the item was exposed to the public, abandoned, or obtained by consent.116 It must of course be remembered that the American constitutional interpretative approach poses only a single inquiry, and does not follow the two-stage approach of Canada and South Africa. Nevertheless it seems to be a sensible approach to say that the scope of a person\u2019s privacy extends a fortiori only to those aspects in regard to which a legitimate expectation of privacy can be harboured.", "The Canadian Charter of Rights and Freedoms does not specifically provide for the protection of personal privacy. As in the United States the issue arises in connection with 116See Katz v US 389 US 347 (1967) 361, Abel v US 362 US 217 (1960) 241. 86 \fACKERMANN J the protection of persons against unreasonable search and seizure, which in Canada is afforded by section 8 of the Charter. In defining the scope of this protection the Canadian Courts have adopted an approach similar to that followed in United States jurisprudence. In McKinley Transport Ltd et al v The Queen117 Wilson J quoted with approval the following exposition of Dickson J in Hunter et al v Southam Inc:118 The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by section 8, whether it is expressed negatively as freedom from \u2018unreasonable\u2019 search or seizure, or positively as an entitlement to a \u2018reasonable\u2019 expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public\u2019s interest to be left alone by government must give way to government\u2019s interest in intruding on the individual\u2019s privacy in order to advance its goals, notably those of law enforcement. 117[1990] 68 D.L.R. (4th) 568 at 578. 118[1984] 11 D.L.R. (4th) 641 at 652-3. 87 \fACKERMANN J Wilson J pointed out119 that one of the purposes underlying the section 8 right is the \u201cprotection of the individual\u2019s reasonable expectation of privacy.\u201d Since an enquiry into privacy constitutes an important component in determining the scope of an unreasonable search or seizure, the courts have had to develop a test to determine the scope and content of the right to privacy. The \u201creasonable expectation of privacy\u201d test comprises two questions. Firstly there must at least be a subjective expectation of privacy120 and, secondly, the expectation must be recognized as reasonable by society.121 119In McKinley supra note 119 at 578 a-c. 120R v Wong (1987) 41 CCC (3d) 163 OntCA. 121James A Fontana The Law of Search and Seizure in Canada 3 ed (1992) 19. 88 \f [77] The German Basic Law does not in express terms entrench a general right to privacy ACKERMANN J although isolated aspects of privacy are protected in, for example, Art 4 (freedom of belief), Art 10 (protection of postal communications) and Art 13 (inviolability of the home). The protection of a general right to privacy has been developed by the Federal Constitutional Court (FCC) on a case to case basis.122 It has held that the constitutional obligation to respect the sphere of intimacy of individuals is based on the right to the unfettered development of personality embodied in Art 2(1) of the Basic Law123 and in determining the content and ambit of this fundamental right, regard must be had to the inviolability of dignity in terms of Art 1(1), which must be respected and protected by the judicial system.124 Privacy is also protected out of respect for dignity and this linking up of Art 2(1) and Art 1 results in the limitation provisions of Art 2(1) being applied more strictly in the case of infringement of the right to privacy.125 A very high level of protection is given to the individual\u2019s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority.126 So much so that, in 122Von M\u00fcnch/Kunig Grundgesetz-Kommentar (4aufl) Band 1, Art 1 Rn 10; Art 2 Rn 30-31. 123See also Ferreira v Levin supra note 2 paras 84-85. 124BVerfGE 27, 344[350]. 125Von M\u00fcnch/Kunig supra note 122, Art 1 Rn 10. 126BVerfGE 54, 148[153]; BVerfGE 6, 32[41]. 89 \f ACKERMANN J regard to this most intimate core of privacy, no justifiable limitation thereof can take place.127 But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual\u2019s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.128", "In BVerfGE 34, 238 the FCC was concerned with the objection to the admissibility of secretly made tape recordings indicating that the complainant was guilty of fraud and tax evasion. While upholding the objection, the FCC pointed out that there were circumstances in which a tape recording made without the knowledge of the speaker would fall outside the area of protection afforded by Art 2(1) read with Art 1(1) - 127BVerfGE 27, 344[351]; BVerfGE 34, 238[245]; BVerfGE 80, 367[373]. 128BVerfGE 6, 389[433]. 90 \fACKERMANN J Because in these cases it is the general consensus that the right to one\u2019s own words no longer enters the question. For example, insofar as it has become common practice in commercial dealings to keep a record of telephone messages, orders or stock-exchange reports by means of a tape recording, the right of the speaker to the unfettered development of the personality will, generally speaking, not be affected. In communications of this sort the objective content of the statement is so much in the foreground that the personality of the speaker is almost completely obscured by it and the spoken word thereby loses its private character.129 129At 247: \u201c...weil in diesen Faellen nach allgemeiner Auffassung von einem Recht am eigenen Wort nicht mehr die Rede sein kann. Soweit es z. B. im geschaeftlichen Verkehr ueblich geworden ist, fernmuendliche Durchsagen, Bestellungen oder Boersennachrichten mittels eines Tonabnehmers festzuhalten, ist in aller Regel das Recht auf freie Entfaltung der Persoenlichkeit des Sprechers noch nicht betroffen. Bei derartigen Mitteilungen steht der objektive Gehalt des Gesagten so sehr im Vordergrund, dass die Persoenlichkeit des Sprechenden nahezu vollends dahinter zuruecktritt und das gesprochene Wort damit seinen privaten Charakter einbuesst.\u201d 91 \f ACKERMANN J In principle this approach resembles the \u201creasonable expectation of privacy\u201d test, referred to above. In German law when insolvents130 are examined on the causes of their insolvency, they are obliged to answer all questions put, even though the questions might tend to incriminate them, but the FCC has however, in its judgments, crafted a use immunity in respect of such answers if they are sought to be used against insolvents in subsequent criminal proceedings against them.131 The justification for the compulsion is instructive. The nature and extent of the Art 2(1) right \u201calso depends on whether and to what extent other people depend on the information provided by the person in question; in particular whether the information belongs to a sphere of duties which the person in question has taken up voluntarily.\u201d132 The insolvent is regarded as having specific duties 130The German law treats the insolvency of persons and the liquidation of companies in the same way. German insolvency law is governed by the Konkursordnung. The equivalent of section 417 is \u00a775 of the Konkursordnung. Apart from the special provisions in \u00a7207 ff of the Konkursordnung, all provisions, including \u00a775 apply both to natural and to juristic persons. (See G. Robbers Einf\u00fchrung in das deutsche Recht 275). 131BVerfGE 56, 37[49-51]. 132Id 42: \u201cauch davon abhaengen, ob und inwieweit andere auf die Information der Auskunftsperson angewiesen sind, ob insbesondere die Auskunft Teil eines durch eigenen Willensentschluss uebernommenen Pflichtenkreises ist.\u201d 92 \ftowards the creditors, who have been harmed by his actions;133 there are not only state or public interests at stake but those of third parties, who have suffered damage and demand ACKERMANN J information.134", "The German, European and American approach seems to accord with the analysis attempted above, namely that the nature of privacy implicated by the \u201cright to privacy\u201d relates only to the most personal aspects of a person\u2019s existence, and not to every aspect within his/her personal knowledge and experience. The two-stage approach requires, as the first step, a definition of the scope of the relevant right. At this stage already, in defining the right to privacy, it is necessary to recognise that the content of the right is crystallized by mutual limitation. Its scope is already delimited by the rights of the community as a whole (including its members). 133Id 48. 134Id 50. 93 \f [80] The facts operative in the present case concern neither the invasion of private living ACKERMANN J space, nor any specific protected relationship. Against the background of the approach alluded to above, the relevant core to be considered appears to be the one defining privacy as inhering in the person, suggested above.135", "The present judgment has been at pains to point out, in the light of Ferreira v Levin, that directors, officers of the company generally, auditors of the company and certain outsiders, have a duty to assist a section 417 enquiry achieve its objects. This duty has been voluntarily assumed by such persons entering into their respective relationships with the company.", "Section 417(2) permits interrogation concerning any matter referred to in section 417(1). The latter section refers to \u201cany director or officer of the company or person known or suspected to have in his possession any property of the company or believed to be indebted to the company, or any person whom the Master or the court deems capable of giving information concerning the trade, dealings, affairs or property of the company.\u201d In 135See note 89 above. 94 \fACKERMANN J effect the section permits questions to be asked in connection with property, claims or the \u201ctrade, dealings, affairs or property of the company\u201d. The scope of the interrogation in terms of section 417(2) of the Act must, however, be informed by the purpose of the enquiry. In so far as the purpose is concerned with the discovery of information which may be to the financial benefit of the company and relates to the proper winding-up of the company, as more fully analysed above, the scope of the questioning is limited to this purpose.", "Although the phrase \u201cinformation concerning the ... affairs ... of the company\u201d appears to be quite broad facially, it must be construed in conformity with the aforementioned purpose of the enquiry. It is difficult to see how any information which an individual possesses which is relevant to the purpose of the enquiry can truly be said to be private. One is after all concerned here with the affairs of an artificial person with no mind or other senses of its own; it depends entirely on the knowledge, senses and mental powers of humans for all its activities. In the words of Rogers CJ in Spedly Securities v Bond Corporation Holdings Ltd directors and others concerned with the management and affairs of a failed company (in which category of persons I would certainly include the auditors) \u201cowe a duty to creditors and shareholders to provide a candid, full and truthful 95 \faccount of their stewardship.\u201d136 This duty arises from the very fact that the company has ACKERMANN J no mental or sensory capacities of its own.", "In this regard I find the following observation of Bryson J in Lombard Nash International Pty Ltd v Berentsen, when made in relation to precisely this corporate deficiency, acute, sound and relevant: the company in a fair sense ought to be thought of as the owner of the knowledge in their [the officers\u2019 of the company] minds.137 If that is so, and I agree that it is for purposes of present analysis, then it can hardly be said that the knowledge of the director, official or auditor bearing relevantly on the affairs of the company that has failed can be said to fall within such person\u2019s domain of personal privacy. I would hold the same in relation to a mere debtor or creditor of the company. If such knowledge is relevant, it is relevant because of some legal relationship between such person and the company, which can hardly be said to be private. 136Supra note 36 at 738 and see also para [30] supra. 137Supra note 38 at 346. 96 \f [85] The establishment of a company as a vehicle for conducting business on the basis of ACKERMANN J limited liability is not a private matter. It draws on a legal framework endorsed by the community and operates through the mobilization of funds belonging to members of that community. Any person engaging in these activities should expect that the benefits inherent in this creature of statute, will have concomitant responsibilities. These include, amongst others, the statutory obligations of proper disclosure and accountability to shareholders. It is clear that any information pertaining to participation in such a public sphere, cannot rightly be held to be inhering in the person, and it cannot consequently be said that in relation to such information a reasonable expectation of privacy exists. Nor would such an expectation be recognised by society as objectively reasonable. This applies also to the auditors and the debtors of the company. On the facts of this case the conclusion seems to be unavoidable that no threat to or infringement of any of the applicants\u2019 right to privacy as protected by section 13 of the Constitution has been established. The application of the Constitution to the issue of \u201csufficient cause\u201d in the present context would operate as follows. The first part of the enquiry is whether answering the particular question would infringe the applicant\u2019s right to privacy. If it would, this would constitute \u201csufficient cause\u201d for declining to answer the question unless the section 418(5)(b)(iii)(aa) compulsion to answer the question would, in all the circumstances, constitute a limitation on the right to privacy which is justified under 97 \fsection 33(1) of the Constitution ACKERMANN J", "The applicants further contended that the compulsion to produce documents in terms of section 417(3) of the Act constitutes a \u201cseizure of private possessions\u201d within the meaning of section 13 of the Constitution. For the sake of convenience section 417(3) of the Act is repeated here: The Master or the Court may require any such person to produce any books or papers in his custody or under his control relating to the company but without prejudice to any lien claimed with regard to any such books or papers, and the Court shall have power to determine all questions relating to any such lien.", "Reference should in this regard also be made to subparagraph 418(5)(b)(iii)(bb), which provides that any person who has been duly summoned under section 417 or 418 to an enquiry and who:- Fails, without sufficient cause ... to produce books or papers in his custody or under his control which he was required to produce in terms of section 417(3) or this section, shall be guilty of an offence. (Emphasis added)", "It seems to me that this part of the argument must be disposed of in exactly the same way as the previous argument based on the general right to personal freedom in section 13. Sections 417 and 418, and in particular subparagraph 418(5)(b)(iii)(bb), are capable of 98 \fACKERMANN J being read down, and must be read down, in such a way that they do not compel a person to produce books or papers which would result in an infringement of such person\u2019s section 13 right \u201cnot to be subject to ... the seizure of private possessions...\u201d. Similarly, nothing could be clearer, in my view, than that if the production of any book or paper would infringe the producer\u2019s right not to be subject to the seizure of private possessions, this would, for purposes of the above provision, constitute \u201csufficient cause\u201d for refusing to produce such books or papers unless such right of the producer is subject to limitation under section 33(1) of the Constitution. In this regard it is also in my opinion the task of the Supreme Court, in the first instance, to develop the concept of the right not be subject to the seizure of private possessions, its content and limits.", "A few general observations may not, however, be out of place. In the normal course, the section would hardly be used to compel examinees to produce \u201cprivate possessions\u201d since such possessions would hardly relate to company affairs. But, in so far as private books and papers might relate to the company, the section is open to an interpretation which would permit the Master or the court to compel the production of such documents. The compulsion to produce such private documentation would also constitute a \u201cseizure\u201d within the meaning of section 13 of the Constitution. As pointed out by some of the Canadian judges referred to below, no sound distinction can be made in theory or 99 \fACKERMANN J practice between compelling a person to produce documentation and the physical removal of such documentation from a person. Again the infringement of section 13 would result as an incidental effect rather than the purpose of employing sections 417 and 418. Moreover, examinees could also approach the courts to control oppressive, vexatious or unfair use of the section. It is likewise difficult to see how a document which was truly relevant to the matters legitimately being examined, could be said to be a private document.", "Even if it could be established that, in certain circumstances, and despite a proper construction of sections 417 and 418 of the Act and proper control of their implementation by the Supreme Court, the production of private possessions or private communications could be compelled under section 417(3) or 418(2) of the Act, and in particular that they were relevant to the enquiry and the achievement of its objects, in the sense that I have outlined in this judgment, such production would clearly be justifiable in terms of section 33 of the Constitution. In South Africa, the right not to be subjected to seizure of private possessions forms part of every person\u2019s right to personal privacy. The right against seizure must therefore be interpreted in the light of the general right to personal privacy. So much is also clear from the qualification of the right, ie the right against seizure of private possessions. I have repeatedly emphasised that privacy 100 \fACKERMANN J concerns are only remotely implicated through the use of the enquiry. The public\u2019s interest in ascertaining the truth surrounding the collapse of the company, the liquidator\u2019s interest in a speedy and effective liquidation of the company and the creditors\u2019 and contributors\u2019 financial interests in the recovery of company assets must be weighed against this, peripheral, infringement of the right not to be subjected to seizure of private possessions. Seen in this light, I have no doubt that sections 417(3) and 418(2) constitute a legitimate limitation of the right to personal privacy in terms of section 33 of the Constitution.", "The US Supreme Court has held that corporate officers cannot invoke the protection which the Fourth Amendment affords against searches and seizures. In Hale v Henkel the Court stated: Upon the other hand, the corporation is a creature of the State. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the State and the limitations of its charter. Its powers are limited by law. It can make no contract not authorized by its charter. Its rights to act as a corporation are only preserved to it so longs as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that a State, having chartered a corporation to make use of certain franchises, could not in the exercise of its sovereignty inquire how these franchises had been employed, and whether they had been abused, and demand the production of the corporate books and papers for that purpose.138 The Court also held as follows: 138201 US 43 (1906) 74-5; See also US v White 322 US 694 (1944) 698. 101 \fWe think it quite clear that the search and seizure of the Fourth Amendment was not intended to interfere with the power of the court to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence.139 ACKERMANN J", "It is, as already indicated, notionally possible that under sections 417(3) and 418(2) of the South African Companies Act the production of documents which are not company documents or records in the strict sense might be compelled. Nevertheless, provided the documents were relevant to any legitimate enquiry under section 417, their compelled production would be justified for the very same reason that the compelled answers to similarly relevant questions would be justified. Sections 417 and 418 of the Act are accordingly not inconsistent with any of the section 13 rights. The alleged violation of section 24 of the Constitution", "Section 24 of the Constitution reads: Every person shall have the right to - (a) (b) (c) lawful administrative action where any of his or her rights or interests is affected or threatened; procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened; be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it 139Id 73. See also White supra note 138 at 698. Special problems of privacy may be presented by subpoena of a personal diary. See Fisher et al v United States et al 425 US 391 1976) at 401 note 7. 102 \fwhere any of his or her rights is affected or threatened ACKERMANN J It was submitted in this regard that the whole mechanism set up by sections 417 and 418 of the Act violates section 24 in that it permits an inquiry in violation of paragraphs (b) and (c) of section 24. Both paragraphs are triggered when someone\u2019s \u201crights\u201d are \u201caffected\u201d by \u201cadministrative action\u201d. Paragraph (b) is also triggered whenever someone\u2019s \u201crights\u201d are \u201cthreatened\u201d or \u201clegitimate expectations\u201d are \u201caffected or threatened\u201d. Paragraph (c) is also triggered whenever someone\u2019s \u201cinterests\u201d are \u201caffected\u201d.", "There is certainly an argument to be made for the proposition that enquiries conducted pursuant to the provisions of sections 417 and 418 of the Act and the performance by Commissioners of their duties to report thereunder constitute administrative action within the meaning of section 24 of the Constitution. The Court of Appeal in England in the Pergamon Press case140 a decision relied upon by Mr Marcus, held that enquiries of this kind, although merely investigative in nature, do adversely impact on the rights and interests of the witness and accordingly have to be conducted in accordance with the principles of natural justice. Lord Denning said the following in this regard: 140Re Pergamon Press Ltd [1971] Ch 388 (CA). 103 \fACKERMANN J It is true, of course, that the inspectors are not a court of law. Their proceedings are not judicial proceedings: see Re Grosvenor & West End Railway Terminus Hotel Co Ltd (1897) 76 LT 337. They are not even quasi-judicial, for they decide nothing; they determine nothing. They only investigate and report. They sit in private and are not entitled to admit the public to their meetings: see Hearts of Oak Assurance Co Ltd v Attorney-General [1932] A.C. 392. They do not even decide whether there is a prima facie case, as was done in Wiseman v Borneman [1971] A.C. 297. But this should not lead us to minimise the significance of their task. They have to make a report which may have wide repercussions. They may, if they think fit, make findings of fact which are very damaging to those whom they name. They may accuse some; they may condemn others; they may ruin reputations or careers. Their report may lead to judicial proceedings. It may expose persons to criminal prosecutions or to civil actions. It may bring about the winding up of the company, and be used itself as material for the winding up: see Re SBA Properties Ltd [1967] 1 WLR 799. Even before the inspectors make their report, they may inform the Board of Trade of facts which tend to show that an offence has been committed: see section 41 of the Act of 1967. When they do make their report, the Board are bound to send a copy of it to the company; and the board may, in their discretion, publish it, if they think fit, to the public at large. Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly. This is a duty which rests on them, as on many other bodies, even though they are not judicial, nor quasi-judicial, but only administrative: see Reg. v Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 QB 417.141 Sachs LJ expressed himself as follows: 141Id 399D - H. 104 \fACKERMANN J The nature of the proceeding, the purposes for which the reports may be used, the matter which may be found in them and the extent of the publication being respectively as described, it seems to me, as well as to Lord Denning MR, very clear that in the conduct of the proceedings there must be displayed that measure of natural justice which Lord Reid in Ridge v Baldwin [1964] AC 40 at 65, described as \u2018insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances. . . .\u2019 To come to that conclusion it is, as recent decisions have shown, not necessary to label the proceedings \u2018judicial,\u2019 \u2018quasi-judicial,\u2019 \u2018administrative\u2019 or \u2018investigatory\u2019: it is the characteristics of the proceeding that matter, not the precise compartment or compartments into which it falls - and one of the principal characteristics of the proceedings under consideration is to be found in the inspectors\u2019 duty, in their statutory fact-finding capacity, to produce a report which may be made public and may thus cause severe injury to an individual by its findings.142", "I have no quarrel with the judgment, as far as it goes. But the problem which faced the Court of Appeal in the Pergamon Press case differs from the problem confronting us. In that case the issue was whether, at common law, the inspectors conducting the enquiry had to act in accordance with the principles of procedural fairness. For this reason it was unnecessary for the Pergamon court to characterize the nature of the proceedings. On Mr Marcus\u2019 argument it is essential for us to do so, for the issue before us is not the common law one, but the constitutional question as to whether paragraphs (b) and (c) of section 24 of the Constitution apply to an enquiry under sections 417 and 418 of the Act. They only apply if the nature of the enquiry is characterized as being \u201cadministrative action\u201d because it is only in relation to \u201cadministrative action\u201d that section 24 rights arise. 142Id 402G - 403A. 105 \f ACKERMANN J", "I have difficulty in seeing how the enquiry in question can be characterized as administrative action. It forms an intrinsic part of the liquidation of a company, in the present case the liquidation of a company unable to pay its debts. Cilliers, Benade et al succinctly describe the role of winding-up or liquidation as follows: The existence of a company as a separate legal entity, which commences upon its incorporation, is terminated by dissolution of the company. In the course of its existence, however short, the company may have acquired rights and incurred liabilities which have to be dealt with before the company\u2019s existence can be terminated by dissolution. The process of dealing with or administering a company\u2019s affairs prior to its dissolution by ascertaining and realising its assets and applying them firstly in the payment of creditors of the company according to their order of preference and then by distributing the residue (if any) among the shareholders of the company in accordance with their rights, is known as the winding-up or liquidation of the company.143 (Footnotes omitted) In Woodley v Guardian Assurance Co of SA Ltd144 Colman J, commenting on the similarity between insolvency and liquidation, said the following: I would go further and suggest that it is socially desirable that, as far as is practicable, all the consequences of the liquidation of an insolvent company should be similar to those [of] the insolvency of an individual ... The winding-up of a company unable to pay its debts is something closely akin to the winding-up of the estate of an insolvent 143Corporate Law 2 ed at 28.01. 1441976 1 SA 758 (W). 106 \findividual.145 ACKERMANN J", "The enquiry in question is an integral part of the liquidation process pursuant to a court order and in particular that part of the process aimed at ascertaining and realising assets of the company. Creditors have an interest in their claims being paid and the enquiry can thus at least in part, be seen as part of this execution process. I have difficulty in fitting this into the mould of administrative action. I also have some difficulty in seeing how section 24(c) of the Constitution can be applied to the enquiry, because it is hard to envisage an \u201cadministrative action\u201d taken by the Commissioner in respect whereof it would make any sense to furnish reasons. The enquiry after all is to gather information to facilitate the liquidation process. It is not aimed at making decisions binding on others.", "Section 7(1) of the Constitution provides that Chapter 3 (and thus also section 24) binds \u201call legislative and executive organs of state at all levels of government\u201d. I again have difficulty in seeing how a commissioner, appointed to conduct a section 417 enquiry, can be described as an executive organ of state. This observation does not, and is not 145Id 763E-F. 107 \fintended to, anticipate the issue of the so-called \u201chorizontal\u201d application of Chapter 3 in legal proceedings between individuals, an issue which is currently under consideration by ACKERMANN J this Court.", "It is in my view unnecessary, however, in the circumstances of this case, to provide an answer to the question and to decide whether section 24, or any part thereof, applies to section 417 and 418 enquiries and whether it applies to all such enquiries, whether conducted by the court, the Master or the commissioner.146 It is unnecessary, in my view, because even assuming that the enquiry constitutes administrative action, this does not assist the applicants in establishing that the provisions of sections 417 and 418 are inconsistent with section 24(b) or (c) of the Constitution.", "The applicants say they are entitled to procedural fairness in terms of section 24(b) of the Constitution. Assuming that to be so, I can see nothing in any of the provisions of section 417 or 418 which is inconsistent (either expressly or by implication) with such claim. If the applicants are entitled to procedural fairness and were not accorded such fairness by the commissioner, their remedy was to enforce this claim through the ordinary courts. 146It is accordingly unnecessary to consider the correctness of the view expressed in Jeeva v Receiver of Revenue, Port Elizabeth 1995 2 SA 433 (SE) 443I where Jones J held that an enquiry under sections 417 and 418 constituted administrative action for purposes of section 24 of the Constitution. 108 \f ACKERMANN J", "The applicants also contend that they should at least have been afforded:- (a) disclosure in terms of sections 24(b) and (c) of the reasons why they were being summonsed, to have enabled them to make meaningful representations to the court, the Master or the Commissioner to dispense with their evidence or to test the decision to summons them by appeal or review, if need be; and (b) disclosure in terms of section 24(b) of the information required from them, to enable them to avoid interrogation by furnishing the requested information, requested, or to prepare for their interrogation, if need be. Once again I see nothing in the provisions of section 417 or 418 which stands in the way of this claim (assuming the applicants to be entitled to this demand) which they could not have sought to enforce through the ordinary courts. The position, as I see it, is simply this: there is nothing in these sections which is inconsistent with sections 24(b) or (c) of the Constitution or the applicants\u2019 claims. If applicants have a remedy, and I express no opinion on that question, it lies along another course and in other courts; it does not lie in striking down these sections in this Court. The attack based on the right to fairness in civil litigation", "The applicants contend that the mechanism under section 417 and particularly the second 109 \fACKERMANN J part of section 417(2)(b), violates the Constitution to the extent that it enables the liquidator and creditors of a company in liquidation, to gain an unfair advantage over their adversaries in civil litigation, in violation of an implied constitutional right to fairness in civil litigation.", "The appellants\u2019 argument proceeds as follows. The right of access to the courts is constitutionally entrenched. In terms of section 22 of the Constitution, every person has the right \u201cto have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.\u201d Where an infringement of or threat to any entrenched right is alleged, the victim is moreover entitled in terms of section 7(4)(a) \u201cto apply to a competent court of law for appropriate relief ...\u201d. These provisions do not expressly provide for a fair trial, but imply it. The right of access to court cannot mean simply the right to formally engage in a judicial process, however unfair it might be. In order to have substance and be meaningful, the right of access to court must imply the right of access to a fair judicial process. Because the parties in civil litigation usually seek to enforce claims for payment of money or delivery of some other form of property, the civil judicial process is used to deprive an adversary of property despite its protection by section 28 of the Constitution. Other civil claims requiring the defendant to do or 110 \fACKERMANN J refrain from doing something will invariably bring into play other constitutionally entrenched rights. Consequently, because civil litigation is almost invariably directed at intrusion upon the parties\u2019 constitutionally protected rights, they are entitled to demand that the process by which it is done, be procedurally fair. If not, the deprivation of the entrenched right is unconstitutional. The need for civil judicial process to be fair is emphasised by the Constitution\u2019s insistence that the judiciary be independent and impartial,147 the prescribed oath of office,148 and the endorsement by the General Assembly of the United Nations of the principle that the judiciary should be independent and impartial.149", "These submissions seem to rest on the far-reaching assumption (to which, perhaps not surprisingly, no argument was addressed) that all the rights entrenched in the Constitution operate directly and immediately on all legal relationships between private individuals. This is certainly not the case in which to pronounce on this contention. I shall assume, purely hypothetically, in the applicants\u2019 favour, that this assumption is 147Sections 96(2) and 99(5)(d) of the Constitution. 148In schedule 3 to the Constitution which requires a commitment from judges to \u201cadminister justice to all persons alike without fear, favour or prejudice\u201d. 149By resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, the UN endorsed the Basic Principles on the Independence of the Judiciary as adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1985. 111 \f sound. ACKERMANN J", "The applicants\u2019 attack in this regard fails to address the really crucial issue, namely, whether the Constitution has constitutionalised civil procedure, wholly or in part. No-one would dispute that civil procedure ought to aim at fairness between contending parties. That is, however, not the issue. The question is whether the Constitution enacts such a norm as an entrenched right. Over the years our courts \u201chave consistently adopted the view that words cannot be read into a statute by implication unless the implication is a necessary one in the sense that without it effect cannot be given to the statute as it stands\u201d.150 It must be necessary in order \u201cto realise the ostensible legislative intention or to make the Act workable\u201d.151 It is also necessary to bear in mind that we are not construing a Constitution which was framed centuries ago, but one which came into force on 27 April 1994. The Constitution as a whole and section 22 in particular, appears to be workable and to realise the ostensible legislative intention, without the implication the appellants seek to rely upon. When section 22 is read with section 96(2), which provides that \u201c[t]he judiciary shall be independent, impartial and subject only to this Constitution 150Rennie NO v Gordon NNO 1988 1 SA 1 (A) 21E per Corbett JA. 151Palvie v Motale Bus Service (Pty) Ltd 1993 4 SA 742 (A) 749C per Howie AJA. 112 \f ACKERMANN J and the law\u201d, the purpose of section 22 seems to be clear. It is to emphasise and protect generally, but also specifically for the protection of the individual, the separation of powers, particularly the separation of the judiciary from the other arms of the state. Section 22 achieves this by ensuring that the courts and other fora which settle justiciable disputes are independent and impartial. It is a provision fundamental to the upholding of the rule of law, the constitutional state, the \u201cregstaatidee\u201d, for it prevents legislatures, at whatever level, from turning themselves by acts of legerdemain into \u201ccourts\u201d. One recent notorious example of this was the High Court of Parliament Act.152 By constitutionalising the requirements of independence and impartiality the section places the nature of the courts or other adjudicating fora beyond debate and avoids the dangers alluded to by Van 152See Minister of the Interior v Harris 1952 4 SA 769 (A). Another example is the Soviet Constitution of 1977 which enacted a wide panoply of individual rights but which made wholly inadequate provision for their enforcement through independent courts. See Henkin The Rights of Man Today 66 - 70. 113 \f den Heever JA in the Harris case.153 ACKERMANN J 153Id 792A-C where the learned Judge of Appeal said the following: \u201cFrom the second preamble to the South Africa Act it is clear that the authors of our constitution had in mind the doctrine of the tria politica and the existence of some judicial power to enforce the constitutional guarantees. That seems to follow by necessary intendment. But I do not think the further inference is justified that they had in contemplation that the judicial power had for ever to be exercised by Courts constituted in a manner which satisfies certain criteria to the end that the independence, competence and justness of these tribunals be manifest and secured. I do not think they intended that Courts should always be of the kind to which they were accustomed. We have had many kinds of Courts; we have had trial by battle, by fire and by flood. We have heard of modern \u2018people\u2019s Courts\u2019, in which the standard of justice was perhaps no higher than in the judicium ferri candentis of the Lombards (Gengler, Germanische R-Denkm\u00e4ler, p. 759).\u201d 114 \f [106] A provision cannot ordinarily be implied if all the surrounding circumstances point to the ACKERMANN J fact that it was deliberately omitted. That the framers of the Constitution were alert to issues of constitutionalising rules of procedural law and justice is evident from the detailed criminal fair trial provisions in section 25(3). The internal evidence of the Constitution itself suggests that the drafters were well informed regarding provisions in international, regional and domestic human and fundamental rights instruments. Section 6 of the European Convention on Human Rights explicitly confers the right to a fair and public hearing, not only in a criminal trial, but also in regard to the determination of civil rights and obligations.154 Nearer home, article 12(1)(a) of the Namibian Constitution expressly provides that \u201c[i]n the determination of their civil rights and obligations ... all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law ...\u201d. In these circumstances an argument could be made out that the framers deliberately elected not to constitutionalise the right to a fair civil trial. It is, however, unnecessary for purposes of deciding the present case to decide this issue. The only complaint that the applicants have raised on the fair trial issue is that the provisions of sections 417 and 418 result in their being treated unequally in respect of subsequent litigation between themselves and the company. This in 154The principle of \u201cequality of arms\u201d, implicit in the right to a fair trial, has not been applied to situations such as the one we are considering in the case before us. See, in this regard, Van Dijk and Van Hoof Theory and Practice of the European Convention on Human Rights 2 ed (1990) 319 and Dombo Beheer BV v Netherlands 18 115 \fsubstance raises an equality issue which is best dealt with as such. ACKERMANN J The attack based on the right to equality in terms of section 8", "The applicants submit that the mechanism under section 417 of the Act, and in particular, that part of section 417(2)(b) which provides that any answer given to any question at an enquiry may thereafter be used against the examinee, violates the Constitution to the extent that it enables the liquidator and creditors of a company in liquidation, to gain an unfair advantage over their adversaries in civil litigation in violation of the right to equality in terms of section 8. EHRR 213. 116 \f [108] In Ferreira v Levin155 the abovementioned part of section 417(2)(b) was declared invalid ACKERMANN J to the extent that it provided that an incriminatory answer could be used in criminal proceedings against the examinee,156 but the constitutionality of the use of such answer in civil proceedings against the examinee was left open.157", "It was submitted on behalf of the applicants that sections 417 and 418 of the Act permit the liquidator and creditors of the company in liquidation to invoke the inquiry mechanism with a view to civil litigation which is contemplated or even pending and that they are entitled to do so in order to decide whether to institute or continue with the litigation. Thus far the submission is unexceptionable.", "It continues, however, by propounding that the impugned sections enable the liquidator 155Supra note 2. 156Id para 157. 157Id para 154. 117 \fACKERMANN J and creditors to get a complete preview of their opponent\u2019s case and to ensnare the latter\u2019s witnesses in a procedure devoid of the normal mechanisms designed to identify and define issues, prepare for trial and receive meaningful legal advice on all stages of the process. In this way, so the argument continues, the liquidator and creditors are afforded an overwhelming advantage in civil litigation, that they would never have enjoyed but for the company\u2019s liquidation, which inequality offends section 8 of the Constitution.", "I would, by way of preliminary observation, point out once again that the latter part of the submission ignores the supervisory roll of the Supreme Court to ensure that the examination is not conducted oppressively, vexatiously or unfairly to which I have made reference more than once in this judgment.", "Nevertheless it is true to say that liquidators are by means of this mechanism, entitled to examine their opponents in civil litigation (actual or prospective) or their opponents\u2019 witnesses or recalcitrant potential witnesses and to obtain discovery of documents from such persons at a time and in a way not open to their opponents or prospective opponents. The question is whether this consequence offends section 8 of the Constitution. 118 \f [113] In my opinion the enquiry is concerned with investigating whether the \u201cright to equality ACKERMANN J before the law\u201d in section 8(1) is compromised by the statutory mechanisms in question. Adopting an approach similar to that of Didcott J in giving judgment for this Court in S v Ntuli,158 I consider it unnecessary for present purposes to consider the question whether subsections (1) and (2) of section 8 embody separate rights, or to look at the prohibition against unfair discrimination which subsection (2) pronounces or to consider whether the latter is an independent provision or a corollary or concretization of the former. I also consider it unnecessary to consider the relationship between the right to equality before the law and the right to equal protection of the law in section 8(1).", "No example, foreign or otherwise, was cited to us where, by way of legislation or judicial pronouncement, the use in civil proceedings of compelled testimony in interrogation proceedings analogous to those under sections 417 and 418 of the Act, has been prohibited. 158Case CCT 17/95 of 8 December 1995 para 18. 119 \f [115] At English common law the privilege against self-incrimination does not protect ACKERMANN J witnesses from answering questions which might have the effect of exposing them to civil liability.159 The privilege against self-incrimination has been specifically abrogated in bankruptcy proceedings by rule 6.175 of the Insolvency Rules 1986 which provides that at public examinations the bankrupt is required to answer all questions put by the court or which the court allowed to be put and, by virtue of section 433 of the Insolvency Act 1986, the written record of a bankrupt\u2019s public examination could then be used in evidence in any proceedings against him.160", "In Australia the possible liability of accountants to the company based on the negligent preparation of a financial report has been held to be a legitimate subject of the enquiry and there is no objection in principle to the use of section 597 of the Australian Corporations Law to obtain information to be used in litigation proposed or even 159Re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235 (No 2) [1977] 3 All ER 717 (CA) at 721c - h. See also Blunt v Park Lane Hotel Limited and Another [1942] 2 KB 253 and Halsbury\u2019s Laws of England 4 ed (1976) Vol 17 para 240. 160See R v Kansal [1992] 3 All ER 844 (CA) 850a - f. See also Schmitthoff (ed) Palmer\u2019s Company Law vol 2 15222 to 15222/1. 120 \fpending.161 ACKERMANN J 161Supra note 50 at 255 - 256. 121 \f [117] In Canada questions concerning the use of forced testimony in civil proceedings do not ACKERMANN J really arise. The reason for this is that the privilege against self-incrimination has been comprehensively replaced in that country with a use immunity. There is indeed very little room for reliance on the privilege against self-incrimination at all in Canada. Section 5(1) of the Canada Evidence Act162 makes it very clear that \u201cno witness shall be excused from answering any question on the ground that the answer may tend to incriminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or any person.\u201d In exchange, a use immunity in respect of criminal proceedings is granted by section 5(2). Section 13 of the Charter, similarly, only confers a use immunity in relation to \u201cother proceedings\u201d where there is a possibility of incrimination, ie proceedings with penal consequences.163", "The position seems to be the same in the United States at least in so far as a use immunity is conferred on examinees. That is, the use immunity merely protects the examinee from 162R.S.C. 1985, c. C-5. 163Hogg Constitutional Law of Canada 3 ed (1992) 1142. 122 \fACKERMANN J use and derivative use in subsequent criminal proceedings. United States Bankruptcy matters are regulated by the Bankruptcy Reform Act of 1978. The Federal Rules of Bankruptcy Procedure, Rule 2004 provides for the examination of persons with information relating to a bankruptcy. The scope of the examination is extremely broad and wide-ranging. The Fifth Amendment privilege applies in respect of the examination, but section 6003 of Title 18 of the United States Code provides that a court may issue an order compelling a witness to testify even when the Fifth Amendment privilege against self-incrimination is claimed. Part V of Title 18 governs the granting of immunity to witnesses before Federal tribunals, including administrative and some independent federal agencies. Section 6002 then provides for immunity from prosecution in the following way: ... the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in a criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. (Emphasis added)", "The constitutionality of Title 18 of the US Code was clearly established by the Supreme Court in Kastigar et al v United States.164 The court, in considering the constitutionality of the Organized Crime Control Act of 1970, of which part V of Title 18 is a part, held 123 \fthat the government may compel testimony from a witness who invokes the Fifth Amendment by conferring on the witness use and derivative use immunity in criminal ACKERMANN J proceedings only.", "There is accordingly no indication that the use of compelled testimony in civil proceedings is prohibited or held to be unconstitutional in other open and democratic societies based on freedom and equality.", "Turning them to principle and the application of section 8(1) of the Constitution, I fail to see how the applicants\u2019 submission can be sustained. As I have endeavoured to show in this judgment, the very purpose of the proceedings under sections 417 and 418 of the Act is in order to provide the company with information about itself, its own affairs, its own claims and its own liabilities, which it cannot get from its erstwhile \u201cbrain\u201d and other \u201csensory organs\u201d or other persons who have a public duty to furnish such information but are unwilling or reluctant to do so fully and frankly. I remain alive to the thrust of the applicants\u2019 argument that, as erstwhile auditors of the company, they co-operated fully 164406 US 441 (1972) 453. 124 \fACKERMANN J and were at all times prepared to co-operate fully with the liquidators and their legal and other advisors to supply all relevant information required. If in the light hereof it was oppressive, or vexatious or unfair to summons or interrogate the applicants in the way they were summoned or interrogated, their remedy was, as I have repeatedly stated, to approach the Supreme Court. Their alleged harassment and unfair treatment would not be in consequence of the substantive content of the provisions of sections 417 and 418 of the Act, but the result of their improper application.", "As I see the matter, neither the purpose nor the effect of sections 417 or 418, is to place the company in a better position than its debtors or creditors. The purpose is the opposite, namely to place the company in liquidation (because of its resulting disabilities) on such a footing that it can litigate on equal terms with its debtors and creditors. Sections 417 and 418 do not result in the applicants\u2019 being denied the section 8(1) right to equality or the equal protection of the law or the section 8(2) right not to be unfairly discriminated against. These sections are not inconsistent with section 8 and accordingly the applicants\u2019 attack on this ground cannot succeed.", "The applicants\u2019 discrete and narrow challenge of section 417(2)(b) on the basis that it authorises the use of compelled self-incriminating testimony at the enquiry in subsequent 125 \fcriminal proceedings against the examinee would, in the light of the judgment in Ferreira v Levin, have been successful to the extent found and ordered in that judgment. ACKERMANN J No point would be served by repeating that order. Costs", "As far as the question of costs is concerned the applicant is not, for the same reasons mentioned in Ferreira v Levin (No 2),165 substantially successful, for the extent to which section 417(2)(b) of the Act is unconstitutional does not achieve anything for the applicant in his dispute with the respondents, for he is obliged to answer all questions otherwise lawfully put to him even if the answers thereto might tend to incriminate him. The respondents, it is true, have successfully opposed all other grounds of attack on the constitutionality of sections 417 and 418 of the Act. But in this case too, the respondents did nothing to oppose the referral of the other issues to this Court; in fact they consented to the referral. Had the matter been opposed and full argument addressed to Fagan DJP, the other issues might not have been referred.166 Under these circumstances justice and fairness would also best be served in this case if all the parties were to pay their own costs. 165Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others (No 2) CCT 5/95, the judgment on costs delivered on 19 March 1996, paras 5 and 7. 166Ferreira v Levin (No2) supra note 2 para 10. 126 \f The order ACKERMANN J", "In the result, the following order is made: 1. Save to the extent that the provisions of section 417(2)(b) of the Companies Act 61 of 1973 (as amended) were declared to be invalid by this Court\u2019s order of 6 December 1995 in Ferreira v Levin NO and Others, Vryenhoek and Others v Powell NO and Others (CCT 5/95), the provisions of sections 417 and 418 of the Companies Act are declared to be not inconsistent with the Constitution of the Republic of South Africa Act, 200 of 1993 (as amended). 2. All the parties are to pay their own costs. Chaskalson P, Mahomed DP, Madala J, Langa J, Mokgoro J, Ngoepe AJ and Sachs J concur in the above judgment of Ackermann J.", "KRIEGLER J: I have had the privilege of studying the learned and comprehensive judgment prepared in this matter by my colleague Ackermann J. I concur in the order as formulated by him; I also subscribe to his rejection of each of the lines of attack on the 127 \fconstitutional validity of the sections in question.1 Although I am in substantial agreement with my colleague, I do wish to reserve my position in respect of those parts of his reasoning which I specify below. KRIEGLER J", "AD paragraphs [17] to [34] 1Sections 417 and 418 of the Companies Act 61 of 1973, henceforth referred to as \u201cthe sections\u201d. 128 \fKRIEGLER J The differences between our Companies Act and those of the countries reviewed are so material that I prefer to seek no guidance in those quarters.2 In any event Ackermann J expresses views (in paragraphs [46] and [47] of his judgment) regarding the power and duty of the Supreme Court, at common law and now under Chapter 3 of the Constitution, which in my respectful view are dispositive. Consequently I prefer to base my concurrence solely on the reasoning contained in paragraphs [46] and [47].", "The attack based on section 11(1) of the Constitution 2I have in mind particularly that the sections were amended (by sections 9 and 10 of Act 29 of 1985) so as to afford the Master extensive powers in relation to examinations. 129 \fKRIEGLER J In Ferreira v Levin3 there was a difference of opinion as between my colleagues regarding the content and scope of \u201cthe right to freedom and security of the person\u201d contained in section 11(1) of the Constitution, as also regarding its applicability to section 417(2)(b) of the Companies Act. The line I took rendered it unnecessary to participate in that debate. The issue arises again in the present case, Ackermann J accepting, albeit for the time being, the majority view in Ferreira v Levin. My colleague O\u2019Regan J, who had reserved her position in relation to the purview of section 11(1) in that case, has now prepared a judgment in the instant case making plain why, and to what extent, her perception of the particular part of section 11(1) differs from that of the majority in Ferreira v Levin. I adhere to the view I expressed in that case.4 \u201cIt is only if and when the production of evidence obtained pursuant to a section 417 enquiry jeopardizes the fairness of the trial that the Constitution can be invoked.\u201d That however, does not stand in the way of my endorsing what Ackermann J says in paragraphs [51] to", "of his judgment in this case. Whatever the scope and content of section 11(1) may be, and whatever my view on the standing of an examinee under section 417 to invoke constitutional protection under section 25(3), I concur with the reasoning and conclusion of Ackermann J in relation to the argument advanced on behalf of the applicants under the rubric of section 11(1).", "The attack based on section 13 of the Constitution Ackermann J deals with this topic in paragraphs [56] to [92] of his judgment. He 3Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) BCLR 1 (CC). 4In paragraph [195]. 130 \fKRIEGLER J commences with a discussion of the impact of sections 35(2) and 35(3) of the Constitution on the proper interpretation and application of the sections. This leads him to the conclusion (in paragraph [64] of the judgment) that \u201cthere is no provision in section 417 or section 418 which, when properly construed in the light of sections 35(2) and (3) of the Constitution, is inconsistent with such right\u201d. I agree with that conclusion and with the reasoning on which it is based. I also agree with the extension of that reasoning (in paragraph [92] of the judgment) to the compulsory production of documents relevant to a legitimate enquiry under section 417.", "In paragraphs [65] to [97], however, my colleague conducts an investigation of privacy, a concept which he aptly calls \u201camorphous and elusive\u201d. In the course thereof he also considers the related question, equally vexing, of seizure of private possessions. I have no doubt that the research and analysis he has done will in due course prove invaluable, but at this juncture I do not consider it necessary to accompany him. And considering it unnecessary, it is necessary that I do not do so. I am content to rest with the conclusion founded on a proper reading of the sections in the light of the provisions of sections 35(2) and (3) of the Constitution.", "The attack based on section 24 of the Constitution My learned colleague addresses this topic in paragraphs [93] to [101] of his judgment, concluding that there is nothing in the sections which is inconsistent with the protection of procedural fairness contained in sections 24(b) or (c) of the Constitution. I agree with that conclusion and with the foundational reasons set out in paragraphs [100] and [101] 131 \fKRIEGLER J of the judgment. Properly applied, the mechanism of the sections should entail no unfairness; if its improper application threatens to do so, the Supreme Court can intervene prophylactically. I would, however, prefer not to endorse the doubts expressed by Ackermann J (in paragraphs [96] to [98] of his judgment) on the question whether an enquiry under the sections is \u201cadministrative action\u201d as contemplated by section 24 of the Constitution. Nor do I wish to commit myself to agreeing, if only with a doubt, as to whether a commissioner appointed under section 417 is an executive organ of state. My esteemed colleague\u2019s misgivings may be well founded, but I wish to reserve my judgment on the two points for the day when either may be decisive.", "The attack based on section 8 of the Constitution With regard to this aspect of the case (dealt with in paragraphs [107] to [122] of the judgment of Ackermann J) my approach is much the same as it was regarding the section 11(1) attack. I agree with the conclusion; I agree with the identification and logical analysis of the principle involved (in paragraphs [121] and [122]) but prefer to express no view on the possible lessons to be learnt from other jurisdictions. That I do, not because of a disregard for section 35(1) of the Constitution, nor in a spirit of parochialism. My reason is twofold. First, because the subtleties of foreign jurisdictions, their practices and terminology require more intensive study than I have been able to conduct. Even on a superficial view, there seem to me to be differences of such substance between the statutory, jurisprudential and societal contexts prevailing in those countries and in South Africa as to render ostensible analogies dangerous without a thorough understanding of the foreign systems. For the present I cannot claim that degree of proficiency. In any 132 \fevent the logical analysis by Ackermann J of the interaction between the sections and the constitutional provisions sought in aid is really dispositive of the claim. KRIEGLER J", "The second reason is that I wish to discourage the frequent - and, I suspect, often facile - resort to foreign \u201cauthorities\u201d. Far too often one sees citation by counsel of, for instance, an American judgment in support of a proposition relating to our Constitution, without any attempt to explain why it is said to be in point. Comparative study is always useful, particularly where courts in exemplary jurisdictions have grappled with universal issues confronting us. Likewise, where a provision in our Constitution is manifestly modelled on a particular provision in another country\u2019s constitution, it would be folly not to ascertain how the jurists of that country have interpreted their precedential provision. The prescripts of section 35(1) of the Constitution are also clear: where applicable, public international law in the field of human rights must be considered, and regard may be had to comparable foreign case law. But that is a far cry from blithe adoption of alien concepts or inapposite precedents. My colleague has been at pains to discern the principles applied by comparable courts in foreign jurisdictions, to establish whether they can be applied here and, if so, to what extent and subject to what modifications. That is what section 35(1) of the Constitution enjoins and sound comparative law study dictates. It is merely because I have not independently verified the exercise, that I refrain from concurring. Didcott J concurs in the above judgment of Kriegler J. 133 \f [134] O\u2019REGAN J: I have had the opportunity of reading the judgment of Ackermann J. I concur in the order that he proposes for the reasons given in this judgment. The facts in this case are set out in the judgment of Ackermann J.", "The applicants challenge sections 417 and 418 on the grounds that the procedure authorised by those provisions violates the right to freedom and security of the person (section 11(1)); the right to personal privacy (section 13); the right to administrative justice (section 24); an implied right to fairness in civil litigation and the equality guarantee (section 8). This judgment is concerned, in the main, with the challenge based on section 11(1).", "The applicants pointed to the following aspects of sections 417 and 418 examinations which they argued render such examinations unconstitutional. Witnesses before such enquiries may be \u2022 \u2022 \u2022 \u2022 forced to go to a place where they do not want to be; forced to produce private books and documents that they want to keep confidential; forced to reveal confidential information that they want to keep private; forced to give evidence by the production of documents and by their own oral testimony, by which they incriminate themselves, and which can then be used to vest them with civil liability; \u2022 forced to do so without being heard on the decision which subjected them to the mechanism; 134 \f \u2022 \u2022 forced to do so in circumstances which render meaningful and effective legal representation all but impossible; and exposed to civil liability on their own evidence, extracted under legal compulsion in a process devoid of the normal checks and balances built into litigation.", "Section 417 of the Act has already been the subject of constitutional challenge before this court. In Ferreira v Levin NO and Others 1996 1 BCLR 1 (CC), this court held that the provisions of section 417(2)(b) of the Act were invalid to the extent that the words `and any answer given to any such question may thereafter be used in evidence against him' in section 417(2)(b) apply to the use of any such answer against the person who gave such answer, in criminal proceedings against such person, other than proceedings where that person stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers or a failure to answer lawful questions fully and satisfactorily. (At para 157.)", "The applicants argued that the obligation placed upon witnesses to go to an enquiry and give evidence and produce documents at that enquiry against their will, which may result in exposing those witnesses to civil liability, was in breach of section 11(1) of the Constitution. Section 11(1) of the Constitution provides that: Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.", "In Ferreira v Levin NO and Others 1996 1 BCLR 1 (CC), two judges of this court held that the portion of section 417(2)(b) which provided that incriminating evidence given by a witness at a section 417 enquiry would be admissible in a subsequent prosecution of such witness was in breach of section 11(1). Ackermann J held that freedom as 135 \f entrenched in section 11(1) should be interpreted as follows: Although freedom is indispensable for the protection of dignity, it has an intrinsic constitutional value of its own. It is likewise the foundation of many of the other rights that are specifically entrenched. Viewed from this perspective, the starting point must be that an individual\u2019s right to freedom must be defined as widely as possible, consonant with a similar breadth of freedom for others. (At para 49.) Later in the judgment he states that: Even though the freedom rights in section 11(1) are residual freedom rights, there is no justification for not giving these residual freedom rights the broad and generous interpretation I have suggested. They constitute the residual rights of individuals (where such or similar rights are not protected elsewhere in Chapter 3) not to have \u2018obstacles to possible choices and activities\u2019 placed in their way by (for present purposes we need not, as already indicated, go any further) the State. (At para 69.) Ackermann J held that the challenged portion of section 417(2)(b) restricted the choices available to witnesses at a section 417 enquiry in breach of section 11(1). Such limitation he found not to be justifiable in terms of section 33.", "Sachs J agreed that the challenged portion of section 417(2)(b) offended against section 11(1) of the Constitution although he approached section 11(1) somewhat differently to Ackermann J: The words of section 11 should then be construed in such a manner as to provide constitutionally defensible space against invasions of freedom of a kind analogous in character and intensity to the imposition of physical restraint. Legal traditions, both positive and negative, would help to define what this analogous or penumbral area would include: legal institutions developed and applied in the past with a view to curtailing abusive State action, would readily fit; similarly, negative memories of past oppressive State behaviour in our country and elsewhere, would help define whether or not a freedom issue is being raised. The first step is to establish the existence of what is a real or substantial invasion of freedom, and not a normal regulatory act; only when this is done should the need to justify the infringement arise. Once a substantial breach of this kind has been shown to exist, however, the scrutiny for justification required by section 33(1) can be truly stringent. (At para 257.) Like Ackermann J, Sachs J held that the challenged portion of section 417(2)(b) constituted an unjustifiable infringement of section 11. 136", "Eight members of the court, however, held that the challenged portion of section 417(2)(b) was in breach of section 25(3), the right to a fair trial, in that it permitted the admission of self incriminating evidence given by a witness at a section 417 enquiry at a subsequent criminal trial. Seven members of the court held that the provision was not in breach of section 11(1). Chaskalson P, speaking for the majority, took a narrower view of section 11(1) than that adopted by Ackermann J and Sachs J. This narrow view was premised upon the level of justification stipulated for section 11(1) by section 33 of the Constitution. Chaskalson P stated: In terms of our Constitution we are enjoined to protect the freedom guaranteed by section 11(1) against all governmental action that cannot be justified as being necessary. If we define freedom in the context of section 11(1) in sweeping terms we will be called upon to scrutinise every infringement of freedom in this broad sense as being \u2018necessary\u2019. We cannot regulate this power by mechanisms of different levels of scrutiny as the courts of the United States do, nor can we control it through the application of the principle that freedom is subject to laws that are consistent with the principles of \u2018fundamental justice\u2019, as the Canadian courts do. (At para 181.) Later in his judgment he held: This does not mean that we must necessarily confine the application of section 11(1) to the protection of physical integrity. Freedom involves much more than that, and we should not hesitate to say so if the occasion demands it. But, because of the detailed provisions of chapter 3, such occasions are likely to be rare. If despite the detailed provisions of Chapter 3 a freedom of a fundamental nature which calls for protection is identified, and if it cannot find adequate protection under any of the other provisions in Chapter 3, there may be a reason to look to section 11(1) to protect such a right. But to secure such protection, the otherwise unprotected freedom should at least be fundamental and of a character appropriate to the strict scrutiny to which all limitations of section 11 are subjected. (At para 184.)", "Mokgoro J also did not accept the approach adopted by Ackermann J. She stated: Attributing so broad a meaning to \u201cfreedom\u201d in this section, has the effect of extending it too far beyond the perimeters of physical integrity. That \u201cfreedom\u201d in section 11(1) means freedom in the sense 137 \f of physical integrity emerges from the plain meaning of the text and not from the narrowing of an all-embracing freedom right. This, however, does not mean that section 11(1) cannot be given a broad meaning sufficient to provide protection to an unenumerated right akin to freedom of the person, within the context of the rest of Chapter 3. (At para 209.) She supported the approach taken by Chaskalson P, subject to the reservations that, in her view, section 11(1) should be restricted to physical integrity (at para 210) and that the section could not generally be interpreted to give protection to unenumerated freedom rights (at para 212). Like the majority of the court, I considered section 417(2)(b) to be in breach of section 25(3). I expressed no view as to whether section 417(2)(b) was in breach of section 11(1) (at para 244.)", "In this case, it is necessary to determine whether sections 417 and 418 are in breach of section 11(1). Ackermann J, writing for the majority, has for the purposes of this case, based his reasoning to a large extent on the approach approved by the majority in Ferreira\u2019s case. My approach to section 11(1) is different to that adopted by the majority in Ferreira\u2019s case.", "Section 11(1) protects the freedom and security of the person and specifically provides that no person may be detained without trial. The specific prohibition of detention without trial reminds us of the government\u2019s frequent violation of individual freedom in the years of apartheid. There were many statutes passed by the former government which authorised detention without trial. Those statutes were extensively used and substantial 138 \fnumbers of people were detained without trial. Fundamental to the new Constitution, then, is a rejection of such deprivation of freedom. However, section 11(1) cannot be confined to the terms of the specific prohibition of detention without trial. The section has a greater ambit.", "In my view, freedom has two inter-related constitutional aspects: the first is a procedural aspect which requires that no-one be deprived of physical freedom unless fair and lawful procedures have been followed. Requiring deprivation of freedom to be in accordance with procedural fairness is a substantive commitment in the Constitution. The other constitutional aspect of freedom lies in a recognition that, in certain circumstances, even when fair and lawful procedures have been followed, the deprivation of freedom will not be constitutional, because the grounds upon which freedom has been curtailed are unacceptable.", "Both these aspects of freedom find recognition in clauses of the Constitution other than section 11(1). To that extent, section 11(1) is a residual clause. Section 25 is the principal provision in chapter 3 that requires procedural fairness when a person is deprived of physical freedom. It contains detailed rules which must be followed to protect the rights of persons who have been detained, arrested or charged. Section 11(1), which contains no detailed procedures or rules, other than the prohibition of detention without trial, is supplementary to section 25. In cases where people are deprived of physical freedom in circumstances not directly governed by section 25, section 11(1) will require that fair procedures be followed, as was held in Coetzee v Government of the Republic of 139 \f South Africa 1995 4 SA 631 (CC); 1996 1 BCLR 1 (CC). Of course, the nature of the fair process required in each case will depend on a variety of factors including the ground upon which the deprivation of freedom is based.", "Similarly, the other aspect of freedom finds express recognition in specific rights clauses such as expression (section 15), assembly (section 16), association (section 17), religion (section 14) and others. Section 11(1), however, will protect a residual arena of freedom. I do not believe that this residual scope of the right should be interpreted as broadly and generously as possible. To this extent I disagree, respectfully, with Ackermann J. I also disagree, respectfully, with Mokgoro J that the right to freedom in section 11(1) should be limited to physical freedom. It is likely, given the clear entrenchment of freedoms such as expression, belief and association, that the residual scope of section 11(1) will largely concern physical freedom, but I am unconvinced that it should be limited to physical freedom.", "In my view, a purposive interpretation of this right would focus on the general interpretation provision in chapter 3 - section 35(1). Section 35(1) states: In interpreting the provisions of this Chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality ...\u2019. In interpreting the scope of section 11(1), it will be necessary to identify the values which underpin an open and democratic society based on freedom and equality. In undertaking that exercise, I agree with Ackermann J1 and Sachs J 2 that section 11(1) needs to be 1 Ferreira v Levin NO and others 1996 1 BCLR 1 (CC) at paragraphs 47 - 51. 2 Coetzee v Government of Republic of South Africa 1996 1 SA 631 (CC); 1995 10 BCLR 1382 (CC) at paragraph 43. 140 \f understood in the context of the fundamental commitment to dignity expressed in our Constitution in section 10. Our Constitution represents an emphatic rejection of a past in which human dignity was denied repeatedly by an authoritarian and racist government. The Constitution commits our society to a transition to a new society based on principles of democracy, freedom and equality. The recognition of the value of human beings is a cardinal principle of the Constitution and one which will inform the interpretation of many of the specific rights in the Constitution.", "However, the rights in chapter 3 need to be interpreted in the understanding too that a democratic society based on freedom and equality remains an aspiration. The freedom and equality which the Constitution values has not yet been realised for all South Africans. An enduring legacy of the past is profound inequality. The poverty in which many of our citizens live materially compromises their enjoyment of rights of freedom and equality. There is much to be done, by the state and citizens, to ensure that the entrenched rights have meaning in the lives of all South Africans.", "In my view, the democratic society contemplated by the Constitution is not one in which freedom would be interpreted as licence, in the sense that any invasion of the capacity of an individual to act is necessarily and inevitably a breach of that person\u2019s constitutionally entrenched freedom.3 Such a conception of freedom fails to recognise that human beings live within a society and are dependent upon one another. The conception of freedom underlying the Constitution must embrace that interdependence without denying the 3 See R M Dworkin Taking Rights Seriously (1977) 262 -3. 141 \f value of individual autonomy. It must recognise the important role that the state, and others, will play in seeking to enhance individual autonomy and dignity and the enjoyment of rights and freedoms. The preamble to the Constitution states: Whereas there is a need to create a new order in which all South Africans will be entitled to a common South African citizenship in a sovereign and democratic constitutional state in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms.", "It acknowledges the need to develop a new society in which all citizens can exercise their fundamental rights and freedoms. We know that this will not be an easy task. The interpretation of the rights in chapter 3 must be in sympathy with that undertaking. Accordingly, I agree with the following statement of Sachs J in Ferreira\u2019s case: The reality is that meaningful personal interventions and abstinences in modern society depend not only on the State refraining from interfering with individual choice, but on the State helping to create conditions within which individuals can effectively make such choices. Freedom and personal security are thus achieved both by protecting human autonomy on the one hand, and by acknowledging human interdependence on the other. (At para 251.) It does not seem to me that this approach will render all regulatory laws or criminal prohibitions subject to constitutional challenge in terms of section 11(1). A purposive approach to section 11(1) recognises that it is aimed not at rendering constitutionally suspect all criminal prohibitions or governmental regulation. Our society, as all others in the late twentieth century, clearly requires government regulation in many areas of social life. It requires a criminal justice system based on the prohibition of criminal conduct. The need for effective government which can facilitate the achievement of autonomy and equality is implicit within the constitutional framework. Only when it can be shown that freedom has been limited in a manner hostile to the values of our Constitution will a 142 \fbreach of section 11(1) be established.", "The approach to the interpretation of section 11(1) that I have proposed may not necessarily produce a different result to the construction proposed by Ackermann J in Ferreira\u2019s case, although it seems clear that Ackermann J takes a broader view of the scope of section 11(1) than I do. Nor will my approach necessarily produce a different result to that proposed by Chaskalson P and adopted by the majority in Ferreira\u2019s case and this case. In this case, it does not.", "The applicants argue that sections 417 and 418 are in breach of section 11(1) for several reasons. First, they state that witnesses may be compelled to attend and give evidence at an enquiry without being given an opportunity to be heard on the question of whether they should be coerced in this way. This challenge to the provision is a challenge addressed to procedural fairness. In my view, it cannot be said that it is a necessary requirement of an obligation to give evidence that a potential witness first be given an opportunity to state why he or she should not be compelled to give evidence. If it becomes clear in the course of the witness\u2019s evidence that he or she knows nothing of the affairs of the company, no further questions will be put. Or, if it is established that a witness has a sufficient excuse not to answer the questions, as contemplated by section 418, then he or she will be under no obligation to answer the questions. Similarly, if it is clear that the purpose of calling the witness was abusive or oppressive, then appropriate relief can be sought from the Supreme Court. Ackermann J has set out in great detail the jurisprudence of, in particular, the United Kingdom and Australia, in regard to the 143 \f obligation upon judges in those countries to prevent an abuse of procedures similar to the procedure governed by sections 417 and 418. I am not convinced that this jurisprudence is directly relevant in the light of the differences between the statutory provisions upon which that jurisprudence is based and our own. Nevertheless, there can be little doubt that the Supreme Court may grant relief to prevent the abuse of the procedures provided for in sections 417 and 418. Accordingly, there can be no doubt that there are adequate safeguards in our own legal system to protect witnesses. Beyond these safeguards, the argument that section 11(1) requires notice and an opportunity to be heard prior to the giving of evidence cannot be supported.", "The second ground upon which the applicants base their section 11(1) argument is that sections 417 and 418 impose an obligation upon witnesses to attend enquiries and to answer questions and disclose documents to that enquiry. I cannot accept that a subpoena which requires compliance in terms of these provisions can be said to be a breach of freedom as contemplated by section 11(1). All modern societies require the assistance of members of the community in facilitating the administration of justice. Inevitably the obligations thus placed on witnesses can be inconvenient and, at times, unpleasant. In certain circumstances, giving evidence to a court or commission may even put the witness at the risk of some disadvantage, such as civil liability. The overwhelming interest of society is, however, that citizens nevertheless co-operate to ensure that the administration of justice is not prevented. Such an interest is clearly present in the context of section 417 enquiries as well. In this case, it seems to me that the applicants have failed to show that section 417 and 418 are in breach of section 11(1). 144", "The applicants also base their objections to sections 417 and 418 on the right to privacy in section 13 and on an implied right to a fair civil trial and the right to equality in section 8. For the reasons given by Ackermann J, I consider that the applicants have not established that sections 417 and 418 are in breach of any of these constitutional provisions. Finally, the applicants argued that sections 417 and 418 are in breach of section 24 of the Constitution which is concerned with administrative justice. I agree with Ackermann J that the applicants have not shown sections 417 and 418 to be in breach of section 24 of the Constitution. He expresses considerable doubts as to whether an enquiry in terms of sections 417 and 418 is administrative action as contemplated by the Constitution. It is not necessary for the purposes of the case to decide this question, however, and I prefer to express no view at all upon it.", "For the above reasons, I concur in the order proposed by Ackermann J. Case No: Counsel for the Applicants: CCT 23/1995 GJ Marcus O Rogers 145 \f Instructed By: Denys Reitz Counsel for the Respondents: JJ Gauntlett S.C. GW Woodland Instructed By: Fluxman Rabinowitz - Raphaely Weiner 146"], "max_length_judgement_paras": 1299}, {"title": "In re: National Education Policy Bill No 83 of 1995 (CCT46/95) [1996] ZACC 3; 1996 (4) BCLR 518; 1996 (3) SA 289 (3 April 1996)", "url": "http://www.saflii.org/za/cases/ZACC/1996/3.html", "summary_document": {"filename": "summary-for-case-3.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/3media.pdf", "file_content": "In re National Education Policy Bill 1995 \n\n \n\n Case CCT 46/95 \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nThe Speaker of the National Assembly, acting in terms of s 98 of the Constitution, referred a \ndispute concerning the constitutionality of the National Education Policy Bill 83 of 1995 to \nthe Constitutional Court for adjudication. The Court found that the Bill was not \nunconstitutional. \n\nThe Bill provides for the determination of national education policy by the Minister, \nrequiring this to be done in terms of the Constitution, taking into account the competence of \nthe provincial legislatures and the relevant provisions of provincial legislation relating to \neducation. The Bill requires the Minister to consult with the Council of Education Ministers \n(which includes the Members of provincial Executive Councils responsible for education) \nand other bodies before formulating national education policy. The minister is also required \nto consult the Council before introducing legislation on education to Parliament. In terms of \nthe Bill, national education policy must be published in a policy instrument, and provision is \nmade for monitoring and evaluating education throughout the Republic. \n\nThe main challenge to the Bill was based on the argument that it required the provinces to \namend their legislation to conform to national education policy, and thereby empowered the \nMinister to impose national education policy on the provinces. The Court rejected this \ncontention and held that the Bill neither imposed an obligation on the provinces to follow \nnational education policy nor empowered the Minister to require the provinces to adopt \nnational policy nor to amend their own legislation to conform with national policy. \n\nThe Court held that provinces must comply with national standards which have been \nformulated in accordance with the Constitution and lawfully made applicable to them. The \neffect of the Bill was to give the provinces an opportunity of addressing situations where the \nstandards of education provision, delivery and performance did not comply with national \nstandards or the Constitution. The Bill further suggests remedial action that should be taken, \neven when the national standards have been formulated but have not yet been made the \nsubject of legislation. The Bill thereby prevented the national government from acting \nunilaterally, without allowing the provinces this opportunity. \n\nA further challenge to the Bill was that it required Members of Executive Councils and their \nadministrations to participate in structures, provide information and promote a national \npolicy. This challenge was rejected. The Court held that the only reasonable way in which \nconcurrent powers could be exercised was through consultation with and co-operation \nbetween the national executive and the provincial executives. It could not be said to be \ncontrary to the Constitution for Parliament to enact legislation which was based on the \nassumption that the provinces would offer the necessary co-operation. Consultation was \n\n1 \n\n\fnecessary to enable the national government to obtain the information it needed to take \ndecisions falling within its power, to avoid conflicting legislative provisions and to rationalise \nlegislation which fell within concurrent lawmaking powers, and to enable provincial and \nnational governments to formulate their plans for the future. \n\nThe Court analysed the relationship between the powers of the provincial legislatures and the \npowers of Parliament. Provincial legislatures have the power to make laws for their provinces \nin respect of any matter set out in Schedule 6 to the Constitution, which includes education. \nThis power has to be exercised concurrently with the Parliament, which has the power to \nmake laws for the whole of the Republic. If there is a conflict between a provincial law and \nan Act of Parliament, the Constitution provides for the resolution of that conflict by giving \npriority either to Acts of Parliament or to provincial laws, depending on the circumstances. If \nthere is such a conflict, the provisions of the law which are given priority must be enforced in \nall respects. The other law is not invalidated and, for as long as that inconsistency endures, it \nis inoperative and ineffective only to the extent of the inconsistency but must be implemented \nin all other respects. The Court held that provincial legislatures do not have any exclusive \npowers under the Constitution. The Court therefore rejected the contention advanced by the \nMEC for Education of KwaZulu-Natal that as long as a province is capable of regulating a \nSchedule 6 matter effectively it has the right to do so. \n\nThe judgment of the Court was delivered by Chaskalson P and was concurred in by the other \nmembers of the Court. \n\n \n\n2 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-3.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/3.pdf", "file_content": " \n \n \n \n\n \n \n \n\nCONSTITUTIONAL COURT OF SOUTH AFRICA \n\n \n \n\nJUDGMENT \n\nCASE NO CCT 46/95 \n\n \n \nDISPUTE CONCERNING THE CONSTITUTIONALITY OF CERTAIN \nPROVISIONS OF THE NATIONAL EDUCATION POLICY BILL, NO 83 OF 1995. \n \n \nHeard on: 7 March 1996 \n \n \nDELIVERED ON: 3 April 1996 \n \n\n \n \n \n \n\n[1] \n\nCHASKALSON P: The Speaker of the National Assembly, acting in terms of \n\nsections 98(2)(d) and 98(9) of the Constitution, has referred a dispute concerning the \n\nconstitutionality of certain provisions of the National Education Policy Bill (B83-95) \n\nto this Court for its decision. \n\n \n\n[2] \n\nAt the hearing of the matter three political parties, the National Party, the Democratic \n\nParty, and the Inkatha Freedom Party, whose members had signed the petition, were \n\nrepresented by counsel. Counsel for the Inkatha Freedom Party also represented the \n\nMinister of Education of the KwaZulu-Natal Province, who is the member of the \n\nKwaZulu-Natal Executive Council responsible for education in that province, and \n\n\fwho had been admitted as an amicus. \n\n \n\nThe National Education Policy Bill \n\n \n\n[3] \n\nThe objectives of the Bill are set out in clause 2. They are: \n\n \n\n(a) \n\n(b) \n\n(c) \n(d) \n\n \n\nthe determination of national education policy by the Minister in \naccordance with certain principles; \nthe consultations to be undertaken prior to the determination of policy, and \nthe establishment of certain bodies for the purpose of consultation; \nthe publication and implementation of national education policy; \nthe monitoring and evaluation of education. \n\n[4] \n\nThe Minister referred to in the Bill, and to whom I will refer in this judgment as the \n\nMinister, is the Minister of Education in the national government. Clause 3 of the Bill \n\nmakes provision for the determination of national education policy by the Minister. \n\nClause 3(1) requires the Minister to do so in accordance with the provisions of the \n\nConstitution and the other provisions of the Bill, and clause 3(2) directs him or her to \n\ntake into account Athe competence of the provincial legislatures in terms of section \n\n126 of the Constitution, and the relevant provisions of any provincial law relating to \n\neducation@. Clause 3(4) obliges the Minister to determine national policy for: \n\n \n\n \n\n \n \n\nthe planning, provision, financing, staffing, co-ordination, management, \ngovernance, programmes, monitoring, evaluation and well-being of the \neducation system, \n\nand contains sub-paragraphs identifying Awithout derogating from the generality@ of \n\nthe section, specific matters for which national policy may be determined. Clause 4 \n\nsets out Adirective principles of national education policy@ which specify the goals to \n\n2 \n\n\fwhich such policy shall be directed. Clause 5 makes provision for the consultation \n\nthat must be held before policy is formulated and clause 6 provides for consultation \n\nthat is necessary before legislation is enacted. Clause 7 deals with a requirement to \n\npublish the policy instrument in which the national education policy will be set out \n\nafter it has been determined. Clause 8 makes provision for the monitoring and \n\nevaluation of education and clauses 9 to 13 for the establishment and functioning of \n\nvarious consultative bodies. Clause 14 amends the National Policy for General \n\nEducation Affairs Act, 1984, in respects that are not the subject of any objection. \n\n \n\nThe constitutional challenge \n\n \n\n[5] \n\nIn their written arguments the members of the National Party challenged the \n\nconstitutionality of clauses 3(3), 3(4), 4 and 8 of the Bill; the members of the Inkatha \n\nFreedom Party (supported by the amicus) challenged clause 3(3) read with clauses \n\n8(6) and 8(7) of the Bill; and the members of the Democratic Party challenged clauses \n\n3(3), 8(6), 8(7), 9(1)(c) and 10(1)(c) of the Bill. An objection in the petition that the \n\nprovisions of section 247 of the Constitution had not been complied with, was \n\ncorrectly not persisted in. There was no substance in the objection, as the Bill does \n\nnot interfere with the \"rights, powers and functions\" of the bodies referred to in that \n\nsection. The other signatories to the petition did not submit argument to the Court in \n\nsupport of their objections. \n\n \n\n[6] Mr. Trengove who represented the Democratic Party was the first to argue. Whilst \n\naccepting that it would be competent for Parliament to enact legislation establishing \n\n \n \n\n3 \n\n\fconsultative structures and enabling the department of national education to procure \n\ninformation from the provincial education departments, he contended that the \n\nprovisions of the Bill read together went further than that: they would oblige members \n\nof provincial executive councils to promote policies that might be inconsistent with \n\nprovincial policy, require them where necessary to amend their laws to bring them \n\ninto conformity with national policy, and in effect would empower the Minister to \n\nimpose the national government=s policies on the provinces. It was argued that in so \n\nfar as the Bill imposed such obligations on the provincial administrations, it would be \n\ninconsistent with the Constitution. He acknowledged, however, that there was at least \n\nsome uncertainty as to whether the Bill had such a meaning. In the written argument \n\non behalf of the Democratic Party it had been said: \n\nIt is not clear that the disputed provisions oblige provincial governments to \n\nimplement and assist in the implementation of the minister's \nnational education policy. We will submit that they do. If this \ncourt should however hold that they do not and that provincial \ngovernments are at liberty to ignore the minister's national \neducation policy, then the Democratic Party's constitutional \nobjections would fall away. \n\n \n\n \n\nThis position was adhered to by Mr. Trengove at the hearing of the matter. \n\n \n\n \n\n \n\n[7] Mr. Puckrin who appeared on behalf of the National Party associated himself with \n\nMr. Trengove's arguments, but accepted that the Bill was capable of a narrower \n\nconstruction which would bring it within the Constitution. He sought a declaration, \n\nconsistent with the narrower construction, that the Bill did not empower the Minister \n\nto compel the provinces to implement national education policy. \n\n \n\n \n \n\n4 \n\n\f[8] Mr. Richings appeared on behalf of the Inkatha Freedom Party and the Minister of \n\nEducation for KwaZulu-Natal. In his written argument it was contended that if the \n\n\"policy\" referred to in the Bill: \n\n \n\n \n\n \n\nwas used in the sense of a mere wish or expectation on the part of the \nNational Minister it would be unobjectionable, but the term as used appears \nto go beyond this as it is given a sanction in the form of enforcement \nmechanisms. \n\nIt was further contended that the Bill could have no application to KwaZulu-Natal \n\nbecause it was in a position to formulate and regulate its own policies and the \n\nimposition of a national policy would encroach upon its autonomy. At the hearing \n\nMr. Richings also associated himself with Mr. Trengove's argument. He too \n\ncontended that the Bill imposed national education policy on the provinces but \n\naccepted that if it was capable of a narrower construction the objection on these \n\ngrounds would fall away. He also contended that the Bill encroached upon the \n\nautonomy of the provinces and their executive authority. \n\nThe provisions of the Bill to which objection was taken \n\n \n\n[9] \n\n \n\nThe specific provisions of the Bill to which objection was taken in argument were \n\nclauses 3(3), 8(6) and (7), and 9 and 10. \n\n[10] Clause 3(3) of the Bill provides that: \n\n \n\n \n \n\nWhenever the Minister wishes a particular national policy to prevail over the \nwhole or a part of any provincial law on education, the Minister shall inform \nthe provincial political heads of education accordingly, and make a specific \n\n5 \n\n\fdeclaration in the policy instrument to that effect. \n\nThis has to be read with clause 8 which deals with the monitoring and evaluation of \n\neducation. Clause 8(5) requires the Department of Education to report on \n\ninvestigations undertaken by it, and clauses 8(6) and (7) go on to provide: \n\n(6) If a report prepared in terms of subsection (5) indicates that the standards \nof education provision, delivery and performance in a province do not \ncomply with the Constitution or with the policy determined in terms of \nsection 3(3), the Minister shall inform the provincial political head of \neducation concerned and require the submission within 90 days of a plan to \nremedy the situation. \n(7) A plan required by the Minister in terms of subsection (6) shall be \nprepared by the provincial education department concerned in consultation \nwith the Department [of Education], and the Minister shall table the plan in \nParliament with his or her comments within 21 days of receipt, if Parliament \nis then in ordinary session, or, if Parliament is not in ordinary session, within \n21 days after the commencement of the first ensuing ordinary session of \nParliament. \n\nThe provincial political head of education is defined as meaning the member of the \n\n[provincial] Executive Council responsible for education in a province. \n\n \n \n\n \n\n \n\n \n\n[11] Clauses 9 and 10 establish a Council of Education Ministers and a committee called \n\nthe Heads of Education Departments Committee. The Council consists of the Minister \n\nof Education and the Deputy Minister, if such an office is established, and the \n\nprovincial political heads of education. The functions of the Council are to share \n\ninformation and views on education, to co-ordinate action on matters of mutual \n\ninterest to the provinces and the national government, and to: \n\n \n\n \n \n\npromote a national education policy which takes full account of the policies \nof the government, the principles [of national education policy] contained in \nclause 4 [of the Bill], the education interests and needs of the provinces, and \nthe respective competence of Parliament and the provincial legislatures in \n\n6 \n\n\fterms of section 126 of the Constitution.1 \n\nThe Heads of Education Departments Committee consists of senior officials of the \n\nnational and provincial education departments, and has functions similar to those of \n\nthe Council of Education Ministers. \n\n \n\n \n\n \n\n[12] None of the objectives of the bill is inconsistent with the Constitution. Parliament has \n\nthe competence to make laws in respect of education, and the determination of policy \n\nis clearly necessary for this purpose. There can be no objection to providing that \n\nconsultation shall take place prior to the formulation of policy. This serves to restrict \n\nrather than to increase the Minister's powers. And if regard is had to our history of \n\ndisrupted education and to the present constitutional structure which vests concurrent \n\npowers to make laws for education in Parliament and the provinces, consultation with \n\neducational bodies, including provincial education departments, is essential for the \n\nproper exercise of the power to make policy. The publication and implementation of \n\nnational education policy and the monitoring and evaluation of education are also not \n\nopen to objection, unless they are done in a way which infringes the powers of the \n\nprovinces. This was accepted by all counsel in argument, and the constitutional \n\nchallenge was limited to a contention that the Bill authorised the Minister to \n\nimplement policy in a way that infringed the powers of the provinces, and to that \n\nextent, was inconsistent with the Constitution. \n\n \n\nThe powers of Parliament and the provincial legislatures \n \n\n1Clause 9(3)(a) \n\n \n \n\n7 \n\n\f \n\n[13] \n\nIn terms of section 37 of the Constitution Parliament has the power to make laws for \n\nthe Republic. It is a general plenary power and is not confined to specific functional \n\nareas. The legislative competence of the provincial legislatures is different. It is \n\nderived from section 126(1) of the Constitution which empowers them to make laws \n\nwith regard to all matters set out in schedule 6 to the Constitution. This must be read \n\nwith Section 126(2) which provides that they can also make laws which are \n\nreasonably necessary for or incidental to the exercise of such legislative competence. \n\nEducation is a schedule 6 functional area in respect of which the provinces have \n\nlegislative competence. This is not, however, the exclusive domain of the provinces, \n\nbut one which they exercise concurrently with Parliament. This is made clear by \n\nsection 126(2A) of the Constitution which provides: \n\nParliament shall be competent, subject to subsections (3) and (4), to make laws with \nregard to matters referred to in subsections (1) and (2). \n\n \n\n \n\n[14] Section 126 of the Constitution does not restrict this power; what it does is to provide \n\nin subclauses (3) and (4) how a conflict or potential conflict that may exist between \n\nan Act of Parliament and provincial legislation is to be resolved.2 \n\n \n\n[15] Section 126(5) of the Constitution requires that if it is possible to do so an Act of \n\n \n\n2 Premier of KwaZulu-Natal and Others v President of the Republic of South Africa 1995 (12) BCLR \n\n1561(CC) at para 25; The Executive Council of the Western Cape Legislature and Others v President of the \nRepublic of South Africa and Others 1995 (10) BCLR 1289(CC) at para 90. \n \n\n \n \n\n8 \n\n\fParliament and a provincial law should be construed as being consistent with each \n\nother. If, or to the extent that, this cannot be done, then the provisions of sections \n\n126(3) and (4) determine which of the conflicting provisions is to prevail. The \n\nsolution provided is as follows. To the extent that the criteria specified in subsections \n\n(a) to (e) of section 126(3) are met the provisions of an Act of Parliament that is of \n\ngeneral application will prevail; if, or to the extent that, such criteria are not met the \n\nprovisions of the provincial law will prevail. \n\n \n\n[16] The legislative competences of the provinces and Parliament to make laws in respect \n\nof schedule 6 matters do not depend upon section 126(3). Section 126(3) comes into \n\noperation only if it is necessary to have resort to it in order to resolve a conflict. If the \n\nconflict is resolved in favour of either the provincial or the national law the other is \n\nnot invalidated; it is subordinated and to the extent of the conflict rendered \n\ninoperative. There is an important difference in this regard between laws that are \n\ninconsistent with each other and laws that are inconsistent with the Constitution. \n\nSection 4 provides that a law inconsistent with the Constitution is \"of no force and \n\neffect\", and in terms of section 98(5) such law has to be declared by this Court to be \n\ninvalid to the extent of the inconsistency. Section 126(3), which deals with laws that \n\nare consistent with the Constitution but inconsistent with each other, does not \n\nstipulate that either law will be invalid as a result of the inconsistency; only that the \n\nprovisions of one of the laws shall prevail over the other.3 \n\n \n\n3Although section 126(3) refers to circumstances where a provincial law prevails over an Act of \nParliament, it is clear from the provisions of section 126(5) that the section applies to provisions that are \n\n \n \n\n9 \n\n\f \ninconsistent and not the entire law. \n\n \n \n\n10 \n\n\f \n\n[17] Hogg,4 discusses the difference between inconsistency and invalidity in Chapter 16. \n\nHe concludes that: \n\n \n\n \n\nOnce it has been determined that a federal law is inconsistent with a provincial law, \nthe doctrine of federal paramountcy stipulates that the provincial law must yield to \nthe federal law. The most usual and most accurate way of describing the effect on the \nprovincial law is to say that it is rendered inoperative to the extent of the \ninconsistency. Notice that the paramountcy doctrine applies only to the extent of the \ninconsistency. The doctrine will not affect the operation of those parts of the \nprovincial law which are not inconsistent with the federal law, unless of course the \ninconsistent parts are inseparably linked with the consistent parts. There is also a \ntemporal limitation on the paramountcy doctrine. It will affect the operation of the \nprovincial law only so long as the inconsistent federal law is in force. If the federal \nlaw is repealed, the provincial law will automatically \"revive\" (come back into \noperation) without any reenactment by the provincial Legislature.5 \n\n[18] A similar conclusion has been reached by the High Court of Australia in respect of \n\nconflicts between state laws and laws of the Commonwealth Parliament. Section 109 \n\nof the Australian Constitution provides that a state law that is inconsistent with a \n\nCommonwealth law shall to the extent of such inconsistency be \"invalid\". The High \n\nCourt has held that section 109 does not nullify the inconsistent provisions of the state \n\nlaw; it simply renders them \"inoperative and ineffective\" as if they had been \n\nsuspended. They would revive and be of full force and effect if the Commonwealth \n\nlaw were to be repealed, or amended in a manner that removed the inconsistency.6 \n\n \n\n4Hogg PW, Constitutional Law of Canada, 3 ed (Supp 1992). \n\n5Id. at para 16.6 (footnotes omitted). \n\n6 Butler v Attorney-General (Vict.) (1961) 106 C.L.R. 268, 286; Western Australia v The \n\nCommonwealth (1994-1995) 183 CLR 373, 464. \n\n \n \n\n11 \n\n\f \n\n[19] This reflects in my view the way in which our Constitution requires inconsistencies \n\nthat cannot be resolved by the application of the provisions of section 126(5) to be \n\ndealt with. Neither Parliament nor a provincial legislature has the competence to \n\ninvalidate laws of the other passed in accordance with the Constitution; nor does the \n\nConstitution lay down that a consequence of inconsistency will be the invalidity of \n\none of the laws. It follows that a law that is subordinated by virtue of the application \n\nof section 126(3) is not nullified; it remains in force and has to be implemented to the \n\nextent that it is not inconsistent with the law that prevails. If the inconsistency falls \n\naway the law would then have to be implemented in all respects. \n\n \n\n[20] Thus, even if the National Education Policy Bill deals with matters in respect of \n\nwhich provincial laws would have paramountcy, it could not for that reason alone be \n\ndeclared to be unconstitutional. This disposes of the argument put forward in the \n\nwritten submissions made on behalf of the Inkatha Freedom Party and the Minister of \n\nEducation for KwaZulu-Natal that \"none of the so-called 'overrides' set out in section \n\n126(3) of the Constitution ... can be held to apply to the Province of KwaZulu-Natal\" \n\nbecause it is capable of regulating any matter relating to education within the \n\nprovince. The argument seems to be premised on a construction of section 126 as \n\nmeaning that as long as a province is capable of regulating a schedule 6 matter it has \n\nthe exclusive right to do so. But that is not what the section says. The application of \n\nsection 126(3)(a) to (e) to resolve conflicts between Acts of Parliament and provincial \n\nlegislatures may give rise to difficult questions; none of them arise, however, in the \n\npresent matter for the simple reason that the constitutionality of the Bill does not \n\n \n \n\n12 \n\n\fdepend upon an application of the provisions of section 126(3). \n\n \n\nThe argument \n\n \n\n[21] \n\nIn support of the challenge to the constitutionality of the Bill on the grounds that it \n\nobliges provinces to adhere to national education policy, Mr. Trengove placed \n\nconsiderable reliance on the majority judgment of the United States Supreme Court in \n\nNew York v United States.7 This case was concerned with a 1985 congressional \n\nstatute which dealt with the disposal of radioactive waste. The statute was enacted \n\nafter negotiations involving the affected states. At that time there were three regional \n\ndisposal facilities and in terms of earlier legislation those facilities would have been \n\nentitled as from the beginning of 1986 to exclude waste from non-members. The 1985 \n\nstatute extended the period during which the existing three sites would accept waste \n\nfrom non-members until 1992, and dealt with the obligations of states after the expiry \n\nof that deadline. The legislative scheme was as follows. Each state was made \n\nresponsible for disposing of waste generated within its territory either by itself or in \n\nco-operation with other states. States were authorised to enter into compacts for the \n\nestablishment of regional disposal facilities, and three sets of incentives were offered \n\nto states to encourage them to comply with their obligations under the statute. One set \n\nconsisted of monetary incentives; one set authorised states with disposal sites to \n\ngradually increase the cost of access to their sites and ultimately to deny access to \n\nwaste generated in the states which did not meet federal deadlines. The third set \n\nrequired a state which had not made arrangements for the disposal of waste either to \n\n \n\n7505 U.S. 144 (1992). \n\n \n \n\n13 \n\n\fregulate the disposal of the waste in accordance with the instruction of Congress, or, \n\nif required to do so by the generator or owner of the waste, to assume ownership, \n\npossession and ultimately responsibility for the waste and any damage caused by it. \n\nThe validity of the legislation making provision for the incentives was disputed on the \n\ngrounds that it interfered with state rights. The Court was divided. The majority \n\njudgment in the New York case is based in the main on the importance of the states' \n\npowers under the Tenth Amendment. They concluded that: \n\n \n\nwhile Congress has substantial power under the Constitution to encourage the States \nto provide for the disposal of the radioactive waste generated within their borders, the \nConstitution does not confer upon Congress the ability simply to compel the States to \ndo so.8 \n\nIn the result it was held that the first two incentives were within the Constitution, but \n\nthe third was not. As the provisions relating to the third incentive could be severed \n\nfrom the rest of the statute, the Act containing only the two incentives remained \n\noperative and served: \n\nCongress= objective of encouraging the States to attain local or regional self-\nsufficiency in the disposal of low level radioactive waste.9 \n\n \n\nThe minority took a different view, holding that: \n\nprinciples of federalism have not insulated States from mandates by the \nNational Government \n\n \n\n \n\n \n\n \n\n \n\n8Id. at 149. \n\n9Id. at 187. \n\n \n \n\n14 \n\n\f \n\n \n\n \n\n \n\nand that the Courts have upheld \"congressional statutes that impose clear directives \n\non state officials.\"10 Stevens J, concurring in the dissenting judgment, said that: \n\n \n\n[t]he notion that Congress does not have the power to issue @a simple \ncommand to state governments to implement legislation enacted by \nCongress@ ... is incorrect and unsound.11 \n\n \n\n10Id. at 207, note 3. \n\n11Id. at 211. \n\n \n \n\n15 \n\n\f[22] \n\nIt was pointed out in Executive Council of the Western Cape Legislature and Others v \n\nPresident of the Republic of South Africa and Others 12 that the powers of Parliament \n\ndepend ultimately upon \"the language of the Constitution, construed in the light of \n\n[our] own history.\" Our history is different to the history of the United States of \n\nAmerica, and the language of our Constitution differs materially from the language of \n\nthe United States Constitution. The history and structure of the United States \n\nConstitution are discussed in the judgment of O'Connor J in the New York case.13 The \n\nConstitution addressed a situation in which several sovereign states were brought \n\ntogether in a federation. The constitutional scheme agreed upon was that each state \n\nwould surrender part of its sovereignty to the federal government and retain that part \n\nwhich had not been surrendered. This is reflected in the language of the Constitution. \n\nCongress has only those powers specifically vested in it by the Constitution. All \n\nother power is vested in the states.14 Congress can make laws which encroach upon \n\nstate sovereignty through the supremacy clause,15 commerce clause,16 the spending \n\npower17 and the power to make all laws which may be necessary and proper for the \n\nimplementation of its powers,18 but cannot otherwise interfere with the rights vested \n\nin the states under the Tenth Amendment. \n\n \n\n121995(10) BCLR 1289 (CC) at para 61. \n\n13Ibid. at 155-8 and 161-6. \n\n14U.S. Const. amend. X. \n\n15U.S. Const. art. VI, cl. 2. \n\n16U.S. Const. art. I, section 8 cl. 3. \n\n17U.S. Const. art. I, section 8 cl.1. \n\n18U.S. Const. art.I, section 8 cl.18. \n\n \n \n\n16 \n\n\f \n\n[23] Unlike their counterparts in the United States of America, the provinces in South \n\nAfrica are not sovereign states. They were created by the Constitution and have only \n\nthose powers that are specifically conferred on them under the Constitution. Their \n\nlegislative power is confined to schedule 6 matters and even then it is a power that is \n\nexercised concurrently with Parliament. Decisions of the courts of the United States \n\ndealing with state rights are not a safe guide as to how our courts should address \n\nproblems that may arise in relation to the rights of provinces under our Constitution. \n\nAnd this is so whether the issue arises under the provisions of section 126 or any \n\nother provision of the Constitution. \n\n \n\n[24] Although the Bill establishes structures and procedures which are directed to \n\ndeveloping a national policy that will be adhered to by all provinces, and contains \n\nprovisions which are calculated to persuade the provinces to do so, it does not in my \n\nview go so far as to require this to be done. In the circumstances the argument that the \n\nBill empowers the Minister to override provincial law or to compel the provinces to \n\namend their laws must be rejected. My reasons for rejecting this interpretation of the \n\nBill are as set out below. \n\n \n\nThe interpretation of the Bill \n\n \n\n[25] The provisions that are challenged must be seen in the context of the Bill as a whole \n\nwhich addresses policy issues in a situation in which Parliament exercises concurrent \n\nlegislative power with the provincial legislatures in respect of schedule 6 matters. \n\n \n \n\n17 \n\n\f \n\n[26] Clause 3(1) of the Bill provides that national education policy is to be determined by \n\nthe Minister in accordance with the Constitution and the other provisions of the Bill. \n\nClause 3(2) of the Bill requires that in the formulation of national education policy the \n\nMinister shall take account of the provisions of section 126 of the Constitution and \n\nthe relevant provisions of any provincial law relating to education. This is a clear \n\nindication that national education policy should not contradict provincial law, save \n\nwhere it would be permissible for Parliament to authorise this through legislation \n\nwhich in terms of section 126 would prevail over provincial law. Clause 6 \n\ncontemplates that such legislation may be necessary and provides that it may not be \n\nintroduced into Parliament without prior consultation with the Council of Education \n\nMinisters. \n\n \n\n[27] The vesting of concurrent lawmaking powers in Parliament and the provincial \n\nlegislatures is an arrangement which calls for consultation and co-operation between \n\nthe national executive and the provincial executives. The Commission on Provincial \n\nGovernment19 and the Financial and Fiscal Commission,20 which are important \n\nconstitutional structures, contemplate that there will be consultation between \n\nrepresentatives of the provinces and the national government in regard, inter alia, to \n\nthe allocation of funds and the rationalisation of statutory enactments. The Bill, \n\nwhich makes provision for such consultation and co-operation in the field of \n\n \n\n19As to which, see sections 163 to 173 of the Constitution. \n\n20As to which, see sections 198 to 206 of the Constitution. \n\n18 \n\n \n\n \n \n\n\feducation, is wholly consistent with the constitutional scheme. Indeed, where both \n\nParliament and the provincial legislatures have exercised or wish to exercise schedule \n\n6 competences such consultation and co-operation would appear to be essential. It is \n\nnecessary to enable the national government to obtain the information it may require \n\nto enable it to take decisions in regard to educational matters falling within the ambit \n\nof sections 126(3)(a) to (e) of the Constitution; it is necessary to avoid conflicting \n\nlegislative provisions and to rationalise the legislation applicable to schedule 6 \n\nmatters; and it is necessary to enable provincial and national governments to \n\nformulate their plans, including budgetary allocations, for the future. The setting up \n\nof a parallel national administration in a province to procure the information that the \n\nnational government needs, and to implement legislation enacted pursuant thereto, \n\nwould be neither cost-effective nor efficient, and moreover, would be likely to be \n\nmore intrusive of provincial structures than legislation which calls for cooperation. \n\n \n\n[28] One of the purposes of the Bill is to make provision for the development of a national \n\neducation policy which will accommodate differences between the national \n\ngovernment and the provinces. Thus clause 9(3)(a) refers to a policy that takes full \n\naccount of the policies of the government and the needs and interests of the provinces, \n\nand the respective powers of Parliament and the provincial legislatures. In so far as \n\nthe Bill makes provision for consultative structures to be established for this purpose, \n\nor for the provision of information by provincial education departments to the \n\nnational education department, it does not in my view offend any of the provisions of \n\nthe Constitution. \n\n \n\n \n \n\n19 \n\n\f[29] Clause 3(3) of the Bill requires the Minister to give notice to the relevant provincial \n\npolitical heads of education if he wishes national education policy to prevail over \n\nprovincial law. Such notice does not enable the Minister to require the provinces to \n\nact in conformity with national policy; it merely informs them that it is the Minister's \n\nwish that they should do so, and lays the ground for the necessary consultation that \n\nmust take place with the Council. There is, no doubt, an implication that the Minister \n\nmay take action to secure the implementation of national policy if the expressed wish \n\nis not met, but that would depend on further steps including if necessary the \n\nenactment of legislation as contemplated by clause 6. The response to the Minister's \n\nnotice, or the consultation called for under clause 6, could lead to the Minister \n\nchanging tack, or to consensus between the different administrations as to how \n\ndifferences between them should be resolved. \n\n \n\n[30] The provisions of clauses 8(6) and (7) of the Bill also give rise to no obligation on the \n\npart of the provinces to adopt national education policy in preference to their own \n\npolicy, or to amend their legislation to bring it into conformity with national policy. \n\nThe provincial political head of education can be called upon to prepare a plan to \n\nbring standards of education in his or her province into line with what may be \n\nrequired by the Constitution or national policy, if a report has been made under clause \n\n8(5) that such standards are not being met. There is, however, no obligation imposed \n\non the province by the Bill to implement that plan if it chooses not to do so. That \n\nobligation could possibly be imposed by other legislation which passes the test of \n\nsections 126(3) and (4), but the Bill itself makes no specific provision for that to be \n\ndone. It contemplates that such legislation may be enacted, but only after \n\n \n \n\n20 \n\n\fconsultation has taken place in terms of clause 6. \n\n \n\n[31] Nothing in the Bill imposes an obligation on the provinces to act in conformity with \n\nnational education policy. That may possibly be achieved by Parliament through the \n\npassing of legislation which prevails over provincial law in terms of section 126(3). \n\nWhether such laws will or will not be enacted depends on Parliament; and if enacted, \n\nwhether they will prevail over any provincial laws that are inconsistent with them, is a \n\nmatter that should only be determined if and when such laws are passed. I shall \n\nassume for the purposes of this judgment that such laws, if enacted in an appropriate \n\nform, could be made to prevail over provincial laws in terms of section 126 of the \n\nConstitution and that it is implicit in the Bill that the Minister might call upon \n\nParliament to take such action if the co-operation of a particular province is not \n\nsecured. It is, however, not necessary for the purposes of the decision in the present \n\nmatter to express a definite opinion as to whether or not Parliament has that power; all \n\nthat is necessary for present purposes is to say that such an obligation would depend \n\non action by Parliament, and is not imposed by the provisions of clauses 3(3), 8(6) or \n\n(7), or any other provision of the Bill. \n\n \n\n[32] The opportunity to participate in the Council and Committee and to be heard on \n\nadverse reports was not objected to. The objection was to being required to formulate \n\na remedial plan, or to promote national policy. The word \"require\" which is used in \n\nclause 8(6) has a peremptory connotation, and this is also true of clause 8(7) which \n\nprovides that the remedial plan: \n\n \n\n \n \n\n21 \n\n\fshall be prepared by the provincial education department concerned in \nconsultation with the [national] Department. \n\n \n\n[33] \n\nIt was suggested in argument that the cooperation of a provincial political head of \n\neducation who wishes to ignore a request made for the submission of a remedial plan, \n\ncould be secured through a mandamus, or through a threat to withhold financial \n\nsupport for the province's education system, or through some other coercive action. It \n\nis by no means clear that a political obligation such as that contemplated by clause \n\n8(6) could be made the subject of a mandamus, particularly if the province is not \n\nwilling to implement the plan;21 nor is it clear that the offering or withholding of \n\nfinancial incentives (if otherwise lawful) would be open to objection. If the financial \n\nincentives or other action taken to persuade the provinces to agree to national policy \n\nare not legitimate they can be challenged under the Constitution or under the well \n\nestablished principle that a power given for a specific purpose may not be misused in \n\norder to secure an ulterior purpose;22 if they are legitimate, then they are not open to \n\nobjection.23 These are not, however, issues that need trouble us in this case. It can be \n\nassumed that provincial administrations will act in accordance with a law which is \n\nconsistent with the Constitution. If a law requires a provincial administration to act \n\nin a particular manner and that requirement is not constitutional, the law cannot be \n\nsaved from constitutional challenge simply because there may be inadequate forensic \n\nmechanisms under the Constitution for its enforcement. It is therefore necessary to \n\n \n\n21The King v The Governor of the State of South Australia (1907) 4 C.L.R. 1497, 1511; Reg. v \n\nEmployment Secretary, Ex p. E.O.C. [1993] 1 W.L.R.872 (C.A.), 877 E-F, 895H-896C; 907G-908G. \n\n22Van Eck NO and van Rensburg NO v Etna Stores 1947(2) SA 984 (A). \n\n23In the New York case it was held that there was no constitutional objection to the use of financial \n\nincentives by Congress to secure the co-operation of the states in the implementation of the plan for the disposal \nof the waste. \n \n \n\n22 \n\n\fconfront and answer the question: can an Act of Parliament require a provincial \n\npolitical head of education to cause a plan to be prepared as to how national standards \n\ncan best be implemented in the province? \n\n \n\n[34] Where two legislatures have concurrent powers to make laws in respect of the same \n\nfunctional areas, the only reasonable way in which these powers can be implemented \n\nis through cooperation. And this applies as much to policy as to any other matter. It \n\ncannot therefore be said to be contrary to the Constitution for Parliament to enact \n\nlegislation that is premised on the assumption that the necessary cooperation will be \n\noffered, and which requires a provincial administration to participate in cooperative \n\nstructures and to provide information or formulate plans that are reasonably required \n\nby the Minister and are relevant to finding the best solution to an impasse that has \n\narisen. \n\n \n\n[35] Clauses 8(6) and (7) of the Bill contemplate a situation in which a provincial political \n\nhead of education may be called upon to secure the formulation of a plan to bring \n\neducation standards in the province into line with the Constitution or with national \n\nstandards. All education policy, national or provincial, must conform with the \n\nConstitution. If national standards have been formulated and lawfully made \n\napplicable to the provinces in accordance with the Constitution, those must also be \n\ncomplied with. The effect of clauses 8(6) and (7) is therefore to give the province \n\nconcerned an opportunity of addressing the alleged shortfall in standards itself, and of \n\nsuggesting the remedial action that should be undertaken. And this is so even if the \n\nnational standards have been formulated, but have not yet been made the subject of \n\n \n \n\n23 \n\n\flegislation. The alternative would be for the government to act unilaterally and to take \n\ndecisions without allowing the province this opportunity. \n\n \n\n[36] \n\nIt was also argued that the Bill interferes with the executive authority of the \n\nprovincial political heads of education in that clauses 9 and 10 require them and their \n\nadministrations to participate in structures in which they may not wish to participate \n\nand to promote a policy that they may not wish to promote. Clauses 9 and 10 establish \n\nthe Council of Education Ministers and the Committee of Heads of Education \n\nDepartments. These are fora for the discussion of mutual problems and for the \n\ndevelopment of national policy along lines that would be acceptable to the national \n\ngovernment and the provinces. The decisions of these bodies are not binding on the \n\nprovinces or the national government, and any participant is free to distance his or her \n\ngovernment from such decisions. The fact that the functions of these bodies include \n\nthe development and promotion of a national education policy, does not give rise to \n\nany obligation on the part of a provincial administration to approve of or adopt such a \n\npolicy. Provinces are free to develop and implement their own education policies. If \n\nthey do so in a way that conflicts with national education policy, and that conflict is in \n\nrespect of matters falling within the purview of section 126(3)(a) to (e) of the \n\nConstitution, the provinces concerned may possibly be required by the Minister to \n\namend their policies. But, in the absence of agreement or legislation lawfully enacted \n\nby Parliament that requires them to do so, they have no obligation to comply with any \n\ndemand that might be made by the Minister, the Council or the Committee for them to \n\nimplement national policy. \n\n \n\n \n \n\n24 \n\n\f[37] The executive authority vested in the provinces by section 144 of the Constitution is \n\nto administer their own laws. Clauses 9 and 10 do not interfere with this authority in \n\nany way. What they do is to establish bodies for the purpose of formulating mutual \n\npolicies, co-ordinating action on matters of mutual interest, and exchanging \n\ninformation. There is no compulsion on the provincial political heads of education or \n\nthe officials of their departments to participate in the affairs of the Council or the \n\nCommittee. The Bill gives them the right to do so; but if they choose not to, the only \n\nsanction is that national education policy and other plans that may be relevant to \n\nthem, may be formulated without any input from them and without their particular \n\nconcerns being adequately taken into account. Neither the Council nor the \n\nCommittee can require a province to change its laws or to implement national policy; \n\nnor can they require the provincial political head of education or members of the \n\nprovincial education department to refrain from implementing provincial laws or \n\npolicies. The most that they can do is to give advice or make recommendations which \n\nmay or may not be followed by the provinces. \n\n \n\n[38] There are no provisions of the Bill that oblige the provinces to follow national \n\neducation policy, or that empower the Minister to require them to adopt national \n\npolicy or to amend their own legislation. The objection founded on the assumption \n\nthat this is what the Bill meant is based on an incorrect assumption and cannot be \n\nsustained. The Bill calls for cooperation between the provinces and national \n\ngovernment and responses by the provinces to requests directed to them in terms of \n\nthe Bill; Parliament is entitled to make provision for such cooperation and \n\ncoordination of activities in respect of schedule 6 matters, and the objection to such \n\n \n \n\n25 \n\n\fprovisions on the grounds that they encroach upon the executive competence of the \n\nprovinces can also not be sustained. \n\n \n\nThe order to be made \n\n \n\n[39] We were informed during the hearing that certain amendments, said not to be material \n\nto the disputed issues, had been effected to the Bill after it had been submitted to this \n\nCourt by the Speaker. We are concerned only with the Bill in the form in which it was \n\nsubmitted to us by the Speaker. The amendments were not the subject of the petition \n\nand this Court has no jurisdiction to deal with them. \n\n \n\n[40] The National Party submitted that this Court should make an order declaring that the \n\nBill is not unconstitutional, and that it does not empower the Minister to compel the \n\nprovinces to implement the policy set out in clause 3 of the Bill. The Democratic \n\nParty asked for a similar order in the event of it being held that the Bill did not \n\nempower the Minister to compel the provinces to implement national policy. The only \n\nquestion referred to this Court is whether the Bill is unconstitutional. The provisions \n\nof section 7(4)(a) of the Constitution authorising this Court to make declarations of \n\nrights applies to infringements of Chapter Three and not to the Court's jurisdiction \n\nunder section 98(2)(d). The Bill is not a law; it creates no rights and cannot be made \n\nthe subject of a declaration of rights. All that this Court is empowered to do is to \n\nresolve the dispute as to the constitutionality of the Bill. In the circumstances the \n\nonly order that can properly be made is that the provisions of the National Education \n\nPolicy Bill submitted to this Court by the Speaker are not inconsistent with the \n\n \n \n\n26 \n\n\fConstitution on any of the grounds advanced on behalf of the petitioners. \n\n \n\nCosts \n\n \n\n[41] \n\nIn cases where the objection which is the basis for a sections 98(2) and (9) petition \n\nhas no merit or is shown to have been taken precipitately, this Court has the power \n\nunder rule 13(5) to order the objectors to pay the costs occasioned by their objection. \n\n \n\n [42] Counsel for the Minister did not ask for an order of costs to be made in the present \n\ncase against the parties who raised the constitutional objection. He did, however, \n\ncontend that unnecessary documentation had been placed before us by the National \n\nParty and that it should be directed to bear the costs occasioned as a result of the \n\nlodging of such documentation. The hearing was concluded in one day. The \n\ndocuments referred to were not canvassed in the written arguments and were barely \n\nmentioned during the oral argument. Although the documents referred to proved to be \n\nlargely irrelevant, the additional costs incurred by the Minister as a result of this \n\nwould not have been of any moment. In the circumstances it would not be appropriate \n\nto make a special order concerning the costs of such documents. \n\n \n\nThe referral \n\n \n\n[43] We were asked by counsel for the Minister to lay down guidelines for the referral of \n\nissues to this Court under sections 98(2)(d) and (9) of the Constitution. It was \n\nsubmitted that it would have been more appropriate for this matter to have been \n\n \n \n\n27 \n\n\freferred to the Court after the debate on its provisions had been completed. It \n\nappeared at the hearing that the constitutional objection was taken largely because of \n\na mistaken assumption that the Bill was intended to, and in fact compelled the \n\nprovinces, to comply with the Minister's determination of national education policy. \n\nSuch an intention and construction of the Bill was disavowed in the written argument \n\nlodged on behalf of the Minister. It was pointed out by counsel for the Minister that \n\nthe fears of the objectors may have been allayed, and uncertainties could possibly \n\nhave been resolved, if they had been raised during the debate. Had this happened a \n\npetition may not have been lodged with the Speaker. \n\n \n\n[44] \n\nIt would no doubt have been better in the circumstances of this case if the objectors \n\nhad raised the constitutional issue during the debate and deferred lodging the petition \n\nwith the Speaker until after the government's attitude to the disputed clauses had been \n\nclarified. If this procedure had been followed the disputed issues might have been \n\nresolved within Parliament. Parliament controls its own proceedings and there may \n\nbe good reasons for the procedure whereby the petition was lodged at the \n\ncommencement of the debate. The procedure to be followed in such matters is within \n\nthe domain of Parliament and in my view it would not be appropriate for this Court to \n\nmake any suggestions to Parliament in that regard. \n\n \n\n[45] The following order is made: The National Education Policy Bill submitted to this \n\nCourt by the Speaker of Parliament in terms of sections 98(2)(d) and (9) of the \n\nConstitution on the 13th September 1995 is not unconstitutional on any of the \n\ngrounds advanced on behalf of the petitioners. \n\n \n \n\n28 \n\n\f \nA. Chaskalson \nPresident Constitutional Court \n \nMahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, \nMokgoro J, O=Regan J, and Sachs J concur in the judgment of Chaskalson P. \n \n \nCASE NO: CCT 46/95 \n \n \n \nCOUNSEL FOR THE PETITIONERS: \n \nFOR THE DEMOCRATIC PARTY: \n\nW TRENGOVE SC \nD DAVIS \nD UNTERHALTER \n\n \n\n \nINSTRUCTED BY: \n \n \n \nFOR THE NATIONAL PARTY: \n\n \n\n \n\n \n\n \n\n \n\n \n\n \nINSTRUCTED BY: \n \n \n \nFOR THE INKATHA FREEDOM PARTY: \nAND THE AMICUS CURIAE: \n \nINSTRUCTED BY: \n \n \n \nCOUNSEL FOR THE MINISTER: \n\n \n\n \n\n \n\n \n\n \n\nEDWARD NATAHAN & FRIEDLAND INC \n\nC.E. PUCKRIN SC \nJ.P. VORSTER \n\nDYASON ATTORNEYS \n\nF.G. RICHINGS SC \n\nFRIEDMAN & FALCONER \n\nJ.J. GAUNTLETT SC \nG.J. MARCUS \n\n \nINSTRUCTED BY: \n\n \n\n \n \n \n \n \n \n\n \n \n\n \n\n \n\nTHE STATE ATTORNEY \nPRETORIA \n\n29 \n\n\f"}, "id": "b04df1b8-dfd8-466f-981d-b967a2dcea6c", "update_date": "2021-03-15 17:08:56.815818", "year": "1996", "judgement_paragraphs": ["CONSTITUTIONAL COURT OF SOUTH AFRICA JUDGMENT CASE NO CCT 46/95 DISPUTE CONCERNING THE CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE NATIONAL EDUCATION POLICY BILL, NO 83 OF 1995. Heard on: 7 March 1996 DELIVERED ON: 3 April 1996", "CHASKALSON P: The Speaker of the National Assembly, acting in terms of sections 98(2)(d) and 98(9) of the Constitution, has referred a dispute concerning the constitutionality of certain provisions of the National Education Policy Bill (B83-95) to this Court for its decision.", "At the hearing of the matter three political parties, the National Party, the Democratic Party, and the Inkatha Freedom Party, whose members had signed the petition, were represented by counsel. Counsel for the Inkatha Freedom Party also represented the Minister of Education of the KwaZulu-Natal Province, who is the member of the KwaZulu-Natal Executive Council responsible for education in that province, and \fwho had been admitted as an amicus. The National Education Policy Bill", "The objectives of the Bill are set out in clause 2. They are: (a) (b) (c) (d) the determination of national education policy by the Minister in accordance with certain principles; the consultations to be undertaken prior to the determination of policy, and the establishment of certain bodies for the purpose of consultation; the publication and implementation of national education policy; the monitoring and evaluation of education.", "The Minister referred to in the Bill, and to whom I will refer in this judgment as the Minister, is the Minister of Education in the national government. Clause 3 of the Bill makes provision for the determination of national education policy by the Minister. Clause 3(1) requires the Minister to do so in accordance with the provisions of the Constitution and the other provisions of the Bill, and clause 3(2) directs him or her to take into account Athe competence of the provincial legislatures in terms of section 126 of the Constitution, and the relevant provisions of any provincial law relating to education@. Clause 3(4) obliges the Minister to determine national policy for: the planning, provision, financing, staffing, co-ordination, management, governance, programmes, monitoring, evaluation and well-being of the education system, and contains sub-paragraphs identifying Awithout derogating from the generality@ of the section, specific matters for which national policy may be determined. Clause 4 sets out Adirective principles of national education policy@ which specify the goals to 2 \fwhich such policy shall be directed. Clause 5 makes provision for the consultation that must be held before policy is formulated and clause 6 provides for consultation that is necessary before legislation is enacted. Clause 7 deals with a requirement to publish the policy instrument in which the national education policy will be set out after it has been determined. Clause 8 makes provision for the monitoring and evaluation of education and clauses 9 to 13 for the establishment and functioning of various consultative bodies. Clause 14 amends the National Policy for General Education Affairs Act, 1984, in respects that are not the subject of any objection. The constitutional challenge", "In their written arguments the members of the National Party challenged the constitutionality of clauses 3(3), 3(4), 4 and 8 of the Bill; the members of the Inkatha Freedom Party (supported by the amicus) challenged clause 3(3) read with clauses 8(6) and 8(7) of the Bill; and the members of the Democratic Party challenged clauses 3(3), 8(6), 8(7), 9(1)(c) and 10(1)(c) of the Bill. An objection in the petition that the provisions of section 247 of the Constitution had not been complied with, was correctly not persisted in. There was no substance in the objection, as the Bill does not interfere with the \"rights, powers and functions\" of the bodies referred to in that section. The other signatories to the petition did not submit argument to the Court in support of their objections.", "Mr. Trengove who represented the Democratic Party was the first to argue. Whilst accepting that it would be competent for Parliament to enact legislation establishing 3 \fconsultative structures and enabling the department of national education to procure information from the provincial education departments, he contended that the provisions of the Bill read together went further than that: they would oblige members of provincial executive councils to promote policies that might be inconsistent with provincial policy, require them where necessary to amend their laws to bring them into conformity with national policy, and in effect would empower the Minister to impose the national government=s policies on the provinces. It was argued that in so far as the Bill imposed such obligations on the provincial administrations, it would be inconsistent with the Constitution. He acknowledged, however, that there was at least some uncertainty as to whether the Bill had such a meaning. In the written argument on behalf of the Democratic Party it had been said: It is not clear that the disputed provisions oblige provincial governments to implement and assist in the implementation of the minister's national education policy. We will submit that they do. If this court should however hold that they do not and that provincial governments are at liberty to ignore the minister's national education policy, then the Democratic Party's constitutional objections would fall away. This position was adhered to by Mr. Trengove at the hearing of the matter.", "Mr. Puckrin who appeared on behalf of the National Party associated himself with Mr. Trengove's arguments, but accepted that the Bill was capable of a narrower construction which would bring it within the Constitution. He sought a declaration, consistent with the narrower construction, that the Bill did not empower the Minister to compel the provinces to implement national education policy. 4 \f[8] Mr. Richings appeared on behalf of the Inkatha Freedom Party and the Minister of Education for KwaZulu-Natal. In his written argument it was contended that if the \"policy\" referred to in the Bill: was used in the sense of a mere wish or expectation on the part of the National Minister it would be unobjectionable, but the term as used appears to go beyond this as it is given a sanction in the form of enforcement mechanisms. It was further contended that the Bill could have no application to KwaZulu-Natal because it was in a position to formulate and regulate its own policies and the imposition of a national policy would encroach upon its autonomy. At the hearing Mr. Richings also associated himself with Mr. Trengove's argument. He too contended that the Bill imposed national education policy on the provinces but accepted that if it was capable of a narrower construction the objection on these grounds would fall away. He also contended that the Bill encroached upon the autonomy of the provinces and their executive authority. The provisions of the Bill to which objection was taken", "The specific provisions of the Bill to which objection was taken in argument were clauses 3(3), 8(6) and (7), and 9 and 10.", "Clause 3(3) of the Bill provides that: Whenever the Minister wishes a particular national policy to prevail over the whole or a part of any provincial law on education, the Minister shall inform the provincial political heads of education accordingly, and make a specific 5 \fdeclaration in the policy instrument to that effect. This has to be read with clause 8 which deals with the monitoring and evaluation of education. Clause 8(5) requires the Department of Education to report on investigations undertaken by it, and clauses 8(6) and (7) go on to provide: (6) If a report prepared in terms of subsection (5) indicates that the standards of education provision, delivery and performance in a province do not comply with the Constitution or with the policy determined in terms of section 3(3), the Minister shall inform the provincial political head of education concerned and require the submission within 90 days of a plan to remedy the situation. (7) A plan required by the Minister in terms of subsection (6) shall be prepared by the provincial education department concerned in consultation with the Department [of Education], and the Minister shall table the plan in Parliament with his or her comments within 21 days of receipt, if Parliament is then in ordinary session, or, if Parliament is not in ordinary session, within 21 days after the commencement of the first ensuing ordinary session of Parliament. The provincial political head of education is defined as meaning the member of the [provincial] Executive Council responsible for education in a province.", "Clauses 9 and 10 establish a Council of Education Ministers and a committee called the Heads of Education Departments Committee. The Council consists of the Minister of Education and the Deputy Minister, if such an office is established, and the provincial political heads of education. The functions of the Council are to share information and views on education, to co-ordinate action on matters of mutual interest to the provinces and the national government, and to: promote a national education policy which takes full account of the policies of the government, the principles [of national education policy] contained in clause 4 [of the Bill], the education interests and needs of the provinces, and the respective competence of Parliament and the provincial legislatures in 6 \fterms of section 126 of the Constitution.1 The Heads of Education Departments Committee consists of senior officials of the national and provincial education departments, and has functions similar to those of the Council of Education Ministers.", "None of the objectives of the bill is inconsistent with the Constitution. Parliament has the competence to make laws in respect of education, and the determination of policy is clearly necessary for this purpose. There can be no objection to providing that consultation shall take place prior to the formulation of policy. This serves to restrict rather than to increase the Minister's powers. And if regard is had to our history of disrupted education and to the present constitutional structure which vests concurrent powers to make laws for education in Parliament and the provinces, consultation with educational bodies, including provincial education departments, is essential for the proper exercise of the power to make policy. The publication and implementation of national education policy and the monitoring and evaluation of education are also not open to objection, unless they are done in a way which infringes the powers of the provinces. This was accepted by all counsel in argument, and the constitutional challenge was limited to a contention that the Bill authorised the Minister to implement policy in a way that infringed the powers of the provinces, and to that extent, was inconsistent with the Constitution. The powers of Parliament and the provincial legislatures 1Clause 9(3)(a) 7", "In terms of section 37 of the Constitution Parliament has the power to make laws for the Republic. It is a general plenary power and is not confined to specific functional areas. The legislative competence of the provincial legislatures is different. It is derived from section 126(1) of the Constitution which empowers them to make laws with regard to all matters set out in schedule 6 to the Constitution. This must be read with Section 126(2) which provides that they can also make laws which are reasonably necessary for or incidental to the exercise of such legislative competence. Education is a schedule 6 functional area in respect of which the provinces have legislative competence. This is not, however, the exclusive domain of the provinces, but one which they exercise concurrently with Parliament. This is made clear by section 126(2A) of the Constitution which provides: Parliament shall be competent, subject to subsections (3) and (4), to make laws with regard to matters referred to in subsections (1) and (2).", "Section 126 of the Constitution does not restrict this power; what it does is to provide in subclauses (3) and (4) how a conflict or potential conflict that may exist between an Act of Parliament and provincial legislation is to be resolved.2", "Section 126(5) of the Constitution requires that if it is possible to do so an Act of 2 Premier of KwaZulu-Natal and Others v President of the Republic of South Africa 1995 (12) BCLR 1561(CC) at para 25; The Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others 1995 (10) BCLR 1289(CC) at para 90. 8 \fParliament and a provincial law should be construed as being consistent with each other. If, or to the extent that, this cannot be done, then the provisions of sections 126(3) and (4) determine which of the conflicting provisions is to prevail. The solution provided is as follows. To the extent that the criteria specified in subsections (a) to (e) of section 126(3) are met the provisions of an Act of Parliament that is of general application will prevail; if, or to the extent that, such criteria are not met the provisions of the provincial law will prevail.", "The legislative competences of the provinces and Parliament to make laws in respect of schedule 6 matters do not depend upon section 126(3). Section 126(3) comes into operation only if it is necessary to have resort to it in order to resolve a conflict. If the conflict is resolved in favour of either the provincial or the national law the other is not invalidated; it is subordinated and to the extent of the conflict rendered inoperative. There is an important difference in this regard between laws that are inconsistent with each other and laws that are inconsistent with the Constitution. Section 4 provides that a law inconsistent with the Constitution is \"of no force and effect\", and in terms of section 98(5) such law has to be declared by this Court to be invalid to the extent of the inconsistency. Section 126(3), which deals with laws that are consistent with the Constitution but inconsistent with each other, does not stipulate that either law will be invalid as a result of the inconsistency; only that the provisions of one of the laws shall prevail over the other.3 3Although section 126(3) refers to circumstances where a provincial law prevails over an Act of Parliament, it is clear from the provisions of section 126(5) that the section applies to provisions that are 9 \f inconsistent and not the entire law. 10", "Hogg,4 discusses the difference between inconsistency and invalidity in Chapter 16. He concludes that: Once it has been determined that a federal law is inconsistent with a provincial law, the doctrine of federal paramountcy stipulates that the provincial law must yield to the federal law. The most usual and most accurate way of describing the effect on the provincial law is to say that it is rendered inoperative to the extent of the inconsistency. Notice that the paramountcy doctrine applies only to the extent of the inconsistency. The doctrine will not affect the operation of those parts of the provincial law which are not inconsistent with the federal law, unless of course the inconsistent parts are inseparably linked with the consistent parts. There is also a temporal limitation on the paramountcy doctrine. It will affect the operation of the provincial law only so long as the inconsistent federal law is in force. If the federal law is repealed, the provincial law will automatically \"revive\" (come back into operation) without any reenactment by the provincial Legislature.5", "A similar conclusion has been reached by the High Court of Australia in respect of conflicts between state laws and laws of the Commonwealth Parliament. Section 109 of the Australian Constitution provides that a state law that is inconsistent with a Commonwealth law shall to the extent of such inconsistency be \"invalid\". The High Court has held that section 109 does not nullify the inconsistent provisions of the state law; it simply renders them \"inoperative and ineffective\" as if they had been suspended. They would revive and be of full force and effect if the Commonwealth law were to be repealed, or amended in a manner that removed the inconsistency.6 4Hogg PW, Constitutional Law of Canada, 3 ed (Supp 1992). 5Id. at para 16.6 (footnotes omitted). 6 Butler v Attorney-General (Vict.) (1961) 106 C.L.R. 268, 286; Western Australia v The Commonwealth (1994-1995) 183 CLR 373, 464. 11", "This reflects in my view the way in which our Constitution requires inconsistencies that cannot be resolved by the application of the provisions of section 126(5) to be dealt with. Neither Parliament nor a provincial legislature has the competence to invalidate laws of the other passed in accordance with the Constitution; nor does the Constitution lay down that a consequence of inconsistency will be the invalidity of one of the laws. It follows that a law that is subordinated by virtue of the application of section 126(3) is not nullified; it remains in force and has to be implemented to the extent that it is not inconsistent with the law that prevails. If the inconsistency falls away the law would then have to be implemented in all respects.", "Thus, even if the National Education Policy Bill deals with matters in respect of which provincial laws would have paramountcy, it could not for that reason alone be declared to be unconstitutional. This disposes of the argument put forward in the written submissions made on behalf of the Inkatha Freedom Party and the Minister of Education for KwaZulu-Natal that \"none of the so-called 'overrides' set out in section 126(3) of the Constitution ... can be held to apply to the Province of KwaZulu-Natal\" because it is capable of regulating any matter relating to education within the province. The argument seems to be premised on a construction of section 126 as meaning that as long as a province is capable of regulating a schedule 6 matter it has the exclusive right to do so. But that is not what the section says. The application of section 126(3)(a) to (e) to resolve conflicts between Acts of Parliament and provincial legislatures may give rise to difficult questions; none of them arise, however, in the present matter for the simple reason that the constitutionality of the Bill does not 12 \fdepend upon an application of the provisions of section 126(3). The argument", "In support of the challenge to the constitutionality of the Bill on the grounds that it obliges provinces to adhere to national education policy, Mr. Trengove placed considerable reliance on the majority judgment of the United States Supreme Court in New York v United States.7 This case was concerned with a 1985 congressional statute which dealt with the disposal of radioactive waste. The statute was enacted after negotiations involving the affected states. At that time there were three regional disposal facilities and in terms of earlier legislation those facilities would have been entitled as from the beginning of 1986 to exclude waste from non-members. The 1985 statute extended the period during which the existing three sites would accept waste from non-members until 1992, and dealt with the obligations of states after the expiry of that deadline. The legislative scheme was as follows. Each state was made responsible for disposing of waste generated within its territory either by itself or in co-operation with other states. States were authorised to enter into compacts for the establishment of regional disposal facilities, and three sets of incentives were offered to states to encourage them to comply with their obligations under the statute. One set consisted of monetary incentives; one set authorised states with disposal sites to gradually increase the cost of access to their sites and ultimately to deny access to waste generated in the states which did not meet federal deadlines. The third set required a state which had not made arrangements for the disposal of waste either to 7505 U.S. 144 (1992). 13 \fregulate the disposal of the waste in accordance with the instruction of Congress, or, if required to do so by the generator or owner of the waste, to assume ownership, possession and ultimately responsibility for the waste and any damage caused by it. The validity of the legislation making provision for the incentives was disputed on the grounds that it interfered with state rights. The Court was divided. The majority judgment in the New York case is based in the main on the importance of the states' powers under the Tenth Amendment. They concluded that: while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so.8 In the result it was held that the first two incentives were within the Constitution, but the third was not. As the provisions relating to the third incentive could be severed from the rest of the statute, the Act containing only the two incentives remained operative and served: Congress= objective of encouraging the States to attain local or regional self- sufficiency in the disposal of low level radioactive waste.9 The minority took a different view, holding that: principles of federalism have not insulated States from mandates by the National Government 8Id. at 149. 9Id. at 187. 14 \f and that the Courts have upheld \"congressional statutes that impose clear directives on state officials.\"10 Stevens J, concurring in the dissenting judgment, said that: [t]he notion that Congress does not have the power to issue @a simple command to state governments to implement legislation enacted by Congress@ ... is incorrect and unsound.11 10Id. at 207, note 3. 11Id. at 211. 15 \f[22] It was pointed out in Executive Council of the Western Cape Legislature and Others v President of the Republic of South Africa and Others 12 that the powers of Parliament depend ultimately upon \"the language of the Constitution, construed in the light of [our] own history.\" Our history is different to the history of the United States of America, and the language of our Constitution differs materially from the language of the United States Constitution. The history and structure of the United States Constitution are discussed in the judgment of O'Connor J in the New York case.13 The Constitution addressed a situation in which several sovereign states were brought together in a federation. The constitutional scheme agreed upon was that each state would surrender part of its sovereignty to the federal government and retain that part which had not been surrendered. This is reflected in the language of the Constitution. Congress has only those powers specifically vested in it by the Constitution. All other power is vested in the states.14 Congress can make laws which encroach upon state sovereignty through the supremacy clause,15 commerce clause,16 the spending power17 and the power to make all laws which may be necessary and proper for the implementation of its powers,18 but cannot otherwise interfere with the rights vested in the states under the Tenth Amendment. 121995(10) BCLR 1289 (CC) at para 61. 13Ibid. at 155-8 and 161-6. 14U.S. Const. amend. X. 15U.S. Const. art. VI, cl. 2. 16U.S. Const. art. I, section 8 cl. 3. 17U.S. Const. art. I, section 8 cl.1. 18U.S. Const. art.I, section 8 cl.18. 16", "Unlike their counterparts in the United States of America, the provinces in South Africa are not sovereign states. They were created by the Constitution and have only those powers that are specifically conferred on them under the Constitution. Their legislative power is confined to schedule 6 matters and even then it is a power that is exercised concurrently with Parliament. Decisions of the courts of the United States dealing with state rights are not a safe guide as to how our courts should address problems that may arise in relation to the rights of provinces under our Constitution. And this is so whether the issue arises under the provisions of section 126 or any other provision of the Constitution.", "Although the Bill establishes structures and procedures which are directed to developing a national policy that will be adhered to by all provinces, and contains provisions which are calculated to persuade the provinces to do so, it does not in my view go so far as to require this to be done. In the circumstances the argument that the Bill empowers the Minister to override provincial law or to compel the provinces to amend their laws must be rejected. My reasons for rejecting this interpretation of the Bill are as set out below. The interpretation of the Bill", "The provisions that are challenged must be seen in the context of the Bill as a whole which addresses policy issues in a situation in which Parliament exercises concurrent legislative power with the provincial legislatures in respect of schedule 6 matters. 17", "Clause 3(1) of the Bill provides that national education policy is to be determined by the Minister in accordance with the Constitution and the other provisions of the Bill. Clause 3(2) of the Bill requires that in the formulation of national education policy the Minister shall take account of the provisions of section 126 of the Constitution and the relevant provisions of any provincial law relating to education. This is a clear indication that national education policy should not contradict provincial law, save where it would be permissible for Parliament to authorise this through legislation which in terms of section 126 would prevail over provincial law. Clause 6 contemplates that such legislation may be necessary and provides that it may not be introduced into Parliament without prior consultation with the Council of Education Ministers.", "The vesting of concurrent lawmaking powers in Parliament and the provincial legislatures is an arrangement which calls for consultation and co-operation between the national executive and the provincial executives. The Commission on Provincial Government19 and the Financial and Fiscal Commission,20 which are important constitutional structures, contemplate that there will be consultation between representatives of the provinces and the national government in regard, inter alia, to the allocation of funds and the rationalisation of statutory enactments. The Bill, which makes provision for such consultation and co-operation in the field of 19As to which, see sections 163 to 173 of the Constitution. 20As to which, see sections 198 to 206 of the Constitution. 18 \feducation, is wholly consistent with the constitutional scheme. Indeed, where both Parliament and the provincial legislatures have exercised or wish to exercise schedule 6 competences such consultation and co-operation would appear to be essential. It is necessary to enable the national government to obtain the information it may require to enable it to take decisions in regard to educational matters falling within the ambit of sections 126(3)(a) to (e) of the Constitution; it is necessary to avoid conflicting legislative provisions and to rationalise the legislation applicable to schedule 6 matters; and it is necessary to enable provincial and national governments to formulate their plans, including budgetary allocations, for the future. The setting up of a parallel national administration in a province to procure the information that the national government needs, and to implement legislation enacted pursuant thereto, would be neither cost-effective nor efficient, and moreover, would be likely to be more intrusive of provincial structures than legislation which calls for cooperation.", "One of the purposes of the Bill is to make provision for the development of a national education policy which will accommodate differences between the national government and the provinces. Thus clause 9(3)(a) refers to a policy that takes full account of the policies of the government and the needs and interests of the provinces, and the respective powers of Parliament and the provincial legislatures. In so far as the Bill makes provision for consultative structures to be established for this purpose, or for the provision of information by provincial education departments to the national education department, it does not in my view offend any of the provisions of the Constitution. 19 \f[29] Clause 3(3) of the Bill requires the Minister to give notice to the relevant provincial political heads of education if he wishes national education policy to prevail over provincial law. Such notice does not enable the Minister to require the provinces to act in conformity with national policy; it merely informs them that it is the Minister's wish that they should do so, and lays the ground for the necessary consultation that must take place with the Council. There is, no doubt, an implication that the Minister may take action to secure the implementation of national policy if the expressed wish is not met, but that would depend on further steps including if necessary the enactment of legislation as contemplated by clause 6. The response to the Minister's notice, or the consultation called for under clause 6, could lead to the Minister changing tack, or to consensus between the different administrations as to how differences between them should be resolved.", "The provisions of clauses 8(6) and (7) of the Bill also give rise to no obligation on the part of the provinces to adopt national education policy in preference to their own policy, or to amend their legislation to bring it into conformity with national policy. The provincial political head of education can be called upon to prepare a plan to bring standards of education in his or her province into line with what may be required by the Constitution or national policy, if a report has been made under clause 8(5) that such standards are not being met. There is, however, no obligation imposed on the province by the Bill to implement that plan if it chooses not to do so. That obligation could possibly be imposed by other legislation which passes the test of sections 126(3) and (4), but the Bill itself makes no specific provision for that to be done. It contemplates that such legislation may be enacted, but only after 20 \fconsultation has taken place in terms of clause 6.", "Nothing in the Bill imposes an obligation on the provinces to act in conformity with national education policy. That may possibly be achieved by Parliament through the passing of legislation which prevails over provincial law in terms of section 126(3). Whether such laws will or will not be enacted depends on Parliament; and if enacted, whether they will prevail over any provincial laws that are inconsistent with them, is a matter that should only be determined if and when such laws are passed. I shall assume for the purposes of this judgment that such laws, if enacted in an appropriate form, could be made to prevail over provincial laws in terms of section 126 of the Constitution and that it is implicit in the Bill that the Minister might call upon Parliament to take such action if the co-operation of a particular province is not secured. It is, however, not necessary for the purposes of the decision in the present matter to express a definite opinion as to whether or not Parliament has that power; all that is necessary for present purposes is to say that such an obligation would depend on action by Parliament, and is not imposed by the provisions of clauses 3(3), 8(6) or (7), or any other provision of the Bill.", "The opportunity to participate in the Council and Committee and to be heard on adverse reports was not objected to. The objection was to being required to formulate a remedial plan, or to promote national policy. The word \"require\" which is used in clause 8(6) has a peremptory connotation, and this is also true of clause 8(7) which provides that the remedial plan: 21 \fshall be prepared by the provincial education department concerned in consultation with the [national] Department.", "It was suggested in argument that the cooperation of a provincial political head of education who wishes to ignore a request made for the submission of a remedial plan, could be secured through a mandamus, or through a threat to withhold financial support for the province's education system, or through some other coercive action. It is by no means clear that a political obligation such as that contemplated by clause 8(6) could be made the subject of a mandamus, particularly if the province is not willing to implement the plan;21 nor is it clear that the offering or withholding of financial incentives (if otherwise lawful) would be open to objection. If the financial incentives or other action taken to persuade the provinces to agree to national policy are not legitimate they can be challenged under the Constitution or under the well established principle that a power given for a specific purpose may not be misused in order to secure an ulterior purpose;22 if they are legitimate, then they are not open to objection.23 These are not, however, issues that need trouble us in this case. It can be assumed that provincial administrations will act in accordance with a law which is consistent with the Constitution. If a law requires a provincial administration to act in a particular manner and that requirement is not constitutional, the law cannot be saved from constitutional challenge simply because there may be inadequate forensic mechanisms under the Constitution for its enforcement. It is therefore necessary to 21The King v The Governor of the State of South Australia (1907) 4 C.L.R. 1497, 1511; Reg. v Employment Secretary, Ex p. E.O.C. [1993] 1 W.L.R.872 (C.A.), 877 E-F, 895H-896C; 907G-908G. 22Van Eck NO and van Rensburg NO v Etna Stores 1947(2) SA 984 (A). 23In the New York case it was held that there was no constitutional objection to the use of financial incentives by Congress to secure the co-operation of the states in the implementation of the plan for the disposal of the waste. 22 \fconfront and answer the question: can an Act of Parliament require a provincial political head of education to cause a plan to be prepared as to how national standards can best be implemented in the province?", "Where two legislatures have concurrent powers to make laws in respect of the same functional areas, the only reasonable way in which these powers can be implemented is through cooperation. And this applies as much to policy as to any other matter. It cannot therefore be said to be contrary to the Constitution for Parliament to enact legislation that is premised on the assumption that the necessary cooperation will be offered, and which requires a provincial administration to participate in cooperative structures and to provide information or formulate plans that are reasonably required by the Minister and are relevant to finding the best solution to an impasse that has arisen.", "Clauses 8(6) and (7) of the Bill contemplate a situation in which a provincial political head of education may be called upon to secure the formulation of a plan to bring education standards in the province into line with the Constitution or with national standards. All education policy, national or provincial, must conform with the Constitution. If national standards have been formulated and lawfully made applicable to the provinces in accordance with the Constitution, those must also be complied with. The effect of clauses 8(6) and (7) is therefore to give the province concerned an opportunity of addressing the alleged shortfall in standards itself, and of suggesting the remedial action that should be undertaken. And this is so even if the national standards have been formulated, but have not yet been made the subject of 23 \flegislation. The alternative would be for the government to act unilaterally and to take decisions without allowing the province this opportunity.", "It was also argued that the Bill interferes with the executive authority of the provincial political heads of education in that clauses 9 and 10 require them and their administrations to participate in structures in which they may not wish to participate and to promote a policy that they may not wish to promote. Clauses 9 and 10 establish the Council of Education Ministers and the Committee of Heads of Education Departments. These are fora for the discussion of mutual problems and for the development of national policy along lines that would be acceptable to the national government and the provinces. The decisions of these bodies are not binding on the provinces or the national government, and any participant is free to distance his or her government from such decisions. The fact that the functions of these bodies include the development and promotion of a national education policy, does not give rise to any obligation on the part of a provincial administration to approve of or adopt such a policy. Provinces are free to develop and implement their own education policies. If they do so in a way that conflicts with national education policy, and that conflict is in respect of matters falling within the purview of section 126(3)(a) to (e) of the Constitution, the provinces concerned may possibly be required by the Minister to amend their policies. But, in the absence of agreement or legislation lawfully enacted by Parliament that requires them to do so, they have no obligation to comply with any demand that might be made by the Minister, the Council or the Committee for them to implement national policy. 24 \f[37] The executive authority vested in the provinces by section 144 of the Constitution is to administer their own laws. Clauses 9 and 10 do not interfere with this authority in any way. What they do is to establish bodies for the purpose of formulating mutual policies, co-ordinating action on matters of mutual interest, and exchanging information. There is no compulsion on the provincial political heads of education or the officials of their departments to participate in the affairs of the Council or the Committee. The Bill gives them the right to do so; but if they choose not to, the only sanction is that national education policy and other plans that may be relevant to them, may be formulated without any input from them and without their particular concerns being adequately taken into account. Neither the Council nor the Committee can require a province to change its laws or to implement national policy; nor can they require the provincial political head of education or members of the provincial education department to refrain from implementing provincial laws or policies. The most that they can do is to give advice or make recommendations which may or may not be followed by the provinces.", "There are no provisions of the Bill that oblige the provinces to follow national education policy, or that empower the Minister to require them to adopt national policy or to amend their own legislation. The objection founded on the assumption that this is what the Bill meant is based on an incorrect assumption and cannot be sustained. The Bill calls for cooperation between the provinces and national government and responses by the provinces to requests directed to them in terms of the Bill; Parliament is entitled to make provision for such cooperation and coordination of activities in respect of schedule 6 matters, and the objection to such 25 \fprovisions on the grounds that they encroach upon the executive competence of the provinces can also not be sustained. The order to be made", "We were informed during the hearing that certain amendments, said not to be material to the disputed issues, had been effected to the Bill after it had been submitted to this Court by the Speaker. We are concerned only with the Bill in the form in which it was submitted to us by the Speaker. The amendments were not the subject of the petition and this Court has no jurisdiction to deal with them.", "The National Party submitted that this Court should make an order declaring that the Bill is not unconstitutional, and that it does not empower the Minister to compel the provinces to implement the policy set out in clause 3 of the Bill. The Democratic Party asked for a similar order in the event of it being held that the Bill did not empower the Minister to compel the provinces to implement national policy. The only question referred to this Court is whether the Bill is unconstitutional. The provisions of section 7(4)(a) of the Constitution authorising this Court to make declarations of rights applies to infringements of Chapter Three and not to the Court's jurisdiction under section 98(2)(d). The Bill is not a law; it creates no rights and cannot be made the subject of a declaration of rights. All that this Court is empowered to do is to resolve the dispute as to the constitutionality of the Bill. In the circumstances the only order that can properly be made is that the provisions of the National Education Policy Bill submitted to this Court by the Speaker are not inconsistent with the 26 \fConstitution on any of the grounds advanced on behalf of the petitioners. Costs", "In cases where the objection which is the basis for a sections 98(2) and (9) petition has no merit or is shown to have been taken precipitately, this Court has the power under rule 13(5) to order the objectors to pay the costs occasioned by their objection. [42] Counsel for the Minister did not ask for an order of costs to be made in the present case against the parties who raised the constitutional objection. He did, however, contend that unnecessary documentation had been placed before us by the National Party and that it should be directed to bear the costs occasioned as a result of the lodging of such documentation. The hearing was concluded in one day. The documents referred to were not canvassed in the written arguments and were barely mentioned during the oral argument. Although the documents referred to proved to be largely irrelevant, the additional costs incurred by the Minister as a result of this would not have been of any moment. In the circumstances it would not be appropriate to make a special order concerning the costs of such documents. The referral", "We were asked by counsel for the Minister to lay down guidelines for the referral of issues to this Court under sections 98(2)(d) and (9) of the Constitution. It was submitted that it would have been more appropriate for this matter to have been 27 \freferred to the Court after the debate on its provisions had been completed. It appeared at the hearing that the constitutional objection was taken largely because of a mistaken assumption that the Bill was intended to, and in fact compelled the provinces, to comply with the Minister's determination of national education policy. Such an intention and construction of the Bill was disavowed in the written argument lodged on behalf of the Minister. It was pointed out by counsel for the Minister that the fears of the objectors may have been allayed, and uncertainties could possibly have been resolved, if they had been raised during the debate. Had this happened a petition may not have been lodged with the Speaker.", "It would no doubt have been better in the circumstances of this case if the objectors had raised the constitutional issue during the debate and deferred lodging the petition with the Speaker until after the government's attitude to the disputed clauses had been clarified. If this procedure had been followed the disputed issues might have been resolved within Parliament. Parliament controls its own proceedings and there may be good reasons for the procedure whereby the petition was lodged at the commencement of the debate. The procedure to be followed in such matters is within the domain of Parliament and in my view it would not be appropriate for this Court to make any suggestions to Parliament in that regard.", "The following order is made: The National Education Policy Bill submitted to this Court by the Speaker of Parliament in terms of sections 98(2)(d) and (9) of the Constitution on the 13th September 1995 is not unconstitutional on any of the grounds advanced on behalf of the petitioners. 28 \f A. Chaskalson President Constitutional Court Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O=Regan J, and Sachs J concur in the judgment of Chaskalson P. CASE NO: CCT 46/95 COUNSEL FOR THE PETITIONERS: FOR THE DEMOCRATIC PARTY: W TRENGOVE SC D DAVIS D UNTERHALTER INSTRUCTED BY: FOR THE NATIONAL PARTY: INSTRUCTED BY: FOR THE INKATHA FREEDOM PARTY: AND THE AMICUS CURIAE: INSTRUCTED BY: COUNSEL FOR THE MINISTER: EDWARD NATAHAN & FRIEDLAND INC C.E. PUCKRIN SC J.P. VORSTER DYASON ATTORNEYS F.G. RICHINGS SC FRIEDMAN & FALCONER J.J. GAUNTLETT SC G.J. MARCUS INSTRUCTED BY: THE STATE ATTORNEY PRETORIA 29"], "max_length_judgement_paras": 824}, {"title": "Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 (CCT39/95) [1996] ZACC 4; 1996 (4) BCLR 537; 1996 (3) SA 165 (4 April 1996)", "url": "http://www.saflii.org/za/cases/ZACC/1996/4.html", "summary_document": null, "judgement_document": {"filename": "judgement-for-case-4.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/4.pdf", "file_content": "IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nCASE NO CCT 39/95\n\nIn the matter of:\n\nTHE GAUTENG PROVINCIAL LEGISLATURE\n\nIn re: DISPUTE CONCERNING THE CONSTITUTIONALITY OF CERTAIN PROVISIONS\n\nOF THE SCHOOL EDUCATION BILL OF 1995\n\nHeard on:\n\n29 February 1996\n\nDelivered on:\n\n4 April 1996\n\nJUDGMENT\n\n[1] MAHOMED DP: Various members of the Gauteng provincial legislature, constituting at\n\nleast one third of the total membership of that body, acting pursuant to the provisions of\n\nsection 98(9) of the Constitution of the Republic of South Africa Act, 200 of 1993 (\u201cthe\n\nConstitution\u201d), petitioned the Speaker, requiring him to request this Court to exercise its\n\njurisdiction in terms of section 98(2)(d) of the Constitution to resolve a dispute which had\n\narisen in respect of the constitutionality of certain provisions of the School Education Bill\n\n(\u201cthe bill\u201d) of the Gauteng Province. That request was duly communicated by the Speaker\n\nof the Gauteng provincial legislature to this Court.\n\n[2]\n\nSubsequently the bill was passed and duly enacted as the School Education Act of 1995\n\nbut the disputed sections were not put into operation. It was not contended by any of the\n\nparties appearing before us that the jurisdiction conferred upon us by section 98(2)(d) of\n\n\fthe Constitution was in any way ousted because the bill which was previously before the\n\nprovincial legislature had since ceased to be a bill and had been enacted as a statute. For\n\nthe purposes of this judgment I shall continue to refer to the School Education Act as \u201cthe\n\nMAHOMED DP\n\nbill\u201d.\n\n[3]\n\nThe objects and content of the bill\n\nThe long title of the bill describes its objects. It is \u201c[t]o provide for the provision and\n\ncontrol of education in schools, and matters connected therewith\u201d. Chapter 3 of the bill\n\ndeals with \u201cschooling\u201d. Section 11(2) provides that admission requirements for public\n\nschools \u201cshall not unfairly discriminate on grounds of race, ethnic or social origin, colour,\n\ngender, sex, disability, sexual orientation, religion, conscience, belief, culture or\n\nlanguage\u201d. (\u201cModel C schools\u201d are included within the definition of public schools in\n\nsection 1.) Section 19 provides as follows:\n\n\u201cLanguage and discrimination\n19.\n\n(1)\n\n(2)\n\n(3)\n\nLanguage competence testing shall not be used as an admission\nrequirement to a public school.\nLearners at public schools shall be encouraged to make use of the\nrange of official languages.\nNo learner at a public school or a private school\nwhich receives a subsidy in terms of section 69\nshall be punished for expressing himself or herself\nin a language which is not a language of learning of\nthe school concerned.\u201d\n\nThe constitutionality of section 19(1) is disputed by the petitioners and the South African\n\nFoundation for Education and Training (\u201cthe Foundation\u201d) which was admitted as an\n\namicus curiae in these proceedings. The executive director of the Foundation states that-\n\n\u201cThe mission of the Foundation is to support a Christian value system and prescribe to\nthe principle of mother tongue education. The Foundation also aspires to promote\n\n2\n\n\feducation in the South African community as a whole with special reference to the\nAfrikaans medium education.\u201d\n\nMAHOMED DP\n\n[4]\n\nSection 21 and section 22 of the bill read as follows:\n\n\u201cReligious policy of public schools\n21.\n\n(1)\n\nThe religious policy of a public school shall be made by the\ngoverning body of the school concerned after consultation with the\ndepartment, and subject to the approval of the Member of the\nExecutive Council.\nThe religious policy of a public school shall be developed within the\nframework of the following principles:\n(a)\n\nThe education process should aim at \nthe\ndevelopment of a national, democratic culture of\nrespect for our country\u2019s diverse cultural and\nreligious traditions.\nFreedom of conscience and of religion shall be\nrespected at all public schools.\n\n(b)\n\nIf, at any time, the Member of the Executive Council has reason to\nbelieve that the religious policy of a public school does not comply\nwith the principles set out in subsection (2) or the requirements of\nthe Constitution, the Member of the Executive Council may, after\nconsultation with the governing body of the school concerned, direct\nthat the religious policy of the school shall be reformulated in\naccordance with subsections (1) and (2).\nThe provisions of section 18(4) to (8) shall apply mutatis mutandis\nto a directive issued by the Member of the Executive Council under\nsubsection (3) and in such application any reference to language\npolicy shall be construed as a reference to religious policy.\n\nNo person employed at any public school shall attempt to\nindoctrinate learners into any particular belief or religion.\nNo person employed at any public school or private school\nshall in the course of his or her employment denigrate any\nreligion.\n(a)\n\n(i)\n\n(2)\n\n(3)\n\n(4)\n\n(2)\n\n(3)\n\nFreedom of conscience\n22.\n\n(1)\n\n(ii)\n\nregard \n\nEvery learner at a public school, or at a\nprivate school which receives a subsidy\nin terms of section 69, shall have the\nright not to attend religious education\nclasses and religious practices at that\nschool.\nthe\nIn \nthis \ndepartment \nshall\nrespect the rights and\nduties of parents to\nprovide direction to\ntheir children in the\nexercise of their rights\nas \nin a\nmanner consistent with\nthe evolving capacity\n\nlearners, \n\n3\n\n\fMAHOMED DP\n\nt h e c h i l d r e n\n\no f \nconcerned.\n\n(b)\n\n(c)\n\nlimitation \n\nThe right conferred by paragraph (a) on a\nlearner at a private school which receives\na subsidy in terms of section 69, may be\nlimited where such \nis\nnecessary to preserve the religious\ncharacter of \nthe private school\nconcerned.\nExcept as is provided for in\nparagraph \n(b) no person\nemployed at a public school, or\nat a private school which\nreceives a subsidy in terms of\nsection 69, shall in any way\ndiscourage a \nfrom\nchoosing not to attend religious\neducation classes or religious\npractices at that school.\n\nlearner \n\n(4)\n\nNo person employed at a public school shall be\nobliged or in any way unduly influenced to\nparticipate in any of the religious education\nclasses or religious practices at that school.\u201d\n\nThe constitutionality of section 21(2), section 21(3) and section 22(3) is also impugned.\n\n[5]\n\nThe complaint made against the impugned sections of the bill is that their effect is to invade\n\nthe right of persons to attend schools where language competence testing is permitted as\n\nan admission requirement or where the religious policy of the school is developed within\n\na framework which does not fall within the principles set out in section 21(2) of the bill\n\nor where the school is not subject to the directions contemplated in section 21(3) or where\n\nthe attendance of scholars at religious education classes is compulsory. The answer\n\nproffered on behalf of the provincial government is that the bill makes no invasion on any\n\nof these rights at all. Section 19(1) which prohibits language competence testing as an\n\nadmission requirement to a public school, section 21(2) which provides for the religious\n\npolicy to be developed in a school and section 21(3) which provides for directions in this\n\n4\n\n\fMAHOMED DP\n\nregard in certain circumstances do not have any application at all at private schools and\n\nsection 22(3) which creates a right not to attend religious education classes is confined to\n\npublic schools and only such private schools which receive a subsidy in terms of section\n\n69 of the bill. All the rights which the petitioners and the Foundation seek to assert can\n\ntherefore be freely exercised at other schools. Both the Foundation and the petitioners seek\n\nto counter that answer by the submission that section 32(c) of the Constitution creates a\n\npositive obligation on the state to accord to every person the right to require the state to\n\nestablish, where practicable, educational institutions based on a common culture, language\n\nor religion as long as there is no discrimination on the grounds of race. It is contended that\n\non this interpretation of section 32(c), the government is not entitled to prohibit language\n\ncompetence testing as an admission requirement or direct what religious policy should be\n\ndeveloped or who should or should not attend religious classes at schools so established.\n\nCounsel for the petitioners and the Foundation were correct in conceding that this\n\nsubmission on the proper interpretation of section 32(c) was \u201ccentral\u201d to the attack made\n\non the impugned sections. It substantially dominated counsel\u2019s argument. It therefore\n\nbecomes crucial to determine whether section 32(c) of the Constitution indeed creates a\n\npositive obligation on the state to accord to every person the right to have established,\n\nwhere practicable, schools based on a common culture, language or religion subject only\n\nto the qualification that it is practicable and that there is no discrimination on the grounds\n\nof race.\n\n[6]\n\nSection 32(c) of the Constitution\n\nSection 32 reads as follows:\n\n5\n\n\fMAHOMED DP\n\n\u201cEducation\n32. \n\n Every person shall have the right-\n(a)\n(b)\n\nto basic education and to equal access to educational institutions;\nto instruction in the language of his or her choice where this is\nreasonably practicable; and\nto establish, where practicable, educational institutions based on a\ncommon culture, language or religion, provided that there shall be no\ndiscrimination on the ground of race.\u201d\n\n(c)\n\n[7]\n\nThe submission that every person can demand from the state the right to have established\n\nschools based on a common culture, language or religion is not supported by the language\n\nof section 32(c). The section does not say that every person has the right to have\n\nestablished by the state educational institutions based on such a common culture, language\n\nor religion. What it provides is that every person shall have the right to establish such\n\neducational institutions. Linguistically and grammatically it provides a defensive right to\n\na person who seeks to establish such educational institutions and it protects that right from\n\ninvasion by the state, without conferring on the state an obligation to establish such\n\neducational institutions. \n\n[8]\n\nConsidered in context, there is no logical force in the construction favoured by the\n\npetitioners. If a person has the right to basic education at public expense in terms of sub-\n\nparagraph (a) and if he or she has the right is to be instructed in the language of his or her\n\nchoice in terms of sub-paragraph (b), why would there be any need to repeat in sub-\n\nparagraph (c) the right to education at public expense through a common language? The\n\nobject of sub-section (c) is to make clear that while every person has a right to basic\n\neducation through instruction in the language of his or her choice, those persons who want\n\nmore than that and wish to have educational institutions based on a special culture,\n\nlanguage or religion which is common, have the freedom to set up such institutions based\n\n6\n\n\fMAHOMED DP\n\non that commonality, unless it is not practicable. Thus interpreted, section 32(c) is neither\n\nsuperfluous nor tautologous. It preserves an important freedom. The constitutional\n\nentrenchment of that freedom is particularly important because of our special history\n\ninitiated during the fifties, in terms of the system of Bantu education. From that period the\n\nstate actively discouraged and effectively prohibited private educational institutions from\n\nestablishing or continuing private schools and insisted that such schools had to be\n\nestablished and administered subject to the control of the state.1 The execution of those\n\npolicies constituted an invasion on the right of individuals in association with one another\n\nto establish and continue, at their own expense, their own educational institutions based\n\non their own values. Such invasions would now be constitutionally impermissible in terms\n\nof section 32(c). \n\n[9]\n\nThe interpretation of section 32(c) as a defensive right, based on its grammatical and\n\nlinguistic structure, seems to me also to be supported by its context within section 32 itself.\n\nSection 32(a) creates a positive right that basic education be provided for every person\n\nand not merely a negative right that such a person should not be obstructed in pursuing his\n\nor her basic education. Section 32(b), recognising the diversity of languages in our\n\ncountry, again creates a positive right for every person to instruction in the language of his\n\nor her choice, where this is reasonably practicable, not merely a negative right to prevent\n\nany obstruction if such person seeks instruction in the language of his or her choice.\n\nSection 32(c), by contrast, guarantees a freedom - a freedom to establish educational\n\ninstitutions based on a common culture, language or religion. It is that freedom which is\n\n1 See section 9 of the Bantu Education Act No. 47 of 1953.\n\n7\n\n\fMAHOMED DP\n\nprotected by section 32(c). A person can invoke the protection of the court where that\n\nfreedom is threatened, but the language of section 32(c) does not support a claim that such\n\neducational institutions, based on a commonality of culture, language or religion, must be\n\nestablished by the state, or a claim that any person is entitled to demand such\n\nestablishment, notwithstanding the fact that his or her right to basic education and to\n\ninstruction in the language of his or her choice is, where practicable, otherwise being\n\nsatisfied by the state.\n\n[10] Mr NGD Maritz SC, who appeared on behalf of the petitioners, and Mr Raath, who\n\nappeared on behalf of the Foundation, both contended that if section 32(c) was only\n\nintended to protect the right of persons to establish their own educational institutions, it\n\nwould not be necessary to qualify such a right by making it subject to the requirement that\n\nit should be practicable. It was suggested that that qualification was more consistent with\n\na positive obligation on the part of the state to establish educational institutions based on\n\na commonality of language, culture or religion and that the requirement of practicability\n\nwas inserted so as to relieve the state from the obligation to establish such educational\n\ninstitutions in circumstances where this was not practicable because of the smallness of\n\nthe numbers of persons wishing to attend such institutions or some similar practical or\n\nlogistical difficulties. \n\n[11]\n\nI am unable to agree with that submission. It is certainly true that if every person had the\n\nright to require the state to establish educational institutions based on a common culture,\n\nlanguage or religion, it would be sensible to provide that that duty need only be discharged\n\n8\n\n\fMAHOMED DP\n\nby the state where it was practicable. But, it is equally true that if the right protected by\n\nsection 32(c) is the right of private persons to establish such institutions, such a right\n\nshould only be asserted if it were indeed practicable. Were it otherwise, the state might,\n\npursuant to its duty to ensure basic education for every person, be obliged to monitor and\n\nsupervise such institutions and to ensure some element of quality control, even in\n\ncircumstances where this was not reasonably practicable. The state has a positive interest\n\nin ensuring that the right is being asserted in circumstances where it is practicable.\n\nOtherwise this might engage the resources of the state quite unjustifiably in dealing with\n\nhopelessly impractical ventures eventually aborted or abandoned. Prospective students\n\ninvited to such institutions might in those circumstances also be prejudiced. The state has\n\na positive interest in ensuring that the execution of the right which is being asserted is\n\npracticable in the circumstances. The right of private persons to establish educational\n\ninstitutions, protected by section 32(c), should therefore be subject to the qualification that\n\nit is practicable. If it is not, the persons exercising such a right cannot assert the protection\n\nof the Constitution against the state. The requirement of practicability is therefore sensible\n\non both interpretations of section 32(c). It is of neutral value in the proper interpretation\n\nof the sub-section. It does not support the interpretation contended for by Mr Maritz and\n\nMr Raath any more than it supports the interpretation contended for by Mr Trengove, on\n\nbehalf of the Gauteng government.\n\n[12]\n\nIt was also contended that section 32(c) could not have been intended to protect merely the\n\nfreedom of every person to establish educational institutions based on a common culture,\n\nlanguage or religion because the right of every person to use the language and to participate\n\n9\n\n\fMAHOMED DP\n\nin the cultural life of his or her choice was in any event protected by section 31 of the\n\nConstitution and similarly the right to freedom of religion was guaranteed by section 14.\n\nI am not persuaded, however, that a positive obligation on the state to establish educational\n\ninstitutions based on a common culture, language or religion can necessarily be inferred\n\nfrom the fact that the right of every person to use the language and to participate in the\n\ncultural life of his or her choice is expressly protected in section 31 or from the fact that\n\nfreedom of religion is protected by section 14. Sections 14 and 31 are general sections\n\nwhich do not specifically deal with education. Section 32 is a specific section setting out\n\nspecifically what rights a person has to education, what right he or she has to education in\n\nthe language of his or her choice and what right there exists for every person to establish\n\neducational institutions based on a common culture, language or religion. None of these\n\nrights are expressly dealt with in sections 14 and 31. It is perfectly understandable that the\n\nlawmaker would wish to articulate such educational rights in the section dealing\n\nspecifically with education.\n\n[13]\n\nIn the written argument which was lodged on behalf of the petitioners, some reliance was\n\nplaced on Canadian authority.2 We were reminded of section 35(1) of the Constitution\n\nwhich provides that in the interpretation of Chapter 3 of the Constitution, a court of law\n\nmay, inter alia, have regard to comparable foreign case law and we were referred to\n\nvarious dicta in a number of Canadian cases to the effect that the Canadian Charter of\n\n2Reaume and Greene, Education and Linguistic Security (1989) 34 McGill Law Journal 777 at 779-81;\nReference Re Education Act Ontario and Minority Language Rights [1984] 10 DLR (4th) 491 (Ont. C.A.) at\n529; Mahe et al. v The Queen in Right of Alberta et al. [1990] 68 DLR (4th) 69 (S.C.C); Attorney-General of\nQuebec v La Chaussure Brown\u2019s Inc. et al. [1989] 54 DLR (4th) 577 (S.C.C.) at 606-7; Bastarache, Education\nRights of Provincial Official Language Minorities in Canadian Charter of Rights and Freedoms (2nd ed, edited\nby Beaudoin & Ratushny) at 687-705.\n\n10\n\n\fRights and Freedoms imposed obligations on the Government to provide specific\n\nopportunities for the use of English and French in schools.3\n\nMAHOMED DP\n\n[14]\n\nThe relevant provision of the Canadian Charter is section 23 which provides that:\n\n \u201c23. (1) Citizens of Canada\n\n(a)\n\n(b)\n\nwhose first language learned and still understood is that of the\nEnglish or French linguistic minority population of the province in\nwhich they reside, or\nwho have received their primary school instruction in Canada in\nEnglish or French and reside in a province where the language in\nwhich they received that instruction is the language of the English or\nFrench linguistic minority population of the province, \n\nhave the right to have their children receive primary and secondary school instruction\nin that language in that province.\n (2)\nCitizens of Canada of whom any child has received or is receiving primary or\nsecondary school instruction in English or French in Canada, have the right to have all\ntheir children receive primary and secondary school instruction in the same language.\n (3)\nThe right of citizens of Canada under subsections (1) and (2) to have their\nchildren receive primary and secondary school instruction in the language of the\nEnglish or French linguistic minority population of a province\n\n(a)\n\n(b)\n\napplies wherever in the province the number of children of citizens\nwho have such a right is sufficient to warrant the provision to them\nout of public funds of minority language instruction; and\nincludes, where the number of those children so warrants, the right\nto have them receive that instruction in minority language\neducational facilities provided out of public funds.\u201d\n\n\u201cThe special provisions of section 23 of the Charter makes it a unique set of constitutional\n\nprovisions quite peculiar to Canada.\u201d4\n\n[15]\n\nThe language and structure of section 23 of the Canadian Charter are wholly\n\ndistinguishable from section 32(c) of our Constitution. Section 23 of the Canadian Charter\n\n3Mahe\u2019s case, supra n.2, at 82-83 and La Chaussure Brown\u2019s Inc\u2019s case, supra n.2, at 604.\n\n4Attorney-General of Quebec v Quebec Association of Protestant School Boards et al. [1984] 10 DLR\n\n321 (S.C.C.) at 331.\n\n11\n\n\fMAHOMED DP\n\nis clearly concerned with the obligation of the Government to provide education in the\n\nofficial languages of Canada to linguistic majorities and minorities. It is analogous to\n\nsection 32(b) of our Constitution, but very different from section 32(c). The interpretation\n\naccorded to it by the Canadian courts can therefore be of scant assistance in the proper\n\ninterpretation of section 32(c) of our Constitution.\n\n[16] After oral argument had been concluded and judgment had been reserved in this matter, a\n\nwritten application was made on behalf of the Foundation to advance three further\n\ncontentions. The first contention was that the bill \u201coffered no language protection for\n\nminorities\u201d and that all that was being offered was some kind of protection by way of\n\nexecutive policy and discretion in terms of section 18(2)(c) of the bill which provides that-\n\n\u201c[s]chool language policy should be designed to facilitate the maximum participation\nof learners in the learning process.\u201d\n\nCounsel for the Foundation appears to have misunderstood the argument advanced on\n\nbehalf of the Gauteng government. It was never contended that learners wishing to be\n\ninstructed in the language of their choice at public schools funded by the state should have\n\nto depend on some kind of executive policy or discretion for the protection of that right.\n\nIt is a clear constitutional right of every person to be instructed in the language of his or\n\nher choice in terms of section 32(b). This is guaranteed by the clear language of section\n\n32(b). The only qualification is that it must be \u201creasonably practicable.\u201d If it is, it can be\n\ndemanded from the state. The parents of the children who demand it do not have to rely\n\non any executive policy or discretion. They are entitled to rely on the plain and imperative\n\nterms of the Constitution itself.\n\n12\n\n\f[17]\n\nThe second complaint contained in the additional submission on behalf of the Foundation\n\nMAHOMED DP\n\nwas that the bill does not provide for any \u201cpossible transformation from a model C school\n\nto a private school\u201d. Assuming that this is correct, I am unable to appreciate how this\n\ncould impact upon the constitutionality of any of the impugned provisions of the bill at all.\n\nThose who controlled model C schools would continue to enjoy the right for every person\n\nto be instructed in such schools in the language of their choice. If they did not wish their\n\nchildren to attend model C schools but to attend private schools, they would again\n\nconstitutionally be entitled to establish such private schools and even to negotiate with the\n\nprovince in acquiring any of the facilities or assets of any model C school which they\n\nwished to leave. But whether they did or did not do so, what is left quite intact are two\n\nclear constitutional rights: the right to instruction at a public school in the language of their\n\nchoice and the right to establish schools of their own based on a common culture, language\n\nor religion. The only qualifications are that the exercise of such rights must be practicable\n\nin each case and that the right to establish educational institutions based on a common\n\nculture, language or religion cannot be exercised in a manner that discriminates against\n\npupils on the grounds of race.\n\n[18]\n\nThe third and final argument advanced in the new submissions on behalf of the Foundation\n\nwas that the impugned provisions constitute \u201ca negation of the protected minority rights\n\nthemselves\u201d in terms of section 33 of the Constitution. I do not appreciate this argument.\n\nSection 33 simply deals with the circumstances under which rights protected by chapter\n\n3 of the Constitution may be limited by laws of general application. If, however, the\n\nimpugned sections of the bill do not invade or limit any of the relevant sections of chapter\n\n13\n\n\f3, the question as to whether there would have been any justification in terms of section\n\nMAHOMED DP\n\n33 would not arise at all.\n\n[19] What remains therefore the real case for the petitioners and the Foundation is their\n\ninterpretation of section 32(c). Having regard to the language of section 32(c), its objects\n\nand its context, both in relation to section 32 itself and to the Constitution generally as well\n\nas its specific historical context, I am satisfied that section 32(c) is not reasonably capable\n\nof bearing the interpretation sought to be placed on it by Mr Maritz and by Mr Raath.\n\nSection 32(c) does, of course, protect a very important freedom. The state is\n\nconstitutionally obliged to respect that freedom, but is not so obliged to establish\n\neducational institutions based on a commonality of culture, language or religion. This\n\nconclusion effectively disposes of the main thrust of the attacks made on the impugned\n\nprovisions of the bill.\n\n[20] Mr Maritz contended, however, that there was a \u201cperipheral\u201d ground for attacking section\n\n22(3)(b) of the bill which was not dependant on his interpretation of section 32(c). The\n\ncomplaint was that section 22(3)(b) conferred a right on a private school to insist that a\n\nlearner at that school attends religious classes and religious practice at that school. It was\n\nargued that this was also a right which should accrue at a public school. Even if this\n\nargument is a good argument, it cannot assist the case sought to be made on behalf of the\n\npetitioners and the Foundation. The case sought to be made on their behalf was that this\n\nright should also be available at public schools to avoid discrimination. No constitutional\n\nground was suggested which could entitle us to extend to public schools the right accorded\n\n14\n\n\fMAHOMED DP\n\nby section 22(3)(b) to private schools. The alternative would be to invalidate section\n\n22(3)(b) because it does not extend to public schools. This is, however, not what Mr\n\nRaath or Mr Maritz urged us to do because that would not in any way provide a right for\n\na public school to insist that a learner attends religious classes and religious practices at\n\nthe school. In any event, the submission that public schools must be allowed to insist that\n\na learner be compelled to attend religious classes and religious practices at the school\n\nmight also conflict with section 14(2) of the Constitution, which expressly provides that\n\nsuch attendance must be free and voluntary. Faced with all these difficulties, Mr Maritz\n\ndid not press the objection to section 22(3)(b) and correctly contended that the heart of his\n\ncase rested on his interpretation of section 32(c).\n\n[21] Although the certificate from the Speaker, lodged in terms of rule 13(3) of the Rules of\n\nCourt, did not rely on section 247 of the Constitution as a ground of attack on the impugned\n\nsections, considerable reliance on that section was placed by Mr Raath, on behalf of the\n\nFoundation. Section 247 reads as follows:\n\n\u201c247.\n\nSpecial provisions regarding existing educational institutions\n(1)\n\nThe national government and the provincial governments as provided\nfor in this Constitution shall not alter the rights, powers and functions of the governing\nbodies, management councils or similar authorites of departmental, community-\nmanaged or state-aided primary or secondary schools under laws existing immediately\nbefore the commencement of this Constitution unless an agreement resulting from\nbona fide negotiation has been reached with such bodies and reasonable notice of any\nproposed alteration has been given.\n\n(2)\n\nThe national government shall not alter the rights, powers and\nfunctions of the controlling bodies of universties and technikons under laws existing\nimmediately before the commencement of this Constitution, unless agreement\nresulting from bona fide negotiation has been reached with such bodies, and reasonable\nnotice of any proposed alteration has been given.\n\n(3)\n\nShould agreement not be reached in terms of subsection (1) or (2),\nthe national government and the provincial governments shall, subject to the other\nprovisions of this Constituton, not be precluded from altering the rights, powers and\nfunctions of the governing bodies, management councils or similar authorities of\ndepartmental, community-managed or state-aided primary or secondary schools, as\nwell as the controlling bodies of universities and technikons, provided that interested\n\n15\n\n\fpersons and bodies shall be entitled to challenge the validity of any such alteration in\nterms of this Constitution.\n\n(4)\n\nIn order to ensure an acceptable quality of education, the responsible\ngovernment shall provide funds to departmental, community-managed or state-aided\nprimary or secondary schools on an equitable basis.\u201d\n\nMAHOMED DP\n\n[22]\n\nIt was contended by Mr Raath that section 19(1) of the bill was unconstitutional because\n\nit had the effect of altering the rights, powers and functions of the governing bodies of\n\ncertain schools which had existed before the commencement of the Constitution and there\n\nhad been no agreement resulting from any bona fide negotiations conducted with any such\n\nbodies pursuant to the requirements of section 247(1). It was contended, in particular, that\n\nbefore the commencement of the Constitution, the governing bodies of model C schools\n\nhad the power to determine that there was to be language competence testing as an\n\nadmission requirement to a public school and that section 19(1) had the effect of altering\n\nthat right.\n\n[23] My first difficulty with this argument is that it is not supported by the relevant legislation\n\nwhich preceded the Constitution. The Education Affairs Act of the House of Assembly No\n\n70 of 1988 (\u201cthe principal Act\u201d), which was the relevant law existing immediately before\n\nthe commencement of the Constitution, provided, in section 49, that the admission of\n\npersons to public schools and state-aided schools should be subject to prescribed\n\nconditions. Section 50 dealt with age requirements; section 52 dealt with the power of\n\nschool boards in relation to the admission of children; section 53 determined compulsory\n\nschool attendance; section 54 determined exemption from such compulsory school\n\nattendance; and section 55 determined how the mother-tongue of a child admitted to school\n\nshould be determined. Section 57 provided that the mother-tongue of the child would be\n\n16\n\n\fMAHOMED DP\n\nits medium of instruction up to certain levels. All the basic criteria for admission\n\npertaining to age, readiness for school, language, medium of instruction and geographical\n\nfeeder areas were all matters regulated by the state in terms of the statute. The input of\n\nparent bodies on this issue was largely peripheral. Language proficiency testing, as an\n\nadmission requirement, was certainly competent, but was clearly in the hands of the state\n\nin terms of this statute. This was not a function of any parent body or of any governing\n\nbody in which parents were represented. It was the principal who determined the mother-\n\ntongue of the child admitted to school for the first time in terms of section 55(1). If the\n\nprincipal could not, it was the person designated by the Head of Education who caused\n\nsuch a determination to be made in terms of section 55(4) and an appeal against any such\n\ndetermination was to the Head of Education and the Minister, in terms of section 56. Such\n\ndetermination fixed the child\u2019s medium of instruction up to the ninth level in terms of\n\nsection 57(1)(b). Section 58 empowered the Minister to designate the medium of\n\ninstruction at public schools. Parents on \u201cgoverning\u201d bodies had no powers or functions\n\nin this regard and none were provided in the regulations which were published in 1990 in\n\nGovernment Notice R703 of 30 March 1990. Admission policy in regard to public\n\nschools remained, clearly, a governmental function.\n\n[24]\n\nThe principal Act was amended on numerous occasions thereafter. The first amendment\n\nwas effected by Act 88 of 1991, which made provision for \u201cstate-aided schools\u201d, (which\n\nare also known as model C schools). Governing bodies for such schools were created and\n\ntheir powers, functions and duties were defined in certain regulations published under the\n\nprincipal Act in Government Notice R2932 of 6 December 1991. Nothing in these\n\n17\n\n\fregulations empowered the governing bodies concerned either to determine or alter any\n\ncriteria for the admission of pupils to their schools, in terms of the principal Act.\n\nMAHOMED DP\n\n[25]\n\nPrior to the commencement of the Constitution the principal Act was again amended by Act\n\n39 of 1992, Act 36 of 1993, Act 139 of 1993 and Act 162 of 1993. The amendments that\n\nare relevant to the present discussion provided for the conversion of existing public\n\nschools into model C schools by ministerial edict, gave to model C schools a juristic\n\npersona in terms of section 30(1), empowered such schools to acquire the ownership of\n\nschool assets in terms of section 31(A) and put these schools generally under the\n\n\u201cmanagement, control and executive power\u201d of their governing bodies in terms of section\n\n31(1). In terms of section 31(2) (read with section 19(1)) the Minister could make\n\nregulations with respect to \u201cthe constitution, powers, duties and functions\u201d of such bodies.\n\nNeither the principal Act nor any of the amendments conferred any power on the Minister\n\nto make any such regulations in conflict with the principal Act. More pertinently, none of\n\nthe amendments effected any change to the regime described in paragraph 23 above.\n\n[26]\n\nThe last of the legislative steps to be considered is the promulgation on 14 February 1992\n\nof the \u201cAmendment of Regulations Relating to Governing Bodies of State-aided\n\nSchools...\u201d in terms of Government Notice R441. This instrument amended regulation 6\n\nof the previous regulations pertaining to state-aided schools, published under Government\n\nNotice R2932 of 6 December 1991, by inserting, after the existing regulation 6(4), new\n\nregulations 6(5) and 6(6), which read as follows:\n\n\u201c(5)\n\nA governing body may, after consultation with the parent community and\nsubject to the provisions of the Regulations Relating to the Conditions of\nAdmission of Pupils to Public Schools (Excluding Industrial and Reform\n\n18\n\n\fSchools) and State-aided Schools, promulgated by Government Notice No.\nR703 of 30 March 1990, determine criteria for the admission of pupils to a\nstate-aided school.\nA governing body may levy school fees and enforce payment thereof.\u201d\n\n(6)\n\nMAHOMED DP\n\n[27] Read in isolation, this regulation may very well have created the impression that what was\n\nbeing conferred on governing bodies was some \u201cautonomous\u201d right to determine criteria\n\nfor the admission of pupils to model C schools and this impression may well have\n\ninformed the submission by Mr Raath that this autonomous authority was being altered in\n\nterms of the impugned provisions of the bill without the bona fide negotiations\n\ncontemplated by section 247(1) of the Constitution. That impression is, however, quite\n\nincorrect because the regulations made by the Minister could not, and did not purport to,\n\nchange sections 49 to 58 of the principal Act in terms of which the basic criteria for a\n\nchild\u2019s admission to a particular school and various other related matters pertaining to\n\npolicy were predetermined and fell outside the jurisdiction of any parent organisation or\n\ngoverning body. Such bodies simply had no power to fix a lower age for the admission\n\nof pupils to schools than the age already fixed by section 50(c) of the principal Act, they\n\nhad no power to admit to a school a learner older than the limit which was set out in\n\nsection 50(e) and with respect to feeder areas, they could not be given any authority which\n\nvested with school boards under section 52. More crucially, the Minister was not entitled\n\nto vest a governing body of a school with any authority to determine the medium of\n\ninstruction of a learner or prospective learner of a school, because that power had, in\n\nterms of sections 55 to 58 of the principal Act, been vested in others and at all times\n\nremained so vested.\n\n19\n\n\f[28] During some stage in his argument Mr Raath also contended that because a principal of a\n\nMAHOMED DP\n\nmodel C school was an ex officio member of the governing body, the governing body\n\ncould, in effect, have exercised the autonomy now said to be invaded by section 19(1) of\n\nthe bill. I have difficulty with that submission. The principal is not the governing body\n\nand even if the two were to be equated, the governing body cannot exercise any powers\n\nin conflict with the principal Act.\n\n[29]\n\nIn the result, I am not persuaded that the governing body of a model C school had in fact\n\nany relevant right, power or function which section 19(1) of the bill could be said to be\n\naltering and the attack on section 19(1) on this ground must therefore fail.\n\n[30]\n\nIn any event, I have another difficulty with Mr Raath\u2019s argument based on section 247(1)\n\nof the Constitution. It is necessary to have regard to sections 97(3) and (5) of the bill which\n\nread as follows:\n\n\u201c97.\n\n(3)\n\n(4)\n(5)\n\nNotwithstanding any other provision of this Act, but subject to\nsubsection (4) and (5), a body referred to in subsection (1) or a\ngoverning body which succeeds it in terms of subsection (2) shall\ncontinue to exercise whatever rights, powers and functions the body\nreferred to in subsection (1) exercised on 27 April 1994.\n...\nThe \nfunctions\ncontemplated in subsection (3) may be\naltered by \nlaw after negotiations\ncontemplated in section 102 over such\nalterations have taken place.\u201d\n\nrights, powers and \n\nThe effect of sections 97(3) and (5) is therefore to entitle the governing body of a school\n\nto continue to exercise whatever rights, powers and functions it exercised on 27 April\n\n1994. These powers could only be altered after negotiations contemplated in section 102\n\nover such alterations had taken place. Section 102(1) of the bill provides that:\n\n20\n\n\fMAHOMED DP\n\n\u201c102.\n\n(1)\n\nin section 247(1) of \n\nFor the purposes of facilitating negotiations\nbetween the department and governing bodies as\ncontemplated \nthe\nConstitution, the Member of the Executive\nCouncil may by notice in the Provincial Gazette\nestablish a centralised negotiating forum at which\nnegotiations over the alteration of the rights,\npowers and functions of such bodies shall take\nplace.\u201d\n\nWhat section 247 protects is the right of governing bodies of schools and other similar\n\nbodies to continue to exercise the rights, powers and functions which they had before the\n\ncommencement of the Constitution. Such rights cannot be altered unless an agreement has\n\nbeen reached resulting from bona fide negotiations. Sections 97(3) and (5) of the bill\n\ncontinue that protection. Section 102 merely creates the opportunities and the\n\ninfrastructure for the conduct of the bona fide negotiations which must precede any such\n\nalteration in the rights, powers and functions exercised before the commencement of the\n\nConstitution. The bill is therefore not inconsistent with any right protected by section 247\n\nof the Constitution. \n\n[31] Confronted with this difficulty, Mr Raath contended that the provincial government had\n\neffectively precluded any bona fide negotiations by deciding in advance to enact the\n\nimpugned provisions of the bill into an Act, although these provisions have not yet been\n\nput into operation by the Premier.\n\n[32]\n\nThere can, in my view, be no doubt that the bona fide negotiations which are contemplated\n\nby section 247, are negotiations which must be conducted with the object of reaching an\n\nagreement and if the provincial government in fact has no such intention and is determined\n\nto put the impugned provisions of the Act into operation regardless of the quality and\n\n21\n\n\fnature of the negotiations and the outcome thereof, it is vulnerable to the attack that it has\n\nno intention whatever of conducting bona fide negotiations for the purposes of reaching\n\nMAHOMED DP\n\nsuch an agreement.5\n\n[33] My difficulty is to infer from the existing evidence before us any justifiable conclusion that\n\nthe provincial government has indeed precluded the possibility of bona fide negotiations\n\nwith the relevant bodies with the object of reaching an agreement such as that contemplated\n\nin section 247(1). It is perfectly true that the impugned sections have been enacted, but\n\nthey have deliberately not been put into operation and may, in fact, never become\n\noperative. It might be true to say that the provincial government favours the policies upon\n\nwhich the disputed provisions are premised, but I am unable, on the evidence before us,\n\nto conclude that such policies are inflexible and will be implemented at every model C\n\nschool, regardless of the circumstances and regardless of what emerges during the course\n\nof any negotiations in the centralized negotiating forum, now contemplated in terms of\n\nsection 102(1) of the bill. There is nothing which obliges the provincial government from\n\nfavouring a general policy as long as it is not so inflexible as to preclude a departure from\n\nthat policy, if this is justified by the circumstances.6\n\n5East Rand Gold & Uranium Co Ltd v National Union of Mineworkers (1989) 10 ILJ 683 (LAC) (T);\nNational Union of Mineworkers v East Rand Gold and Uranium Co Ltd 1992 (1) SA 700 (A); National Union\nof Mineworkers v Gold Fields of SA Ltd & Others (1989) 10 ILJ 86 (IC); Food & Allied Workers Union &\nOthers v Kellogg SA (Pty) Ltd (1993) 14 ILJ 406 (IC); Food & Allied Workers Union v Spekenham Supreme\n(2) (1988) 9 ILJ 628 (IC); SA Electrical Workers Association v Goedehoop Colliery (Amcoal) (1991) 12 ILJ\n856 (IC). Although these are labour law cases in the context of what is an unfair labour law practice, the reasoning\nis not inapplicable to the specific wording of section 247 which also contemplates an agreement following on\nbona fide negotiations.\n\n6Britten & Others v Pope 1916 AD 150; Richardson and Others v Administrator, Transvaal 1957 (1)\n\nSA 521 (T) at 530 A-C.\n\n22\n\n\f[34]\n\nIt therefore follows that the evidence does not support the objection to the bill based on\n\nthe requirements of section 247(1) of the Constitution.\n\nMAHOMED DP\n\n[35]\n\nThese conclusions make it unnecessary to consider whether or not Mr Trengove is correct\n\nin his submission that section 247(1) only operates as a restriction on the power of the\n\nexecutive and the consequential submission that because the impugned provisions of the\n\nbill are acts of the legislature and not that of the executive, section 247(1) cannot be\n\ninvoked to assist the case sought to be made by Mr Raath. Even assuming the incorrectness\n\nof that submission, the attack on the impugned sections must fail for the reasons which I\n\nhave analysed.\n\n[36] Costs\n\nIt was submitted by Mr Trengove that the costs of the proceedings before us should be paid\n\nby the petitioners if they are unsuccessful in their attack on the impugned provisions. We\n\nwere referred, in this regard, to the well-known rule in the Supreme Court that ordinarily,\n\nand subject to the discretion of the Supreme Court, costs should follow the result and the\n\nlosing party should be directed to pay the costs of the successful party.7 There are\n\nobviously attractive grounds of policy which support such an approach in ordinary\n\nlitigation between litigants in the Supreme Court and in the Magistrates\u2019 Courts. It does\n\nnot follow, however, that it should also be the general rule in the Constitutional Court and\n\nmore particularly the rule in cases brought to the Constitutional Court in terms of section\n\n98(9) of the Constitution at the request of the Speaker. A litigant seeking to test the\n\n7Fripp v Gibbon & Company 1913 AD 354 at 357-8; Merber v Merber 1948 (1) SA 446 (A) at 452.\n\n23\n\n\fconstitutionality of a statute usually seeks to ventilate an important issue of constitutional\n\nprinciple. Such persons should not be discouraged from doing so by the risk of having to\n\npay the costs of their adversaries, if the Court takes a view which is different from the\n\nview taken by the petitioner. This, of course, does not mean that such litigants can be\n\ncompletely protected from that risk. The Court, in its discretion, might direct that they pay\n\nthe costs of their adversaries if, for example, the grounds of attack on the impugned statute\n\nare frivolous or vexatious or they have acted from improper motives or there are other\n\ncircumstances which make it in the interest of justice to direct that such costs should be\n\npaid by the losing party. I am satisfied that no such factors exist in the present case. In the\n\nresult I would, in the circumstances of the present case, make no order of costs\n\nnotwithstanding the fact that the record was unjustifiably burdened by a large number of\n\nunnecessary documents lodged on behalf of the petitioners.\n\n[37] Order\n\nIt is declared that sections 19(1), 21(2), 21(3)and 22(3) of the School Education Bill of\n\n1995 are not inconsistent with the Constitution on any of the grounds advanced on behalf\n\nof the petitioners and the South African Foundation for Education and Training.\n\nI MAHOMED\nDEPUTY PRESIDENT\n\nChaskalson P, Ackermann J, Didcott J, Kentridge J, Langa J, Madala J, Mokgoro J and O\u2019Regan\n\nJ concur in the judgment of Mahomed DP.\n\n24\n\n\f[38] KRIEGLER R:\n\nEk is dit volmondig eens met Mahomed AP se kliniese ontleding,\n\nen gevolglike verwerping, van die beto\u00eb namens die petisionarisse en die amicus curiae\n\nonderskeidelik. In die bre\u00eb beaam ek ook die meer histories-volkeregtelike gedagtetrant\n\nen slotsom van Sachs R. Elkeen van die gemelde uitsprake is op sy eie \u2018n volslae\n\nlo\u00ebnstraffing van die aanvalle op die gewraakte wetsbepalings. Gesamentlik is hul\n\nverdoemend.\n\n[39] Nietemin is daar enkele aspekte wat ek spesifiek wil toelig. Taal - en by name die behoud\n\nvan Afrikaans - ontlok diepgewortelde emosie. Daarom is dit lewensnoodsaaklik dat daar\n\nnugter en oorwo\u00eb gelet word op die implikasies van hierdie saak. Subartikel 32(c) van\n\ndie Grondwet dra weliswaar nie die bre\u00eb betekenis wat die petisionarisse en die amicus\n\ndaaraan wou heg nie. Dit is en bly egter \u2018n skans teen verswelging van enige minderheid\n\nse gemeenskaplike kultuur, taal of godsdiens. Solank \u2018n minderheid daadwerklik wagstaan\n\noor sy gemeenskaplike erfgoed, solank is dit sy onvervreembare reg om eie\n\nonderwysinstellings ter behoud van kultuur, taal of godsdiens tot stand te bring.\n\n[40] Daar is egter twee belangrike voorbehoude. Ten eerste is die slotwoorde van die betrokke\n\nsubartikel ondubbelsinnig; daar mag geen diskriminasie op grond van ras wees nie. Die\n\nGrondwet bied dus geen beskerming vir rassevooroordeel op die onderwysterrein nie. \u2018n\n\nGemeenskaplike kultuur, taal of godsdiens met rassisme as \u2018n wesenselement het geen\n\nkonstitusionele aanspraak op die vestiging van afsonderlike onderwysinstellings nie. Die\n\nGrondwet beskerm verskeidenheid nie rassediskriminasie nie.\n\n25\n\n\f[41]\n\nTen tweede moet daar duidelik ingesien word waaroor die debat in hierdie saak werklik\n\nKRIEGLER R\n\ngaan. Subartikels (a) en (b) van artikel 32 van die Grondwet boekstaaf en bevestig die reg\n\nvan iedereen op basiese onderwys, gelyke toegang tot onderwysinstellings en, waar\n\nredelikerwys uitvoerbaar, onderrig in die taal van die leerling se keuse. Daartoe is die\n\nowerheid grondwetlik verplig. Die maatstaf van redelike uitvoerbaarheid is wel rekbaar -\n\nsoos dit noodwendig moet wees om ruimte te laat vir \u2018n groot verskeidenheid\n\nomstandighede. Dit is egter objektief beoordeelbaar, wat beteken dat owerheids-willekeur\n\ndeur die howe aan bande gel\u00ea kan word. Betekenisvolle getalle taalsprekers het gevolglik\n\n\u2018n afdwingbare reg teenoor die owerheid op onderrig in hul gemeenskaplike taal solank\n\ndit maar redelikerwys uitvoerbaar is.\n\n[42] Daarop brei subartikel 32(c) dan uit. Soos my kollega Mohomed AP aandui - en ek wil\n\nonderstreep - hou die Grondwet daarmee die deur oop vir diegene vir wie die staat se\n\nonderwysinstellings ontoereikend geag word wat betref gemeenskaplike kultuur, taal of\n\ngodsdiens. Dit staan hul vry om eendragtig die erwe van hul vaders vir hul kinders te\n\nbehou. Daar is egter \u2018n prys, naamlik dat so \u2018n bevolkingsgroep daarvoor die hand in eie\n\nsak moet steek. In \u2018n sin gaan die huidige geskil dus nie om volksgoed nie maar om geld.\n\n[43] Die betoog rondom artikel 247(1) van die Grondwet is dan ook nie daarvan los te maak\n\nnie. Ontdoen van al die voorhangsels, gaan dit grondliggend om die vraag of ryklik\n\nbedeelde Model C-skole hul eksklusiewe identiteit sal kan behou. Die regsantwoord\n\ndaarop het Mahomed AP ondubbelsinnig verstrek. Die beheerliggame van Model C-skole\n\nhet voor die inwerkingtrede van die Grondwet geen wetlike bevoegdheid gehad om\n\n26\n\n\fvoorgenome skooltoetreders deur middel van \u2018n taaltoets te sif nie. Bygevolg doen artikel\n\n19(1) van die wetsontwerp niks af aan enige grondwetlik beskermde bevoegdheid nie. Dit\n\nbeteken egter geensins dat onderhandelings oor toelatingskriteria vir Model C-skole\n\nregtens verbied word nie. Of samesprekings in wedersyds goeie trou aangewese is, is \u2018n\n\nmaatskaplik-politieke beleidsvraag waaroor ek my nie uitlaat nie. Wat die reg betref, is\n\ndaar geen onduidelikheid nie. Daarom stem ek saam met die uitspraak en bevel soos deur\n\nMahomed AP verwoord.\n\nJC KRIEGLER\n\n[44]\n\nSACHS J: A straightforward reading of the text of section 32 of the Constitution runs\n\ndirectly counter to the arguments advanced by counsel for the Petitioners and the amicus\n\ncuriae. We were urged, however, to approach the section in a broad and generous manner8\n\nwhich took account both of cultural realities in this country and of internationally\n\nrecognised principles relating to the protection of minorities.9 In view of the importance\n\nof the broader questions argued by the Petitioners in relation to minority rights, I propose\n\n8One should bear in mind, of course, that a liberal interpretation when one is dealing with the rights of\nthe individual as against the state is one thing - a generous interpretation when the issue requires the state to\nmediate between multiple groups, each asserting legitimate claims, is another.\n\n9Prof. John Dugard suggests that section 35(1) of the Constitution requires us, when interpreting the Bill\nof Rights, to have regard, not only to treaties ratified by South Africa, and to customary rules that have been\naccepted by South African courts, but also to \u201cinternational law contained in general treaties, custom, general\nprinciples of law, the writings of jurists, and the decisions of international and municipal courts.\u201d He cites section\n116(2), which requires the Human Rights Commission to take account of \u201cother relevant norms of international\nlaw\u201d as supporting his contention. Public International Law in Chaskalson et al (ed) Constitutional law of South\nAfrica (1996), 13-11. I would add that promoting the values of an open and democratic society based on freedom\nand equality (section 35(2)) would also require us to pay special attention to the sources he mentions, not\nexcluding his own distinguished work in the area.\n\n27\n\n\fSACHS J\n\nto follow their argument through to see if applying internationally accepted principles of\n\nminority rights protection, would indeed suggest a different result, even if straining against\n\nthe text. Preliminary though my explorations have to be,10 I am left in no doubt as to the\n\nanswer to the above question. Thus, my answer, and the reasons therefor, follow.\n\nI. THE BROAD SOUTH AFRICAN CONTEXT OF THE ENQUIRY\n\n[45] Before touching on the evolution of international law principles in relation to minority\n\nrights, I feel it would be appropriate to locate the problem before us in a broad South\n\nAfrican historical/constitutional context. For the purpose of this analysis I will begin by\n\nmaking four assumptions in favour of the Petitioners.\n\n[46]\n\nThe first assumption is that the \u201cnever again\u201d principle, which I feel should be one of our\n\nguides to interpretation, applies not only to bitter experiences of former state enforced\n\nsegregation, but also to those of past compulsory assimilation. This was a major theme at\n\nthe National Convention held to draft the document which became the Constitution of the\n\nUnion of South Africa in 1910.11\n\n10 Without hearing further argument on the subject, and without doing more profound research, I would\nbe reluctant to offer definitive opinions on the interpretation of what is an elusive, complex and constantly\nmutating subject.\n\n11De Kiewiet CW A History of South Africa. Social and Economic,Clarendon Press, Oxford, (1941) 147\nsummarizes the Boer experience after defeat of the Boer Republics as follows: \u201cMilner\u2019s schools and English\nteachers were countered in the ex-Republics by some 200 independent schools, under local committees of\nparents. Against the superior teachers, the better equipment, and the financial strength of the government schools,\nthe Dutch \u2018Christian National Education\u2019 schools could not prevail. Their importance was nevertheless great. They\nserved notice that the Boers would not abandon any of their attachment to their language and tradition.\u201d Wilson\nand Thompson (ed) The Oxford History of South Africa II 1870-1966, Clarendon Press, Oxford, (1971) 361-2\nstates: \u201cJ.B.M. Hertzog feared that the Afrikaner people would indeed be denationalized, as Milner had intended\n... Hertzog\u2019s diagnosis of the intentions of the English-speaking delegates was correct. Men like Jameson and\n\n28\n\n\fSACHS J\n\n[47]\n\nThe second assumption is that the Afrikaans language, like all languages, is not simply a\n\nmeans of communication and instruction, but a central element of community cohesion and\n\nidentification for a distinct community in South Africa.12 We are accordingly dealing not\n\nmerely with practical issues of pedagogy, but with intangible factors, that as was said in\n\nBrown v Board of Education of Topeka13, form an important part of the educational\n\nendeavour. In addition, what goes on in schools can have direct implications for the\n\ncultural personality and development of groups spreading far beyond the boundary fences\n\nof the schools themselves.14\n\n[48]\n\nThe third assumption is that there exists amongst a considerable number of people in this\n\ncountry a genuinely-held, subjective fear that democratic transformation will lead to the\n\ndown-grading, suppression and ultimate destruction of the Afrikaans language and the\n\nmarginalisation and ultimate disintegration of the Afrikaans-speaking community as a vital\n\ngroup in South African society.\n\nFitzpatrick associated Dutch - and especially Afrikaans - with cultural backwardness, and hoped and assumed that\nin the course of time English would oust it from South Africa ... the question came up for discussion during the\nfirst week of the Convention. Hertzog and Steyn made impassioned and moving speeches for the fullest\nrecognition of Dutch. To their surprise, the English-speaking delegates responded in a conciliatory manner, and\nafter informal discussions Hertzog\u2019s resolution was unanimously adopted in an abbreviated form, but still\ncontaining the key phrase that besides being declared official languages, \u2018English and Dutch ... shall be treated on\na footing of equality, and possess and enjoy freedom, rights and privileges\u2019... .\u201d\n\n12There are, of course, many different communities for which Afrikaans is the mother tongue, and many\ndifferent perspectives within each of these. My judgement focuses on the particular perspective argued before us.\n\n13347 US 483 (1954).\n\n14 See Woehrling J Minority and Equality Rights 1985 McGill Law Journal 51 at 58. See also\n\nMinority Schools in Albania Case 1935 PCIJ (ser A/B) No 64 at 20.\n\n29\n\n\f[49]\n\nThe fourth assumption is that the Afrikaans language is one of the cultural treasures of\n\nSACHS J\n\nSouth African national life, widely spoken and deeply implanted, the vehicle of outstanding\n\nliterature, the bearer of a rich scientific and legal vocabulary and possibly the most creole\n\nor \u201crainbow\u201d of all South African tongues. Its protection and development is therefore\n\nthe concern not only of its speakers but of the whole South African nation.15 In approaching\n\nthe question of the future of the Afrikaans language, then, the issue should not be regarded\n\nas simply one of satisfying the self-centred wishes, legitimate or otherwise, of a particular\n\ngroup, but as a question of promoting the rich development of an integral part of the\n\nvariegated South African national character contemplated by the Constitution. Stripped\n\nof its association with race and political dominance, cultural diversity becomes an\n\nenriching force which merits constitutional protection, thereby enabling the specific\n\ncontribution of each to become part of the patrimony of the whole.16 \n\n[50] At the same time, these assumptions have to be located in the context of three important\n\nconsiderations highlighted by the Constitution.\n\n[51]\n\nIn the first place, similar claims for constitutional regard can be made by ten or more other\n\nlanguage communities,17 claims which could be weaker in some detailed respects than\n\n15On the subject of the intrinsic value of diversity, Otto Klineburg was quoted in the UN Study on the\nRights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Doc. E/CN.4/Sub.2/384/Rev.1\n(1979) reprinted as UN Pub.E.78.XIV.1 (1979) (hereinafter referred to as the Capotorti Report) as saying: \u201cAn\nundertaking to abolish discrimination against an individual if he becomes similar to the majority is obviously\nunsatisfactory in the case of those who do not seek to become completely like the majority ...One of the motives\noperating here is the growing belief in the value of diversity, the enrichment of community life through the\nmaintenance of cultural variations, the fruitfulness of continuing contrast between different ways of life.\u201d, para\n318, 55.\n\n16 Van der Westhuizen J A Post-Apartheid Educational System: Constitutional provisions 1985\n\nColumbia Human Rights Law Review 111 at 64.\n\n17Section 3(1) of Act 200 of 1993 (\u201cthe constitution\u201d) provides: \u201cAfrikaans, English, isiNdebele, Sesotho\nsa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African\nlanguages at national level, and conditions shall be created for their development and for the promotion of their\nequal use and enjoyment.\u201d\n\n30\n\n\fSACHS J\n\nthose made on behalf of Afrikaans, and very much stronger in others. It was evident from\n\nthe intensity with which the matter was presented by some of the Petitioners that it\n\nrepresents an issue of deep meaning to them. One may accept that even abstract questions\n\nof law have to be considered in the concrete context of history, and we can not ignore the\n\nfact, urged upon us by counsel, that, although the words of the Constitutional text are\n\ngeneralised, they are also suffused with specific and (frequently contradictory) life\n\nexperiences. Yet, even if the poignancy of history flows through the veins of the\n\nConstitution, we must always be guided by the words and spirit of the constitutional text\n\nitself, supporting, not this group or that, but the values articulated by the Constitution. In\n\ninterpreting clause 19 of the Gauteng Education Bill in the light of section 32 of the\n\nConstitution, the rights of certain members of the Afrikaans-speaking community, therefore,\n\ncannot be considered in isolation from equally valid claims of members of other language\n\ngroups. The very concept of multi-culturalism has to be looked at in a multi-cultural way.18\n\n[52]\n\nThe second consideration is that immense inequality continues to exist in relation to access\n\nto education in our country. At present, the imperatives of equalising access to education\n\nare strong, and even although these should not go to the extent of overriding constitutionally\n\n18 Prof. Carel Boshoff and Carel Boshoff IV bring this necessary perspective out well when they say that\nwe must not close our eyes to: \u201c[T]he existential reality, intensity and meaning of this intercultural encounter, to\nthe confrontation with those other worlds outside one\u2019s own, worlds in which human lives exist with no less\nlegitimacy and no less right to be. We should not be looking for some technical restructuring of society, for some\nmechanical repair of its working parts. We should rather try to find ways in which this encounter could proceed\nto an active communication, mutually recognising the others\u2019 autonomy and dignity; entering into communion,\naiming at a reciprocal revelation and understanding of each other.\u201d in The sociopolitical conditions for democratic\nnation-building: an Afrikaner point of view Rhoodie and Liebenberg (ed) Democratic Nation-building in South\nAfrica, HSRC Publishers, Pretoria, (1994) 164. Cf Prof. Johann Degenaar, in the same volume at 25 and 29 who\nproposes that the myth of building a nation be replaced by the idea of creating a democratic culture which enables\nSouth Africans to live creatively with the inevitable tensions of diversity.\n\n31\n\n\fSACHS J\n\nprotected rights in relation to language and culture, they do represent an important element\n\nin the equation. The theme of reducing the discrepancies in the life chances of all South\n\nAfricans runs right through the Constitution, from the forceful opening words of the\n\npreamble to the reminder of the past contained in the powerful postscript. The very first\n\nfundamental right to be specified, preceding even the rights to life and dignity, is the right\n\nto equality.19 We are further enjoined to interpret the whole of Chapter 3, including section\n\n32, in a way which promotes the values of an open and democratic society based on\n\nfreedom and equality.20 The theme of diversity has markedly less constitutional pungency.\n\nThere are express language rights21, a general right to use the language or participate in the\n\ncultural life of a person\u2019s choice,22 the provision on educational rights under discussion\n\nand, looking to the future, Principle XI, which declares that the diversity of language and\n\nculture shall be acknowledged and protected, and conditions for their promotion shall be\n\nencouraged. Thus, the dominant theme of the Constitution is the achievement of equality,\n\nwhile considerable importance is also given to cultural diversity and language rights, so\n\nthat the basic problem is to secure equality in a balanced way which shows maximum\n\nregard for diversity.23 In my view, the Constitution should be seen as providing a bridge\n\n19Section 8. Yash Ghai refers to the dilemma of post-colonial societies in Africa as follows: \u201cSome\ngroups must be stripped of privileges they have enjoyed hitherto; often these groups are \u2018minority\u2019 groups, and so\nthe process of producing a just society can all too easily be seen as a case of racial or tribal persecution. On the\nother hand, not to pursue this process can build up bitterness and frustrations, which pose a grave threat to racial\nharmony.\u201d Quoted in the Capotorti Report supra note 15 para 311 at 54. He stresses the importance of creating\na just society as the foundation for solving ethnic and racial questions.\n\n20Section 35(1).\n\n21Section 3.\n\n22Section 31.\n\n23See Dhlamini C Culture, Education, and Religion in Rights and Constitutionalism. The New South\nAfrican Legal Order Van Wyk et al (ed) Juta (1994), 589-590 for a historical overview of the educational\ninequalities that existed prior to the Constitution. He makes the following remark at 589: \u201cA balance must be\n\n32\n\n\fSACHS J\n\nto accomplish in a principled yet emphatic manner, the difficult passage from State\n\nprotection of minority privileges, to State acknowledgement and support of minority rights.\n\nThe objective should not be to set the principle of equality against that of cultural diversity,\n\nbut rather to harmonise the two in the interests of both. Democracy in a pluralist society\n\nshould accordingly not mean the end of cultural diversity, but rather its guarantee,\n\naccomplished on the secure bases of justice and equity.\n\n[53]\n\nThe third important contextual consideration is that the Constitution requires us ever to be\n\nvigilant in protecting the rights of the child. Section 30(3) of the Constitution states:\n\n30. Children\n\n...\n\n(3) For the purpose of this section a child shall mean a person under the age of 18 years\nand in all matters concerning such child his or her best interest shall be paramount.\n\nThe Constitution therefore requires us to take into consideration not only the interests of\n\nthe parents, which may be unduly rooted in the past, but to give paramount place to the\n\ninterests of the child, which may require looking more to the future. Each child is unique,\n\nand each child is entitled to a good education, independently of what might in any\n\nparticular case be the motives or passions of his or her parents or of the parents of other\n\nchildren.24 Article 26(2) of the Universal Declaration of Human Rights of 1948 lists four\n\nobjectives for education:\n\n(1) the full development of the human personality;\n\nstruck between the statutory requirement of compulsory schooling and the liberty of the individual parent to\neducate his or her children as he or she sees fit. Balancing this issue involves balancing fairness and efficiency\nwhich should be done with a certain amount of pragmatism.\u201d\n\n24Section 30(3) read with section 32(a).\n\n33\n\n\f(2) strengthening of respect for human rights and fundamental freedoms;\n(3) the promotion of understanding, tolerance and friendship among all nations, racial\nor religious groups;\n(4) the furtherance of the activities of the UN for the maintenance of peace.\n\nSACHS J\n\nTo these, Article 13(1) of the International Covenant on Civil and Political Rights\n\n(ICCPR) of 1966 adds three more:\n\n(5) the development of the sense of human dignity;\n(6) enabling all persons to participate effectively in a free society;\n(7) the promotion of understanding, tolerance and friendship among ethnic groups.\n\n[54]\n\nIt is against this background that I propose to look at universally accepted principles of\n\ninternational law to see what bearing, if any, they could have on the interpretation of\n\nsection 32, more particularly of section 32(c).\n\nII. THE INTERNATIONAL LAW CONTEXT\n\n[55] A review of literature by leading authors in the field suggests that over the years there has\n\nbeen a firm movement from the concept of tolerance of religious and other minorities, to\n\nthat of protection of national groups, to that of guaranteeing rights of individuals. The\n\nquestion that remains is whether there is a current trend towards supplementing individual\n\nrights, expressed mainly by the principles of non-discrimination and equality, with\n\nadditional group rights claimable against the State in the form of obligatory State support\n\nfor fostering cultural, linguistic and religious diversity.\n\nLeague of Nations\n\n34\n\n\f[56]\n\nThe development under the League of Nations after World War I of a system of treaties\n\nSACHS J\n\nin Eastern Europe, enforced by the Permanent Court of International Justice, is often\n\nregarded as the effective beginning of the international protection of human rights.25\n\nThrough the treaty system a breach was made into rigid state sovereignty, in terms of which\n\ninternational law had been concerned strictly with relations between states, and not with\n\nrelations between states and entities or individuals within their borders.26 The emphasis\n\nat that stage was on protecting the group rights of minorities, rather than on guaranteeing\n\nthe rights of individuals as such. In general, the treaties and minority provisions in peace\n\ntreaties were intended to achieve two aims: (a) to grant legal equality to individuals\n\nbelonging to minorities, on a par with other nationals of the State; and (b) to make possible\n\nthe preservation of the group\u2019s characteristics, traditions and modalities.\n\n[57]\n\nThis double purpose was clearly stated by the Permanent Court of International Justice in\n\nits Advisory Opinion on the subject of (Greek) Minority Schools in Albania, handed down\n\non 6 April 1935. The issue was a decision of the Albanian Government to close all private\n\nschools. The Court declared that the Government\u2019s decision would affect the material\n\nequality of the minorities. It said:\n\nThe idea underlying the treaties for the protection of minorities is to secure for\ncertain elements incorporated in a State, the population of which differs from them\nin race, language or religion, the possibility of living peacefully alongside that\npopulation and co-operating amicably with it, while at the same time preserving the\n\n25According to Lerner N From Protection of Minorities to Group Rights (1988) Israel Yearbook on\nHuman Rights 111 at 106, international human rights law actually began, rather timidly, as an attempt to protect\ndiscriminated groups, particularly religious communities, through initial emphasis on tolerance rather than rights.\nHe refers to the writings of early Spanish international lawyers in favour of the American indigenous populations\nand the measures taken in Europe to protect minority religions during the European wars of religion. \n\n26Id. at 108.\n\n35\n\n\fSACHS J\n\ncharacteristics which distinguish them from the majority, and satisfying the ensuing\nspecial needs.\n\nIn order to attain this object, two things were regarded as particularly necessary, and\nhave formed the subject of provisions in these treaties.\n\nThe first is to ensure that nationals belonging to racial, religious or linguistic\nminorities shall be placed in every respect on a footing of perfect equality with the\nother nationals of the State.\n\nThe second is to ensure for the minority elements suitable means for the preservation\nof their racial peculiarities, their traditions and their national characteristics.\n\nThese two requirements are indeed closely interlocked, for there would be no true\nequality between a majority and a minority if the latter were deprived of its own\ninstitutions, and were consequently compelled to renounce that which constitutes the\nvery essence of its being a minority.27\n\n[58]\n\nThe intractability of the subject and the inevitable overlap of law and politics led one\n\nauthor to observe that as far as redress of grievances was concerned, the League was quite\n\neffective on the small issues and everyday frictions, but failed to solve the wider problems\n\nof peaceful living and amicable co-operation - ultimately, what could not be achieved by\n\npersuasion and mediation could not be achieved at all.28 A harsher cautionary observation\n\nby someone who lived through the period was that the problem of minorities in Europe\n\nwas solved not by the protection of the League, but largely by spontaneous or enforced\n\nrepatriation, by mass expulsions, and by mass murder.29\n\nUnited Nations\n\n27Id. at 110.\n\n28Thornberry P Is there a Phoenix in the Ashes? - International Law and Minority Rights (1980) Texas\n\nInternational Law Journal 421 at 425.\n\n29Robinson J International Protection of Minorities, A Global View 1 Israel Yearbook on Human Rights\n\n(1971) 61 at 80.\n\n36\n\n\f[59]\n\nThe main trend after World War II was to eliminate the concept of minorities rather than\n\nSACHS J\n\nto protect them. The United Nations Charter and the Universal Declaration of Human\n\nRights both focused on human rights for individuals and not on group protections for\n\nminorities.30 The new approach was that, whenever someone\u2019s rights were violated or\n\nrestricted because of a group characteristic - race, religion, ethnic or national origin, or\n\nculture - the matter could be taken care of by protecting the right of the individual, on a\n\npurely individual basis, mainly by the principle of non-discrimination.31\n\n[60]\n\nTwenty years were to pass before clear acknowledgement of minority rights was to re-\n\nemerge in the form of Article 27 of the ICCPR. This Article, which was heavily relied\n\nupon by the Petitioners in this case as supporting the generous interpretation which they\n\nsought for section 32(c), reads as follows:\n\nIn those States in which ethnic, religious or linguistic minorities exist,\npersons belonging to such minorities shall not be denied the right, in\ncommunity with the other members of their group, to enjoy their own culture,\nto profess and practise their own religion, or to use their own language. \n\nIt should be noted that the rights are timidly expressed in two respects: firstly, they are\n\nrecognised in relation to individual \u201cpersons belonging to minorities\u201d,32 and not to\n\nminorities as such, and, secondly, they are expressed in negative terms, that is that the\n\n30The only protection for minorities was through the non-discrimination principle. See Capotorti supra\n\nnote 15.\n\n31Supra note 25 at 112.\n\n32The South African Law Commission, after an intensive investigation, rejected the notion of \u201cgroup\nrights\u201d and came to the conclusion that \u201c(T)he needs of individuals who are members of different linguistic,\ncultural and religious groups would be adequately protected by individual rights in a bill of rights.\u201d Interim Report\non Group and Human Rights (1991) 679-80. See also Currie I Minority Rights: Language, Education and\nCulture in Chaskalson et al supra note 9 at 35-2 to 35-3.\n\n37\n\n\fSACHS J\n\nrights \u201cshall not be denied\u201d.33 Nevertheless, despite its \u201cnervousness in handling\n\nminorities\u2019 issues\u201d, historically Article 27 represented the first international norm dealing\n\nspecifically with rights for ethnic, religious and linguistic groups that were capable of, and\n\nintended for, universal application.\n\n[61] With a view to furthering the principles contained in Article 27, Dr. Francesco Capotorti\n\nwas appointed Special Rapporteur of the United Nations Sub-Commission on the\n\nPrevention of Discrimination and Protection of Minorities. The definition given by Dr.\n\nCapotorti on what constitutes a minority is still the most widely quoted one today.34 In the\n\ncontext of the application of Article 27 he gave the following formulation:\n\n(a) group which is numerically inferior to the rest of the population of a State and in\na non-dominant position, whose members possess ethnic, religious or linguistic\ncharacteristics which differ from those of the rest of the population and who, if only\nimplicitly, maintain a sense of solidarity, directed towards preserving their culture,\ntraditions, religion or language.35\n\n[62]\n\nIt is clear from the debates that the text of Article 27 was not intended to imply that\n\nmembers of minorities had the right to demand that the state should adopt positive\n\n33See Thornberry P supra note 28 at 433 and 447.\n\n34It has been praised for neatly combining the objective criterion (possession of distinct characteristics)\nwith the subjective criterion (the wish to preserve these characteristics) that constitute a minority in fact. Supra\nnote 28 at 423.\n\n35This is the text of Capotorti\u2019s definition in Minorities in 8 Encyclopaedia of Public International Law\n385 R. Bernardt ed. (1985). In his UN Report his definition stated that members of the minority should be\nnationals of the State concerned. See also the advisory opinion of the PCIJ on the Greco-Bulgarian Convention\non Emigration, where it refers to minorities, or \u201ccommunities\u201d as \u201ca group of persons living in a given country or\nlocality, having a race, religion, language and traditions of their own and united by this identity of race, religion,\nlanguage and traditions in a sentiment of solidarity with a view to preserving their traditions, maintaining their form\nof worship, insuring the instruction and upbringing of their children in accordance with the spirit and traditions\nof their race and rendering mutual assistance to each other\u201d. PCIJ, Ser. B, No 17, at 19. Quoted and discussed by\nLerner N in Group Rights and Discrimination in International Law Martinus Nijhoff, Dordrecht, (1991) 9. He\nargues for replacing the phrase \u201cminority protection\u201d with the phrase \u201cgroup rights\u201d.\n\n38\n\n\fSACHS J\n\nmeasures.36 Thus, Article 27 does not contain any explicit reference to positive measures\n\nto which the minority might be entitled. Proposals for including in Article 27 a list of\n\nconcrete rights such as state supported schools for minorities or language rights, in fact\n\nfailed.37 Supporters of minority rights, such as Capotorti, Thornberry and Lerner, contend,\n\nhowever, that in spite of its wording, a certain \u2018programmatic\u2019 element involving duties\n\non the State must necessarily be read into the Article.\n\n[63] Capotorti, although acknowledging that Article 27 accorded rights only to individuals,\n\nurges the adoption of a liberal interpretation of the Article in general. He contends that it\n\nwould be superfluous if it only granted liberties that could be adduced from other\n\nprovisions in the Covenants. In his view, mere tolerance on the part of the State, without\n\nspecial rights, would not be sufficient to secure real equality.38 Thornberry suggests that\n\nalthough Article 27 is contained in the ICCPR, which generally is cast in such a way as to\n\nprohibit the State from acting in a certain manner against individuals, it is in reality similar\n\nto the typical rights set out in the Covenant on Cultural, Economic and Social Rights.\n\nRights of this kind, he argues, ring hollow without active and sustained state intervention\n\ndirected towards their achievement. Thus, as in the case of rights to education and health,\n\nthe special rights of members of minority communities would be deprived of substantive\n\ncontent without a level of active support equivalent to that provided to the majority of the\n\npopulation. He suggests that Article 27 contains a programmatic element particularly\n\n36Supra note 28 at 449.\n\n37Lerner supra note 35 at 16.\n\n38 Capotorti Report supra note 15.\n\n39\n\n\fSACHS J\n\nimportant in relation to enabling marginalised and disadvantaged groups to achieve real\n\nor substantive equality. Depending on the particular circumstances, needs and desires of\n\nminorities, such a programme could include intervention to support schools, libraries and\n\nmuseums, the means by which the culture of one generation is transmitted to another.\n\nThornberry suggests that Article 27 should be seen as constituting at most a framework\n\nprovision that needed to be supplemented by a clearer statement of the rights and duties of\n\nminorities.39\n\n[64]\n\nThe initiative spearheaded by Capotorti, and supported by the other writers quoted, was\n\naimed at reasserting the importance of group rights. It emerged, however, that the great\n\nmajority of states were far more interested in assimilating their minorities than in\n\nprotecting them.40 Humphrey points out that most government appointees on the Sub-\n\nCommission were opposed to the protection of minorities and that even in the working\n\ngroup there was objection to any mention of the promotion of the ethnic, cultural, linguistic\n\nand religious identity of minorities.41\n\nCurrent trends\n\n39Supra note 28 at 449-450.\n\n40See Humphrey J No distant millennium The International Law of Human Rights UNESCO Paris\n\n(1989) 56 and Capotorti Report supra note 15 para 311 at 53.\n\n41 Supra note 29 at 91 Robinson says: \u201cThis brings us to the future of international protection of\nminorities. In the present circumstances, with the Communist world disinterested, the Latin American continent\nopenly hostile to the very idea, Black Africa immunized [because of fear of fragmentation within colonially\nimposed boundaries], and Europe, as represented by its Council, going its own way, the problem has shrunk to a\nnot very significant one for the international community.\u201d\n\n40\n\n\f[65]\n\nThe authors cited are all supporters of recognition of minority rights, eager to interpret\n\nSACHS J\n\nArticle 27 in as affirmative a manner as possible. Even at its strongest, however, they see\n\nit as a framework measure which has implicit in it an incipient or embryonic obligation on\n\nthe State to pay regard to the needs of cultural, linguistic and religious minorities. Thus,\n\neven on their most benevolent interpretation, it falls far short of imposing a firm duty on\n\nthe state to promote the separate development of minorities (as opposed to the duty of\n\npreventing discrimination against them, where there is a high level of responsibility). It\n\ncomes nowhere near supporting a State duty to establish separate schools, as argued for\n\nby the Petitioners in this case. On the contrary, legislative history at the United Nations\n\nsuggests that such an obligation was expressly considered and expressly rejected.\n\n[66]\n\nThere appears to have relatively little momentum at the United Nations in the years\n\nfollowing Capotorti\u2019s report to revive the initiative that he embarked upon. Nevertheless,\n\nthere has in recent years been some discernible movement for recognition of the rights not\n\njust of individuals but of distinct groups in society, such as migrant workers and indigenous\n\npeoples.42 The impulse for this trend appears to have been recognition of the plight of\n\ndiscrete disadvantaged communities, rather than a generalised support for State-backed\n\ncultural diversity as such. At the same time, there has been increasing recognition of the\n\ngeneral importance of pluralism and diversity, and acknowledgement of what has been\n\ncalled \u201cthe right to be different\u201d,43 which by its very nature is a right claimed by those who\n\n42For example the ILO Convention No 143 concerning Migrations in Abusive Conditions and the\nPromotion of Equality of Opportunity and Treatment of Migrant Workers of 1975 and the ILO Convention\nconcerning Indigenous and Tribal Populations or Peoples of 1957 as revised in 1989.\n\n43 Thornberry suggests that this trend is associated with the decline of USA hegemony in the UN system.\nSupra note 28 at 455. It also corresponds to the increasing acknowledgement of \u2018hyphenated persons\u2019 in the USA\nitself - African-Americans, Spanish-Americans, Chinese-Americans. \n\n41\n\n\fdo not wish to be assimilated into the dominant culture or forced to live their lives\n\naccording to the dominant norms.\n\nSACHS J\n\n[67] As part of this revival, the United Nations Human Rights Committee recently issued a\n\nGeneral Comment on Article 27.44 According to the Committee, the article is intended to\n\nensure the survival and continued development of the cultural, religious and social identity\n\nof minorities. Therefore the right granted by the article must be distinguished from other\n\npersonal rights conferred on one and all under the Covenant. The Committee has\n\nemphasized that the right is a right of individuals (held by persons \u201cbelonging to such\n\nminorities\u201d), and should not be confused with the collective right of peoples to self-\n\ndetermination. But, although an individual right, its exercise depends on the collective\n\nability of the minority group to maintain its culture, language or religion. The right of a\n\nmember is not exercised alone. Rather, the enjoyment of culture, practice of religion, and\n\nuse of language presupposes a community of individuals with similar rights. Accordingly,\n\nthe Committee argues, the article may require positive measures by states to protect the\n\nidentity of a minority and the rights of its members to enjoy and develop their culture in a\n\ncommunity with other members of their group. Provided that these measures are aimed at\n\ncorrecting conditions that prevent or impair the enjoyment of the rights of members of\n\nminorities, they will constitute a legitimate ground for differentiation and will comply with\n\nthe non-discrimination requirements of the Covenant.45\n\n44General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the\n\nICCPR, No 23(50) (art 27) UN Doc CCPR/C/21/Rev 1/add 5 (26 April 1994).\n\n45The summary above is taken from Currie I in Minority Rights supra note32 at 35-7.\n\n42\n\n\f[68]\n\nThe situations are varied, but the common theme that runs through most of the international\n\nSACHS J\n\ndocuments on the subject is the duty of the State to take remedial action in relation to\n\ngroups that have been subjected to different forms of disadvantage. Thus, Capotorti\u2019s\n\ndefinition refers to groups which are not only quantitavely in the minority, but also in a\n\nnon-dominant position. There are indications in his report that he was specifically\n\nconcerned not to accord any legitimation to the minorities which at that time were in power\n\nin Southern Africa.46 To cater for the situation where a majority group was in one way or\n\nanother underprivileged and in a non-dominant position, the terms \u201csociological minority\u201d\n\nand \u201cfunctional minority\u201d were accordingly coined. Following on from the state duty to\n\novercome the effects of past disadvantage, came recognition of the fact that affirmative\n\naction in favour of disadvantaged groups would not be regarded as unlawful\n\ndiscrimination, and, on the contrary, could actually be required.\n\nIII. BASIC PRINCIPLES OF MINORITY PROTECTION LAW\n\n[69] A rough survey of the current situation in international law suggests that six interrelated\n\nprinciples enter the picture, with varying degrees of relevance and intensity, when the\n\nbroad concept of protection of minorities comes into play. They are i) the right to\n\nexistence, ii) non-discrimination, iii) equal rights, iv) the right to develop autonomously\n\nwithin civil society, v) affirmative action, and vi) positive support from the state. The\n\n46Referring to what he termed hateful regimes of oppression and racial discrimination in disregard of the\nelementary principles of respect for the dignity of human beings, as in Southern Africa at the time, Capotorti\nsupra note 15 writes that \u201cit is obvious that the dominant minority groups do not need protective measures, while\nthe oppressed majorities have rights which far exceed the very limited content of Article 27 of the Covenant\u201d.\nSee para 55 at 12.\n\n43\n\n\fsignificance of each and the way they are dealt with in our Constitution, with special\n\nreference to language rights, will be treated below.\n\nSACHS J\n\n[70]\n\ni) The right to existence. The United Nations Convention on the Prevention and Punishment\n\nof the Crime of Genocide of 1948 clearly acknowledges the right of all national groups to\n\nphysical existence. It is not so clear, however, whether a right to independent cultural\n\nexistence is also recognised, that is, whether or not there is a prohibition on what has been\n\ncalled cultural genocide.47 There is nothing in the present case, however, to suggest that\n\nthe challenged statutory provisions form part of a programme calculated to physically\n\neliminate members of the Afrikaans speaking community or to wipe out their culture. In\n\nSouth African conditions today, the group that would appear to have the greatest claim to\n\ninvoke any such right would be the San/Khoisan population, whose habitats have been\n\ntaken away from them or else so ecologically despoiled that their survival as a distinct\n\ncultural group can be said to be in peril.48 It would, however, be unwise to express any\n\nopinion on the subject, save to say that the present case stems from the situation of a\n\ncommunity defending relative affluence and privilege, rather than one combatting\n\nmarginalisation and the imminence of group annihilation.\n\n47 Supra note 25 at 141-146.\n\n48Currie I suggests in Minority Rights supra note32 at 35-8 that \u201c...if as a result of state action or\ninaction, that community loses its identity, if it is absorbed without trace into the majority population, the\nindividual right of participation in a cultural or linguistic community will be harmed. The right therefore may\nrequire positive measures by the state to preserve the separate identity of distinct cultural and linguistic\ncommunities.\u201d \n\n44\n\n\f[71]\n\nii) Non-discrimination. This is the most enduring and powerful principle to have emerged\n\nSACHS J\n\nin relation to protection of minorities. Sieghart49 refers to it as perhaps the strongest\n\nprinciple of all to be found in international human rights law. It is central to the Universal\n\nDeclaration of Human Rights,50 the ICCPR,51 the European Convention for the Protection\n\nof Human Rights and Fundamental Freedoms of 1950,52 and many other conventions. It\n\nprecludes the State from discriminating on grounds regarded as unfair or unjustifiable, and\n\nrace, language, religion and culture are invariably contained in definitions of outlawed\n\ndiscrimination. It is to be noted that various international conventions not only oblige states\n\nnot to discriminate, but impose obligations on them to take steps to end discrimination.53\n\nIn the case of South Africa, section 8(2) of the Constitution expressly itemises language,\n\nculture and religion as constituting prima facie examples of unjustifiable grounds of unfair\n\ndiscrimination. Thus, if persons were denied access to school because they spoke\n\nAfrikaans, or belonged to a cultural group which identified itself as Afrikaner, they could\n\nclaim a violation of their constitutional rights. Similarly, any person who was denied\n\naccess to State facilities because they did not speak Afrikaans or did not belong to the self-\n\n49 Sieghart P The International Law of Human Rights, Clarendon Press, Oxford (1983). He observes\nthe following at 17: \u201c[T]he concept of \u2018non-discrimination\u2019 is so central to international human rights law that all\nbut one of the major instruments prescribe it in an Article of general application...\u201d.\n\n50Article 7 provides: \u201cAll are equal before the law and are entitled without any discrimination to equal\nprotection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration\nand against any incitement to such discrimination.\u201d See also Article 2 in this regard.\n\n51 Articles 2 (1), 3 and 26 respectively. The latter states: \u201cAll persons are equal before the law and are\nentitled without any discrimination to the equal protection of the law.\u201d In this respect, the law shall prohibit any\ndiscrimination and guarantee to all persons equal and effective protection against discrimination on any ground\nsuch as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth\nor other status.\n\n52 Articles 14 and 16.\n\n53For example the International Convention on the Elimination of all forms of Racial Discrimination of\n\n1950 and the Convention on the Elimination of Discrimination Against Women of 1953.\n\n45\n\n\fconstituted Afrikaner community, could allege that their fundamental rights were being\n\nSACHS J\n\ninfringed. \n\n[72]\n\niii) Equal rights. This is the other side of the non-discrimination coin. It could have more\n\naffirmative connotations than non-discrimination, however, in that it could deal not merely\n\nwith protection against exclusion, but with entitlement to equal benefits and equal regard.\n\nThis becomes particularly important if the objective is to achieve real rather than formal\n\nequality. Thus, it is the equality principle rather than the non-discrimination one which\n\nbecomes the foundation for special legal and other measures to assist groups suffering from\n\nde facto rather than de jure disadvantage. In principle there is, of course, no fundamental\n\ndistinction between the concept of non-discrimination and that of equal rights, and both are\n\nembodied in section 8 of our Constitution. As far as members of the Afrikaans-speaking\n\ncommunity are concerned, they could complain if the State treated them less\n\nadvantageously than other groups; their claim to retain a privileged situation, however,\n\nwould not have the same, or any, force.\n\n[73]\n\nIt is important to note that the principle of language equality is strongly underlined in our\n\nConstitution. Section 3(1) expressly identifies Afrikaans as one of eleven languages\n\nentitled to enjoy equal status. Section 3(9) goes on to state the following:\n\n(9) Legislation, as well as official policy and practice, in relation to the use of\nlanguages at any level of government shall be subject to and based on the provisions of\nthis section and the following principles:\n\n(a) The creation of conditions for the development and for the promotion of the\nequal use and enjoyment of all official South African languages;\n\n(b) the extension of those rights relating to language and the status of languages\nwhich at the commencement of this Constitution are restricted to certain regions;\n\n46\n\n\fSACHS J\n\n(c) the prevention of the use of any language for the purposes of exploitation,\ndomination or division;\n\n(d) the promotion of multilingualism and the provision of translation facilities;\n\n(e) the fostering of respect for languages spoken in the republic other than the\nofficial languages, and the encouragement of their use in appropriate\ncircumstances; and\n\n(f) the non-diminution of rights relating to language and the status of languages\nexisting at the commencement of this Constitution.\n\nSection 32 carries the matter a step further in relation to education by providing that:\n\n32. Every person shall have the right -\n\n....\n(b) to instruction in the language of his or her choice where this is reasonably\npracticable; ... .\n\nSection 32(b) articulates an affirmative right that can be exercised against the State, which,\n\nsubject to the criterion of reasonable practicability, would be under a duty to make\n\nappropriate resources available for instruction in the chosen language. It would seem that\n\nfailure to provide such facilities would not necessarily amount to unfair discrimination in\n\nterms of section 8(2), but would involve a violation of section 32(b). It is not necessary\n\nto decide that matter, and I leave it open in this judgment.\n\n[74]\n\nThe implications of the above clauses for members of the Afrikaans language community\n\nare significant. As far as section 3(9) is concerned, legislation and official policy and\n\npractice at any level of government require, inter alia, the promotion of the equal use and\n\nenjoyment of Afrikaans, the prevention of the use of, say, English for the purposes of\n\ndomination, and the non-diminution of rights relating to Afrikaans and its status. Whether\n\nor not these principles apply directly only to intra-governmental behaviour, or whether\n\n47\n\n\fSACHS J\n\nthey govern all externally directed government policy and practice, need not be decided\n\nin the present case. On any reading, however, they provide a valuable general guide to the\n\nobjectives in relation to the language question which were regarded as constitutionally\n\nsignificant by the framers of the Constitution. In whatever way these principles are applied,\n\nit is clear that they need to be balanced against each other. Thus, the non-diminution\n\nprinciple is an important one, but so are creating the conditions for the development of all\n\nofficial languages, the extension of rights in relation to languages previously restricted, the\n\nprevention of the use of any language for the purposes of division, and the promotion of\n\nmulti-lingualism. Reading these principles together with section 32(b) in the manner most\n\nfavourable to the Petitioners, would mean that the practicability of language instruction in\n\nexisting Afrikaans medium schools could, applying the non-diminution principle, be\n\nassumed to exist. At the same time, there is nothing in these principles to guarantee the\n\nexclusivity of Afrikaans in any school. On the contrary, the promotion of multi-lingualism,\n\neven leaving out the factor of equal access to schools, would encourage the establishment\n\nof dual- or multiple-medium schools. Whether or not the Afrikaans language would survive\n\nbetter in isolation rather than, as it were, rubbing shoulders with other languages, would\n\nnot be a matter of constitutionality but one of policy, on which this Court would not wish\n\nto pronounce. Similarly, it would not be for us to say whether denying Afrikaans-speaking\n\nchildren the right to study and play with children of other backgrounds would or would not\n\nbe to their mutual educational and social detriment or advantage.\n\n[75]\n\niv) The right to autonomous development in civil society. The Constitution acknowledges\n\nconsiderable space in civil society in which people may freely advance their interests as\n\n48\n\n\fSACHS J\n\nmembers of linguistic, cultural and religious communities. Section 17 provides that every\n\nperson shall have the right to freedom of association. Read with freedom of speech,\n\nexpression and artistic creativity protected by section 15(1) of the Constitution, this\n\nguarantees the development of language free from interference by the State. Section 31\n\ngoes on to state expressly that \u201cevery person shall have the right to use the language and\n\nparticipate in the cultural life of his or her choice\u201d. Section 32(c) is even more specific\n\nin relation to education. It declares that:\n\nEvery person shall have the right:\n...\nc) to establish, where practicable, educational institutions based on a common culture,\nlanguage or religion, provided that there shall be no discrimination on the ground of\nrace.\n\nThe judgment of Mahomed DP deals extensively with this clause in terms of its obvious\n\nmeaning, and its place in the logic of section 32 as a whole. I agree fully with his analysis,\n\nwhich in my view is consistent both with the language used and the overall spirit of the\n\nConstitution. I would merely add one further reason, influenced by my explorations of\n\ninternational human rights law, but derived directly from the text of the Constitution, as to\n\nwhy I consider that it makes best sense to regard this paragraph as concretising rights to\n\na certain measure of cultural/linguistic autonomy in the private sphere, rather than as\n\nimposing an express duty on the State to establish single-medium community based\n\nschools. This additional argument flows from the connection between section 32(c) and\n\nsection 8(2).\n\n[76]\n\nSection 8(2) provides that no person may be discriminated against on grounds, inter alia,\n\nof religion, culture or language. The provision in section 8 (4) to the effect that prima facie\n\n49\n\n\fSACHS J\n\nproof of discrimination on the grounds specified in section 8(2) shall be presumed to be\n\nsufficient proof of unfair discrimination until the contrary is proved, would make all\n\nschools based upon a common culture, language or religion liable to attack on the grounds\n\nof practising unfair discrimination, particularly if they closed their doors to persons who\n\ndid not share that common culture, language or religion. Legislation could then be passed\n\nprohibiting such discrimination, and such schools would then have no constitutional\n\numbrella to protect them at all. Section 32(c) appears, therefore, to be an explicit, if\n\nlimited, acknowledgement of the need in certain circumstances to allow for a departure\n\nfrom the general principles of section 8(2) read with section 8(4). The anti-discrimination\n\nprinciple is so powerful, both in international law and in the warp and woof of our\n\nConstitution, that any intention to deviate from it would have to be articulated in the\n\nclearest possible language.\n\n[77] What appears to be provided for in section 32(c) is not a duty on the state to support\n\ndiscrimination, but a right of people, acting apart from, but in practicable association with\n\nthe State, to further their own distinctive interests. If the intention were not only to permit\n\ndiscrimination on the grounds of culture, language or religion in state schools, in such\n\ncases where it was justified, but to require it in all cases on demand, then one would have\n\nexpected that such an exemption from the general non-discrimination principle would have\n\nbeen expressed in the clearest possible language. Furthermore, should such a radical\n\ndeparture from the provisions of the equality clause have been contemplated, then it would\n\nhave been far more logical to have expressed it as a qualification of section 8, than to have\n\nleft it to be read in as an implied incident of section 32(c).\n\n50\n\n\f[78] My view is strengthened by the fact that section 32(c), construed in the manner proposed\n\nSACHS J\n\nby Mahomed DP, corresponds precisely to concepts accepted in many international\n\ninstruments (although by no means universally). It acknowledges that constitutionally\n\nguaranteed space should be made available for private individuals to set up and maintain\n\n[establish] their own schools if they feel that their special cultural, language or religious\n\nneeds are not being sufficiently catered for in the state system. Two cases heard under the\n\nEuropean Convention which concern parental rights in relation to education, suggest a\n\ndisinclination on the part of the court to compel states to establish or maintain schools\n\nbased on a particular language or religion, though they did emphasize the importance of\n\npluralism of education and parental choice. The first protocol to the European Convention\n\nprovides in part: \u201cNo person shall be denied the right to education\u201d. In the Belgian\n\nLinguistic case54 the Court said that the Convention does not guarantee children the right\n\nto be educated in the language of their parents by the public authorities or with their aid.\n\n\u201cThe negative formulation indicates... that the Contracting Parties do not recognize such\n\na right to education as would require them to establish at their own expense, or to\n\nsubsidise, education of any particular type or at any particular level.\u201d Similarly, in a case\n\ninvolving Danish parents who objected to compulsory sex-education in the public schools,\n\nit was held that the State met its obligation to \u201crespect the right of parents to ensure...\n\neducation in conformity with their own religious and philosophical convictions\u201d because\n\nthe parents were free to send their children to a private school.55\n\n54 1 European Human Rights Reporter 253.\n\n55Kjeldsen, Busk Madsen and Pedersen v Denmark, Series A, No.23, 7 December 1976. See also Sohn\n\nLB The Rights of Minorities in The International Bill of Rights Henkin (ed) Colorado UP 1981, 271. \n\n51\n\n\fSACHS J\n\n[79]\n\nThe deviation from the normal non-discrimination principles is therefore a highly qualified\n\none. Firstly, it is limited to the spheres of culture, language or religion; secondly, the\n\nrunning of the school must be practicable insofar as it implicates the State in guaranteeing\n\neducation of appropriate standard; thirdly, there shall be no discrimination on the grounds\n\nof race, and fourthly, the community concerned must itself be responsible for the setting-up\n\nand running of such a school. All these qualifications conform to criteria widely accepted\n\nin international instruments. This is not to say that the State is forbidden by our\n\nConstitution from setting up or maintaining communally- or religiously-based schools.\n\nThere is a great difference, however, between what the State is permitted to do and what\n\nit is required to do. In my view, there is nothing in section 32 which obliges it to set up\n\nsuch schools. Indeed, any departure from the general principles of non-discrimination by\n\nthe State itself in relation to State schools, would have to be justified by the State as being\n\nfair.56 There might, for example, be good educational or administrative reasons for having\n\na girls-only school in a certain area, or for having a unilingual school in another. These\n\nwould be questions of state policy and practice, subject to judicial review in the ordinary\n\ncourts undertaken with due regard to fundamental rights guaranteed in the Constitution.\n\nThey would not be matters of constitutional rights inhering in and enforceable by cultural,\n\nlanguage or religious communities.57 In such circumstances, it would be the existence of\n\n56See section 8(2) and (4).\n\n57For the purposes of discussion, I accept that although language and religious rights are expressed purely\n\nas individual rights, they can only meaningfully be enjoyed in community with others.\n\n52\n\n\fexclusivity that would have to be justified, not, as the Petitioners claim in this case, the\n\nexclusion of exclusivity.\n\nSACHS J\n\n[80]\n\nI would add two more and to my mind, equally compelling reasons, both of which\n\ninternational law principles have alerted me to, for preferring not to adopt the \u201cgenerously\n\namplified\u201d interpretation of section 32(c) urged upon us by the petitioners. The first is the\n\nhistorical background of enforced school segregation, which was always justified on\n\ngrounds of cultural incompatibility, and the spirit of which runs directly counter to the\n\nexplicit values of our constitution.58\n\n[81]\n\nThe second point is that from a cultural or language point of view, there is no clear\n\nmajority population in South Africa59 against which minorities need to be protected.\n\nLinguistically and culturally speaking, there are only minorities in our country. The\n\nproblem is to balance out their various interests, rather than to protect any one group\n\nagainst another. From a purely practical point of view, the financial and administrative\n\nimplications of granting to each language or cultural group a claim, as of right, on the State\n\nto establish schools, exclusive to themselves, not to speak of the extreme educational\n\n58Furthermore, if the framers were mindful of international law, they would have borne in mind the\nexistence of the Convention on the Suppression and Punishment of the Crime of Apartheid of 1973, which took\na drastic stand against the policies which led to the untold suffering and strife referred to in the Postscript to the\nConstitution. \n\n59 It might be, that in language terms, there is a massive push by parents of many different cultural\nbackgrounds to have their children educated in English and, from this point of view, English could be considered\na majority language. This, however, would be a question of language choice as guaranteed by section 32(b).\nCommunities have a right to assimilate if they so wish, to the extent that they desire. What is objected to is\nenforced assimilation. For a discussion on Swiss practice see Robinson J supra note 29.\n\n53\n\n\fSACHS J\n\nfragmentation involved, seem to be insuperable. Eleven languages are officially\n\nrecognised. In addition about a dozen further languages are specified in section 3(10)(c)\n\nas being languages whose development must be promoted by the Pan South African\n\nLanguage Board (and this is not presented as an exhaustive list).60 Added to this, it is a\n\nmatter of public record that our country is blessed with a multiplicity of religious\n\ncommunities, with independent churches alone probably running into the hundreds if not\n\nthousands. Could it possibly be that the framers of the Constitution intended that each\n\nlanguage group and each religious community in every one of their multiple spatial\n\nconglomerations, should have a claim on the State in terms of section 32(c) to establish on\n\ntheir behalf exclusive schools? Writing before the Constitution was adopted, Professor\n\nVan der Westhuizen makes the following pertinent remark:\n\n\u201cPublic schools exclusively or specifically for cultural, religious, or linguistic groups\nwould not seem to be acceptable either. Not only would such a state of affairs serve to\nperpetuate apartheid in disguise with state funding and official blessing, but as a\npractical matter, it would be extremely difficult to allocate funds and other supporting\nfacilities on an equal basis.\u201d61\n\n[82]\n\nv) Affirmative action. Article 1(4) of the Convention on the Elimination of all Forms of\n\nRacial Discrimination of 1965 declares that:\n\nSpecial measures taken for the sole purpose of securing adequate advancement of\ncertain racial or ethnic groups or individuals requiring such protection as may be\nnecessary in order to ensure to such groups or individuals equal enjoyment or exercise\nof human rights and fundamental freedoms shall not be deemed racial discrimination,\nprovided, however, that such measures do not, as a consequence, lead to the\n\n60Section 3(9) of the Constitution lists the principles upon which official policy and practice in relation\nto the use of languages shall be based and which include in section 3(9)(e) \u201c...the fostering of respect for languages\nspoken in the Republic other than the official languages, and encouragement of their use in appropriate\ncircumstances.\u201d\n\n61 Supra note 16 at 130.\n\n54\n\n\fmaintenance of separate rights for different racial groups and that they shall not be\ncontinued after the objectives for which they were taken have been achieved.62\n\nSACHS J\n\nArticle 2, dealing with obligations of States, reads:\n\nStates parties shall, when the circumstances so warrant, take in the social, economic,\ncultural and other fields, special and concrete measures to ensure the adequate\ndevelopment and protection of certain racial groups or individuals belonging to them\nfor the purposes of guaranteeing them the full and equal enjoyment of human rights and\nfundamental freedoms. These measures shall in no case entail as a consequence the\nmaintenance of unequal or separate rights for different racial groups after the\nobjectives for which they were taken have been achieved.\n\n[83] Although the Convention is aimed at the elimination of the effects of racial discrimination,\n\nthe principles contained in these two paragraphs could be applied to any minorities trying\n\nto overcome the effects of past and continuing discrimination.63 Applied to members of the\n\nAfrikaans language community, these principles would favour those groups seeking\n\nadmission to Afrikaans medium schools, rather than the present incumbents in their\n\ndefensive postures.64 Any claim of Afrikaans community groups to have the State subsidize\n\nwhat, objectively speaking, are privileges in terms of exclusive access to affluent schools,\n\nwould therefore be weak. Their argument that the State should anticipate and obviate\n\npossible future disadvantage may well be somewhat stronger, but I do not see how the\n\nthreat of loss of dominance could legally per se be regarded as threatened disadvantage.\n\n62 For a summary of the text of the Convention see Lerner supra note 25 at 165. See also preferential\ntreatment for indigenous peoples called for in the ILO Convention Concerning Indigenous and Tribal Peoples of\n1989, which calls for special measures implying preferential treatment provided they are not contrary to the freely\nexpressed wishes of the groups concerned and do not prejudice the enjoyment of equal rights in any way.\n\n63They could also obviously be pertinent to easing the way for women, who are not a minority, but are\n\ndisadvantaged, to overcome the obstacles placed in their way by patriarchal and sexist laws and practices.\n\n64For the right to remedial equality see supra note 14 at 65.\n\n55\n\n\fSACHS J\n\nvi) Positive support from the State. The sixth, and most controversial possible legal\n\nconsequence of identifying and distinguishing a cultural, linguistic or religious minority\n\ngroup, could be that such a minority might be able to make a claim for special resources\n\nfrom the State for the purposes of maintaining its identity. There can be no doubt that the\n\nrecognition of diversity and pluralism, and the weakening of state hegemony, has come in\n\nrecent years to receive growing support from legal scholars, non-governmental\n\norganisations and a number of political philosophers.65 The literature to which I have\n\nreferred, however, suggests that there is little hard international human rights law to back\n\na generalised claim on State resources for the promotion of cultural, linguistic and\n\nreligious diversity, and none at all to support a legal entitlement to separate state-funded\n\nschools. As has been pointed out above, when the question of legal protections for cultural,\n\nlanguage and religious minorities was debated at the United Nations, the majority of\n\ncountries argued for a state duty to facilitate assimilation by means of outlawing\n\ndiscrimination, rather than for a state responsibility to encourage diversity. Even those\n\ncountries which have given greater acknowledgement to minority rights, have tended to\n\nleave the creation of communally or religiously based schools to the private sphere,\n\nparticularly if such schools are exclusive in character.\n\n65Prof Degenaar supra note 18 whose reflections on the subject have been influential, refers approvingly\n\nto what he calls post-modern rethinking of the nature of the nation-state. \n\n56\n\n\f[84]\n\nThus, Sieghart66 points out that a person cannot draw from Protocol 1(2) of the European\n\nSACHS J\n\nConvention on Human Rights, the right to obtain from the public authorities the creation of\n\na particular kind of educational establishment. As far as the International Convention on\n\nCivil and Political Rights is concerned, Lerner67 laments the fact that Article 27 does not\n\ncontain any explicit reference to positive measures to which the minority might be entitled,\n\nand goes on to say that proposals for including in Article 27 \u201c(a) list of concrete rights,\n\nsuch as state supported schools of the minority or language rights\u201c failed. Professor\n\nCharles Dlamini68 in our country, comments that it is generally accepted that Article 27\n\nof the Covenant requires only that the State parties to the Convention should allow\n\nminorities to set up private schools at their own expense and to provide for instruction in\n\ntheir own language. He regards it as unfortunate that in terms of Article 27, the State is not\n\nobliged to assist minorities, either financially or materially, to establish minority public\n\nschools. The UNESCO Convention against Discrimination in Education of 196069\n\nsimilarly does not impose any obligation on the State to establish separate minority\n\nschools. On the contrary, it outlaws discrimination based, inter alia on language, religion\n\nand national origin, and singles out as discriminatory acts, the establishing or maintaining\n\nof separate education systems or institutions for persons or groups of persons. It then goes\n\non, however, to qualify this prohibition in two important respects. Article 2, in addition\n\n66Supra note 49 at 77, commenting on the Belgian Linguistic case . The First Protocol to the Convention\nfor the Protection of Human Rights and Fundamental Freedoms signed at Rome in 1950 states in Article 2 : \u201cNo\nperson shall be denied the right to education. In the exercise of any functions which it assumes in relation to\neducation and to teaching, the State shall respect the right of parents to ensure such education and teaching in\nconformity with their own religious and philosophical convictions.\u201d\n\n67 Supra note 25 at 16.\n\n68Supra note 23 at 105.\n\n69Article 1.1(c).\n\n57\n\n\fto allowing single-sex educational institutions, states that the following do not constitute\n\nSACHS J\n\ndiscrimination:\n\n(a) the establishment or maintenance, for religious or linguistic reasons, of separate\neducational systems or institutions offering an education which is in keeping with the\nwishes of the pupil\u2019s parents or legal guardians, on an optional basis and if the\neducation provided conforms to certain standards;\n\n(b) the establishment or maintenance of private educational institutions, if their object\nis not to exclude any group but to provide educational facilities in addition to those\nprovided by the public authorities, under certain conditions.\n\nThe clauses identify permissible departures from the normal rule, not positive obligations\n\non the State.\n\n[85] Article 5 goes on to balance out the need for education to promote understanding, tolerance\n\nand friendship among all nations, racial or religious groups, with the guaranteed respect\n\nfor the liberty of parents:\n\n(a) Firstly to choose for their children institutions other than those maintained by the\npublic authorities but conforming to such minimum educational standards as may be\nlaid down or approved by the competent authorities, and\n\n(b) secondly, to ensure the religious and moral education of the children in conformity\nwith their own convictions, while no person or group of persons should be compelled\nto receive religious instruction inconsistent with his or her own convictions\u201d\n\nArticle 5 expressly recognises the right of members of national minorities to carry on their\n\nown educational activities provided that this right is not exercised:\n\nin a manner which prevents the members of these minorities from understanding the\nculture and language of the community as a whole and from participating in its\nactivities, or which prejudices national sovereignty.\n\n58\n\n\f[86]\n\nIt is quite clear that the manner in which these provisions have been applied varies\n\nSACHS J\n\nconsiderably from country to country, depending on local conditions and preoccupation.\n\nIn Canada, for example, section 23 of the Canadian Charter of Rights and Freedoms\n\nestablishes an express right to minority language education out of public funds, providing\n\nFrancophone and Anglophone minorities with special treatment as compared to other\n\ncultural and linguistic minorities.70 In Belgium and Switzerland, on the other hand, the\n\nconcept of \u201careas of linguistic security\u201d applies in terms of which each collectivity can\n\nprotect its \u201clinguistic homogeneity\u201d from \u201clinguistic competition\u201d from other groups within\n\na defined territory.71 India provides yet another variant. There, Article 30 of the\n\nConstitution guarantees religious and linguistic minorities the right to establish and\n\nadminister educational institutions of their own choice. The State is precluded, in granting\n\naid to educational institutions, from discriminating against any educational institution on\n\nthe ground that it is under the management of a minority.72 These are three countries that\n\nhave made special provision for minority schools. If Capotorti\u2019s Report is any guide, they\n\ncertainly cannot be regarded as establishing a universal practice. It would seem that each\n\ncountry has the right, in terms of international law, to develop its own rules in this respect,\n\nbased on its own history and needs.\n\n[87]\n\nIt should be added that the central theme that runs through the development of international\n\nhuman rights law in relation to protection of minorities, is that of preventing discrimination\n\n70See discussion by Woehrling supra note 14 at 70-74.\n\n71Id. at 66.\n\n72 Seervai HM Constitutional Law of India Tripathi (1983) chap XIII and The Ahmedabad St. Xaviers\n\nCollege Society v State of Gujarat S.C.R. [1975] 173.\n\n59\n\n\fSACHS J\n\nagainst disadvantaged and marginalised groups, guaranteeing them full and factual equality\n\nand providing for remedial action to deal with past discrimination. Capotorti devotes\n\nseveral paragraphs in his report to this theme. The weight of international law, in his view,\n\nshould be in favour of the dominated and not the dominating minorities. There is nothing\n\nto indicate in the present case that the Petition based itself on arguments that the clause in\n\ndispute imposed discrimination, denied equality, or repudiated remedial action for a\n\nmarginalised or deprived language minority. On the contrary, the contention was that\n\nexisting rights to language exclusivity in relatively affluent schools should be maintained.\n\nIt was common cause that these schools were well endowed because of past State support,\n\nwhile the majority of schoolchildren in the province were, as result of past State\n\ndiscrimination, forced to attend schools that were grossly deprived in comparison. Thus\n\nthe thrust of international human rights law principles would be far more in favour of\n\nsupporting the so-called \u201csociological\u201d or \u201cfunctional\u201d minority, than of upholding the\n\nclaims of what might be termed the \u201csociological\u201d or \u201cfunctional\u201d majority.73 In other\n\nwords, the values underlying international law concerned with protection of minorities,\n\nwould tend to favour the contentions of the Provincial Government rather than those of the\n\nPetitioners. \n\n[88]\n\nThe latest international instrument on the subject available to me supports the view that\n\nthere has been some revival of the importance attached to the protection of national\n\nminorities as a general group, that goes beyond simply guaranteeing individual members\n\nof such minorities protection against discrimination. It is the framework Convention for the\n\n73See Capotorti\u2019s strong remarks on the situation in Southern Africa of the Capotorti Report supra note\n\n15 at 12.\n\n60\n\n\fSACHS J\n\nProtection of National Minorities adopted towards the end of 1994 by the Committee of\n\nMinisters of the Council of Europe.74A booklet produced by the Council of Europe Press\n\nreports that the framework Convention was the first ever legally binding multilateral\n\ninstrument devoted to the protection of national minorities in general. The main operative\n\npart of the framework Convention contains provisions laying down principles covering a\n\nwide range of areas, and I reproduce the booklet\u2019s summary in full, inasmuch as it appears\n\nto represent the latest, and, I would say, most advanced, international law thinking on the\n\nmatter:\n\n- non-discrimination;\n\n- promotion of effective equality;\n\n- promotion of the conditions regarding the preservation and development of the culture and \n\n reservation of religion, language and traditions;\n\n- freedom of assembly, association, expression, thought, conscience and religion;\n\n- access to and use of media;\n\n- linguistic freedom;\n\nC\n\nC\n\nC\n\nC\n\n- education:\n\nCC\n\nCC\n\nuse of the minority language in private and in public as well as its use before\n\nadministrative authorities;\n\nuse of one\u2019s own name;\n\ndisplay of information of a private nature;\n\ntopographical names in the minority language;\n\nlearning of and instruction in the minority language;\n\nfreedom to set up educational institutions; [my emphasis]\n\n- transfrontier contacts;\n\n74 As at 1 March 1995 twenty-two States had signed. For entry into force it required ratification by twelve\n\nmember States.\n\n61\n\n\fSACHS J\n\n- international and transfrontier cooperation;\n\n- participation in economic, cultural and social life;\n\n- participation in public life;\n\n- prohibition of forced assimilation.75\n\n[89]\n\nThe Council of Europe document indicates that special emphasis was put on provisions\n\nof a programme-type, defining certain objectives which the States undertake to pursue\n\nthrough legislation and appropriate governmental policies at a national level. It will be\n\nnoted that this framework Convention, sensitive as it is to the rights of minorities, does not\n\nimpose positive obligations on states to establish or maintain minority schools. Instead,\n\nit confirms the right to learn and be instructed in a minority language, and the freedom to\n\nset up educational institutions. These principles are remarkably close to the provisions of\n\nsections 32(b) and (c) of our Constitution, adopted a year earlier. It suggests that the\n\ninterpretation given to the Constitution by Mahomed DP conforms to the principles\n\ncontained in the most recent and developed international instrument dealing with minority\n\nprotection.\n\nCONCLUSION\n\n[90]\n\nIn summary: a reading of our Constitution would be entirely consistent with the principles\n\nof international human rights law if it: \n\n- prevented the State from embarking on programmes intended or calculated to destroy \n\nthe physical existence or to eliminate the cultural existence, of particular groups;\n\n75Human Rights. A continuing challenge for the Council of Europe 1995 Council of Europe Press 47.\n\n62\n\n\fSACHS J\n\n- required the State to uphold the principles of non-discrimination and equal rights in \n\n respect of members of minority groups;\n\n- permitted and possibly required the State to take special remedial or preferential action\n\n to assist disadvantaged groups to achieve real equality;\n\n- permitted but did not require the State to establish communal schools, or to support such\n\n schools already established;\n\n- permitted members of minority groups to establish their own schools.\n\n[91] None of these principles carry the Petitioners\u2019 case any further. The papers before us show\n\na need to transform education in South Africa in the light of constitutional precepts which\n\npay due regard to international law. Exactly how the correct balance should be struck\n\nbetween the importance of overcoming systemic inequality inherited from the past, on the\n\none hand, and preventing legally enforced or de facto assimilation of groups wishing to\n\npreserve and develop a distinctive identity, on the other, would, in my view, be primarily\n\na matter for democratic resolution in the legislatures of our country, and not in the first\n\ninstance be one of adjudication by the courts. Provided that such deliberations result in\n\nlegislation not transgressing the Constitution, this Court should decline to interpose its own\n\nopinion in relation to exactly how best this balance should be achieved.\n\n[92]\n\nIn the present case, I would accordingly say that section 32(c) of the Constitution should\n\nbe interpreted in the way that Mahomed DP has done, and that International law on the\n\nsubject reinforces the conclusions to which he comes. I also agree that section 247 of the\n\n63\n\n\fConstitution does not avail the petitioners, and accordingly concur in the order he\n\nproposes.\n\nA L SACHS \n\nCase No\n\nCounsel for the Petitioners\n\nInstructed by\n\n:\n\n:\n\n:\n\nCCT 39/95\n\nN G D Maritz SC\nD N Unterhalter\n\nDyason Attorneys\n\nCounsel for the Gauteng Government :\n\nW Trengove SC\n\nInstructed by\n\nCounsel for Amicus Curiae\n\nInstructed by\n\nCounsel for the Speaker of the \nGauteng Government\n\nInstructed by\n\nM Chaskalson\n\nThe State Attorney, Johannesburg\n\nR J Raath\nJ S Stone\n\nRoss & Jacobsz Attorneys\n\nR L Selvan SC\n\nThe State Attorney, Johannesburg\n\n:\n\n:\n\n:\n\n:\n\n:\n\n64\n\n\f65\n\n\f"}, "id": "fd160e61-13ce-4e5d-be7b-2677e727c8ad", "update_date": "2021-03-15 17:08:56.815843", "year": "1996", "judgement_paragraphs": ["IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE NO CCT 39/95 In the matter of: THE GAUTENG PROVINCIAL LEGISLATURE In re: DISPUTE CONCERNING THE CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE SCHOOL EDUCATION BILL OF 1995 Heard on: 29 February 1996 Delivered on: 4 April 1996 JUDGMENT", "MAHOMED DP: Various members of the Gauteng provincial legislature, constituting at least one third of the total membership of that body, acting pursuant to the provisions of section 98(9) of the Constitution of the Republic of South Africa Act, 200 of 1993 (\u201cthe Constitution\u201d), petitioned the Speaker, requiring him to request this Court to exercise its jurisdiction in terms of section 98(2)(d) of the Constitution to resolve a dispute which had arisen in respect of the constitutionality of certain provisions of the School Education Bill (\u201cthe bill\u201d) of the Gauteng Province. That request was duly communicated by the Speaker of the Gauteng provincial legislature to this Court.", "Subsequently the bill was passed and duly enacted as the School Education Act of 1995 but the disputed sections were not put into operation. It was not contended by any of the parties appearing before us that the jurisdiction conferred upon us by section 98(2)(d) of \fthe Constitution was in any way ousted because the bill which was previously before the provincial legislature had since ceased to be a bill and had been enacted as a statute. For the purposes of this judgment I shall continue to refer to the School Education Act as \u201cthe MAHOMED DP bill\u201d.", "The objects and content of the bill The long title of the bill describes its objects. It is \u201c[t]o provide for the provision and control of education in schools, and matters connected therewith\u201d. Chapter 3 of the bill deals with \u201cschooling\u201d. Section 11(2) provides that admission requirements for public schools \u201cshall not unfairly discriminate on grounds of race, ethnic or social origin, colour, gender, sex, disability, sexual orientation, religion, conscience, belief, culture or language\u201d. (\u201cModel C schools\u201d are included within the definition of public schools in section 1.) Section 19 provides as follows: \u201cLanguage and discrimination 19. (1) (2) (3) Language competence testing shall not be used as an admission requirement to a public school. Learners at public schools shall be encouraged to make use of the range of official languages. No learner at a public school or a private school which receives a subsidy in terms of section 69 shall be punished for expressing himself or herself in a language which is not a language of learning of the school concerned.\u201d The constitutionality of section 19(1) is disputed by the petitioners and the South African Foundation for Education and Training (\u201cthe Foundation\u201d) which was admitted as an amicus curiae in these proceedings. The executive director of the Foundation states that- \u201cThe mission of the Foundation is to support a Christian value system and prescribe to the principle of mother tongue education. The Foundation also aspires to promote 2 \feducation in the South African community as a whole with special reference to the Afrikaans medium education.\u201d MAHOMED DP", "Section 21 and section 22 of the bill read as follows: \u201cReligious policy of public schools 21. (1) The religious policy of a public school shall be made by the governing body of the school concerned after consultation with the department, and subject to the approval of the Member of the Executive Council. The religious policy of a public school shall be developed within the framework of the following principles: (a) The education process should aim at the development of a national, democratic culture of respect for our country\u2019s diverse cultural and religious traditions. Freedom of conscience and of religion shall be respected at all public schools. (b) If, at any time, the Member of the Executive Council has reason to believe that the religious policy of a public school does not comply with the principles set out in subsection (2) or the requirements of the Constitution, the Member of the Executive Council may, after consultation with the governing body of the school concerned, direct that the religious policy of the school shall be reformulated in accordance with subsections (1) and (2). The provisions of section 18(4) to (8) shall apply mutatis mutandis to a directive issued by the Member of the Executive Council under subsection (3) and in such application any reference to language policy shall be construed as a reference to religious policy. No person employed at any public school shall attempt to indoctrinate learners into any particular belief or religion. No person employed at any public school or private school shall in the course of his or her employment denigrate any religion. (a) (i) (2) (3) (4) (2) (3) Freedom of conscience 22. (1) (ii) regard Every learner at a public school, or at a private school which receives a subsidy in terms of section 69, shall have the right not to attend religious education classes and religious practices at that school. the In this department shall respect the rights and duties of parents to provide direction to their children in the exercise of their rights as in a manner consistent with the evolving capacity learners, 3 \fMAHOMED DP t h e c h i l d r e n o f concerned. (b) (c) limitation The right conferred by paragraph (a) on a learner at a private school which receives a subsidy in terms of section 69, may be limited where such is necessary to preserve the religious character of the private school concerned. Except as is provided for in paragraph (b) no person employed at a public school, or at a private school which receives a subsidy in terms of section 69, shall in any way discourage a from choosing not to attend religious education classes or religious practices at that school. learner (4) No person employed at a public school shall be obliged or in any way unduly influenced to participate in any of the religious education classes or religious practices at that school.\u201d The constitutionality of section 21(2), section 21(3) and section 22(3) is also impugned.", "The complaint made against the impugned sections of the bill is that their effect is to invade the right of persons to attend schools where language competence testing is permitted as an admission requirement or where the religious policy of the school is developed within a framework which does not fall within the principles set out in section 21(2) of the bill or where the school is not subject to the directions contemplated in section 21(3) or where the attendance of scholars at religious education classes is compulsory. The answer proffered on behalf of the provincial government is that the bill makes no invasion on any of these rights at all. Section 19(1) which prohibits language competence testing as an admission requirement to a public school, section 21(2) which provides for the religious policy to be developed in a school and section 21(3) which provides for directions in this 4 \fMAHOMED DP regard in certain circumstances do not have any application at all at private schools and section 22(3) which creates a right not to attend religious education classes is confined to public schools and only such private schools which receive a subsidy in terms of section 69 of the bill. All the rights which the petitioners and the Foundation seek to assert can therefore be freely exercised at other schools. Both the Foundation and the petitioners seek to counter that answer by the submission that section 32(c) of the Constitution creates a positive obligation on the state to accord to every person the right to require the state to establish, where practicable, educational institutions based on a common culture, language or religion as long as there is no discrimination on the grounds of race. It is contended that on this interpretation of section 32(c), the government is not entitled to prohibit language competence testing as an admission requirement or direct what religious policy should be developed or who should or should not attend religious classes at schools so established. Counsel for the petitioners and the Foundation were correct in conceding that this submission on the proper interpretation of section 32(c) was \u201ccentral\u201d to the attack made on the impugned sections. It substantially dominated counsel\u2019s argument. It therefore becomes crucial to determine whether section 32(c) of the Constitution indeed creates a positive obligation on the state to accord to every person the right to have established, where practicable, schools based on a common culture, language or religion subject only to the qualification that it is practicable and that there is no discrimination on the grounds of race.", "Section 32(c) of the Constitution Section 32 reads as follows: 5 \fMAHOMED DP \u201cEducation 32. Every person shall have the right- (a) (b) to basic education and to equal access to educational institutions; to instruction in the language of his or her choice where this is reasonably practicable; and to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.\u201d (c)", "The submission that every person can demand from the state the right to have established schools based on a common culture, language or religion is not supported by the language of section 32(c). The section does not say that every person has the right to have established by the state educational institutions based on such a common culture, language or religion. What it provides is that every person shall have the right to establish such educational institutions. Linguistically and grammatically it provides a defensive right to a person who seeks to establish such educational institutions and it protects that right from invasion by the state, without conferring on the state an obligation to establish such educational institutions.", "Considered in context, there is no logical force in the construction favoured by the petitioners. If a person has the right to basic education at public expense in terms of sub- paragraph (a) and if he or she has the right is to be instructed in the language of his or her choice in terms of sub-paragraph (b), why would there be any need to repeat in sub- paragraph (c) the right to education at public expense through a common language? The object of sub-section (c) is to make clear that while every person has a right to basic education through instruction in the language of his or her choice, those persons who want more than that and wish to have educational institutions based on a special culture, language or religion which is common, have the freedom to set up such institutions based 6 \fMAHOMED DP on that commonality, unless it is not practicable. Thus interpreted, section 32(c) is neither superfluous nor tautologous. It preserves an important freedom. The constitutional entrenchment of that freedom is particularly important because of our special history initiated during the fifties, in terms of the system of Bantu education. From that period the state actively discouraged and effectively prohibited private educational institutions from establishing or continuing private schools and insisted that such schools had to be established and administered subject to the control of the state.1 The execution of those policies constituted an invasion on the right of individuals in association with one another to establish and continue, at their own expense, their own educational institutions based on their own values. Such invasions would now be constitutionally impermissible in terms of section 32(c).", "The interpretation of section 32(c) as a defensive right, based on its grammatical and linguistic structure, seems to me also to be supported by its context within section 32 itself. Section 32(a) creates a positive right that basic education be provided for every person and not merely a negative right that such a person should not be obstructed in pursuing his or her basic education. Section 32(b), recognising the diversity of languages in our country, again creates a positive right for every person to instruction in the language of his or her choice, where this is reasonably practicable, not merely a negative right to prevent any obstruction if such person seeks instruction in the language of his or her choice. Section 32(c), by contrast, guarantees a freedom - a freedom to establish educational institutions based on a common culture, language or religion. It is that freedom which is 1 See section 9 of the Bantu Education Act No. 47 of 1953. 7 \fMAHOMED DP protected by section 32(c). A person can invoke the protection of the court where that freedom is threatened, but the language of section 32(c) does not support a claim that such educational institutions, based on a commonality of culture, language or religion, must be established by the state, or a claim that any person is entitled to demand such establishment, notwithstanding the fact that his or her right to basic education and to instruction in the language of his or her choice is, where practicable, otherwise being satisfied by the state.", "Mr NGD Maritz SC, who appeared on behalf of the petitioners, and Mr Raath, who appeared on behalf of the Foundation, both contended that if section 32(c) was only intended to protect the right of persons to establish their own educational institutions, it would not be necessary to qualify such a right by making it subject to the requirement that it should be practicable. It was suggested that that qualification was more consistent with a positive obligation on the part of the state to establish educational institutions based on a commonality of language, culture or religion and that the requirement of practicability was inserted so as to relieve the state from the obligation to establish such educational institutions in circumstances where this was not practicable because of the smallness of the numbers of persons wishing to attend such institutions or some similar practical or logistical difficulties.", "I am unable to agree with that submission. It is certainly true that if every person had the right to require the state to establish educational institutions based on a common culture, language or religion, it would be sensible to provide that that duty need only be discharged 8 \fMAHOMED DP by the state where it was practicable. But, it is equally true that if the right protected by section 32(c) is the right of private persons to establish such institutions, such a right should only be asserted if it were indeed practicable. Were it otherwise, the state might, pursuant to its duty to ensure basic education for every person, be obliged to monitor and supervise such institutions and to ensure some element of quality control, even in circumstances where this was not reasonably practicable. The state has a positive interest in ensuring that the right is being asserted in circumstances where it is practicable. Otherwise this might engage the resources of the state quite unjustifiably in dealing with hopelessly impractical ventures eventually aborted or abandoned. Prospective students invited to such institutions might in those circumstances also be prejudiced. The state has a positive interest in ensuring that the execution of the right which is being asserted is practicable in the circumstances. The right of private persons to establish educational institutions, protected by section 32(c), should therefore be subject to the qualification that it is practicable. If it is not, the persons exercising such a right cannot assert the protection of the Constitution against the state. The requirement of practicability is therefore sensible on both interpretations of section 32(c). It is of neutral value in the proper interpretation of the sub-section. It does not support the interpretation contended for by Mr Maritz and Mr Raath any more than it supports the interpretation contended for by Mr Trengove, on behalf of the Gauteng government.", "It was also contended that section 32(c) could not have been intended to protect merely the freedom of every person to establish educational institutions based on a common culture, language or religion because the right of every person to use the language and to participate 9 \fMAHOMED DP in the cultural life of his or her choice was in any event protected by section 31 of the Constitution and similarly the right to freedom of religion was guaranteed by section 14. I am not persuaded, however, that a positive obligation on the state to establish educational institutions based on a common culture, language or religion can necessarily be inferred from the fact that the right of every person to use the language and to participate in the cultural life of his or her choice is expressly protected in section 31 or from the fact that freedom of religion is protected by section 14. Sections 14 and 31 are general sections which do not specifically deal with education. Section 32 is a specific section setting out specifically what rights a person has to education, what right he or she has to education in the language of his or her choice and what right there exists for every person to establish educational institutions based on a common culture, language or religion. None of these rights are expressly dealt with in sections 14 and 31. It is perfectly understandable that the lawmaker would wish to articulate such educational rights in the section dealing specifically with education.", "In the written argument which was lodged on behalf of the petitioners, some reliance was placed on Canadian authority.2 We were reminded of section 35(1) of the Constitution which provides that in the interpretation of Chapter 3 of the Constitution, a court of law may, inter alia, have regard to comparable foreign case law and we were referred to various dicta in a number of Canadian cases to the effect that the Canadian Charter of 2Reaume and Greene, Education and Linguistic Security (1989) 34 McGill Law Journal 777 at 779-81; Reference Re Education Act Ontario and Minority Language Rights [1984] 10 DLR (4th) 491 (Ont. C.A.) at 529; Mahe et al. v The Queen in Right of Alberta et al. [1990] 68 DLR (4th) 69 (S.C.C); Attorney-General of Quebec v La Chaussure Brown\u2019s Inc. et al. [1989] 54 DLR (4th) 577 (S.C.C.) at 606-7; Bastarache, Education Rights of Provincial Official Language Minorities in Canadian Charter of Rights and Freedoms (2nd ed, edited by Beaudoin & Ratushny) at 687-705. 10 \fRights and Freedoms imposed obligations on the Government to provide specific opportunities for the use of English and French in schools.3 MAHOMED DP", "The relevant provision of the Canadian Charter is section 23 which provides that: \u201c23. (1) Citizens of Canada (a) (b) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) (b) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.\u201d \u201cThe special provisions of section 23 of the Charter makes it a unique set of constitutional provisions quite peculiar to Canada.\u201d4", "The language and structure of section 23 of the Canadian Charter are wholly distinguishable from section 32(c) of our Constitution. Section 23 of the Canadian Charter 3Mahe\u2019s case, supra n.2, at 82-83 and La Chaussure Brown\u2019s Inc\u2019s case, supra n.2, at 604. 4Attorney-General of Quebec v Quebec Association of Protestant School Boards et al. [1984] 10 DLR 321 (S.C.C.) at 331. 11 \fMAHOMED DP is clearly concerned with the obligation of the Government to provide education in the official languages of Canada to linguistic majorities and minorities. It is analogous to section 32(b) of our Constitution, but very different from section 32(c). The interpretation accorded to it by the Canadian courts can therefore be of scant assistance in the proper interpretation of section 32(c) of our Constitution.", "After oral argument had been concluded and judgment had been reserved in this matter, a written application was made on behalf of the Foundation to advance three further contentions. The first contention was that the bill \u201coffered no language protection for minorities\u201d and that all that was being offered was some kind of protection by way of executive policy and discretion in terms of section 18(2)(c) of the bill which provides that- \u201c[s]chool language policy should be designed to facilitate the maximum participation of learners in the learning process.\u201d Counsel for the Foundation appears to have misunderstood the argument advanced on behalf of the Gauteng government. It was never contended that learners wishing to be instructed in the language of their choice at public schools funded by the state should have to depend on some kind of executive policy or discretion for the protection of that right. It is a clear constitutional right of every person to be instructed in the language of his or her choice in terms of section 32(b). This is guaranteed by the clear language of section 32(b). The only qualification is that it must be \u201creasonably practicable.\u201d If it is, it can be demanded from the state. The parents of the children who demand it do not have to rely on any executive policy or discretion. They are entitled to rely on the plain and imperative terms of the Constitution itself. 12 \f[17] The second complaint contained in the additional submission on behalf of the Foundation MAHOMED DP was that the bill does not provide for any \u201cpossible transformation from a model C school to a private school\u201d. Assuming that this is correct, I am unable to appreciate how this could impact upon the constitutionality of any of the impugned provisions of the bill at all. Those who controlled model C schools would continue to enjoy the right for every person to be instructed in such schools in the language of their choice. If they did not wish their children to attend model C schools but to attend private schools, they would again constitutionally be entitled to establish such private schools and even to negotiate with the province in acquiring any of the facilities or assets of any model C school which they wished to leave. But whether they did or did not do so, what is left quite intact are two clear constitutional rights: the right to instruction at a public school in the language of their choice and the right to establish schools of their own based on a common culture, language or religion. The only qualifications are that the exercise of such rights must be practicable in each case and that the right to establish educational institutions based on a common culture, language or religion cannot be exercised in a manner that discriminates against pupils on the grounds of race.", "The third and final argument advanced in the new submissions on behalf of the Foundation was that the impugned provisions constitute \u201ca negation of the protected minority rights themselves\u201d in terms of section 33 of the Constitution. I do not appreciate this argument. Section 33 simply deals with the circumstances under which rights protected by chapter 3 of the Constitution may be limited by laws of general application. If, however, the impugned sections of the bill do not invade or limit any of the relevant sections of chapter 13 \f3, the question as to whether there would have been any justification in terms of section MAHOMED DP 33 would not arise at all.", "What remains therefore the real case for the petitioners and the Foundation is their interpretation of section 32(c). Having regard to the language of section 32(c), its objects and its context, both in relation to section 32 itself and to the Constitution generally as well as its specific historical context, I am satisfied that section 32(c) is not reasonably capable of bearing the interpretation sought to be placed on it by Mr Maritz and by Mr Raath. Section 32(c) does, of course, protect a very important freedom. The state is constitutionally obliged to respect that freedom, but is not so obliged to establish educational institutions based on a commonality of culture, language or religion. This conclusion effectively disposes of the main thrust of the attacks made on the impugned provisions of the bill.", "Mr Maritz contended, however, that there was a \u201cperipheral\u201d ground for attacking section 22(3)(b) of the bill which was not dependant on his interpretation of section 32(c). The complaint was that section 22(3)(b) conferred a right on a private school to insist that a learner at that school attends religious classes and religious practice at that school. It was argued that this was also a right which should accrue at a public school. Even if this argument is a good argument, it cannot assist the case sought to be made on behalf of the petitioners and the Foundation. The case sought to be made on their behalf was that this right should also be available at public schools to avoid discrimination. No constitutional ground was suggested which could entitle us to extend to public schools the right accorded 14 \fMAHOMED DP by section 22(3)(b) to private schools. The alternative would be to invalidate section 22(3)(b) because it does not extend to public schools. This is, however, not what Mr Raath or Mr Maritz urged us to do because that would not in any way provide a right for a public school to insist that a learner attends religious classes and religious practices at the school. In any event, the submission that public schools must be allowed to insist that a learner be compelled to attend religious classes and religious practices at the school might also conflict with section 14(2) of the Constitution, which expressly provides that such attendance must be free and voluntary. Faced with all these difficulties, Mr Maritz did not press the objection to section 22(3)(b) and correctly contended that the heart of his case rested on his interpretation of section 32(c).", "Although the certificate from the Speaker, lodged in terms of rule 13(3) of the Rules of Court, did not rely on section 247 of the Constitution as a ground of attack on the impugned sections, considerable reliance on that section was placed by Mr Raath, on behalf of the Foundation. Section 247 reads as follows: \u201c247. Special provisions regarding existing educational institutions (1) The national government and the provincial governments as provided for in this Constitution shall not alter the rights, powers and functions of the governing bodies, management councils or similar authorites of departmental, community- managed or state-aided primary or secondary schools under laws existing immediately before the commencement of this Constitution unless an agreement resulting from bona fide negotiation has been reached with such bodies and reasonable notice of any proposed alteration has been given. (2) The national government shall not alter the rights, powers and functions of the controlling bodies of universties and technikons under laws existing immediately before the commencement of this Constitution, unless agreement resulting from bona fide negotiation has been reached with such bodies, and reasonable notice of any proposed alteration has been given. (3) Should agreement not be reached in terms of subsection (1) or (2), the national government and the provincial governments shall, subject to the other provisions of this Constituton, not be precluded from altering the rights, powers and functions of the governing bodies, management councils or similar authorities of departmental, community-managed or state-aided primary or secondary schools, as well as the controlling bodies of universities and technikons, provided that interested 15 \fpersons and bodies shall be entitled to challenge the validity of any such alteration in terms of this Constitution. (4) In order to ensure an acceptable quality of education, the responsible government shall provide funds to departmental, community-managed or state-aided primary or secondary schools on an equitable basis.\u201d MAHOMED DP", "It was contended by Mr Raath that section 19(1) of the bill was unconstitutional because it had the effect of altering the rights, powers and functions of the governing bodies of certain schools which had existed before the commencement of the Constitution and there had been no agreement resulting from any bona fide negotiations conducted with any such bodies pursuant to the requirements of section 247(1). It was contended, in particular, that before the commencement of the Constitution, the governing bodies of model C schools had the power to determine that there was to be language competence testing as an admission requirement to a public school and that section 19(1) had the effect of altering that right.", "My first difficulty with this argument is that it is not supported by the relevant legislation which preceded the Constitution. The Education Affairs Act of the House of Assembly No 70 of 1988 (\u201cthe principal Act\u201d), which was the relevant law existing immediately before the commencement of the Constitution, provided, in section 49, that the admission of persons to public schools and state-aided schools should be subject to prescribed conditions. Section 50 dealt with age requirements; section 52 dealt with the power of school boards in relation to the admission of children; section 53 determined compulsory school attendance; section 54 determined exemption from such compulsory school attendance; and section 55 determined how the mother-tongue of a child admitted to school should be determined. Section 57 provided that the mother-tongue of the child would be 16 \fMAHOMED DP its medium of instruction up to certain levels. All the basic criteria for admission pertaining to age, readiness for school, language, medium of instruction and geographical feeder areas were all matters regulated by the state in terms of the statute. The input of parent bodies on this issue was largely peripheral. Language proficiency testing, as an admission requirement, was certainly competent, but was clearly in the hands of the state in terms of this statute. This was not a function of any parent body or of any governing body in which parents were represented. It was the principal who determined the mother- tongue of the child admitted to school for the first time in terms of section 55(1). If the principal could not, it was the person designated by the Head of Education who caused such a determination to be made in terms of section 55(4) and an appeal against any such determination was to the Head of Education and the Minister, in terms of section 56. Such determination fixed the child\u2019s medium of instruction up to the ninth level in terms of section 57(1)(b). Section 58 empowered the Minister to designate the medium of instruction at public schools. Parents on \u201cgoverning\u201d bodies had no powers or functions in this regard and none were provided in the regulations which were published in 1990 in Government Notice R703 of 30 March 1990. Admission policy in regard to public schools remained, clearly, a governmental function.", "The principal Act was amended on numerous occasions thereafter. The first amendment was effected by Act 88 of 1991, which made provision for \u201cstate-aided schools\u201d, (which are also known as model C schools). Governing bodies for such schools were created and their powers, functions and duties were defined in certain regulations published under the principal Act in Government Notice R2932 of 6 December 1991. Nothing in these 17 \fregulations empowered the governing bodies concerned either to determine or alter any criteria for the admission of pupils to their schools, in terms of the principal Act. MAHOMED DP", "Prior to the commencement of the Constitution the principal Act was again amended by Act 39 of 1992, Act 36 of 1993, Act 139 of 1993 and Act 162 of 1993. The amendments that are relevant to the present discussion provided for the conversion of existing public schools into model C schools by ministerial edict, gave to model C schools a juristic persona in terms of section 30(1), empowered such schools to acquire the ownership of school assets in terms of section 31(A) and put these schools generally under the \u201cmanagement, control and executive power\u201d of their governing bodies in terms of section 31(1). In terms of section 31(2) (read with section 19(1)) the Minister could make regulations with respect to \u201cthe constitution, powers, duties and functions\u201d of such bodies. Neither the principal Act nor any of the amendments conferred any power on the Minister to make any such regulations in conflict with the principal Act. More pertinently, none of the amendments effected any change to the regime described in paragraph 23 above.", "The last of the legislative steps to be considered is the promulgation on 14 February 1992 of the \u201cAmendment of Regulations Relating to Governing Bodies of State-aided Schools...\u201d in terms of Government Notice R441. This instrument amended regulation 6 of the previous regulations pertaining to state-aided schools, published under Government Notice R2932 of 6 December 1991, by inserting, after the existing regulation 6(4), new regulations 6(5) and 6(6), which read as follows: \u201c(5) A governing body may, after consultation with the parent community and subject to the provisions of the Regulations Relating to the Conditions of Admission of Pupils to Public Schools (Excluding Industrial and Reform 18 \fSchools) and State-aided Schools, promulgated by Government Notice No. R703 of 30 March 1990, determine criteria for the admission of pupils to a state-aided school. A governing body may levy school fees and enforce payment thereof.\u201d (6) MAHOMED DP", "Read in isolation, this regulation may very well have created the impression that what was being conferred on governing bodies was some \u201cautonomous\u201d right to determine criteria for the admission of pupils to model C schools and this impression may well have informed the submission by Mr Raath that this autonomous authority was being altered in terms of the impugned provisions of the bill without the bona fide negotiations contemplated by section 247(1) of the Constitution. That impression is, however, quite incorrect because the regulations made by the Minister could not, and did not purport to, change sections 49 to 58 of the principal Act in terms of which the basic criteria for a child\u2019s admission to a particular school and various other related matters pertaining to policy were predetermined and fell outside the jurisdiction of any parent organisation or governing body. Such bodies simply had no power to fix a lower age for the admission of pupils to schools than the age already fixed by section 50(c) of the principal Act, they had no power to admit to a school a learner older than the limit which was set out in section 50(e) and with respect to feeder areas, they could not be given any authority which vested with school boards under section 52. More crucially, the Minister was not entitled to vest a governing body of a school with any authority to determine the medium of instruction of a learner or prospective learner of a school, because that power had, in terms of sections 55 to 58 of the principal Act, been vested in others and at all times remained so vested. 19 \f[28] During some stage in his argument Mr Raath also contended that because a principal of a MAHOMED DP model C school was an ex officio member of the governing body, the governing body could, in effect, have exercised the autonomy now said to be invaded by section 19(1) of the bill. I have difficulty with that submission. The principal is not the governing body and even if the two were to be equated, the governing body cannot exercise any powers in conflict with the principal Act.", "In the result, I am not persuaded that the governing body of a model C school had in fact any relevant right, power or function which section 19(1) of the bill could be said to be altering and the attack on section 19(1) on this ground must therefore fail.", "In any event, I have another difficulty with Mr Raath\u2019s argument based on section 247(1) of the Constitution. It is necessary to have regard to sections 97(3) and (5) of the bill which read as follows: \u201c97. (3) (4) (5) Notwithstanding any other provision of this Act, but subject to subsection (4) and (5), a body referred to in subsection (1) or a governing body which succeeds it in terms of subsection (2) shall continue to exercise whatever rights, powers and functions the body referred to in subsection (1) exercised on 27 April 1994. ... The functions contemplated in subsection (3) may be altered by law after negotiations contemplated in section 102 over such alterations have taken place.\u201d rights, powers and The effect of sections 97(3) and (5) is therefore to entitle the governing body of a school to continue to exercise whatever rights, powers and functions it exercised on 27 April 1994. These powers could only be altered after negotiations contemplated in section 102 over such alterations had taken place. Section 102(1) of the bill provides that: 20 \fMAHOMED DP \u201c102. (1) in section 247(1) of For the purposes of facilitating negotiations between the department and governing bodies as contemplated the Constitution, the Member of the Executive Council may by notice in the Provincial Gazette establish a centralised negotiating forum at which negotiations over the alteration of the rights, powers and functions of such bodies shall take place.\u201d What section 247 protects is the right of governing bodies of schools and other similar bodies to continue to exercise the rights, powers and functions which they had before the commencement of the Constitution. Such rights cannot be altered unless an agreement has been reached resulting from bona fide negotiations. Sections 97(3) and (5) of the bill continue that protection. Section 102 merely creates the opportunities and the infrastructure for the conduct of the bona fide negotiations which must precede any such alteration in the rights, powers and functions exercised before the commencement of the Constitution. The bill is therefore not inconsistent with any right protected by section 247 of the Constitution.", "Confronted with this difficulty, Mr Raath contended that the provincial government had effectively precluded any bona fide negotiations by deciding in advance to enact the impugned provisions of the bill into an Act, although these provisions have not yet been put into operation by the Premier.", "There can, in my view, be no doubt that the bona fide negotiations which are contemplated by section 247, are negotiations which must be conducted with the object of reaching an agreement and if the provincial government in fact has no such intention and is determined to put the impugned provisions of the Act into operation regardless of the quality and 21 \fnature of the negotiations and the outcome thereof, it is vulnerable to the attack that it has no intention whatever of conducting bona fide negotiations for the purposes of reaching MAHOMED DP such an agreement.5", "My difficulty is to infer from the existing evidence before us any justifiable conclusion that the provincial government has indeed precluded the possibility of bona fide negotiations with the relevant bodies with the object of reaching an agreement such as that contemplated in section 247(1). It is perfectly true that the impugned sections have been enacted, but they have deliberately not been put into operation and may, in fact, never become operative. It might be true to say that the provincial government favours the policies upon which the disputed provisions are premised, but I am unable, on the evidence before us, to conclude that such policies are inflexible and will be implemented at every model C school, regardless of the circumstances and regardless of what emerges during the course of any negotiations in the centralized negotiating forum, now contemplated in terms of section 102(1) of the bill. There is nothing which obliges the provincial government from favouring a general policy as long as it is not so inflexible as to preclude a departure from that policy, if this is justified by the circumstances.6 5East Rand Gold & Uranium Co Ltd v National Union of Mineworkers (1989) 10 ILJ 683 (LAC) (T); National Union of Mineworkers v East Rand Gold and Uranium Co Ltd 1992 (1) SA 700 (A); National Union of Mineworkers v Gold Fields of SA Ltd & Others (1989) 10 ILJ 86 (IC); Food & Allied Workers Union & Others v Kellogg SA (Pty) Ltd (1993) 14 ILJ 406 (IC); Food & Allied Workers Union v Spekenham Supreme (2) (1988) 9 ILJ 628 (IC); SA Electrical Workers Association v Goedehoop Colliery (Amcoal) (1991) 12 ILJ 856 (IC). Although these are labour law cases in the context of what is an unfair labour law practice, the reasoning is not inapplicable to the specific wording of section 247 which also contemplates an agreement following on bona fide negotiations. 6Britten & Others v Pope 1916 AD 150; Richardson and Others v Administrator, Transvaal 1957 (1) SA 521 (T) at 530 A-C. 22 \f[34] It therefore follows that the evidence does not support the objection to the bill based on the requirements of section 247(1) of the Constitution. MAHOMED DP", "These conclusions make it unnecessary to consider whether or not Mr Trengove is correct in his submission that section 247(1) only operates as a restriction on the power of the executive and the consequential submission that because the impugned provisions of the bill are acts of the legislature and not that of the executive, section 247(1) cannot be invoked to assist the case sought to be made by Mr Raath. Even assuming the incorrectness of that submission, the attack on the impugned sections must fail for the reasons which I have analysed.", "Costs It was submitted by Mr Trengove that the costs of the proceedings before us should be paid by the petitioners if they are unsuccessful in their attack on the impugned provisions. We were referred, in this regard, to the well-known rule in the Supreme Court that ordinarily, and subject to the discretion of the Supreme Court, costs should follow the result and the losing party should be directed to pay the costs of the successful party.7 There are obviously attractive grounds of policy which support such an approach in ordinary litigation between litigants in the Supreme Court and in the Magistrates\u2019 Courts. It does not follow, however, that it should also be the general rule in the Constitutional Court and more particularly the rule in cases brought to the Constitutional Court in terms of section 98(9) of the Constitution at the request of the Speaker. A litigant seeking to test the 7Fripp v Gibbon & Company 1913 AD 354 at 357-8; Merber v Merber 1948 (1) SA 446 (A) at 452. 23 \fconstitutionality of a statute usually seeks to ventilate an important issue of constitutional principle. Such persons should not be discouraged from doing so by the risk of having to pay the costs of their adversaries, if the Court takes a view which is different from the view taken by the petitioner. This, of course, does not mean that such litigants can be completely protected from that risk. The Court, in its discretion, might direct that they pay the costs of their adversaries if, for example, the grounds of attack on the impugned statute are frivolous or vexatious or they have acted from improper motives or there are other circumstances which make it in the interest of justice to direct that such costs should be paid by the losing party. I am satisfied that no such factors exist in the present case. In the result I would, in the circumstances of the present case, make no order of costs notwithstanding the fact that the record was unjustifiably burdened by a large number of unnecessary documents lodged on behalf of the petitioners.", "Order It is declared that sections 19(1), 21(2), 21(3)and 22(3) of the School Education Bill of 1995 are not inconsistent with the Constitution on any of the grounds advanced on behalf of the petitioners and the South African Foundation for Education and Training. I MAHOMED DEPUTY PRESIDENT Chaskalson P, Ackermann J, Didcott J, Kentridge J, Langa J, Madala J, Mokgoro J and O\u2019Regan J concur in the judgment of Mahomed DP. 24 \f[38] KRIEGLER R: Ek is dit volmondig eens met Mahomed AP se kliniese ontleding, en gevolglike verwerping, van die beto\u00eb namens die petisionarisse en die amicus curiae onderskeidelik. In die bre\u00eb beaam ek ook die meer histories-volkeregtelike gedagtetrant en slotsom van Sachs R. Elkeen van die gemelde uitsprake is op sy eie \u2018n volslae lo\u00ebnstraffing van die aanvalle op die gewraakte wetsbepalings. Gesamentlik is hul verdoemend.", "Nietemin is daar enkele aspekte wat ek spesifiek wil toelig. Taal - en by name die behoud van Afrikaans - ontlok diepgewortelde emosie. Daarom is dit lewensnoodsaaklik dat daar nugter en oorwo\u00eb gelet word op die implikasies van hierdie saak. Subartikel 32(c) van die Grondwet dra weliswaar nie die bre\u00eb betekenis wat die petisionarisse en die amicus daaraan wou heg nie. Dit is en bly egter \u2018n skans teen verswelging van enige minderheid se gemeenskaplike kultuur, taal of godsdiens. Solank \u2018n minderheid daadwerklik wagstaan oor sy gemeenskaplike erfgoed, solank is dit sy onvervreembare reg om eie onderwysinstellings ter behoud van kultuur, taal of godsdiens tot stand te bring.", "Daar is egter twee belangrike voorbehoude. Ten eerste is die slotwoorde van die betrokke subartikel ondubbelsinnig; daar mag geen diskriminasie op grond van ras wees nie. Die Grondwet bied dus geen beskerming vir rassevooroordeel op die onderwysterrein nie. \u2018n Gemeenskaplike kultuur, taal of godsdiens met rassisme as \u2018n wesenselement het geen konstitusionele aanspraak op die vestiging van afsonderlike onderwysinstellings nie. Die Grondwet beskerm verskeidenheid nie rassediskriminasie nie. 25 \f[41] Ten tweede moet daar duidelik ingesien word waaroor die debat in hierdie saak werklik KRIEGLER R gaan. Subartikels (a) en (b) van artikel 32 van die Grondwet boekstaaf en bevestig die reg van iedereen op basiese onderwys, gelyke toegang tot onderwysinstellings en, waar redelikerwys uitvoerbaar, onderrig in die taal van die leerling se keuse. Daartoe is die owerheid grondwetlik verplig. Die maatstaf van redelike uitvoerbaarheid is wel rekbaar - soos dit noodwendig moet wees om ruimte te laat vir \u2018n groot verskeidenheid omstandighede. Dit is egter objektief beoordeelbaar, wat beteken dat owerheids-willekeur deur die howe aan bande gel\u00ea kan word. Betekenisvolle getalle taalsprekers het gevolglik \u2018n afdwingbare reg teenoor die owerheid op onderrig in hul gemeenskaplike taal solank dit maar redelikerwys uitvoerbaar is.", "Daarop brei subartikel 32(c) dan uit. Soos my kollega Mohomed AP aandui - en ek wil onderstreep - hou die Grondwet daarmee die deur oop vir diegene vir wie die staat se onderwysinstellings ontoereikend geag word wat betref gemeenskaplike kultuur, taal of godsdiens. Dit staan hul vry om eendragtig die erwe van hul vaders vir hul kinders te behou. Daar is egter \u2018n prys, naamlik dat so \u2018n bevolkingsgroep daarvoor die hand in eie sak moet steek. In \u2018n sin gaan die huidige geskil dus nie om volksgoed nie maar om geld.", "Die betoog rondom artikel 247(1) van die Grondwet is dan ook nie daarvan los te maak nie. Ontdoen van al die voorhangsels, gaan dit grondliggend om die vraag of ryklik bedeelde Model C-skole hul eksklusiewe identiteit sal kan behou. Die regsantwoord daarop het Mahomed AP ondubbelsinnig verstrek. Die beheerliggame van Model C-skole het voor die inwerkingtrede van die Grondwet geen wetlike bevoegdheid gehad om 26 \fvoorgenome skooltoetreders deur middel van \u2018n taaltoets te sif nie. Bygevolg doen artikel 19(1) van die wetsontwerp niks af aan enige grondwetlik beskermde bevoegdheid nie. Dit beteken egter geensins dat onderhandelings oor toelatingskriteria vir Model C-skole regtens verbied word nie. Of samesprekings in wedersyds goeie trou aangewese is, is \u2018n maatskaplik-politieke beleidsvraag waaroor ek my nie uitlaat nie. Wat die reg betref, is daar geen onduidelikheid nie. Daarom stem ek saam met die uitspraak en bevel soos deur Mahomed AP verwoord. JC KRIEGLER", "SACHS J: A straightforward reading of the text of section 32 of the Constitution runs directly counter to the arguments advanced by counsel for the Petitioners and the amicus curiae. We were urged, however, to approach the section in a broad and generous manner8 which took account both of cultural realities in this country and of internationally recognised principles relating to the protection of minorities.9 In view of the importance of the broader questions argued by the Petitioners in relation to minority rights, I propose 8One should bear in mind, of course, that a liberal interpretation when one is dealing with the rights of the individual as against the state is one thing - a generous interpretation when the issue requires the state to mediate between multiple groups, each asserting legitimate claims, is another. 9Prof. John Dugard suggests that section 35(1) of the Constitution requires us, when interpreting the Bill of Rights, to have regard, not only to treaties ratified by South Africa, and to customary rules that have been accepted by South African courts, but also to \u201cinternational law contained in general treaties, custom, general principles of law, the writings of jurists, and the decisions of international and municipal courts.\u201d He cites section 116(2), which requires the Human Rights Commission to take account of \u201cother relevant norms of international law\u201d as supporting his contention. Public International Law in Chaskalson et al (ed) Constitutional law of South Africa (1996), 13-11. I would add that promoting the values of an open and democratic society based on freedom and equality (section 35(2)) would also require us to pay special attention to the sources he mentions, not excluding his own distinguished work in the area. 27 \fSACHS J to follow their argument through to see if applying internationally accepted principles of minority rights protection, would indeed suggest a different result, even if straining against the text. Preliminary though my explorations have to be,10 I am left in no doubt as to the answer to the above question. Thus, my answer, and the reasons therefor, follow. I. THE BROAD SOUTH AFRICAN CONTEXT OF THE ENQUIRY", "Before touching on the evolution of international law principles in relation to minority rights, I feel it would be appropriate to locate the problem before us in a broad South African historical/constitutional context. For the purpose of this analysis I will begin by making four assumptions in favour of the Petitioners.", "The first assumption is that the \u201cnever again\u201d principle, which I feel should be one of our guides to interpretation, applies not only to bitter experiences of former state enforced segregation, but also to those of past compulsory assimilation. This was a major theme at the National Convention held to draft the document which became the Constitution of the Union of South Africa in 1910.11 10 Without hearing further argument on the subject, and without doing more profound research, I would be reluctant to offer definitive opinions on the interpretation of what is an elusive, complex and constantly mutating subject. 11De Kiewiet CW A History of South Africa. Social and Economic,Clarendon Press, Oxford, (1941) 147 summarizes the Boer experience after defeat of the Boer Republics as follows: \u201cMilner\u2019s schools and English teachers were countered in the ex-Republics by some 200 independent schools, under local committees of parents. Against the superior teachers, the better equipment, and the financial strength of the government schools, the Dutch \u2018Christian National Education\u2019 schools could not prevail. Their importance was nevertheless great. They served notice that the Boers would not abandon any of their attachment to their language and tradition.\u201d Wilson and Thompson (ed) The Oxford History of South Africa II 1870-1966, Clarendon Press, Oxford, (1971) 361-2 states: \u201cJ.B.M. Hertzog feared that the Afrikaner people would indeed be denationalized, as Milner had intended ... Hertzog\u2019s diagnosis of the intentions of the English-speaking delegates was correct. Men like Jameson and 28 \fSACHS J", "The second assumption is that the Afrikaans language, like all languages, is not simply a means of communication and instruction, but a central element of community cohesion and identification for a distinct community in South Africa.12 We are accordingly dealing not merely with practical issues of pedagogy, but with intangible factors, that as was said in Brown v Board of Education of Topeka13, form an important part of the educational endeavour. In addition, what goes on in schools can have direct implications for the cultural personality and development of groups spreading far beyond the boundary fences of the schools themselves.14", "The third assumption is that there exists amongst a considerable number of people in this country a genuinely-held, subjective fear that democratic transformation will lead to the down-grading, suppression and ultimate destruction of the Afrikaans language and the marginalisation and ultimate disintegration of the Afrikaans-speaking community as a vital group in South African society. Fitzpatrick associated Dutch - and especially Afrikaans - with cultural backwardness, and hoped and assumed that in the course of time English would oust it from South Africa ... the question came up for discussion during the first week of the Convention. Hertzog and Steyn made impassioned and moving speeches for the fullest recognition of Dutch. To their surprise, the English-speaking delegates responded in a conciliatory manner, and after informal discussions Hertzog\u2019s resolution was unanimously adopted in an abbreviated form, but still containing the key phrase that besides being declared official languages, \u2018English and Dutch ... shall be treated on a footing of equality, and possess and enjoy freedom, rights and privileges\u2019... .\u201d 12There are, of course, many different communities for which Afrikaans is the mother tongue, and many different perspectives within each of these. My judgement focuses on the particular perspective argued before us. 13347 US 483 (1954). 14 See Woehrling J Minority and Equality Rights 1985 McGill Law Journal 51 at 58. See also Minority Schools in Albania Case 1935 PCIJ (ser A/B) No 64 at 20. 29 \f[49] The fourth assumption is that the Afrikaans language is one of the cultural treasures of SACHS J South African national life, widely spoken and deeply implanted, the vehicle of outstanding literature, the bearer of a rich scientific and legal vocabulary and possibly the most creole or \u201crainbow\u201d of all South African tongues. Its protection and development is therefore the concern not only of its speakers but of the whole South African nation.15 In approaching the question of the future of the Afrikaans language, then, the issue should not be regarded as simply one of satisfying the self-centred wishes, legitimate or otherwise, of a particular group, but as a question of promoting the rich development of an integral part of the variegated South African national character contemplated by the Constitution. Stripped of its association with race and political dominance, cultural diversity becomes an enriching force which merits constitutional protection, thereby enabling the specific contribution of each to become part of the patrimony of the whole.16", "At the same time, these assumptions have to be located in the context of three important considerations highlighted by the Constitution.", "In the first place, similar claims for constitutional regard can be made by ten or more other language communities,17 claims which could be weaker in some detailed respects than 15On the subject of the intrinsic value of diversity, Otto Klineburg was quoted in the UN Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities UN Doc. E/CN.4/Sub.2/384/Rev.1 (1979) reprinted as UN Pub.E.78.XIV.1 (1979) (hereinafter referred to as the Capotorti Report) as saying: \u201cAn undertaking to abolish discrimination against an individual if he becomes similar to the majority is obviously unsatisfactory in the case of those who do not seek to become completely like the majority ...One of the motives operating here is the growing belief in the value of diversity, the enrichment of community life through the maintenance of cultural variations, the fruitfulness of continuing contrast between different ways of life.\u201d, para 318, 55. 16 Van der Westhuizen J A Post-Apartheid Educational System: Constitutional provisions 1985 Columbia Human Rights Law Review 111 at 64. 17Section 3(1) of Act 200 of 1993 (\u201cthe constitution\u201d) provides: \u201cAfrikaans, English, isiNdebele, Sesotho sa Leboa, Sesotho, siSwati, Xitsonga, Setswana, Tshivenda, isiXhosa and isiZulu shall be the official South African languages at national level, and conditions shall be created for their development and for the promotion of their equal use and enjoyment.\u201d 30 \fSACHS J those made on behalf of Afrikaans, and very much stronger in others. It was evident from the intensity with which the matter was presented by some of the Petitioners that it represents an issue of deep meaning to them. One may accept that even abstract questions of law have to be considered in the concrete context of history, and we can not ignore the fact, urged upon us by counsel, that, although the words of the Constitutional text are generalised, they are also suffused with specific and (frequently contradictory) life experiences. Yet, even if the poignancy of history flows through the veins of the Constitution, we must always be guided by the words and spirit of the constitutional text itself, supporting, not this group or that, but the values articulated by the Constitution. In interpreting clause 19 of the Gauteng Education Bill in the light of section 32 of the Constitution, the rights of certain members of the Afrikaans-speaking community, therefore, cannot be considered in isolation from equally valid claims of members of other language groups. The very concept of multi-culturalism has to be looked at in a multi-cultural way.18", "The second consideration is that immense inequality continues to exist in relation to access to education in our country. At present, the imperatives of equalising access to education are strong, and even although these should not go to the extent of overriding constitutionally 18 Prof. Carel Boshoff and Carel Boshoff IV bring this necessary perspective out well when they say that we must not close our eyes to: \u201c[T]he existential reality, intensity and meaning of this intercultural encounter, to the confrontation with those other worlds outside one\u2019s own, worlds in which human lives exist with no less legitimacy and no less right to be. We should not be looking for some technical restructuring of society, for some mechanical repair of its working parts. We should rather try to find ways in which this encounter could proceed to an active communication, mutually recognising the others\u2019 autonomy and dignity; entering into communion, aiming at a reciprocal revelation and understanding of each other.\u201d in The sociopolitical conditions for democratic nation-building: an Afrikaner point of view Rhoodie and Liebenberg (ed) Democratic Nation-building in South Africa, HSRC Publishers, Pretoria, (1994) 164. Cf Prof. Johann Degenaar, in the same volume at 25 and 29 who proposes that the myth of building a nation be replaced by the idea of creating a democratic culture which enables South Africans to live creatively with the inevitable tensions of diversity. 31 \fSACHS J protected rights in relation to language and culture, they do represent an important element in the equation. The theme of reducing the discrepancies in the life chances of all South Africans runs right through the Constitution, from the forceful opening words of the preamble to the reminder of the past contained in the powerful postscript. The very first fundamental right to be specified, preceding even the rights to life and dignity, is the right to equality.19 We are further enjoined to interpret the whole of Chapter 3, including section 32, in a way which promotes the values of an open and democratic society based on freedom and equality.20 The theme of diversity has markedly less constitutional pungency. There are express language rights21, a general right to use the language or participate in the cultural life of a person\u2019s choice,22 the provision on educational rights under discussion and, looking to the future, Principle XI, which declares that the diversity of language and culture shall be acknowledged and protected, and conditions for their promotion shall be encouraged. Thus, the dominant theme of the Constitution is the achievement of equality, while considerable importance is also given to cultural diversity and language rights, so that the basic problem is to secure equality in a balanced way which shows maximum regard for diversity.23 In my view, the Constitution should be seen as providing a bridge 19Section 8. Yash Ghai refers to the dilemma of post-colonial societies in Africa as follows: \u201cSome groups must be stripped of privileges they have enjoyed hitherto; often these groups are \u2018minority\u2019 groups, and so the process of producing a just society can all too easily be seen as a case of racial or tribal persecution. On the other hand, not to pursue this process can build up bitterness and frustrations, which pose a grave threat to racial harmony.\u201d Quoted in the Capotorti Report supra note 15 para 311 at 54. He stresses the importance of creating a just society as the foundation for solving ethnic and racial questions. 20Section 35(1). 21Section 3. 22Section 31. 23See Dhlamini C Culture, Education, and Religion in Rights and Constitutionalism. The New South African Legal Order Van Wyk et al (ed) Juta (1994), 589-590 for a historical overview of the educational inequalities that existed prior to the Constitution. He makes the following remark at 589: \u201cA balance must be 32 \fSACHS J to accomplish in a principled yet emphatic manner, the difficult passage from State protection of minority privileges, to State acknowledgement and support of minority rights. The objective should not be to set the principle of equality against that of cultural diversity, but rather to harmonise the two in the interests of both. Democracy in a pluralist society should accordingly not mean the end of cultural diversity, but rather its guarantee, accomplished on the secure bases of justice and equity.", "The third important contextual consideration is that the Constitution requires us ever to be vigilant in protecting the rights of the child. Section 30(3) of the Constitution states: 30. Children ... (3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount. The Constitution therefore requires us to take into consideration not only the interests of the parents, which may be unduly rooted in the past, but to give paramount place to the interests of the child, which may require looking more to the future. Each child is unique, and each child is entitled to a good education, independently of what might in any particular case be the motives or passions of his or her parents or of the parents of other children.24 Article 26(2) of the Universal Declaration of Human Rights of 1948 lists four objectives for education: (1) the full development of the human personality; struck between the statutory requirement of compulsory schooling and the liberty of the individual parent to educate his or her children as he or she sees fit. Balancing this issue involves balancing fairness and efficiency which should be done with a certain amount of pragmatism.\u201d 24Section 30(3) read with section 32(a). 33 \f(2) strengthening of respect for human rights and fundamental freedoms; (3) the promotion of understanding, tolerance and friendship among all nations, racial or religious groups; (4) the furtherance of the activities of the UN for the maintenance of peace. SACHS J To these, Article 13(1) of the International Covenant on Civil and Political Rights (ICCPR) of 1966 adds three more: (5) the development of the sense of human dignity; (6) enabling all persons to participate effectively in a free society; (7) the promotion of understanding, tolerance and friendship among ethnic groups.", "It is against this background that I propose to look at universally accepted principles of international law to see what bearing, if any, they could have on the interpretation of section 32, more particularly of section 32(c). II. THE INTERNATIONAL LAW CONTEXT", "A review of literature by leading authors in the field suggests that over the years there has been a firm movement from the concept of tolerance of religious and other minorities, to that of protection of national groups, to that of guaranteeing rights of individuals. The question that remains is whether there is a current trend towards supplementing individual rights, expressed mainly by the principles of non-discrimination and equality, with additional group rights claimable against the State in the form of obligatory State support for fostering cultural, linguistic and religious diversity. League of Nations 34 \f[56] The development under the League of Nations after World War I of a system of treaties SACHS J in Eastern Europe, enforced by the Permanent Court of International Justice, is often regarded as the effective beginning of the international protection of human rights.25 Through the treaty system a breach was made into rigid state sovereignty, in terms of which international law had been concerned strictly with relations between states, and not with relations between states and entities or individuals within their borders.26 The emphasis at that stage was on protecting the group rights of minorities, rather than on guaranteeing the rights of individuals as such. In general, the treaties and minority provisions in peace treaties were intended to achieve two aims: (a) to grant legal equality to individuals belonging to minorities, on a par with other nationals of the State; and (b) to make possible the preservation of the group\u2019s characteristics, traditions and modalities.", "This double purpose was clearly stated by the Permanent Court of International Justice in its Advisory Opinion on the subject of (Greek) Minority Schools in Albania, handed down on 6 April 1935. The issue was a decision of the Albanian Government to close all private schools. The Court declared that the Government\u2019s decision would affect the material equality of the minorities. It said: The idea underlying the treaties for the protection of minorities is to secure for certain elements incorporated in a State, the population of which differs from them in race, language or religion, the possibility of living peacefully alongside that population and co-operating amicably with it, while at the same time preserving the 25According to Lerner N From Protection of Minorities to Group Rights (1988) Israel Yearbook on Human Rights 111 at 106, international human rights law actually began, rather timidly, as an attempt to protect discriminated groups, particularly religious communities, through initial emphasis on tolerance rather than rights. He refers to the writings of early Spanish international lawyers in favour of the American indigenous populations and the measures taken in Europe to protect minority religions during the European wars of religion. 26Id. at 108. 35 \fSACHS J characteristics which distinguish them from the majority, and satisfying the ensuing special needs. In order to attain this object, two things were regarded as particularly necessary, and have formed the subject of provisions in these treaties. The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. These two requirements are indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being a minority.27", "The intractability of the subject and the inevitable overlap of law and politics led one author to observe that as far as redress of grievances was concerned, the League was quite effective on the small issues and everyday frictions, but failed to solve the wider problems of peaceful living and amicable co-operation - ultimately, what could not be achieved by persuasion and mediation could not be achieved at all.28 A harsher cautionary observation by someone who lived through the period was that the problem of minorities in Europe was solved not by the protection of the League, but largely by spontaneous or enforced repatriation, by mass expulsions, and by mass murder.29 United Nations 27Id. at 110. 28Thornberry P Is there a Phoenix in the Ashes? - International Law and Minority Rights (1980) Texas International Law Journal 421 at 425. 29Robinson J International Protection of Minorities, A Global View 1 Israel Yearbook on Human Rights (1971) 61 at 80. 36 \f[59] The main trend after World War II was to eliminate the concept of minorities rather than SACHS J to protect them. The United Nations Charter and the Universal Declaration of Human Rights both focused on human rights for individuals and not on group protections for minorities.30 The new approach was that, whenever someone\u2019s rights were violated or restricted because of a group characteristic - race, religion, ethnic or national origin, or culture - the matter could be taken care of by protecting the right of the individual, on a purely individual basis, mainly by the principle of non-discrimination.31", "Twenty years were to pass before clear acknowledgement of minority rights was to re- emerge in the form of Article 27 of the ICCPR. This Article, which was heavily relied upon by the Petitioners in this case as supporting the generous interpretation which they sought for section 32(c), reads as follows: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. It should be noted that the rights are timidly expressed in two respects: firstly, they are recognised in relation to individual \u201cpersons belonging to minorities\u201d,32 and not to minorities as such, and, secondly, they are expressed in negative terms, that is that the 30The only protection for minorities was through the non-discrimination principle. See Capotorti supra note 15. 31Supra note 25 at 112. 32The South African Law Commission, after an intensive investigation, rejected the notion of \u201cgroup rights\u201d and came to the conclusion that \u201c(T)he needs of individuals who are members of different linguistic, cultural and religious groups would be adequately protected by individual rights in a bill of rights.\u201d Interim Report on Group and Human Rights (1991) 679-80. See also Currie I Minority Rights: Language, Education and Culture in Chaskalson et al supra note 9 at 35-2 to 35-3. 37 \fSACHS J rights \u201cshall not be denied\u201d.33 Nevertheless, despite its \u201cnervousness in handling minorities\u2019 issues\u201d, historically Article 27 represented the first international norm dealing specifically with rights for ethnic, religious and linguistic groups that were capable of, and intended for, universal application.", "With a view to furthering the principles contained in Article 27, Dr. Francesco Capotorti was appointed Special Rapporteur of the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities. The definition given by Dr. Capotorti on what constitutes a minority is still the most widely quoted one today.34 In the context of the application of Article 27 he gave the following formulation: (a) group which is numerically inferior to the rest of the population of a State and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions, religion or language.35", "It is clear from the debates that the text of Article 27 was not intended to imply that members of minorities had the right to demand that the state should adopt positive 33See Thornberry P supra note 28 at 433 and 447. 34It has been praised for neatly combining the objective criterion (possession of distinct characteristics) with the subjective criterion (the wish to preserve these characteristics) that constitute a minority in fact. Supra note 28 at 423. 35This is the text of Capotorti\u2019s definition in Minorities in 8 Encyclopaedia of Public International Law 385 R. Bernardt ed. (1985). In his UN Report his definition stated that members of the minority should be nationals of the State concerned. See also the advisory opinion of the PCIJ on the Greco-Bulgarian Convention on Emigration, where it refers to minorities, or \u201ccommunities\u201d as \u201ca group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions in a sentiment of solidarity with a view to preserving their traditions, maintaining their form of worship, insuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other\u201d. PCIJ, Ser. B, No 17, at 19. Quoted and discussed by Lerner N in Group Rights and Discrimination in International Law Martinus Nijhoff, Dordrecht, (1991) 9. He argues for replacing the phrase \u201cminority protection\u201d with the phrase \u201cgroup rights\u201d. 38 \fSACHS J measures.36 Thus, Article 27 does not contain any explicit reference to positive measures to which the minority might be entitled. Proposals for including in Article 27 a list of concrete rights such as state supported schools for minorities or language rights, in fact failed.37 Supporters of minority rights, such as Capotorti, Thornberry and Lerner, contend, however, that in spite of its wording, a certain \u2018programmatic\u2019 element involving duties on the State must necessarily be read into the Article.", "Capotorti, although acknowledging that Article 27 accorded rights only to individuals, urges the adoption of a liberal interpretation of the Article in general. He contends that it would be superfluous if it only granted liberties that could be adduced from other provisions in the Covenants. In his view, mere tolerance on the part of the State, without special rights, would not be sufficient to secure real equality.38 Thornberry suggests that although Article 27 is contained in the ICCPR, which generally is cast in such a way as to prohibit the State from acting in a certain manner against individuals, it is in reality similar to the typical rights set out in the Covenant on Cultural, Economic and Social Rights. Rights of this kind, he argues, ring hollow without active and sustained state intervention directed towards their achievement. Thus, as in the case of rights to education and health, the special rights of members of minority communities would be deprived of substantive content without a level of active support equivalent to that provided to the majority of the population. He suggests that Article 27 contains a programmatic element particularly 36Supra note 28 at 449. 37Lerner supra note 35 at 16. 38 Capotorti Report supra note 15. 39 \fSACHS J important in relation to enabling marginalised and disadvantaged groups to achieve real or substantive equality. Depending on the particular circumstances, needs and desires of minorities, such a programme could include intervention to support schools, libraries and museums, the means by which the culture of one generation is transmitted to another. Thornberry suggests that Article 27 should be seen as constituting at most a framework provision that needed to be supplemented by a clearer statement of the rights and duties of minorities.39", "The initiative spearheaded by Capotorti, and supported by the other writers quoted, was aimed at reasserting the importance of group rights. It emerged, however, that the great majority of states were far more interested in assimilating their minorities than in protecting them.40 Humphrey points out that most government appointees on the Sub- Commission were opposed to the protection of minorities and that even in the working group there was objection to any mention of the promotion of the ethnic, cultural, linguistic and religious identity of minorities.41 Current trends 39Supra note 28 at 449-450. 40See Humphrey J No distant millennium The International Law of Human Rights UNESCO Paris (1989) 56 and Capotorti Report supra note 15 para 311 at 53. 41 Supra note 29 at 91 Robinson says: \u201cThis brings us to the future of international protection of minorities. In the present circumstances, with the Communist world disinterested, the Latin American continent openly hostile to the very idea, Black Africa immunized [because of fear of fragmentation within colonially imposed boundaries], and Europe, as represented by its Council, going its own way, the problem has shrunk to a not very significant one for the international community.\u201d 40 \f[65] The authors cited are all supporters of recognition of minority rights, eager to interpret SACHS J Article 27 in as affirmative a manner as possible. Even at its strongest, however, they see it as a framework measure which has implicit in it an incipient or embryonic obligation on the State to pay regard to the needs of cultural, linguistic and religious minorities. Thus, even on their most benevolent interpretation, it falls far short of imposing a firm duty on the state to promote the separate development of minorities (as opposed to the duty of preventing discrimination against them, where there is a high level of responsibility). It comes nowhere near supporting a State duty to establish separate schools, as argued for by the Petitioners in this case. On the contrary, legislative history at the United Nations suggests that such an obligation was expressly considered and expressly rejected.", "There appears to have relatively little momentum at the United Nations in the years following Capotorti\u2019s report to revive the initiative that he embarked upon. Nevertheless, there has in recent years been some discernible movement for recognition of the rights not just of individuals but of distinct groups in society, such as migrant workers and indigenous peoples.42 The impulse for this trend appears to have been recognition of the plight of discrete disadvantaged communities, rather than a generalised support for State-backed cultural diversity as such. At the same time, there has been increasing recognition of the general importance of pluralism and diversity, and acknowledgement of what has been called \u201cthe right to be different\u201d,43 which by its very nature is a right claimed by those who 42For example the ILO Convention No 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers of 1975 and the ILO Convention concerning Indigenous and Tribal Populations or Peoples of 1957 as revised in 1989. 43 Thornberry suggests that this trend is associated with the decline of USA hegemony in the UN system. Supra note 28 at 455. It also corresponds to the increasing acknowledgement of \u2018hyphenated persons\u2019 in the USA itself - African-Americans, Spanish-Americans, Chinese-Americans. 41 \fdo not wish to be assimilated into the dominant culture or forced to live their lives according to the dominant norms. SACHS J", "As part of this revival, the United Nations Human Rights Committee recently issued a General Comment on Article 27.44 According to the Committee, the article is intended to ensure the survival and continued development of the cultural, religious and social identity of minorities. Therefore the right granted by the article must be distinguished from other personal rights conferred on one and all under the Covenant. The Committee has emphasized that the right is a right of individuals (held by persons \u201cbelonging to such minorities\u201d), and should not be confused with the collective right of peoples to self- determination. But, although an individual right, its exercise depends on the collective ability of the minority group to maintain its culture, language or religion. The right of a member is not exercised alone. Rather, the enjoyment of culture, practice of religion, and use of language presupposes a community of individuals with similar rights. Accordingly, the Committee argues, the article may require positive measures by states to protect the identity of a minority and the rights of its members to enjoy and develop their culture in a community with other members of their group. Provided that these measures are aimed at correcting conditions that prevent or impair the enjoyment of the rights of members of minorities, they will constitute a legitimate ground for differentiation and will comply with the non-discrimination requirements of the Covenant.45 44General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, No 23(50) (art 27) UN Doc CCPR/C/21/Rev 1/add 5 (26 April 1994). 45The summary above is taken from Currie I in Minority Rights supra note32 at 35-7. 42 \f[68] The situations are varied, but the common theme that runs through most of the international SACHS J documents on the subject is the duty of the State to take remedial action in relation to groups that have been subjected to different forms of disadvantage. Thus, Capotorti\u2019s definition refers to groups which are not only quantitavely in the minority, but also in a non-dominant position. There are indications in his report that he was specifically concerned not to accord any legitimation to the minorities which at that time were in power in Southern Africa.46 To cater for the situation where a majority group was in one way or another underprivileged and in a non-dominant position, the terms \u201csociological minority\u201d and \u201cfunctional minority\u201d were accordingly coined. Following on from the state duty to overcome the effects of past disadvantage, came recognition of the fact that affirmative action in favour of disadvantaged groups would not be regarded as unlawful discrimination, and, on the contrary, could actually be required. III. BASIC PRINCIPLES OF MINORITY PROTECTION LAW", "A rough survey of the current situation in international law suggests that six interrelated principles enter the picture, with varying degrees of relevance and intensity, when the broad concept of protection of minorities comes into play. They are i) the right to existence, ii) non-discrimination, iii) equal rights, iv) the right to develop autonomously within civil society, v) affirmative action, and vi) positive support from the state. The 46Referring to what he termed hateful regimes of oppression and racial discrimination in disregard of the elementary principles of respect for the dignity of human beings, as in Southern Africa at the time, Capotorti supra note 15 writes that \u201cit is obvious that the dominant minority groups do not need protective measures, while the oppressed majorities have rights which far exceed the very limited content of Article 27 of the Covenant\u201d. See para 55 at 12. 43 \fsignificance of each and the way they are dealt with in our Constitution, with special reference to language rights, will be treated below. SACHS J", "i) The right to existence. The United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948 clearly acknowledges the right of all national groups to physical existence. It is not so clear, however, whether a right to independent cultural existence is also recognised, that is, whether or not there is a prohibition on what has been called cultural genocide.47 There is nothing in the present case, however, to suggest that the challenged statutory provisions form part of a programme calculated to physically eliminate members of the Afrikaans speaking community or to wipe out their culture. In South African conditions today, the group that would appear to have the greatest claim to invoke any such right would be the San/Khoisan population, whose habitats have been taken away from them or else so ecologically despoiled that their survival as a distinct cultural group can be said to be in peril.48 It would, however, be unwise to express any opinion on the subject, save to say that the present case stems from the situation of a community defending relative affluence and privilege, rather than one combatting marginalisation and the imminence of group annihilation. 47 Supra note 25 at 141-146. 48Currie I suggests in Minority Rights supra note32 at 35-8 that \u201c...if as a result of state action or inaction, that community loses its identity, if it is absorbed without trace into the majority population, the individual right of participation in a cultural or linguistic community will be harmed. The right therefore may require positive measures by the state to preserve the separate identity of distinct cultural and linguistic communities.\u201d 44 \f[71] ii) Non-discrimination. This is the most enduring and powerful principle to have emerged SACHS J in relation to protection of minorities. Sieghart49 refers to it as perhaps the strongest principle of all to be found in international human rights law. It is central to the Universal Declaration of Human Rights,50 the ICCPR,51 the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950,52 and many other conventions. It precludes the State from discriminating on grounds regarded as unfair or unjustifiable, and race, language, religion and culture are invariably contained in definitions of outlawed discrimination. It is to be noted that various international conventions not only oblige states not to discriminate, but impose obligations on them to take steps to end discrimination.53 In the case of South Africa, section 8(2) of the Constitution expressly itemises language, culture and religion as constituting prima facie examples of unjustifiable grounds of unfair discrimination. Thus, if persons were denied access to school because they spoke Afrikaans, or belonged to a cultural group which identified itself as Afrikaner, they could claim a violation of their constitutional rights. Similarly, any person who was denied access to State facilities because they did not speak Afrikaans or did not belong to the self- 49 Sieghart P The International Law of Human Rights, Clarendon Press, Oxford (1983). He observes the following at 17: \u201c[T]he concept of \u2018non-discrimination\u2019 is so central to international human rights law that all but one of the major instruments prescribe it in an Article of general application...\u201d. 50Article 7 provides: \u201cAll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.\u201d See also Article 2 in this regard. 51 Articles 2 (1), 3 and 26 respectively. The latter states: \u201cAll persons are equal before the law and are entitled without any discrimination to the equal protection of the law.\u201d In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 52 Articles 14 and 16. 53For example the International Convention on the Elimination of all forms of Racial Discrimination of 1950 and the Convention on the Elimination of Discrimination Against Women of 1953. 45 \fconstituted Afrikaner community, could allege that their fundamental rights were being SACHS J infringed.", "iii) Equal rights. This is the other side of the non-discrimination coin. It could have more affirmative connotations than non-discrimination, however, in that it could deal not merely with protection against exclusion, but with entitlement to equal benefits and equal regard. This becomes particularly important if the objective is to achieve real rather than formal equality. Thus, it is the equality principle rather than the non-discrimination one which becomes the foundation for special legal and other measures to assist groups suffering from de facto rather than de jure disadvantage. In principle there is, of course, no fundamental distinction between the concept of non-discrimination and that of equal rights, and both are embodied in section 8 of our Constitution. As far as members of the Afrikaans-speaking community are concerned, they could complain if the State treated them less advantageously than other groups; their claim to retain a privileged situation, however, would not have the same, or any, force.", "It is important to note that the principle of language equality is strongly underlined in our Constitution. Section 3(1) expressly identifies Afrikaans as one of eleven languages entitled to enjoy equal status. Section 3(9) goes on to state the following: (9) Legislation, as well as official policy and practice, in relation to the use of languages at any level of government shall be subject to and based on the provisions of this section and the following principles: (a) The creation of conditions for the development and for the promotion of the equal use and enjoyment of all official South African languages; (b) the extension of those rights relating to language and the status of languages which at the commencement of this Constitution are restricted to certain regions; 46 \fSACHS J (c) the prevention of the use of any language for the purposes of exploitation, domination or division; (d) the promotion of multilingualism and the provision of translation facilities; (e) the fostering of respect for languages spoken in the republic other than the official languages, and the encouragement of their use in appropriate circumstances; and (f) the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution. Section 32 carries the matter a step further in relation to education by providing that: 32. Every person shall have the right - .... (b) to instruction in the language of his or her choice where this is reasonably practicable; ... . Section 32(b) articulates an affirmative right that can be exercised against the State, which, subject to the criterion of reasonable practicability, would be under a duty to make appropriate resources available for instruction in the chosen language. It would seem that failure to provide such facilities would not necessarily amount to unfair discrimination in terms of section 8(2), but would involve a violation of section 32(b). It is not necessary to decide that matter, and I leave it open in this judgment.", "The implications of the above clauses for members of the Afrikaans language community are significant. As far as section 3(9) is concerned, legislation and official policy and practice at any level of government require, inter alia, the promotion of the equal use and enjoyment of Afrikaans, the prevention of the use of, say, English for the purposes of domination, and the non-diminution of rights relating to Afrikaans and its status. Whether or not these principles apply directly only to intra-governmental behaviour, or whether 47 \fSACHS J they govern all externally directed government policy and practice, need not be decided in the present case. On any reading, however, they provide a valuable general guide to the objectives in relation to the language question which were regarded as constitutionally significant by the framers of the Constitution. In whatever way these principles are applied, it is clear that they need to be balanced against each other. Thus, the non-diminution principle is an important one, but so are creating the conditions for the development of all official languages, the extension of rights in relation to languages previously restricted, the prevention of the use of any language for the purposes of division, and the promotion of multi-lingualism. Reading these principles together with section 32(b) in the manner most favourable to the Petitioners, would mean that the practicability of language instruction in existing Afrikaans medium schools could, applying the non-diminution principle, be assumed to exist. At the same time, there is nothing in these principles to guarantee the exclusivity of Afrikaans in any school. On the contrary, the promotion of multi-lingualism, even leaving out the factor of equal access to schools, would encourage the establishment of dual- or multiple-medium schools. Whether or not the Afrikaans language would survive better in isolation rather than, as it were, rubbing shoulders with other languages, would not be a matter of constitutionality but one of policy, on which this Court would not wish to pronounce. Similarly, it would not be for us to say whether denying Afrikaans-speaking children the right to study and play with children of other backgrounds would or would not be to their mutual educational and social detriment or advantage.", "iv) The right to autonomous development in civil society. The Constitution acknowledges considerable space in civil society in which people may freely advance their interests as 48 \fSACHS J members of linguistic, cultural and religious communities. Section 17 provides that every person shall have the right to freedom of association. Read with freedom of speech, expression and artistic creativity protected by section 15(1) of the Constitution, this guarantees the development of language free from interference by the State. Section 31 goes on to state expressly that \u201cevery person shall have the right to use the language and participate in the cultural life of his or her choice\u201d. Section 32(c) is even more specific in relation to education. It declares that: Every person shall have the right: ... c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race. The judgment of Mahomed DP deals extensively with this clause in terms of its obvious meaning, and its place in the logic of section 32 as a whole. I agree fully with his analysis, which in my view is consistent both with the language used and the overall spirit of the Constitution. I would merely add one further reason, influenced by my explorations of international human rights law, but derived directly from the text of the Constitution, as to why I consider that it makes best sense to regard this paragraph as concretising rights to a certain measure of cultural/linguistic autonomy in the private sphere, rather than as imposing an express duty on the State to establish single-medium community based schools. This additional argument flows from the connection between section 32(c) and section 8(2).", "Section 8(2) provides that no person may be discriminated against on grounds, inter alia, of religion, culture or language. The provision in section 8 (4) to the effect that prima facie 49 \fSACHS J proof of discrimination on the grounds specified in section 8(2) shall be presumed to be sufficient proof of unfair discrimination until the contrary is proved, would make all schools based upon a common culture, language or religion liable to attack on the grounds of practising unfair discrimination, particularly if they closed their doors to persons who did not share that common culture, language or religion. Legislation could then be passed prohibiting such discrimination, and such schools would then have no constitutional umbrella to protect them at all. Section 32(c) appears, therefore, to be an explicit, if limited, acknowledgement of the need in certain circumstances to allow for a departure from the general principles of section 8(2) read with section 8(4). The anti-discrimination principle is so powerful, both in international law and in the warp and woof of our Constitution, that any intention to deviate from it would have to be articulated in the clearest possible language.", "What appears to be provided for in section 32(c) is not a duty on the state to support discrimination, but a right of people, acting apart from, but in practicable association with the State, to further their own distinctive interests. If the intention were not only to permit discrimination on the grounds of culture, language or religion in state schools, in such cases where it was justified, but to require it in all cases on demand, then one would have expected that such an exemption from the general non-discrimination principle would have been expressed in the clearest possible language. Furthermore, should such a radical departure from the provisions of the equality clause have been contemplated, then it would have been far more logical to have expressed it as a qualification of section 8, than to have left it to be read in as an implied incident of section 32(c). 50 \f[78] My view is strengthened by the fact that section 32(c), construed in the manner proposed SACHS J by Mahomed DP, corresponds precisely to concepts accepted in many international instruments (although by no means universally). It acknowledges that constitutionally guaranteed space should be made available for private individuals to set up and maintain [establish] their own schools if they feel that their special cultural, language or religious needs are not being sufficiently catered for in the state system. Two cases heard under the European Convention which concern parental rights in relation to education, suggest a disinclination on the part of the court to compel states to establish or maintain schools based on a particular language or religion, though they did emphasize the importance of pluralism of education and parental choice. The first protocol to the European Convention provides in part: \u201cNo person shall be denied the right to education\u201d. In the Belgian Linguistic case54 the Court said that the Convention does not guarantee children the right to be educated in the language of their parents by the public authorities or with their aid. \u201cThe negative formulation indicates... that the Contracting Parties do not recognize such a right to education as would require them to establish at their own expense, or to subsidise, education of any particular type or at any particular level.\u201d Similarly, in a case involving Danish parents who objected to compulsory sex-education in the public schools, it was held that the State met its obligation to \u201crespect the right of parents to ensure... education in conformity with their own religious and philosophical convictions\u201d because the parents were free to send their children to a private school.55 54 1 European Human Rights Reporter 253. 55Kjeldsen, Busk Madsen and Pedersen v Denmark, Series A, No.23, 7 December 1976. See also Sohn LB The Rights of Minorities in The International Bill of Rights Henkin (ed) Colorado UP 1981, 271. 51 \fSACHS J", "The deviation from the normal non-discrimination principles is therefore a highly qualified one. Firstly, it is limited to the spheres of culture, language or religion; secondly, the running of the school must be practicable insofar as it implicates the State in guaranteeing education of appropriate standard; thirdly, there shall be no discrimination on the grounds of race, and fourthly, the community concerned must itself be responsible for the setting-up and running of such a school. All these qualifications conform to criteria widely accepted in international instruments. This is not to say that the State is forbidden by our Constitution from setting up or maintaining communally- or religiously-based schools. There is a great difference, however, between what the State is permitted to do and what it is required to do. In my view, there is nothing in section 32 which obliges it to set up such schools. Indeed, any departure from the general principles of non-discrimination by the State itself in relation to State schools, would have to be justified by the State as being fair.56 There might, for example, be good educational or administrative reasons for having a girls-only school in a certain area, or for having a unilingual school in another. These would be questions of state policy and practice, subject to judicial review in the ordinary courts undertaken with due regard to fundamental rights guaranteed in the Constitution. They would not be matters of constitutional rights inhering in and enforceable by cultural, language or religious communities.57 In such circumstances, it would be the existence of 56See section 8(2) and (4). 57For the purposes of discussion, I accept that although language and religious rights are expressed purely as individual rights, they can only meaningfully be enjoyed in community with others. 52 \fexclusivity that would have to be justified, not, as the Petitioners claim in this case, the exclusion of exclusivity. SACHS J", "I would add two more and to my mind, equally compelling reasons, both of which international law principles have alerted me to, for preferring not to adopt the \u201cgenerously amplified\u201d interpretation of section 32(c) urged upon us by the petitioners. The first is the historical background of enforced school segregation, which was always justified on grounds of cultural incompatibility, and the spirit of which runs directly counter to the explicit values of our constitution.58", "The second point is that from a cultural or language point of view, there is no clear majority population in South Africa59 against which minorities need to be protected. Linguistically and culturally speaking, there are only minorities in our country. The problem is to balance out their various interests, rather than to protect any one group against another. From a purely practical point of view, the financial and administrative implications of granting to each language or cultural group a claim, as of right, on the State to establish schools, exclusive to themselves, not to speak of the extreme educational 58Furthermore, if the framers were mindful of international law, they would have borne in mind the existence of the Convention on the Suppression and Punishment of the Crime of Apartheid of 1973, which took a drastic stand against the policies which led to the untold suffering and strife referred to in the Postscript to the Constitution. 59 It might be, that in language terms, there is a massive push by parents of many different cultural backgrounds to have their children educated in English and, from this point of view, English could be considered a majority language. This, however, would be a question of language choice as guaranteed by section 32(b). Communities have a right to assimilate if they so wish, to the extent that they desire. What is objected to is enforced assimilation. For a discussion on Swiss practice see Robinson J supra note 29. 53 \fSACHS J fragmentation involved, seem to be insuperable. Eleven languages are officially recognised. In addition about a dozen further languages are specified in section 3(10)(c) as being languages whose development must be promoted by the Pan South African Language Board (and this is not presented as an exhaustive list).60 Added to this, it is a matter of public record that our country is blessed with a multiplicity of religious communities, with independent churches alone probably running into the hundreds if not thousands. Could it possibly be that the framers of the Constitution intended that each language group and each religious community in every one of their multiple spatial conglomerations, should have a claim on the State in terms of section 32(c) to establish on their behalf exclusive schools? Writing before the Constitution was adopted, Professor Van der Westhuizen makes the following pertinent remark: \u201cPublic schools exclusively or specifically for cultural, religious, or linguistic groups would not seem to be acceptable either. Not only would such a state of affairs serve to perpetuate apartheid in disguise with state funding and official blessing, but as a practical matter, it would be extremely difficult to allocate funds and other supporting facilities on an equal basis.\u201d61", "v) Affirmative action. Article 1(4) of the Convention on the Elimination of all Forms of Racial Discrimination of 1965 declares that: Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the 60Section 3(9) of the Constitution lists the principles upon which official policy and practice in relation to the use of languages shall be based and which include in section 3(9)(e) \u201c...the fostering of respect for languages spoken in the Republic other than the official languages, and encouragement of their use in appropriate circumstances.\u201d 61 Supra note 16 at 130. 54 \fmaintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.62 SACHS J Article 2, dealing with obligations of States, reads: States parties shall, when the circumstances so warrant, take in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purposes of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.", "Although the Convention is aimed at the elimination of the effects of racial discrimination, the principles contained in these two paragraphs could be applied to any minorities trying to overcome the effects of past and continuing discrimination.63 Applied to members of the Afrikaans language community, these principles would favour those groups seeking admission to Afrikaans medium schools, rather than the present incumbents in their defensive postures.64 Any claim of Afrikaans community groups to have the State subsidize what, objectively speaking, are privileges in terms of exclusive access to affluent schools, would therefore be weak. Their argument that the State should anticipate and obviate possible future disadvantage may well be somewhat stronger, but I do not see how the threat of loss of dominance could legally per se be regarded as threatened disadvantage. 62 For a summary of the text of the Convention see Lerner supra note 25 at 165. See also preferential treatment for indigenous peoples called for in the ILO Convention Concerning Indigenous and Tribal Peoples of 1989, which calls for special measures implying preferential treatment provided they are not contrary to the freely expressed wishes of the groups concerned and do not prejudice the enjoyment of equal rights in any way. 63They could also obviously be pertinent to easing the way for women, who are not a minority, but are disadvantaged, to overcome the obstacles placed in their way by patriarchal and sexist laws and practices. 64For the right to remedial equality see supra note 14 at 65. 55 \fSACHS J vi) Positive support from the State. The sixth, and most controversial possible legal consequence of identifying and distinguishing a cultural, linguistic or religious minority group, could be that such a minority might be able to make a claim for special resources from the State for the purposes of maintaining its identity. There can be no doubt that the recognition of diversity and pluralism, and the weakening of state hegemony, has come in recent years to receive growing support from legal scholars, non-governmental organisations and a number of political philosophers.65 The literature to which I have referred, however, suggests that there is little hard international human rights law to back a generalised claim on State resources for the promotion of cultural, linguistic and religious diversity, and none at all to support a legal entitlement to separate state-funded schools. As has been pointed out above, when the question of legal protections for cultural, language and religious minorities was debated at the United Nations, the majority of countries argued for a state duty to facilitate assimilation by means of outlawing discrimination, rather than for a state responsibility to encourage diversity. Even those countries which have given greater acknowledgement to minority rights, have tended to leave the creation of communally or religiously based schools to the private sphere, particularly if such schools are exclusive in character. 65Prof Degenaar supra note 18 whose reflections on the subject have been influential, refers approvingly to what he calls post-modern rethinking of the nature of the nation-state. 56 \f[84] Thus, Sieghart66 points out that a person cannot draw from Protocol 1(2) of the European SACHS J Convention on Human Rights, the right to obtain from the public authorities the creation of a particular kind of educational establishment. As far as the International Convention on Civil and Political Rights is concerned, Lerner67 laments the fact that Article 27 does not contain any explicit reference to positive measures to which the minority might be entitled, and goes on to say that proposals for including in Article 27 \u201c(a) list of concrete rights, such as state supported schools of the minority or language rights\u201c failed. Professor Charles Dlamini68 in our country, comments that it is generally accepted that Article 27 of the Covenant requires only that the State parties to the Convention should allow minorities to set up private schools at their own expense and to provide for instruction in their own language. He regards it as unfortunate that in terms of Article 27, the State is not obliged to assist minorities, either financially or materially, to establish minority public schools. The UNESCO Convention against Discrimination in Education of 196069 similarly does not impose any obligation on the State to establish separate minority schools. On the contrary, it outlaws discrimination based, inter alia on language, religion and national origin, and singles out as discriminatory acts, the establishing or maintaining of separate education systems or institutions for persons or groups of persons. It then goes on, however, to qualify this prohibition in two important respects. Article 2, in addition 66Supra note 49 at 77, commenting on the Belgian Linguistic case . The First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome in 1950 states in Article 2 : \u201cNo person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.\u201d 67 Supra note 25 at 16. 68Supra note 23 at 105. 69Article 1.1(c). 57 \fto allowing single-sex educational institutions, states that the following do not constitute SACHS J discrimination: (a) the establishment or maintenance, for religious or linguistic reasons, of separate educational systems or institutions offering an education which is in keeping with the wishes of the pupil\u2019s parents or legal guardians, on an optional basis and if the education provided conforms to certain standards; (b) the establishment or maintenance of private educational institutions, if their object is not to exclude any group but to provide educational facilities in addition to those provided by the public authorities, under certain conditions. The clauses identify permissible departures from the normal rule, not positive obligations on the State.", "Article 5 goes on to balance out the need for education to promote understanding, tolerance and friendship among all nations, racial or religious groups, with the guaranteed respect for the liberty of parents: (a) Firstly to choose for their children institutions other than those maintained by the public authorities but conforming to such minimum educational standards as may be laid down or approved by the competent authorities, and (b) secondly, to ensure the religious and moral education of the children in conformity with their own convictions, while no person or group of persons should be compelled to receive religious instruction inconsistent with his or her own convictions\u201d Article 5 expressly recognises the right of members of national minorities to carry on their own educational activities provided that this right is not exercised: in a manner which prevents the members of these minorities from understanding the culture and language of the community as a whole and from participating in its activities, or which prejudices national sovereignty. 58 \f[86] It is quite clear that the manner in which these provisions have been applied varies SACHS J considerably from country to country, depending on local conditions and preoccupation. In Canada, for example, section 23 of the Canadian Charter of Rights and Freedoms establishes an express right to minority language education out of public funds, providing Francophone and Anglophone minorities with special treatment as compared to other cultural and linguistic minorities.70 In Belgium and Switzerland, on the other hand, the concept of \u201careas of linguistic security\u201d applies in terms of which each collectivity can protect its \u201clinguistic homogeneity\u201d from \u201clinguistic competition\u201d from other groups within a defined territory.71 India provides yet another variant. There, Article 30 of the Constitution guarantees religious and linguistic minorities the right to establish and administer educational institutions of their own choice. The State is precluded, in granting aid to educational institutions, from discriminating against any educational institution on the ground that it is under the management of a minority.72 These are three countries that have made special provision for minority schools. If Capotorti\u2019s Report is any guide, they certainly cannot be regarded as establishing a universal practice. It would seem that each country has the right, in terms of international law, to develop its own rules in this respect, based on its own history and needs.", "It should be added that the central theme that runs through the development of international human rights law in relation to protection of minorities, is that of preventing discrimination 70See discussion by Woehrling supra note 14 at 70-74. 71Id. at 66. 72 Seervai HM Constitutional Law of India Tripathi (1983) chap XIII and The Ahmedabad St. Xaviers College Society v State of Gujarat S.C.R. [1975] 173. 59 \fSACHS J against disadvantaged and marginalised groups, guaranteeing them full and factual equality and providing for remedial action to deal with past discrimination. Capotorti devotes several paragraphs in his report to this theme. The weight of international law, in his view, should be in favour of the dominated and not the dominating minorities. There is nothing to indicate in the present case that the Petition based itself on arguments that the clause in dispute imposed discrimination, denied equality, or repudiated remedial action for a marginalised or deprived language minority. On the contrary, the contention was that existing rights to language exclusivity in relatively affluent schools should be maintained. It was common cause that these schools were well endowed because of past State support, while the majority of schoolchildren in the province were, as result of past State discrimination, forced to attend schools that were grossly deprived in comparison. Thus the thrust of international human rights law principles would be far more in favour of supporting the so-called \u201csociological\u201d or \u201cfunctional\u201d minority, than of upholding the claims of what might be termed the \u201csociological\u201d or \u201cfunctional\u201d majority.73 In other words, the values underlying international law concerned with protection of minorities, would tend to favour the contentions of the Provincial Government rather than those of the Petitioners.", "The latest international instrument on the subject available to me supports the view that there has been some revival of the importance attached to the protection of national minorities as a general group, that goes beyond simply guaranteeing individual members of such minorities protection against discrimination. It is the framework Convention for the 73See Capotorti\u2019s strong remarks on the situation in Southern Africa of the Capotorti Report supra note 15 at 12. 60 \fSACHS J Protection of National Minorities adopted towards the end of 1994 by the Committee of Ministers of the Council of Europe.74A booklet produced by the Council of Europe Press reports that the framework Convention was the first ever legally binding multilateral instrument devoted to the protection of national minorities in general. The main operative part of the framework Convention contains provisions laying down principles covering a wide range of areas, and I reproduce the booklet\u2019s summary in full, inasmuch as it appears to represent the latest, and, I would say, most advanced, international law thinking on the matter: - non-discrimination; - promotion of effective equality; - promotion of the conditions regarding the preservation and development of the culture and reservation of religion, language and traditions; - freedom of assembly, association, expression, thought, conscience and religion; - access to and use of media; - linguistic freedom; C C C C - education: CC CC use of the minority language in private and in public as well as its use before administrative authorities; use of one\u2019s own name; display of information of a private nature; topographical names in the minority language; learning of and instruction in the minority language; freedom to set up educational institutions; [my emphasis] - transfrontier contacts; 74 As at 1 March 1995 twenty-two States had signed. For entry into force it required ratification by twelve member States. 61 \fSACHS J - international and transfrontier cooperation; - participation in economic, cultural and social life; - participation in public life; - prohibition of forced assimilation.75", "The Council of Europe document indicates that special emphasis was put on provisions of a programme-type, defining certain objectives which the States undertake to pursue through legislation and appropriate governmental policies at a national level. It will be noted that this framework Convention, sensitive as it is to the rights of minorities, does not impose positive obligations on states to establish or maintain minority schools. Instead, it confirms the right to learn and be instructed in a minority language, and the freedom to set up educational institutions. These principles are remarkably close to the provisions of sections 32(b) and (c) of our Constitution, adopted a year earlier. It suggests that the interpretation given to the Constitution by Mahomed DP conforms to the principles contained in the most recent and developed international instrument dealing with minority protection. CONCLUSION", "In summary: a reading of our Constitution would be entirely consistent with the principles of international human rights law if it: - prevented the State from embarking on programmes intended or calculated to destroy the physical existence or to eliminate the cultural existence, of particular groups; 75Human Rights. A continuing challenge for the Council of Europe 1995 Council of Europe Press 47. 62 \fSACHS J - required the State to uphold the principles of non-discrimination and equal rights in respect of members of minority groups; - permitted and possibly required the State to take special remedial or preferential action to assist disadvantaged groups to achieve real equality; - permitted but did not require the State to establish communal schools, or to support such schools already established; - permitted members of minority groups to establish their own schools.", "None of these principles carry the Petitioners\u2019 case any further. The papers before us show a need to transform education in South Africa in the light of constitutional precepts which pay due regard to international law. Exactly how the correct balance should be struck between the importance of overcoming systemic inequality inherited from the past, on the one hand, and preventing legally enforced or de facto assimilation of groups wishing to preserve and develop a distinctive identity, on the other, would, in my view, be primarily a matter for democratic resolution in the legislatures of our country, and not in the first instance be one of adjudication by the courts. Provided that such deliberations result in legislation not transgressing the Constitution, this Court should decline to interpose its own opinion in relation to exactly how best this balance should be achieved.", "In the present case, I would accordingly say that section 32(c) of the Constitution should be interpreted in the way that Mahomed DP has done, and that International law on the subject reinforces the conclusions to which he comes. I also agree that section 247 of the 63 \fConstitution does not avail the petitioners, and accordingly concur in the order he proposes. A L SACHS Case No Counsel for the Petitioners Instructed by : : : CCT 39/95 N G D Maritz SC D N Unterhalter Dyason Attorneys Counsel for the Gauteng Government : W Trengove SC Instructed by Counsel for Amicus Curiae Instructed by Counsel for the Speaker of the Gauteng Government Instructed by M Chaskalson The State Attorney, Johannesburg R J Raath J S Stone Ross & Jacobsz Attorneys R L Selvan SC The State Attorney, Johannesburg : : : : : 64 \f65"], "max_length_judgement_paras": 970}, {"title": "Luitingh v Minister of Defence (CCT29/95) [1996] ZACC 5; 1996 (4) BCLR 581; 1996 (2) SA 909 (4 April 1996)", "url": "http://www.saflii.org/za/cases/ZACC/1996/5.html", "summary_document": {"filename": "summary-for-case-5.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/5media.pdf", "file_content": " \n\n Case CCT 29/95 \n\nLuitingh v Minister of Defence \n\nExplanatory Note \n\n \n\n \n\n \n \nThe following explanation is provided to assist the media in reporting this case and is not \nbinding on the Constitutional Court or any member of the Court. \n \n\nThe matter involved a challenge to s 113(1) of the Defence Act, which provides for a limited \ntime period for the institution of a civil action against the Minister of Defence and requires \nthat written notice be given to the Minister one month in advance of any action. The issue of \nthe constitutionality of the subsection was referred to the Constitutional Court by the \nTransvaal Provincial Division in terms of s 102(1) of the Constitution. The Court held that \nthe referral was incompetent and remitted the matter to the Transvaal Provincial Division. \nThe Court did not consider the merits of the challenge to s 113(1). \n\nIn terms of s 102(1) a provincial or local division of the Supreme Court may refer a case to \nthe Constitutional Court where (1) there is an issue which may be decisive for the case (2) the \nissue falls within the exclusive jurisdiction of the Constitutional Court (3) the referring court \nconsiders it to be in the interests of justice to refer the issue to the Constitutional Court. \n\nThe Constitutional Court held that the issue was within its exclusive jurisdiction since a \nprovision of an Act of Parliament was under attack. However, the two other requirements of s \n102(1) were not satisfied and the referral was therefore incompetent. The Court held that the \nreferring court had failed to make the necessary findings as to the applicability of the \nConstitution to the issues before it. Therefore, the constitutionality of s 113(1) could not be \nsaid to be potentially decisive of the case, nor was the referral in the interests of justice. In \nrespect of the interests of justice requirement, the Court held that this involved a value \njudgment and that while deference was due and was usually paid to the value judgment of a \nreferring court, it did not bind the Constitutional Court. Thus, the Court held, it was not \ncompelled to decide a premature issue. \n\nThe Court refused to grant the parties direct access to the Court to remedy the incompetent \nreferral. While direct access could be granted in exceptional circumstances where a referral \nwas incompetent, the Court found no such exceptional circumstances in this case. In any \nevent, the constitutionality of s 113(1) had been raised in the matter of Mohlomi v Minister of \nDefence CCT 41/95 which had been heard together with this case and in which judgment was \npending. \n\nThe judgment of the Court was delivered by Didcott J and was concurred in by the other \nmembers of the Court. \n\n \n\n1 \n\n\f"}, "judgement_document": {"filename": "judgement-for-case-5.pdf", "file_url": "http://www.saflii.org/za/cases/ZACC/1996/5.pdf", "file_content": "CONSTITUTIONAL COURT OF SOUTH AFRICA\n\nPlaintiff\n\nDefendant\n\nCase CCT 29/95\n\nLAFRAS LUITINGH\n\nversus\n\nMINISTER OF DEFENCE\n\nHeard on 21 November 1995\n\nDecided on 4 April 1996\n\nDIDCOTT J:\n\nJ U D G M E N T\n\n[1]\n\nSection 113(1) of the Defence Act (No 44 of 1957) ordains, in its parts\n\nwhich matter now, that:\n\n\u201cNo civil action shall be capable of being instituted against the\n\nState or any person in respect of anything done or omitted to be\n\ndone in pursuance of this Act, if a period of six months ... has\n\nelapsed since the date on which the cause of action arose, and\n\nnotice in writing of any such civil action and of the cause thereof\n\nshall be given to the defendant one month at least before the\n\ncommencement thereof.\u201d\n\nA ruling on the constitutional validity of the sub-section is sought from us in the present\n\ncase, a civil action pending before the Transvaal Provincial Division of the Supreme Court\n\nduring the course of which that question has been raised.\n\n\fPage 2.\n\n[2]\n\nThe pleadings in the action have closed. What we see from them is this.\n\nThe plaintiff, a former member of a military unit then engaged in clandestine activities\n\nbut now disbanded, is suing the defendant for a large amount of money claimed under\n\na contract which governed his service in it. The defendant disputes the claim. In\n\naddition, and by means of special plea filed by him, he has lodged two preliminary\n\nobjections to the litigation, both taken under section 113(1) which regulated it, so he\n\nsays, because the action fitted the bill of one instituted \u201cin respect of\u201d something \u201cdone\n\nor omitted to be done in pursuance of\u201d the statute. He maintains, firstly, that the\n\nrequisite notice was never given and, secondly, that the proceedings were started too\n\nlate, the cause of action having arisen more than six months earlier. That has all been\n\ndenied by the plaintiff in his replication to the special plea. The case was not the sort,\n\naccording to him, which the sub-section described and thus covered. He did send a\n\nnotice to the defendant, he has asserted in any event, alluding to it as a written and\n\ntimeous one which complied with the sub-section but neither producing the document nor\n\nalleging its date and terms. The lateness of the proceedings appears to have been put\n\nin issue as well, on the footing that the sub-section hit the litigation, a denial hard to\n\nunderstand in the light of the chronology. The exact date when the cause of action\n\narose, or is said at any rate to have arisen, does not emerge from the pleadings. But\n\nthat seems to have occurred on the plaintiff\u2019s case during 1990. Yet the summons was\n\nissued on 29 April 1994. Our interim Constitution (Act 200 of 1993) had come into\n\nforce by then, indeed two days previously. Its entry into the picture prompted the last\n\n\fPage 3.\n\nanswer to the special plea which the replication advanced, the contention that the sub-\n\nsection was unconstitutional.\n\n[3]\n\nThe lawyers acting for the parties agreed when the pleadings were closed\n\nthat our decision on the constitutional point should be obtained before the litigation\n\nproceeded any further. The plaintiff then applied to the Transvaal Provincial Division,\n\nwith the concurrence of the defendant, for an order referring to us the issue whether\n\nsection 113(1) was incompatible with various provisions of the Constitution that were\n\nlisted. In the affidavit which supported the application the plaintiff\u2019s attorney spoke of\n\nthe unlikelihood that the action would go to trial if we struck down the sub-section. In\n\nthat event, he explained, the parties would probably submit the dispute on the merits of\n\nthe claim to the Ombudsman for his determination instead. The application came before\n\nCurlewis DJP. He granted the order that both sides wanted, saying this in a short\n\njudgment which he delivered at the time:\n\n\u201cIt has now been agreed between the parties that the matter be\n\nreferred to the Constitutional Court ... Far be it for me to suggest\n\nthat the agreement binds me, and I prefer that matters should be\n\nconcluded here first, but I am satisfied that in this particular case\n\nit will be advisable at the outset to have the opinion of the\n\nConstitutional Court on this matter. I have been told ... that, if the\n\nplaintiff should be successful in what he hopes to achieve, that is\n\nto persuade the Constitutional Court that the section of the Act\n\nwhich protects the Minister of Defence is unconstitutional, then in\n\nall probability ... he will go to the Ombudsman ...It will be \n\n\fPage 4. \n\nof course decisive, and Mr Bertelsmann says that it is a matter of\n\nimportance because, if the plaintiff does not persuade the\n\nConstitutional Court, then he is non-suited.\u201d\n\nThe person mentioned in that last sentence was the plaintiff\u2019s counsel.\n\n[4]\n\nThe referral purported to be sought and ordered under section 102(1) of\n\nthe Constitution, which stipulates that:\n\n\u201cIf, in any matter before a provincial or local division of the\n\nSupreme Court, there is an issue which may be decisive for the\n\ncase, and which falls within the exclusive jurisdiction of the\n\nConstitutional Court ..., the provincial or local division concerned\n\nshall, if it considers it to be in the interest of justice to do so, refer\n\nsuch matter to the Constitutional Court for its decision: Provided\n\nthat, if it is necessary for evidence to be heard for the purposes of\n\ndeciding such issue, the provincial or local division concerned shall\n\nhear such evidence and make a finding thereon, before referring\n\nthe matter to the Constitutional Court.\u201d\n\nNo provision is made, one notices, for referrals requested by consent. Curlewis DJP\n\nwas therefore right in the view he took that the agreement which the parties had reached\n\ndid not bind him. Before granting the order he had to satisfy himself, independently and\n\nregardless of their attitude, that all three requirements were met for \n\na competent referral of the issue raised. They were the requirements that it lay within\n\nour exclusive jurisdiction, that it might be decisive of the case, and that its referral \n\n\fPage 5.\n\nwould be in the interests of justice. The first of those was undoubtedly fulfilled , an Act\n\nof Parliament having come under fire. Whether the same went for the second and third\n\nis, however, another matter.\n\n[5]\n\nRule 22(2) of our Rules directs the judge or judges ordering any referral\n\nin terms of section 102(1) to -\n\n\u201c... formulate in writing ... the reason why he or she or they\n\nconsider it to be in the interest of justice that the matter be\n\nreferred.\u201d \n\nThe only reason given by Curlewis DJP for the referral that he ordered was the one\n\nfurnished in the passage which I have quoted from his judgment. It is not clear to me\n\nwhy the parties planned to deal in a manner so unorthodox with the dispute over the\n\nmerits of the claim if that had to be resolved because of a ruling on section 113(1) which\n\nput paid to the special plea. For nobody has explained to us why a private ventilation\n\nof the dispute before the Ombudsman was preferred in that event to its public\n\nadjudication by the Transvaal Provincial Division. The case was the type, after all,\n\nwhere the defendant at least might have been expected to value the store which the\n\nConstitution set by the concept of an open society. Nor do I know what the parties\n\nhave in mind now that, since the referral, the post of Ombudsman has been abolished\n\nand replaced by the office of the Public Protector whose functions are not quite the \n\nPage 6.\nsame as those of his predecessor. I am uncertain about something else too, about \n\n\fthe answer to an underlying question that occurs to me. It is whether section 102(1)\n\ncatered in the first place for a referral on such grounds. That it did was apparently\n\ntaken for granted in the Court below. But the supposition may have been wrong. The\n\npurpose which section 102(1) was designed to serve is obvious. It enables provincial\n\nand local divisions to seek rulings on issues of the kind encompassed which they need\n\nfor, and on obtaining must apply to, the matters handled by them. Here the referral had\n\nno such aim. The point was neither argued, however, nor even put to counsel. So we\n\nhad better leave it undecided at present and assume the referral not to have been\n\nobjectionable on that particular count.\n\n[6]\n\nThe proceedings in the Court below call for some comment elsewhere.\n\nCurlewis DJP seems not to have applied his mind to, and he certainly said nothing about,\n\nthe prospects of success that the attack on the validity of section 113(1) was thought\n\nlikely to attract on its referral to us. Those prospects were plainly pertinent to the\n\ninterests of justice which he had to consider. He was therefore required to evaluate\n\nthem. A general rule to that effect is implicit in section 102(1), we have held already,\n\nand governs every referral ordered under it. Kentridge AJ enunciated \n\nthe rule in S v Mhlungu and Others1, where he rated \u201c(t)he reasonable prospect of\n\nsuccess\u201d which the constitutional challenge appeared to enjoy as \u201ca sine qua non of\n\nPage 7.\n\n1 Paragraph [59]: 1995 (3) SA 867 (CC) at 895 A - C; 1995 (7) BCLR 793 (CC) at\n 821 C - E.\n\n\fa referral\u201d. The judge who decides to order a referral must consequently explain, in\n\ncanvassing the interests of justice, why he or she thinks that the challenge may\n\nsucceed. That corollary was added by Ackermann J in Ferreira v Levin NO and Others;\n\nVryenhoek and Others v Powell NO and Others2 . Neither judgment had yet been\n\ndelivered, it is true, at the time when Curlewis DJP dealt with the matter. But the rule\n\nand its corollary surely spoke for themselves even then. For it had gone without saying\n\nall along that the interests of justice could never be served by the referral of points with\n\nno visible substance. The need for care in appraising those taken is illustrated by the\n\norder which Curlewis DJP granted. It identified four sections of the Constitution as the\n\nparts believed to be relevant to the issue referred because of the impact that they might\n\nhave on section 113(1). They were sections 8, 22, 26, and 27. Section 22 bestows on\n\neverybody the right of access to courts of law or separate but suitable tribunals for the\n\nresolution of justiciable disputes. That section 113(1) encroaches on the right looks, to\n\nbe sure, like an arguable proposition. So perhaps is the suggestion of a conflict with\n\nsection 8, the one guaranteeing equality before the law and its equal protection, since\n\nsection 113(1) differentiates in the restrictions that it imposes between the general run\n\nof plaintiffs and those whose cases it affects, to their \n\ndetriment, and also between the State when sued and in suing. The topics of sections\n\n26 and 27, on the other hand, are the rights to engage freely in economic activity and\n\nto the benefit of fair labour practices. It is hard to see and difficult to imagine what\n\n2 Paragraph [8]: 1996(1) SA 984 (CC) at 999 E - F; 1996 (1) BCLR 1 (CC) at 14 A - B.\n\nPage 8.\n\n\fbearing either has or could be supposed to have on section 113(1). We should have\n\nbeen told why they were mentioned in the order.\n\n[7]\n\nNor does the trouble that we have with the referral end there. It was\n\nordered when five material questions raised by the special plea and the replication to\n\nit had been left unanswered. They were these, an affirmative response to question (a)\n\nposing questions (b) to (e) in turn.\n\n(a) Was the action instituted \u201cin respect of\u201d something \u201cdone or omitted\n\nto be done in pursuance of\u201d the statute, with the result that section \n\n113(1) covered it?\n\n(b) Was the action preceded by a notice given to the defendant which\n\ncomplied with the sub-section in its form, terms and time?\n\n(c)\n\nDid the plaintiff\u2019s cause of action arise earlier than six months before the\n\nlitigation started?\n\n(d)\n\nIf it did, was his claim extinguished once and for all by the failure to start\n\nthe litigation within six months after the cause of action had arisen?\n\n(e)\n\nIn that event could any subsequent invalidation of the sub-section revive\n\na claim that was extinct by then?\n\nSome parts of those were questions of fact, some of law, and others of fact mixed with\n\nlaw. All fell within the jurisdiction of the Transvaal Provincial Division, where they\n\nPage 9.\n\n\fcould have been resolved. In listing the five I have not overlooked the prediction\n\nventured by the plaintiff\u2019s counsel in the Court below that his client would be \u201cnon-suited\u201d\n\nif section 113(1) stood. The prediction may have implied that the denials precipitating\n\nquestions (a) to (d) were tactical ones which could not be substantiated, ones that would\n\ntherefore not matter in the long run. But, whatever counsel meant to convey, he did not\n\nformally withdraw the denials or admit the allegations which they had put in issue. So\n\non the pleadings those four questions remained in dispute. Nothing was said, in any\n\nevent, touching question (e). That, apart from the rest, has undoubtedly stayed alive\n\nand kept its importance, an affirmative answer being essential there to the plaintiff\u2019s case\n\non the constitutional point.\n\n[8]\n\nThe proviso to section 102(1) dictates that the judge who orders a referral\n\nmust, before doing so, hear and make findings on any evidence that is necessary \u201cfor\n\nthe purposes of deciding\u201d the issue referred. I am not sure about the scope of the\n\nevidence which the proviso encompasses, whether it envisages testimony pertaining to\n\nthe issue that is about to be referred, testimony relating to other issues which furnish the\n\nsetting for the enquiry into that one, or both categories. The interpretation of the proviso\n\nwas not debated before us, and we have had no prior occasion to consider it. I shall\n\nassume that it did not, in itself, oblige Curlewis DJP to hear evidence on the factual\n\ncomponents of the questions in dispute. Whether he ought to have done so in any\n\nevent, and then to have decided the questions themselves in accordance with \n\nPage 10.\n\n\fhis findings of fact and conclusions of law, depends on the effect of the second and third\n\nrequirements for a referral that I mentioned earlier, those of prospective decisiveness\n\nand the interests of justice.\n\n[9]\n\nThe phraseology of the second requirement is not altogether clear. It\n\nposes two problems. The one concerns its allusion to \u201cthe case\u201d in respect of which the\n\nissue referred may be decisive. The requirement is obviously met whenever a ruling on\n\nthat issue may dispose of the entire case with no further ado. Often, however, only\n\nsome individual and self-contained part of the case will be directly affected. Then too\n\nthe requirement is satisfied, I believe, once the ruling given there may have a crucial\n\nbearing on the eventual outcome of the case as a whole, or on any significant aspect of\n\nthe way in which its remaining parts ought to be handled. That goes indeed for the\n\npresent matter, where the plaintiff will be barred from pursuing his claim on the merits\n\nif section 113(1) stands and the upshot is the success of the special plea. The other\n\nproblem looks more puzzling. The words that raise it are \u201cmay be decisive\u201d. What they\n\nseem to connote is the possibility of decisiveness rather than the certainty of that. One\n\nwould otherwise have expected \u201cwill\u201d to appear there instead of \u201cmay\u201d. That nothing\n\nstronger was evidently envisaged does not sound surprising. For a verdict of\n\nconstitutionality returned by this Court on the issue referred will seldom \n\ndispose of a case with additional issues. And, since such a verdict is always on the \n\ncards, the prospect that the referral will produce a result decisive of the case can never\n\nPage 11.\n\n\famount to more than a possibility. But a question still remains, the question whether \n\nthat is the sole possibility postulated. Another presented by a case with multiple issues,\n\nas most cases happen to be, is the possibility that the resolution of the issues which are\n\nnot referred will prove instead to be the decisive factor. It may then be suggested that,\n\nunless and until that further possibility is eliminated, the referred issue cannot emerge as\n\na real one, let alone become rateable as possibly decisive. To examine the suggestion,\n\ncouched in those general terms, is unnecessary now. It suffices for the purposes of this\n\njudgment to draw a distinction, in contemplating the determination of such extra issues,\n\nbetween decisions with two different effects. The one kind dispenses with the need for\n\nthe referred issue to be resolved, thus rendering it irrelevant in the end. The other\n\nmeans that the issue referred can never even arise because the particular constitutional\n\nprovision on which it turns is held not to apply to the case. An issue falling into that latter\n\ncategory can hardly be regarded as potentially decisive while the constitutional basis for\n\nit has not yet been established. Its referral in the meantime, on my appraisal of that, is\n\ntherefore incompetent.\n\n[10]\n\nThe referral in this matter was defective on that very score. I shall confine\n\nmy attention, in explaining why I say so, to questions (d) and (e) of the five formulated\n\nabove that were not answered in the Court below. The legal truth may well be that, by\n\nthe time when the plaintiff instituted the action, his claim was extinct already \n\nand incapable of revival. Whether such was the case is highly important. For the .\nPage 12.\n\nspecial plea may be invulnerable to attack in that event, even if the Constitution \n\n\finvalidated section 113(1) when it came into operation afterwards. Either an answer\n\nin the negative to question (d), or an affirmative one to question (e) were question (d)\n\nanswered likewise, was therefore imperative in order to raise the constitutional issue put\n\nto us. In the absence of both answers the issue was neither here nor there, and by no\n\nmeans potentially decisive of the case.\n\n[11]\n\nNor, in my opinion, did the interests of justice call for the referral while\n\nthose two questions at least stood unanswered. In S v Mhlungu and Others3 \n\nKentridge AJ wrote:\n\n\u201cIt is convenient ... to say something about the practice of referrals\n\nto this Court under section 102(1) of the Constitution. The fact\n\nthat an issue within the exclusive jurisdiction of this Court arises\n\nin a provincial or local division does not necessitate \n\nan immediate referral to this Court ... It is not always in the\n\ninterest of justice to make a reference as soon as the relevant\n\nissue has been raised. Where the case is not likely to be of long\n\nduration it may be in the interests of justice to hear all the\n\nevidence or as much of it as possible before considering a referral\n\n... Moreover, once the evidence in the case is heard it may turn\n\nout that the constitutional issue is not after all decisive. I would\n\nlay it down as a general principle that where \n\nPage 13.\n\nit is possible to decide any case ... without reaching a\n\n3 See footnote 1: Paragraph [59] at 894 I - 895 E in the first report cited there and \n 820 J - 821 G in the second one.\n\n\fconstitutional issue, that is the course which should be followed.\u201d\n\nChaskalson P reiterated that principle in Zantsi v Council of State, Ciskei, and\n\nOthers 4, declaring it to be -\n\n\u201c... a rule which should ordinarily be adhered to by this and all\n\nother South African Courts before whom constitutional issues are\n\nraised.\u201d\n\nThe point which Kentridge AJ made about the duration of trials is pertinent to the \n\npresent matter. Separately from and in advance of the trial on the claim itself,\n\nevidence and argument could have been heard, and a decision could then have been\n\nreached, on all the issues but the constitutional one which the special plea and the\n\nreplication had raised. Rule 33(4) of the Supreme Court Rules permitted such\n\npreliminary proceedings. They could scarcely have lasted for longer than a day or two.\n\n[12]\n\nSection 102(1) empowers and obliges \u201cthe provincial or local division\n\nconcerned\u201d to order a referral which is otherwise competent \u201cif it considers it to be in the\n\ninterest of justice to do so\u201d. The wording had the effect, counsel contended, that where\n\nthe interests of justice lay for those purposes was the business of the judge ordering the\n\nreferral, whose evaluation of them we could not overrule once he or she had found \n\nPage 14.\n\nthat they told in favour of the order. I disagree. The words \u201cit considers\u201d, as I read\n\n4 Paragraphs [3] and [5]: 1995(4) SA 615 (CC) at 618 B and E - F; 1995 (10) BCLR\n 1424 (CC) at 1428 D - E and 1429 C.\n\n\fthem, do not import the idea of a discretionary decision on the part of the referring Court,\n\nin the narrow sense of one that can be upset only in the exercise of a power to review\n\nit and which is unimpeachable in the absence of conventional grounds for such a review.\n\n They simply recognise that, unlike the criteria of exclusive jurisdiction and prospective\n\ndecisiveness which are objectively measurable, what appears to be in the interests of\n\njustice or not falls within the field of a value judgment. Deference is due and usually paid,\n\nwhenever a value judgment comes under the scrutiny of a higher court, to the advantages\n\nthat were enjoyed in the lower court by the judicial officer who reached it there. That\n\nseldom means, however, that it binds the higher court. The same surely goes in any\n\nreferral for the value judgment passed on the interests of justice by the referring judge,\n\nespecially one emanating from a heavy trial which he or she is busy hearing, a trial where\n\nhe or she has become steeped in its atmosphere and better equipped than we can ever\n\nbe for an assessment of the most beneficial, expedient and convenient stage at which\n\nto put to us an issue calling sooner or later for our determination. We are nevertheless\n\nfree in a suitable case, I believe, to prefer our own opinion on the interests of justice to\n\nthe one formed by the referring judge and, having taken the opposite view, to give effect\n\nto it by ruling the referral out of order. That construction which I place on the wording\n\nof the section is supported, moreover, by the sensible result that it produces. It would\n\nbe most unfortunate if we could be compelled to decide a issue which we considered\n\nnot to be ripe for resolution at that \n\nPage 15.\n\n\fparticular juncture. The strict control by us of our adjudication is essential to the work\n\nthat we have to perform. Much the same policy has been adopted and implemented by\n\nthe Appellate Division towards appeals presented to it piecemeal. The policy was\n\ndeclared, amongst other occasions, in R v Adams and Others5. All that remains to be\n\nadded is this, which I emphasise. In declining to deal with an issue sent here on a\n\nreferral, we do not refuse to exercise the jurisdiction entrusted to us over it. We merely\n\nrule that the recourse then had to our jurisdiction is premature, and defer its exercise until\n\nthe arrival of a time more propitious for that.\n\n[13]\n\nCurlewis DJP was no better placed to assess the interests of justice\n\nassociated with the present referral than we now are. Its history and handling were not\n\nthe sort that gave him any such advantage. Nor did the extent of his involvement in the\n\ncase, which seems to have been relatively brief and slight. All that being so, I need not\n\nhesitate on deferential grounds before dissenting, as I do, from his belief that the referral\n\nserved those interests.\n\n[14]\n\nThe conclusion to which I have accordingly come is that the referral was\n\nordered wrongly for want of compliance with both the second and third requirements, and\n\nthat we should therefore not entertain it.\n\n5 1959 (3) SA 753 (A) at 763 B - C.\n\nPage 16.\n\n\f[15]\n\nCounsel requested us, if we took that view, to allow the parties direct \n\naccess to this Court on the issue referred so that it might nevertheless be determined\n\nnow. Rule 17(1) of our Rules provides for the channel of direct access, but in -\n\n\u201c... exceptional circumstances only, which will ordinarily exist only\n\nwhere the matter is of such urgency, or otherwise of such public\n\nimportance, that the delay necessitated by the use of the ordinary\n\nprocedures would prejudice the public interest or prejudice the\n\nends of justice and good government.\u201d\n\nThat route, as Kentridge AJ mentioned in S v Zuma and Others6 , was \u201ccertainly not\n\nintended to be used to legitimate an incompetent reference\u201d. We have accepted\n\nthat it may be followed in place of a bad referral, however, once exceptional\n\ncircumstances are found to be present. One such circumstance is the pressing need\n\nfor a definite and final decision on a controversial point springing up throughout the\n\ncountry daily, or very frequently at any rate, and affecting countless other cases7. \n\nAnother is the problem of the long and complicated trial which may be aborted in the\n\nend by an infringement of the Constitution first established on appeal, and the \n\nPage 17.\n\n6 Paragraph [11]: 1995 (2) SA 642 (CC) at 650 B; 1995 (4) BCLR 401 (CC) at 409\n H - I.\n\n7 S v Zuma and Others: see footnote 6: paragraph [11] at 649 I - 650 B in the first report\n cited there and 409 F - I in the second one; Ferreira v Levin NO and Others; \n Vryenhoek and Others v Powell NO and Others: see footnote 2: paragraph [10] at 1000\n 1000 C - F in the first report cited there and 14 G - 15 A in the second one.\n\n\fconsequent wastage of time, effort and money that an early ruling could have avoided8.\n\nWhat I said a moment ago about the swift and brief adjudication on the special plea that\n\nwas feasible distinguishes the circumstances of this case from the second set. They\n\ndiffer from the first lot too. The constitutional validity of section 113(1) is an issue likely\n\nto be resolved in another matter where it was referred to us, properly so that seems,\n\nthe one of Mohlomi v Minister of Defence which we heard together with this case\n\nand have under consideration at present. None of the circumstances encountered here\n\nare, as I see them, exceptional. In my judgment direct access ought not to be granted.\n\n[16]\n\nCounsel agreed that, if the proceedings had the outcome which is about\n\nto ensue, no order for costs should be made. That would be fair, I believe, since the\n\nparties are equally responsible for the course matters have taken.\n\n[17]\n\nIn the result the referral is struck off the roll, the application for direct\n\naccess is refused, and the case is remitted to the Transvaal Provincial Division.\n\nPage 18.\n\nChaskalson P, Mahomed DP, Ackermann J, Kentridge AJ, Kriegler J, Langa J,\n\n8 Paragraph [13] of S v Vermaas; S v du Plessis 1995(3) SA 292 (CC) at 297 H - 298 H;\n 1995 (7) BCLR 851 (CC) at 857 G - 858 H.\n\n\fMadala J, Mokgoro J, O\u2019Regan J and Sachs J all concur in the judgment of\n\nDidcott J.\n\nPlaintiff\u2019s counsel:\n\nE. Bertelsmann SC, instructed by Wilsenach, Van Wyk,\nGoosen and Bekker.\n\nDefendant\u2019s counsel:\n\nJ.L. van der Merwe SC, with him P.J.J. de Jager, instructed\nby the State Attorney.\n\n \n\n \n\n\f"}, "id": "b5176749-7955-41af-9355-32234fffaebd", "update_date": "2021-03-15 17:08:56.815867", "year": "1996", "judgement_paragraphs": ["CONSTITUTIONAL COURT OF SOUTH AFRICA Plaintiff Defendant Case CCT 29/95 LAFRAS LUITINGH versus MINISTER OF DEFENCE Heard on 21 November 1995 Decided on 4 April 1996 DIDCOTT J: J U D G M E N T", "Section 113(1) of the Defence Act (No 44 of 1957) ordains, in its parts which matter now, that: \u201cNo civil action shall be capable of being instituted against the State or any person in respect of anything done or omitted to be done in pursuance of this Act, if a period of six months ... has elapsed since the date on which the cause of action arose, and notice in writing of any such civil action and of the cause thereof shall be given to the defendant one month at least before the commencement thereof.\u201d A ruling on the constitutional validity of the sub-section is sought from us in the present case, a civil action pending before the Transvaal Provincial Division of the Supreme Court during the course of which that question has been raised. \fPage 2.", "The pleadings in the action have closed. What we see from them is this. The plaintiff, a former member of a military unit then engaged in clandestine activities but now disbanded, is suing the defendant for a large amount of money claimed under a contract which governed his service in it. The defendant disputes the claim. In addition, and by means of special plea filed by him, he has lodged two preliminary objections to the litigation, both taken under section 113(1) which regulated it, so he says, because the action fitted the bill of one instituted \u201cin respect of\u201d something \u201cdone or omitted to be done in pursuance of\u201d the statute. He maintains, firstly, that the requisite notice was never given and, secondly, that the proceedings were started too late, the cause of action having arisen more than six months earlier. That has all been denied by the plaintiff in his replication to the special plea. The case was not the sort, according to him, which the sub-section described and thus covered. He did send a notice to the defendant, he has asserted in any event, alluding to it as a written and timeous one which complied with the sub-section but neither producing the document nor alleging its date and terms. The lateness of the proceedings appears to have been put in issue as well, on the footing that the sub-section hit the litigation, a denial hard to understand in the light of the chronology. The exact date when the cause of action arose, or is said at any rate to have arisen, does not emerge from the pleadings. But that seems to have occurred on the plaintiff\u2019s case during 1990. Yet the summons was issued on 29 April 1994. Our interim Constitution (Act 200 of 1993) had come into force by then, indeed two days previously. Its entry into the picture prompted the last \fPage 3. answer to the special plea which the replication advanced, the contention that the sub- section was unconstitutional.", "The lawyers acting for the parties agreed when the pleadings were closed that our decision on the constitutional point should be obtained before the litigation proceeded any further. The plaintiff then applied to the Transvaal Provincial Division, with the concurrence of the defendant, for an order referring to us the issue whether section 113(1) was incompatible with various provisions of the Constitution that were listed. In the affidavit which supported the application the plaintiff\u2019s attorney spoke of the unlikelihood that the action would go to trial if we struck down the sub-section. In that event, he explained, the parties would probably submit the dispute on the merits of the claim to the Ombudsman for his determination instead. The application came before Curlewis DJP. He granted the order that both sides wanted, saying this in a short judgment which he delivered at the time: \u201cIt has now been agreed between the parties that the matter be referred to the Constitutional Court ... Far be it for me to suggest that the agreement binds me, and I prefer that matters should be concluded here first, but I am satisfied that in this particular case it will be advisable at the outset to have the opinion of the Constitutional Court on this matter. I have been told ... that, if the plaintiff should be successful in what he hopes to achieve, that is to persuade the Constitutional Court that the section of the Act which protects the Minister of Defence is unconstitutional, then in all probability ... he will go to the Ombudsman ...It will be \fPage 4. of course decisive, and Mr Bertelsmann says that it is a matter of importance because, if the plaintiff does not persuade the Constitutional Court, then he is non-suited.\u201d The person mentioned in that last sentence was the plaintiff\u2019s counsel.", "The referral purported to be sought and ordered under section 102(1) of the Constitution, which stipulates that: \u201cIf, in any matter before a provincial or local division of the Supreme Court, there is an issue which may be decisive for the case, and which falls within the exclusive jurisdiction of the Constitutional Court ..., the provincial or local division concerned shall, if it considers it to be in the interest of justice to do so, refer such matter to the Constitutional Court for its decision: Provided that, if it is necessary for evidence to be heard for the purposes of deciding such issue, the provincial or local division concerned shall hear such evidence and make a finding thereon, before referring the matter to the Constitutional Court.\u201d No provision is made, one notices, for referrals requested by consent. Curlewis DJP was therefore right in the view he took that the agreement which the parties had reached did not bind him. Before granting the order he had to satisfy himself, independently and regardless of their attitude, that all three requirements were met for a competent referral of the issue raised. They were the requirements that it lay within our exclusive jurisdiction, that it might be decisive of the case, and that its referral \fPage 5. would be in the interests of justice. The first of those was undoubtedly fulfilled , an Act of Parliament having come under fire. Whether the same went for the second and third is, however, another matter.", "Rule 22(2) of our Rules directs the judge or judges ordering any referral in terms of section 102(1) to - \u201c... formulate in writing ... the reason why he or she or they consider it to be in the interest of justice that the matter be referred.\u201d The only reason given by Curlewis DJP for the referral that he ordered was the one furnished in the passage which I have quoted from his judgment. It is not clear to me why the parties planned to deal in a manner so unorthodox with the dispute over the merits of the claim if that had to be resolved because of a ruling on section 113(1) which put paid to the special plea. For nobody has explained to us why a private ventilation of the dispute before the Ombudsman was preferred in that event to its public adjudication by the Transvaal Provincial Division. The case was the type, after all, where the defendant at least might have been expected to value the store which the Constitution set by the concept of an open society. Nor do I know what the parties have in mind now that, since the referral, the post of Ombudsman has been abolished and replaced by the office of the Public Protector whose functions are not quite the Page 6. same as those of his predecessor. I am uncertain about something else too, about \fthe answer to an underlying question that occurs to me. It is whether section 102(1) catered in the first place for a referral on such grounds. That it did was apparently taken for granted in the Court below. But the supposition may have been wrong. The purpose which section 102(1) was designed to serve is obvious. It enables provincial and local divisions to seek rulings on issues of the kind encompassed which they need for, and on obtaining must apply to, the matters handled by them. Here the referral had no such aim. The point was neither argued, however, nor even put to counsel. So we had better leave it undecided at present and assume the referral not to have been objectionable on that particular count.", "The proceedings in the Court below call for some comment elsewhere. Curlewis DJP seems not to have applied his mind to, and he certainly said nothing about, the prospects of success that the attack on the validity of section 113(1) was thought likely to attract on its referral to us. Those prospects were plainly pertinent to the interests of justice which he had to consider. He was therefore required to evaluate them. A general rule to that effect is implicit in section 102(1), we have held already, and governs every referral ordered under it. Kentridge AJ enunciated the rule in S v Mhlungu and Others1, where he rated \u201c(t)he reasonable prospect of success\u201d which the constitutional challenge appeared to enjoy as \u201ca sine qua non of Page 7. 1 Paragraph [59]: 1995 (3) SA 867 (CC) at 895 A - C; 1995 (7) BCLR 793 (CC) at 821 C - E. \fa referral\u201d. The judge who decides to order a referral must consequently explain, in canvassing the interests of justice, why he or she thinks that the challenge may succeed. That corollary was added by Ackermann J in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others2 . Neither judgment had yet been delivered, it is true, at the time when Curlewis DJP dealt with the matter. But the rule and its corollary surely spoke for themselves even then. For it had gone without saying all along that the interests of justice could never be served by the referral of points with no visible substance. The need for care in appraising those taken is illustrated by the order which Curlewis DJP granted. It identified four sections of the Constitution as the parts believed to be relevant to the issue referred because of the impact that they might have on section 113(1). They were sections 8, 22, 26, and 27. Section 22 bestows on everybody the right of access to courts of law or separate but suitable tribunals for the resolution of justiciable disputes. That section 113(1) encroaches on the right looks, to be sure, like an arguable proposition. So perhaps is the suggestion of a conflict with section 8, the one guaranteeing equality before the law and its equal protection, since section 113(1) differentiates in the restrictions that it imposes between the general run of plaintiffs and those whose cases it affects, to their detriment, and also between the State when sued and in suing. The topics of sections 26 and 27, on the other hand, are the rights to engage freely in economic activity and to the benefit of fair labour practices. It is hard to see and difficult to imagine what 2 Paragraph [8]: 1996(1) SA 984 (CC) at 999 E - F; 1996 (1) BCLR 1 (CC) at 14 A - B. Page 8. \fbearing either has or could be supposed to have on section 113(1). We should have been told why they were mentioned in the order.", "Nor does the trouble that we have with the referral end there. It was ordered when five material questions raised by the special plea and the replication to it had been left unanswered. They were these, an affirmative response to question (a) posing questions (b) to (e) in turn. (a) Was the action instituted \u201cin respect of\u201d something \u201cdone or omitted to be done in pursuance of\u201d the statute, with the result that section 113(1) covered it? (b) Was the action preceded by a notice given to the defendant which complied with the sub-section in its form, terms and time? (c) Did the plaintiff\u2019s cause of action arise earlier than six months before the litigation started? (d) If it did, was his claim extinguished once and for all by the failure to start the litigation within six months after the cause of action had arisen? (e) In that event could any subsequent invalidation of the sub-section revive a claim that was extinct by then? Some parts of those were questions of fact, some of law, and others of fact mixed with law. All fell within the jurisdiction of the Transvaal Provincial Division, where they Page 9. \fcould have been resolved. In listing the five I have not overlooked the prediction ventured by the plaintiff\u2019s counsel in the Court below that his client would be \u201cnon-suited\u201d if section 113(1) stood. The prediction may have implied that the denials precipitating questions (a) to (d) were tactical ones which could not be substantiated, ones that would therefore not matter in the long run. But, whatever counsel meant to convey, he did not formally withdraw the denials or admit the allegations which they had put in issue. So on the pleadings those four questions remained in dispute. Nothing was said, in any event, touching question (e). That, apart from the rest, has undoubtedly stayed alive and kept its importance, an affirmative answer being essential there to the plaintiff\u2019s case on the constitutional point.", "The proviso to section 102(1) dictates that the judge who orders a referral must, before doing so, hear and make findings on any evidence that is necessary \u201cfor the purposes of deciding\u201d the issue referred. I am not sure about the scope of the evidence which the proviso encompasses, whether it envisages testimony pertaining to the issue that is about to be referred, testimony relating to other issues which furnish the setting for the enquiry into that one, or both categories. The interpretation of the proviso was not debated before us, and we have had no prior occasion to consider it. I shall assume that it did not, in itself, oblige Curlewis DJP to hear evidence on the factual components of the questions in dispute. Whether he ought to have done so in any event, and then to have decided the questions themselves in accordance with Page 10. \fhis findings of fact and conclusions of law, depends on the effect of the second and third requirements for a referral that I mentioned earlier, those of prospective decisiveness and the interests of justice.", "The phraseology of the second requirement is not altogether clear. It poses two problems. The one concerns its allusion to \u201cthe case\u201d in respect of which the issue referred may be decisive. The requirement is obviously met whenever a ruling on that issue may dispose of the entire case with no further ado. Often, however, only some individual and self-contained part of the case will be directly affected. Then too the requirement is satisfied, I believe, once the ruling given there may have a crucial bearing on the eventual outcome of the case as a whole, or on any significant aspect of the way in which its remaining parts ought to be handled. That goes indeed for the present matter, where the plaintiff will be barred from pursuing his claim on the merits if section 113(1) stands and the upshot is the success of the special plea. The other problem looks more puzzling. The words that raise it are \u201cmay be decisive\u201d. What they seem to connote is the possibility of decisiveness rather than the certainty of that. One would otherwise have expected \u201cwill\u201d to appear there instead of \u201cmay\u201d. That nothing stronger was evidently envisaged does not sound surprising. For a verdict of constitutionality returned by this Court on the issue referred will seldom dispose of a case with additional issues. And, since such a verdict is always on the cards, the prospect that the referral will produce a result decisive of the case can never Page 11. \famount to more than a possibility. But a question still remains, the question whether that is the sole possibility postulated. Another presented by a case with multiple issues, as most cases happen to be, is the possibility that the resolution of the issues which are not referred will prove instead to be the decisive factor. It may then be suggested that, unless and until that further possibility is eliminated, the referred issue cannot emerge as a real one, let alone become rateable as possibly decisive. To examine the suggestion, couched in those general terms, is unnecessary now. It suffices for the purposes of this judgment to draw a distinction, in contemplating the determination of such extra issues, between decisions with two different effects. The one kind dispenses with the need for the referred issue to be resolved, thus rendering it irrelevant in the end. The other means that the issue referred can never even arise because the particular constitutional provision on which it turns is held not to apply to the case. An issue falling into that latter category can hardly be regarded as potentially decisive while the constitutional basis for it has not yet been established. Its referral in the meantime, on my appraisal of that, is therefore incompetent.", "The referral in this matter was defective on that very score. I shall confine my attention, in explaining why I say so, to questions (d) and (e) of the five formulated above that were not answered in the Court below. The legal truth may well be that, by the time when the plaintiff instituted the action, his claim was extinct already and incapable of revival. Whether such was the case is highly important. For the . Page 12. special plea may be invulnerable to attack in that event, even if the Constitution \finvalidated section 113(1) when it came into operation afterwards. Either an answer in the negative to question (d), or an affirmative one to question (e) were question (d) answered likewise, was therefore imperative in order to raise the constitutional issue put to us. In the absence of both answers the issue was neither here nor there, and by no means potentially decisive of the case.", "Nor, in my opinion, did the interests of justice call for the referral while those two questions at least stood unanswered. In S v Mhlungu and Others3 Kentridge AJ wrote: \u201cIt is convenient ... to say something about the practice of referrals to this Court under section 102(1) of the Constitution. The fact that an issue within the exclusive jurisdiction of this Court arises in a provincial or local division does not necessitate an immediate referral to this Court ... It is not always in the interest of justice to make a reference as soon as the relevant issue has been raised. Where the case is not likely to be of long duration it may be in the interests of justice to hear all the evidence or as much of it as possible before considering a referral ... Moreover, once the evidence in the case is heard it may turn out that the constitutional issue is not after all decisive. I would lay it down as a general principle that where Page 13. it is possible to decide any case ... without reaching a 3 See footnote 1: Paragraph [59] at 894 I - 895 E in the first report cited there and 820 J - 821 G in the second one. \fconstitutional issue, that is the course which should be followed.\u201d Chaskalson P reiterated that principle in Zantsi v Council of State, Ciskei, and Others 4, declaring it to be - \u201c... a rule which should ordinarily be adhered to by this and all other South African Courts before whom constitutional issues are raised.\u201d The point which Kentridge AJ made about the duration of trials is pertinent to the present matter. Separately from and in advance of the trial on the claim itself, evidence and argument could have been heard, and a decision could then have been reached, on all the issues but the constitutional one which the special plea and the replication had raised. Rule 33(4) of the Supreme Court Rules permitted such preliminary proceedings. They could scarcely have lasted for longer than a day or two.", "Section 102(1) empowers and obliges \u201cthe provincial or local division concerned\u201d to order a referral which is otherwise competent \u201cif it considers it to be in the interest of justice to do so\u201d. The wording had the effect, counsel contended, that where the interests of justice lay for those purposes was the business of the judge ordering the referral, whose evaluation of them we could not overrule once he or she had found Page 14. that they told in favour of the order. I disagree. The words \u201cit considers\u201d, as I read 4 Paragraphs [3] and [5]: 1995(4) SA 615 (CC) at 618 B and E - F; 1995 (10) BCLR 1424 (CC) at 1428 D - E and 1429 C. \fthem, do not import the idea of a discretionary decision on the part of the referring Court, in the narrow sense of one that can be upset only in the exercise of a power to review it and which is unimpeachable in the absence of conventional grounds for such a review. They simply recognise that, unlike the criteria of exclusive jurisdiction and prospective decisiveness which are objectively measurable, what appears to be in the interests of justice or not falls within the field of a value judgment. Deference is due and usually paid, whenever a value judgment comes under the scrutiny of a higher court, to the advantages that were enjoyed in the lower court by the judicial officer who reached it there. That seldom means, however, that it binds the higher court. The same surely goes in any referral for the value judgment passed on the interests of justice by the referring judge, especially one emanating from a heavy trial which he or she is busy hearing, a trial where he or she has become steeped in its atmosphere and better equipped than we can ever be for an assessment of the most beneficial, expedient and convenient stage at which to put to us an issue calling sooner or later for our determination. We are nevertheless free in a suitable case, I believe, to prefer our own opinion on the interests of justice to the one formed by the referring judge and, having taken the opposite view, to give effect to it by ruling the referral out of order. That construction which I place on the wording of the section is supported, moreover, by the sensible result that it produces. It would be most unfortunate if we could be compelled to decide a issue which we considered not to be ripe for resolution at that Page 15. \fparticular juncture. The strict control by us of our adjudication is essential to the work that we have to perform. Much the same policy has been adopted and implemented by the Appellate Division towards appeals presented to it piecemeal. The policy was declared, amongst other occasions, in R v Adams and Others5. All that remains to be added is this, which I emphasise. In declining to deal with an issue sent here on a referral, we do not refuse to exercise the jurisdiction entrusted to us over it. We merely rule that the recourse then had to our jurisdiction is premature, and defer its exercise until the arrival of a time more propitious for that.", "Curlewis DJP was no better placed to assess the interests of justice associated with the present referral than we now are. Its history and handling were not the sort that gave him any such advantage. Nor did the extent of his involvement in the case, which seems to have been relatively brief and slight. All that being so, I need not hesitate on deferential grounds before dissenting, as I do, from his belief that the referral served those interests.", "The conclusion to which I have accordingly come is that the referral was ordered wrongly for want of compliance with both the second and third requirements, and that we should therefore not entertain it. 5 1959 (3) SA 753 (A) at 763 B - C. Page 16. \f[15] Counsel requested us, if we took that view, to allow the parties direct access to this Court on the issue referred so that it might nevertheless be determined now. Rule 17(1) of our Rules provides for the channel of direct access, but in - \u201c... exceptional circumstances only, which will ordinarily exist only where the matter is of such urgency, or otherwise of such public importance, that the delay necessitated by the use of the ordinary procedures would prejudice the public interest or prejudice the ends of justice and good government.\u201d That route, as Kentridge AJ mentioned in S v Zuma and Others6 , was \u201ccertainly not intended to be used to legitimate an incompetent reference\u201d. We have accepted that it may be followed in place of a bad referral, however, once exceptional circumstances are found to be present. One such circumstance is the pressing need for a definite and final decision on a controversial point springing up throughout the country daily, or very frequently at any rate, and affecting countless other cases7. Another is the problem of the long and complicated trial which may be aborted in the end by an infringement of the Constitution first established on appeal, and the Page 17. 6 Paragraph [11]: 1995 (2) SA 642 (CC) at 650 B; 1995 (4) BCLR 401 (CC) at 409 H - I. 7 S v Zuma and Others: see footnote 6: paragraph [11] at 649 I - 650 B in the first report cited there and 409 F - I in the second one; Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others: see footnote 2: paragraph [10] at 1000 1000 C - F in the first report cited there and 14 G - 15 A in the second one. \fconsequent wastage of time, effort and money that an early ruling could have avoided8. What I said a moment ago about the swift and brief adjudication on the special plea that was feasible distinguishes the circumstances of this case from the second set. They differ from the first lot too. The constitutional validity of section 113(1) is an issue likely to be resolved in another matter where it was referred to us, properly so that seems, the one of Mohlomi v Minister of Defence which we heard together with this case and have under consideration at present. None of the circumstances encountered here are, as I see them, exceptional. In my judgment direct access ought not to be granted.", "Counsel agreed that, if the proceedings had the outcome which is about to ensue, no order for costs should be made. That would be fair, I believe, since the parties are equally responsible for the course matters have taken.", "In the result the referral is struck off the roll, the application for direct access is refused, and the case is remitted to the Transvaal Provincial Division. Page 18. Chaskalson P, Mahomed DP, Ackermann J, Kentridge AJ, Kriegler J, Langa J, 8 Paragraph [13] of S v Vermaas; S v du Plessis 1995(3) SA 292 (CC) at 297 H - 298 H; 1995 (7) BCLR 851 (CC) at 857 G - 858 H. \fMadala J, Mokgoro J, O\u2019Regan J and Sachs J all concur in the judgment of Didcott J. Plaintiff\u2019s counsel: E. Bertelsmann SC, instructed by Wilsenach, Van Wyk, Goosen and Bekker. Defendant\u2019s counsel: J.L. van der Merwe SC, with him P.J.J. de Jager, instructed by the State Attorney."], "max_length_judgement_paras": 544}]}