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[1995] ZACC 7
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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)
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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
CASE NO CCT 22/94
In the matter of
N J MATISO
and
Others
and
THE COMMANDING OFFICER, PORT ELIZABETH
PRISON
and Others
Heard on: 6 March
1995
Delivered on: 22 September
1995
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
[ 1 ]
KRIEGLER J
: These cases raise questions concerning the
constitutional validity of the provisions of sections 65A to 65M of the
Magistrates
Courts Act
[1]
relating to the imprisonment of judgment debtors.
[ 2 ] The constitutionality of the provisions was first challenged in the
Eastern Cape. Shortly after the interim
Constitution
[2]
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 Courts Act to this
Court.
[3]
Melunsky J delivered an
ex tempore
judgment and Froneman J subsequently furnished detailed
reasons for the order he
made.
[4]
[ 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
colleagues Didcott and Sachs JJ in these cases. Each
of them makes quite plain
why the provisions of the Magistrates Courts Act relating to the
imprisonment of judgment debtors
for contempt of
court
[6]
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 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
hearing
[8]
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 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
show 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.
[12]
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]
[ 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]
[ 9 ] This Court has laid down that, ordinarily, one adopts a two-stage
approach for 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 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 persons right to
freedom.
[17]
To do so without any
criminal charge being levelled or any trial being held is manifestly a radical
encroachment upon such right.
[ 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 ....
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
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
cannot pay and simply fail to prove this at a hearing often due to negative
circumstances created by the provisions themselves.
[ 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 debtors first
notice of the case against
him is when the warrant of committal is executed. In
terms of the procedure permitted by the Magistrates 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 knowledge, is so widely couched that persons genuinely unable to pay
are nevertheless struck.
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
debtors rights and duties
to an undefended layman and would probably do
so. But the fact remains that there is no express obligation on the magistrate
to
do so.
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.
[ 15 ] This conclusion obliges one to consider the question of severability.
Indeed, 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
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
object of sections 65A to 65M of the Magistrates
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 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 Courts Act are
inconsistent with the Constitution and are declared to be invalid
with effect
from the date of this
order:
a. The following words in section
65A(1)
why he should not be committed for contempt of court
and;
b. Sections 65F, 65G and 65H;
c. Paragraphs (a) and (c) of section 65J(1);
d. Paragraph b(ii) of section 65J(2);
e. The following words in paragraph (a) of section 65J(9)
(a) or,
and
and may, subject to the provisions of section 65G, be committed for
contempt of court for failing to comply with the said
order;
f. Paragraph (b) of section 65J(9);
g. The following words in section 65K(2)
or 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; and
h. Section 65L.
2. All other provisions of sections 65A to 65M of the Magistrates Courts
Act remain in force.
3. With effect from the date of this order, the committal or continuing
imprisonment of any judgment debtor in terms of section 65F
or 65G of the
Magistrates Courts Act is
invalid.
JC Kriegler
Chaskalson P,
Mahomed DP, Ackermann J, Madala J, and ORegan J concur in the judgment
of Kriegler J.
[ 20 ]
DIDCOTT J
: I am by no means convinced at present that it would be
unconstitutional, 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 debtors
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;
(e) no order for the imprisonment of the debtor might ensue from the enquiry in
the absence of such proof.
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
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 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.
[ 25 ] The fourth ugly feature of the legislation that will confront the debtor
if he does 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).
[ 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
the 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.
JM Didcott
[ 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
[ 30 ]
LANGA J
: The matter referred to the Court is the
constitutionality of certain of the provisions of sections 65A to M of the
Magistrates
Courts Act
[25]
(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
J
[26]
, 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 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 persons liberty, which
is the essence of the freedom and
security 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]
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 offenders
self-esteem and the integrity of his character and
for changing, for the worse,
his way of life.
Reynolds J
[29]
refers to the
deleterious effects of penal institutions ... and the
unfortunate results that regularly follow
the imposition of custodial
punishment. Goldstone J
[30]
refers to the need to ... avoid exposure to the negative consequences
of imprisonment.
[ 34 ] The language of section 11(1), which guarantees freedom and
security of the person and the right not
to be detained without
trial, 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 to 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.
[ 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 Js and Didcott
Js judgments, I agree that the impugned provisions
constitute an
unreasonable limitation on the freedom and security 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
necessary to finally resolve the question of whether it would be
unconstitutional to imprison wilfully defaulting
debtors.
PN Langa
[ 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.
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 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
year
[32]
; 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 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.
I THE QUESTION OF CONSTITUTIONALITY
[ 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 detention without
trial 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 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
objectives
[34]
, 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
11
[35]
, 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.
The right to Freedom and security of the
person
[ 44 ] My principal focus is on the rights subsumed in the expression
freedom and security of the person. 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
constraint
[37]
or whether it should
be regarded as having the widest
amplitude
[38]
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 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 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 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.
[42]
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 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 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 courts 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 Courts Act.
The Limitations Clause
[ 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) 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.
[ 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 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 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.
Reasonableness
[ 50 ] The requirement that limitation be reasonable presupposes more than the
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.
Justifiable
in an Open and Democratic Society
[ 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]
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.
According to the Explanatory Report on the Fourth Protocol to European
Convention,
[58]
freedom from civil
imprisonment must be understood in the following
context:
[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 simply refuse to honour a debt
which
they are able to pay.
[60]
[ 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
reasonable objectives is
reduced.
[61]
The 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 necessary? 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 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
Kingdom
[65]
as
follows:
(a) the adjective 'necessary' is not synonymous with 'indispensable', neither
has it the flexibility of such expressions as 'admissible',
'ordinary',
useful, 'reasonable' or 'desirable'.
(b) 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.
(c) 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'.
(d) 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 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
necessary, 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 objective
considerations.
[69]
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
necessary 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
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 the least onerous solution 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
debtors be said to be sufficiently acute and forceful to pierce the protective
constitutional armour provided by the word necessary?
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 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 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 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 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 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
lacunae
[79]
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 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-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 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 to 65M are
constitutionally retrievable or not. Yet it is appropriate
to examine Mr Du
Plessis 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.
[ 66 ] As I have said, Sections 65A to 65M do indeed describe the penalty
imposed 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 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 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
us
[85]
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 (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 Navsas 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
discriminatory
[89]
in that the rich
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
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, 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.
[ 70 ] Having rejected the minimalist position of contended for by Mr Du
Plessis, 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 Magistrates 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 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) The process should not permit the imprisonment of persons merely because
they were unable to pay their contractual debts;
(ii) The procedures adopted would have to be manifestly fair in all the
circumstances;
(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.
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.
[ 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 Court
would remain, and the need to exercise our
life-saving discretion would indeed be great.
[ 75 ] Severability is an important concept in the context of the relations
between this court and Parliament; like reading
down, it is an
instrument of judicial restraint which reduces the danger of producing an
overbroad judicial reaction to overbroad
legislation. I agree with Kriegler
Js 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.
[ 76 ] Having separated the good from the bad, would it then be in the
interests of justice and good government to keep the bad
in existence to give it
a chance to become part of the good? The words in the interests of
justice and good government
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
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 request, and for the reasons advanced above, agree fully
with
the order proposed by Kriegler J.
AL Sachs
[ 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
For 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.
[1]
No. 32 of 1944. The particular
sections at issue were inserted by section 2 of Act No. 63 of 1976.
[2]
Constitution 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.
[3]
The 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);
(b) the whole of sections 65F, 65G, 65H and 65L;
(c) subsections (1)(c), (2)(b)(ii), 9(a) and 9(b) of s 65J; and
(d) section
65K(2).
[4]
The
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).
[5]
The 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?
[6]
In
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.
[7]
Because 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.
[8]
See
Sections 65A and 65B
of the Magistrates Courts Act. The notice to the judgment debtor must
be served at least 7 days prior
to the hearing. Section 65B of the
Magistrates Courts Act.
[9]
See
Section 65D of the
Magistrates Courts Act. In determining the ability of the debtor to
pay, the magistrate is required to
take into account the debtors and his
dependants necessary expenses, other court orders to pay, and other
commitments
of the debtor. Section 65D(4)(a) of the Magistrates Courts
Act.
[10]
See
Section 65E of the
Magistrates Courts Act.
[11]
See
Section 65F of the
Magistrates Courts Act. The magistrate may also suspend a sentence for
committal. Section 65F(2) of
the Magistrates Courts Act.
[12]
Section 65A(1) of the
Magistrates Courts Act.
[13]
Section 65B of the
Magistrates Courts Act. In accordance with the rules of service the
notice need not be served personally.
Rule 9 of the Magistrates Courts
Rules.
[14]
Section 65F(3) of the
Magistrates Courts Act.
[15]
South African Law Commission,
Debt Collecting (Project 74): Imprisonment for Debt, Interim Report dated August
1994 at paragraph 4.2.2.
[16]
See, e.g.
,
S v
Williams and Others
1995(7) BCLR 861 (CC), 879D-G.
[17]
It 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 section 33(1),
infra
, validate the
provisions
vis-a-vis
the right to freedom. Section 10 provides -
10. Human dignity. Every person shall have the right to respect for and
protection
of his or her dignity. Section 25(3) provides - (3)
Every accused person shall have the right to a fair trial ....
[18]
See
S v Makwanyane
and Another
1995(6) BCLR 665 (CC), 748A-B.
[19]
The 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.
[20]
Substituted service of some
kind is possible in respect of all process prior to judgment.
See
Rule 9
of the Magistrates 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.
[21]
See
Rule 45 and Form
40 of the Magistrates Courts Rules.
[22]
Admittedly 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.
[23]
Johannesburg City Council
v Chesterfield House
1952(3) SA 809 (AD), 822D-E.
See also
,
S v
Lasker
1991(1) SA 558 (CPD), 566.
[24]
Afforded an audience as
amicus curiae
by virtue of its special interest and expertise in the
matter and represented by two members.
[25]
Act No. 32 of 1944 (as
amended).
[26]
In paragraph 14 of his
judgment, Kriegler J states: As a result of these defects, the statute
sweeps up those who cannot pay
with those who can but simply will
not.
[27]
In
S v Benetti
1975(3)
SA 603 (T) at 605G.
[28]
This 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.
[29]
Reynold Js 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 custodial
sentences should be used as sparingly as possible.
[30]
In
S v Kumalo
1984(4)
SA 642 (W) at 644H.
[31]
Sachs J opines at paragraph
66 of his judgment that [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.
[32]
Using 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.
[33]
P
Hogg,
Constitutional Law of Canada
(3rd ed. 1992) at Chapter 4.
[34]
See
Hicks v
Feiock
[1988] USSC 72
;
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.
[35]
See
comments on
interacting values by Wilson J in
R v Morgentaler
44 DLR (4th) 385 (1988)
at 493;
See also
S v Makwanyane
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC) per
Chaskalson P at 702D and 722H-723A, and ORegan J at 777E.
[36]
Hogg 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.
[37]
For 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.
[38]
For 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.
[39]
For the position in the US
see
Board of Regents of State Colleges v Roth
,
[1972] USSC 168
;
408 US 564
(1972).
[40]
There is extensive literature
on the subject which we are not compelled to explore in the present case.
[41]
S v Zuma and Others
[1995] ZACC 1
;
1995 (4) BCLR 401
(SA) and
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC).
[42]
Per Chaskalson P in
Makwanyane
supra at 708D-G.
[43]
See 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 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).
[44]
In the words of Dickson CJC,
in
Keegstra
supra, they are no mere incantation, 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 political acts 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.
[45]
By Dickson CJC in
Keegstra
supra at 30 where he points out that factual circumstances
shape the courts 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:
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.
[46]
Per 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.
[47]
Keegstra
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.
[49]
In
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 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 Magistrates Courts in South Africa
(8th
ed. 1988) at 416.
[50]
In 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.
[51]
In 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.
[52]
For 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.
[53]
See
Kentridge AJ in
Zuma
supra at 420A-B.
[54]
Zuma
supra at
420A.
[55]
Makwanyane
supra at
709E.
[56]
S v Williams and
Others
[1995] ZACC 6
;
1995 (7) BCLR 861
(CC) at 880C.
[57]
Sieghart supra at 87, note
1.
[58]
Sieghart supra at 159.
[59]
See
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 creditors 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
carried the keys of the prison in their own pockets.
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.
[60]
M Nowak,
UN Covenant on
Civil and Political Rights - CCPR Commentary
(1993) at 193-6.
[61]
See
ORegan J
in
Makwanyane
supra at 780E-F.
[62]
The Canadian Charter speaks
of a limitation having to be demonstrably justifiable. There is
no equivalent word in
Section 33, in respect of which the phrase burden
of persuasion might be more apposite than onus of proof.
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.
[63]
See 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?
[64]
European
Convention, Articles 8 to 11 and Article 2 of Protocol No. 4.
[65]
[1983] ECHR 5
;
(1983) 5 EHRR 347
at para.
97.
[66]
An 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 the 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.
[67]
Cf
Nowak supra at 211.
See also
Chaskalson P in
Makwanyane
supra at 710G-711B citing the
case of
R v France
[1992] ECHR 40
;
(1993) 16 EHRR 1
and Langa J in
Williams
supra
at 880F.
[68]
Nowak 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.
[69]
See
(1985) 7
Human
Rights Quarterly
1
, quoted by Erasmus in
Rights and Constitutionalism
supra at 644.
[70]
Sieghart supra at 94; on
margin of appreciation at 99-102.
[71]
See the remarks of Wilson J
in
Re Singh
supra at 467.
[72]
The 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.
[73]
Section 3.
[74]
Quentin's v Komane
1983 (2) SA 775
(T) at 778.
See also
Grosskopf JA in
T
`
dt v Ipser
1993 (3) SA 577
(A) at 588 describing
the whole process as being in effect one of civil imprisonment.
[75]
Van der Bergh v John Price
Estates and Others
1987 (4) SA 58
(SE).
[76]
See 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).
[77]
Section 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 reading
down.
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.
[78]
See
Kentridge AJ in
Zuma
supra at
411E-G.
[79]
See
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.
[80]
See
cases referred to in note 89 below.
[81]
See
, however, Jones
and Buckle supra at 273, where the contrary position is argued.
[82]
Specific 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.
[83]
Cf
Hofmeyr v
Fourie
supra at 599-600.
[84]
This 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.
[85]
In 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.
[86]
Section 65J.
[87]
Section 65E.
[88]
Chaskalson P in
Makwanyane
supra at 723A; Langa J in
Williams
at
886F-G.
[89]
Though judgment
creditors in the superior courts can and do transfer judgment debts to the
Magistrates 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 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.
[90]
The 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 Courts Act
>, Centre for
Human Rights Occasional Papers, No 7, 1995 at para 9.
[91]
Section 74(1)
of the
Magistrates Courts Act 32 of 1944
as amended provides for the
appointment of an administrator of a debtors estate where the debtor
inter alia
has insufficient assets capable of attachment to satisfy a
judgment or the debtors financial obligations.
[92]
In 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.
[93]
See
South African Law
Commission Further Report of August 1994.