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[1996] ZACC 6
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Nel v Le Roux NO and Others (CCT30/95) [1996] ZACC 6; 1996 (4) BCLR 592; 1996 (3) SA 562 (4 April 1996)
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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO CCT 30/95
NEL
Applicant
v
LE
ROUX NO
First Respondent
THE ATTORNEY-GENERAL OF THE
WITWATERSRAND
LOCAL DIVISION OF THE SUPREME COURT
OF SOUTH
AFRICA
Second Respondent
THE MINISTER OF JUSTICE
OF THE REPUBLIC
OF SOUTH AFRICA
Third
Respondent
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
Fourth Respondent
Heard on: 20 February
1996
Delivered on: 4 April
1996
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
[1]
ACKERMANN J:
Pursuant to a referral from the Witwatersrand Local
Division of the Supreme Court in terms of section 103(4) of the
Constitution
[1]
we are called
upon to decide the constitutionality of section 205 of the Criminal Procedure
Act (CPA)
[2]
which
is in the following terms:
(1) A judge of the supreme court, a regional court magistrate or a magistrate
may, subject to the provisions of subsection 4, upon
the request of an
attorney-general or a public prosecutor authorized thereto in writing by the
attorney-general, require the attendance
before him or any other judge, regional
court magistrate or magistrate, for examination by the attorney-general or the
public prosecutor
authorized thereto in writing by the attorney-general, of any
person who is likely to give material or relevant information as to
any alleged
offence, whether or not it is known by whom the offence was committed: Provided
that if such person furnishes that information
to the satisfaction of the
attorney-general or public prosecutor concerned prior to the date on which he is
required to appear before
a judge, regional court magistrate or magistrate, he
shall be under no further obligation to appear before a judge, regional court
magistrate or magistrate.
(2) The provisions of sections 162 to 165 inclusive, 179 to 181 inclusive,
187 to 189 inclusive, 191 and 204 shall
mutatis mutandis
apply with
reference to the proceedings under subsection
(1).
(3) The examination of any person under subsection (1) may be conducted in
private at any place designated by the judge, regional
court magistrate or
magistrate.
(4) A person required in terms of subsection (1) to appear before a judge, a
regional court magistrate or a magistrate for examination,
and who refuses or
fails to give the information contemplated in subsection (1), shall not be
sentenced to imprisonment as contemplated
in section 189 unless the judge,
regional court magistrate or magistrate concerned, as the case may be, is also
of the opinion that
the furnishing of such information is necessary for the
administration of justice or the maintenance of law and order.
[2] One Hoogakker was charged in the Johannesburg Magistrates’ Court on
various counts of fraud and of contravening the Exchange
Control Regulations
(ECR) promulgated under section 9 of the Currency and Exchanges
Act.
[3]
In March 1995 a subpoena in
terms of section 205(1) of the CPA was served on the applicant requiring him to
appear in the Magistrates’
Court to be examined in connection with
information relating to the offences with which Hoogakker had been charged. The
subpoena
indicated that information was
required from the applicant concerning,
inter alia
, the acquisition of a
property by him in Spain and his association with Hoogakker. On presenting
himself to the examining magistrate
(the first respondent) on 13 April 1995, but
before being sworn, the unconstitutionality of section 205 was raised on the
applicant’s
behalf by his attorney.
[3] The issue referred to this Court is whether section 205 of the CPA is
consistent with the provisions of sections 8(1), 11(1),
11(2), 13, 15(1), 23, 24
and 25(3)(a), (c) and (d) of the Constitution. Sections 189(1) and
(3),
[4]
203
[5]
and 204
[6]
of the CPA are relevant to the
construction of section 205. Sections 189 and 204 are incorporated therein by
reference.
Although section 203 is not similarly incorporated by reference, it was held in
S v Waite
[7]
that an
examinee at a section 205 examination is fully entitled to claim the privilege
against self-incrimination.
[4] In view of the transactional indemnity and use immunity provisions in
section 204(2) and (4) respectively of the CPA, the applicant
could not validly
(and did not) object to answering self-incriminating
questions.
[8]
His complaint was that
if he answered questions foreshadowed in the subpoena he would risk exposing
himself to the civil forfeitures
provided for in paragraphs 22A, 22B and 22C of
the ECR. This contention formed the point of departure for a substantial part of
the
attack on section 205 of the CPA.
The attack based on
sections 8(1) (equality); 13 (privacy); 15(1) (freedom of speech and
expression); 25(3)(c) (an accused’s
right to be presumed innocent and to
remain silent) and 25(3)(d) (insofar as it entrenches an accused’s right
against self-incrimination)
[5] It is unnecessary for purposes of deciding this case to consider the ambit
of these rights and the extent to which, if any, they
are facially infringed
when the provisions of section 205 of the CPA are enforced. The arguments
advanced on behalf of the applicant
did not
take adequate account of the implications of the qualification to section 189(1)
of the
CPA as it applies to section 205, namely, that the examinee is not obliged to
testify or to answer any particular question put or
to produce any book, paper
or document if he/she has “a just excuse” for refusing or failing so
to answer or to produce.
In my view the proper application of this provision
affords the complete answer to the applicant’s contentions on this
score.
[6] In
Bernstein v Bester
[9]
we
considered the meaning and implications of the provisions of section
418(5)(b)(iii)(aa) of the Companies
Act,
[10]
which provide that a person
who, having been duly summoned under section 417 or 418 of the Act to an
examination,
fails,
without sufficient cause
... to answer fully and satisfactorily
any question lawfully put to him in terms of section 417(2) or this section ...
shall be guilty
of an offence. (Emphasis added).
We
found
[11]
that:
There is no other provision in section 417 or 418, or for that matter in any
other provision of the Act which expressly or by necessary
implication, compels
the examinee to answer a specific question which, if answered, would threaten
any of the examinee’s Chapter
3 rights. It must in my view follow from
this that the provisions of sections 417 and 418 can and must be construed in
such a way
that an examinee is not compelled to answer a question which would
result in the unjustified infringement of any of the examinee’s
Chapter 3
rights. Fidelity to section 35(2) of the Constitution requires such a
construction and fidelity to section 35(3) read with
section 7(4) of the
Constitution requires an appropriate remedy; in the present case that the
examinee should not be compelled to
answer a question which would result in the
infringement of a Chapter 3 right.
Applying this analysis to the above quoted provisions of section
418(5)(b)(iii)(aa) of the Companies Act we
concluded:
[12]
Nothing could be clearer, in my view, than this. If the answer to any question
put at such examination would infringe or threaten
to infringe any of the
examinee’s Chapter 3 rights, this would constitute “sufficient
cause”, for purposes of the
above provision, for refusing to answer the
question unless such right of the examinee has been limited in a way which
passes section
33(1) scrutiny. By the same token the question itself would not
be one “lawfully put” and the examinee would not, in
terms of this
very provision, be obliged to answer it. The answer to this leg of Mr.
Marcus
’ argument is that there is, on a proper construction of
these sections, and in the light of this Court’s order in
Ferreira v
Levin
, no provision in section 417 or 418 of the Act which is inconsistent
with the examinee’s right to privacy in terms of section
13 of the
Constitution now under consideration.
[7] There is, in the context of what we are presently examining, no material
difference between the expression “a just excuse”
in section 189(1)
of the CPA and “sufficient cause” in section 418(5)(b)(iii)(aa) of
the Companies Act. If the answer
to any question put to an examinee at an
examination under section 205 of the CPA would infringe or threaten to infringe
any of the
examinee’s Chapter 3 rights, this would constitute a
“just excuse” for purposes of section 189(1) for refusing
to answer
the question unless the section 189(1) compulsion to answer the particular
question would, in the circumstances, constitute
a limitation on such right
which is justified under section 33(1) of the Constitution. In determining the
applicability of section
33(1), regard must be had not only to the right
asserted but also to the state’s interest in securing information
necessary
for the prosecution of crimes. We are not alone in adopting a
procedure such as that embodied in section 205. Other open and democratic
societies based on freedom and
equality do the same. In the United States it is accepted that the investigative
authority of the grand jury rests largely on “the
longstanding principle
that ‘the public has a right to every man’s
evidence’”
[13]
There is
nothing in the provisions of section 205 read with section 189 of the CPA which
compels or requires the examinee to answer
a question (or for that matter to
produce a document) which would unjustifiably infringe or threaten to infringe
any of the examinee’s
Chapter 3 rights. This disposes of the present part
of the applicant’s complaint.
[8] The aforegoing conclusion has important procedural implications for section
205 enquiries which were adumbrated in
Bernstein v
Bester.
[14]
It is for the
presiding officer at the section 205 examination to determine, when the
objection is raised, whether the examinee
has a “just excuse” for
refusing to answer the question in issue. A considerable body of case law has
already developed
on the meaning of “just
excuse”.
[15]
It is not in the
first place our task, but that of other courts, including the Supreme Court, to
construe what this means, but in
doing so they must bear in mind the duty
imposed on them by section 35(3) of the Constitution to “have due regard
to the spirit,
purport and objects” of Chapter 3 “[i]n the
interpretation of any law and the application and development of the common
law
...”.
[16]
What we do hold
herein is that sections 189 and 205 of the CPA can and must be construed in the
way suggested above so that their
application does not unjustifiably infringe or
threaten to infringe any of the examinee’s chapter 3 rights.
[9] This is what the magistrate in the present case should have done in the
first instance. If he had found that in answering any
of the questions the
examinee’s Chapter 3 rights would be infringed, he should have held that
this constituted a “just
excuse” for the examinee’s refusal to
answer, unless of course he came to the conclusion in respect of any particular
question that the section 189 compulsion to answer constituted, in the context
of the section 205 enquiry, a limitation on the examinee’s
right which was
justified under section 33(1) of the Constitution. If he had concluded that
there was no such infringement nor any
other just excuse for refusing to answer,
he should have compelled the applicant to answer. In particular the magistrate
should have
applied this approach to the applicant’s specific objection
that answering certain questions would expose him to the civil
forfeitures
provided for in paragraphs 22A, 22B and 22C of the ECR.
The attack based on sections 25(3) and 11(1)
[10] It was contended that certain of the applicant’s rights to a fair
trial in terms of section 25(3) and his right in terms
of section 11(1)
“not to be detained without trial” were infringed by the summary
compulsion mechanism of section 189(1)
of the CPA (incorporated into section
205) which provides for the recalcitrant witness to be sentenced to imprisonment
for a period
of up to two years after the court has only enquired in “a
summary manner” into the examinee’s failure or refusal
to testify or
answer questions. There was a considerable overlap between these arguments.
[11] The section 25(3) rights to a fair trial accrue only to an accused person.
The recalcitrant examinee who, on refusing or failing
to answer a question,
triggers the possible operation of the imprisonment provisions of section 189(1)
is not, in my view, an “accused
person” for purposes of the
protection afforded by section 25(3) of the Constitution. Such examinee is
unquestionably entitled
to procedural fairness, a matter which will be dealt
with below, but not directly to the section 25(3) rights, for the simple reason
that such examinee is not an accused facing criminal prosecution. The section
189(1) proceedings are not regarded as criminal
proceedings,
[17]
do not result in
the examinee being convicted of any
offence
[18]
and the imprisonment of
an examinee is not regarded as a criminal sentence or treated as such. If, after
being imprisoned, an examinee
becomes willing to testify this would entitle the
examinee to immediate release;
[19]
in American parlance such examinees “carry the keys of their prison in
their own pockets.”
[20]
The
imprisonment provisions in section 189 constitute nothing more than process in
aid of the essential objective of compelling
witnesses who have a legal duty to
testify to do so; it does not constitute a criminal trial, nor make an accused
of the examinee.
This disposes of the attack directly based on the section 25(3)
fair trial right.
[12] In the attack based on section 11(1) of the Constitution it was contended
that the section 205(3) procedure (incorporating the
summary incarceration
procedure of section 189) did not constitute a “trial” for purposes
of section 11(1) and in any
event infringed the requirement of
“fairness” or “due process” or “natural
justice” which is
implicit in the “trial” component of this
right. I have no doubt that this latter requirement, however one wishes to
label
it, is implicit in this right.
[13] It was argued that the “trial” contemplated in section 11(1)
was the “fair trial” provided for in section
25(3) of the
Constitution and which entitles the applicant more specifically in terms of
paragraph (a) of the latter subsection to
“a public trial” before
“an ordinary court” and in terms of paragraph (b) “to be
informed with sufficient
particularity of the charge”. It is difficult to
understand how, without any textual link between the “trial”
referred
to in section l1(1) and the “trial” referred to in section
25(3), such a conclusion can possibly be reached.
[14] The section 11(1) right relied upon by the applicants is the “right
not to be detained without trial.” The mischief
at which this particular
right is aimed is the deprivation of a person’s physical liberty without
appropriate procedural safeguards.
In its most extreme form, the mischief
exhibits itself in the detention of a person pursuant to the exercise by an
administrative
official of a subjective discretion without any, or grossly
inadequate, procedural safeguards. The nature of the fair procedure
contemplated by this right will depend upon the circumstances in which it is
invoked. The “trial” envisaged by this right
does not, in my view,
in all circumstances require a procedure which duplicates all the requirements
and safeguards embodied in section
25(3) of the Constitution. In most cases it
will require the interposition of an impartial entity, independent of the
executive and
the legislature to act as arbiter between the individual and the
state.
[15] It is unnecessary for purposes of this case to decide whether this
“entity” to which I have referred must in all
cases be a judicial
officer who ordinarily functions as such in the ordinary courts. As far as
section 205 of the CPA is concerned
the entity is indeed a normal judicial
officer who ordinarily functions in the ordinary courts. The “court”
before which
the section 205 enquiry takes place is in every material respect,
particularly insofar as its independence and impartiality is concerned,
identical to the “ordinary court of law” envisaged by section 25(3)
of the Constitution. On no basis can this leg of
the section 11(1) attack
succeed.
[16] It was also argued, as part of this and the wider section 11(1) attack,
that the summary section 189 imprisonment proceedings
(incorporated into the
section 205 proceedings) denied the applicant his right to a
“public” trial by analogy with the
section 25(3)(a) right and his
right “to be informed with sufficient particularity of the charge”
by analogy with the
section 25(3)(b) right. This was so, it was argued, because
of the summary nature of the section 205(3) imprisonment proceedings
and in
particular the fact that the section provides that the examination “may be
conducted in private” and makes no
express provision for the examinee to
be informed at any stage, whether orally or in writing, of what awaits the
examinee if he/she
persists in refusing to answer the question.
[17] As far as the first of these two complaints is concerned it is not
necessary, for this case, to decide what fair or due process
or natural justice
requires in this regard. It cannot in principle require more than an ordinary
criminal trial requires. There are
well recognised exceptions in our criminal
procedure to the general rule that criminal proceedings are to be conducted in
open court.
[21]
In the United
States, grand jury secrecy is seen by the courts as contributing in several ways
to the grand jury’s dual roles
as both “the shield and the
sword” of the criminal justice
process.
[22]
In the United States of
America, although the right to attend criminal trials is held to be implicit in
the First Amendment protection
of speech, press and the right to assemble, there
are nevertheless circumstances when closing a trial to the public does not
infringe
this right.
[23]
The section
205 procedure is an evidence-gathering mechanism; the examinee is not, as it
were, giving evidence in a trial; this is
a preparatory step and the
examinee’s evidence might never be utilised in the end. There are obvious
and legitimate inhibitions
to furnishing evidence in that context in public.
Having the section 205 examination in public serves much less of a public
interest
and could in fact be severely damaging to both the examinee and to the
administration of justice. There are accordingly important
and justified policy
grounds for holding the section 205 enquiry in private. In any event the
provision for holding the section
205 enquiry “in private” is
permissive, not mandatory. It is a discretion which must be exercised
judicially, taking
into account all the relevant facts. One of the relevant
facts would be the interests of the examinee. In many cases it would be
in the
interests of the examinee, and the examinee’s express wish, to have the
enquiry conducted in private. But before the
first respondent in this case has
exercised his discretion in favour
of conducting the enquiry in private, the question of an infringement of any
right of the applicant in this regard simply does not
arise.
[18] This illustrates a conceptual confusion which characterised the
applicant’s argument in other respects as well. The only
issue before us
is whether, on a proper construction of section 205, it expressly or by
necessary implication infringes any of the
rights relied upon by the applicant.
If the section, properly construed, compels the presiding officer to act or
apply the provisions
in a way which would infringe any of the rights relied
upon, then the constitutionality of the section in respect of that right
is
properly before us. This would also be the case if the presiding officer were
prohibited by the section from acting or intervening
in a way which would
prevent a particular infringement which would inevitably follow in the absence
of such intervention. What is
certainly
not
before us is a consideration
of a multitude of questions relating to hypothetical decisions or rulings which
may (not must) be made
in applying the provisions of section 205 and the
question whether such
rulings
or
decisions
would or might infringe
any of the examinee’s Chapter 3 rights or not. We are also not called upon
to decide whether the examinee
is entitled as of right to legal representation
or how precisely the unrepresented examinee must be treated and what must be
explained
to him/her. Judgments concerning the proper application and
construction of section 205 which were delivered before the Constitution
came
into operation
[24]
will not
necessarily correctly reflect the post-constitutional position, because section
35(3) of the Constitution requires that
this section now be construed by all
courts (including the magistrates’ courts) having “due regard to the
spirit, purport and objects of” Chapter 3.
[19] The second of the two complaints referred to above runs into the same
difficulties. Assuming that the applicant is entitled
to be informed with
sufficient particularity of the “charge against him” the question as
to whether any such right is
infringed can only arise after the section 205
proceedings commence and after the applicant has refused to answer any question.
While
section 205 contains no express provision that the “charge” be
put to the examinee, the section also does not prevent
the presiding officer
from doing so.
[20] Even taking the broadest and least technical view of the applicant’s
complaints that section 189 as applied in section
205 proceedings denies him a
fair hearing on the imprisonment issue, there is no substance in them. The
summary procedure for imprisoning
a recalcitrant witness must be adjudged in the
context of the section 205 proceedings as a whole. The persons who are
authorised
to take evidence at the section 205 proceedings (a judge of the
supreme court, a regional court magistrate or a magistrate) are all
independent
judicial officers and the very persons who preside over criminal trials. The
subpoena to attend the proceedings is obtained
at the request of an
attorney-general or public prosecutor authorized thereto in writing by an
attorney-general and can only be issued
at the instance of the abovementioned
judicial officer. A person can only be summoned to attend “who is likely
to give material
or relevant information as to any alleged offence”. In
addition there is the important and far-reaching provision in section
205(4),
introduced for the first time in
1993,
[25]
which prohibits the
presiding
judicial officer from sentencing the examinee to imprisonment as contemplated in
section 189 unless such judicial officer “is
also of the opinion that the
furnishing of such information is necessary for the administration of justice or
the maintenance of
law and order.” This affords an examinee the widest
possible residual protection. This all shows that the section 205 provisions
are
as narrowly tailored as possible to meet the legitimate state interest of
investigating and prosecuting crime.
[21] What more, one may legitimately ask, can the examinee possibly want to know
about the “charge” than that the law
demands, in the absence of a
just excuse for the examinee not doing so, that he/she answers all questions,
failing which imprisonment
will follow? If the examinee is legally represented
such representative will know all this. If unrepresented one would expect the
presiding officer to explain this to the examinee. There is absolutely nothing
to suggest that, on a proper post-constitutional construction
of section 205,
there is not a duty on the presiding officer to do so. Natural justice and fair
procedure would, in my view, require
this. That being the case the presiding
officer is obliged to do so.
[22] Summary proceedings for imprisoning recalcitrant witnesses, where the
normal strict criminal procedure rules are not applied,
are not unknown in other
open and democratic societies based on freedom and equality. In the United
States of America the grand jury
investigation, amongst its other objects,
fulfills the same function as section 205 of the CPA of obtaining information
under oath
from persons unwilling to assist voluntarily in a criminal
investigation; both civil and criminal contempt procedures are used to
coerce
the recalcitrant grand jury witness into
testifying.
[26]
“Civil
contempt is used to coerce the recalcitrant witness into complying with the
subpoena. The witness is sentenced to imprisonment
or to a fine (which may
increase daily), but he may purge himself by complying with the
subpoena.”
[27]
In the case of
such civil contempt proceedings in relation to grand jury proceedings departures
from criminal procedure applicable
to ordinary criminal prosecutions are
permissible and even in criminal contempt proceedings “procedures may vary
somewhat from
procedures applicable to ordinary criminal
prosecutions.”
[28]
Rule 42(a)
of the Federal Rules for Criminal Procedure authorises summary criminal contempt
proceedings in matters other than grand
jury
investigations.
[29]
In Germany
section 70 of the Criminal Procedure
Code
[30]
provides for summary
proceedings against a witness who refuses to testify without legal
justification. The witness is fined and on
failure to pay is imprisoned. The
witness may also be imprisoned without being given the option of a fine. Such
and similar summary
proceedings leading to imprisonment have been upheld as
constitutional by the German Federal Constitutional
Court.
[31]
[23] The applicant’s complaints on these grounds can accordingly not, in
my view, succeed.
The attack based on sections 11(2)
(cruel, inhuman or degrading treatment or punishment); 23 (access to
information) and 24 (administrative
justice)
[24] No argument was addressed to us why, if the section 205 procedures were
otherwise not in conflict with the Constitution, the
nature or extent of the
penal sanction infringed the applicant’s section 11(2) rights. We are
unaware of any authority which
suggests that this complaint is worthy of serious
consideration. The same is true of the section 23 complaint, which was not
pursued
in argument. I have grave doubts whether section 24 is applicable at all
to section 205 proceedings, since their aim is limited to
the gathering of
factual information; in fact they constitute no more than a mechanism for
compelling a witness statement. No report
is issued pursuant to the section 205
examination and the examinee’s rights are adequately protected by the
transactional immunity
and use indemnity provisions and the “just
excuse” exception contained in section 189 of the CPA. The summary
sentencing
procedure, which forms the essence of the complaint, is clearly
judicial and not administrative action; it is in terms of subsection
(4) of
section 189 subject to appeal in the same manner as a sentence imposed in any
criminal case. Even assuming that the provisions
of section 24 are applicable,
there would be no infringement of section 24 for the very same reason that the
applicant’s section
11(1) fair trial rights have not been
infringed.
[25] Notwithstanding the form of the referral, the real thrust of the
constitutional attack has in substance been directed to the
constitutionality of
section 189(1) of the CPA. The fact
that section 189 has been incorporated by reference into section 205 would not
alter the
fact that if we had found section 205 to be inconsistent with the constitution
and declared it invalid in terms of section 98(5)
of the Constitution we would
in substance have done so because of the inconsistency of section 189(1). The
question would then arise
as to whether we had jurisdiction to strike down
section 189(1) in view of the fact that its inconsistency with the Constitution
had not been referred to us. There is also the conundrum as to whether it is
logically or constitutionally possible to declare section
189(1) invalid for
purposes of section 205 only and not for all purposes. Fortunately these
problems do not have to be addressed
in the present case because of the
conclusion we have reached that the provisions of section 205 of the CPA are not
inconsistent
with the Constitution. They may well have constituted a bar to
granting an order in terms of section 98(5) of the Constitution had
we come to
the conclusion that the provisions of section 189(1) rather than those of
section 205 of the CPA were inconsistent with
the Constitution.
[26] These problems do, however, once again highlight the great care which must
be exercised in referring matters to this Court under
section 102 of the
Constitution and the duty resting on litigants in this regard. This has been
emphasised in recent judgments of
this
Court.
[32]
In
Bernstein v
Bester
[33]
I pointed out
that:
[w]hile Provincial and Local Divisions might initially have been hesitant to
grapple with the implications and application of the
new Constitution and might
have preferred to refer constitutional issues to this Court, it must be stressed
that, for the proper
development of our law under the Constitution, it is
essential that these courts and indeed all other courts empowered to do so,
play
their full role in developing our post-constitutional law. It would greatly
assist the task of the Provincial and Local Divisions
of the Supreme Court, and in so doing ultimately the task of this Court, if
counsel were called upon to justify rigorously why it
was contended that the
particular provision of the Constitution relied upon renders the law or
provision in question invalid and
why it is necessary or advisable to refer the
issue in question to the Constitutional Court at that particular juncture. This
would
lead to narrower and more closely focussed referrals and enable the
Provincial and Local Divisions to furnish more comprehensive
reasons for any
particular referral which would in turn assist the task of this Court and the
development of our constitutional jurisprudence.
Such an approach would also
decrease the risk of wrong referrals and avoid the unsatisfactory expedient in
such cases of having to
try to invoke, at the last moment, in a forced manner
and in unsatisfactory circumstances, the direct access procedure provided for
in
Constitutional Court Rule 17.
In
Ferreira v Levin (No
2)
[34]
I also commented on the
fact that the failure of parties to adopt a critical attitude at the referral
stage could have implications
for costs:
Parties, and respondents in particular, should not be encouraged to consent
supinely to matters being referred to this Court in the
mistaken belief that an
applicant’s failure to achieve substantial success on referral will
automatically entitle the respondents
to their costs ... If parties are of a
mind to oppose relief being sought in a referral they should in the first place
be astute
to prevent matters being incorrectly referred and should oppose
inappropriate referrals when they are sought; they should not sit
back and raise
their opposition for the first time in this Court after the referral has been
made.
Had the litigants so applied their minds to the present referral, there is good
reason to believe that the issue of the constitutionality
of section 189 of the
CPA would also have been referred and that the referral would have been a more
narrowly focussed one.
[27] In the result it is declared that the provisions of section 205 of the
Criminal Procedure Act 51 of 1977(as amended) are not
inconsistent with the
Constitution of the Republic
of South Africa Act 200 of 1993.
Chaskalson
P, Mahomed DP, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J,
O’Regan J and Sachs J concur in the above judgment
of Ackermann
J.
Case No: CCT 30/1996
Counsel for the Applicant: LJ van der Merwe
Instructed by: Edeling Vorster Pagel
Counsel for the Second
Respondent: PP Stander
Instructed by: Attorney-General of the Witwatersrand Local
Division
Counsel for the Third Respondent: EM
Patel
Instructed by: The State Attorney
Counsel for the
Fourth Respondent: PF Louw
Instructed by: The State Attorney
[1]
The Constitution of the
Republic of South Africa Act 200 of 1993.
[2]
Act 51 of 1977.
[3]
Act 9 of 1933 as
amended.
[4]
Subsections 189(1) and
(3) provide:
(1) If any person present at criminal proceedings is required to give evidence
at such proceedings and refuses to be sworn or to
make an affirmation as a
witness, or, having been sworn or having made an affirmation as a witness,
refuses to answer any question
put to him or refuses or fails to produce any
book, paper or document required to be produced by him, the court may in a
summary
manner enquire into such refusal or failure and, unless the person so
refusing or failing has a just excuse for his refusal or failure,
sentence him
to imprisonment for a period not exceeding two years or, where the criminal
proceedings in question relate to an offence
referred to in Part III of Schedule
2, to imprisonment for a period not exceeding five
years.
(3) A court may at any time on good cause shown remit any punishment or part
thereof imposed by it under subsection (1).
[5]
Section 203 provides:
No witness in criminal proceedings shall, except as provided by this Act or
any other law, be compelled to answer any question
which he would not on the
thirtieth day of May, 1961, have been compelled to answer by reason that the
answer may expose him to a
criminal charge.
[6]
Section 204 provides:
(1) Whenever the prosecutor at criminal proceedings informs the court that any
person called as a witness on behalf of the prosecution
will be required by the
prosecution to answer questions which may incriminate such witness with regard
to an offence specified by
the
prosecutor-
(a) the court, if satisfied that such witness is otherwise a competent
witness for the prosecution, shall inform such witness-
(i) that he is obliged to give evidence at the proceedings in
question;
(ii) that questions may be put to him which may incriminate him with regard
to the offence specified by the prosecutor;
(iii) that he will be obliged to answer any question put to him, whether by
the prosecution, the accused or the court, notwithstanding
that the answer may
incriminate him with regard to the offence so specified or with regard to any
offence in respect of which a verdict
of guilty would be competent upon a charge
relating to the offence so specified;
(iv) that if he answers frankly and honestly all questions put to him, he
shall be discharged from prosecution with regard to the
offence so specified and
with regard to any offence in respect of which a verdict of guilty would be
competent upon a charge relating
to the offence so specified; and
(b) such witness shall thereupon give evidence and answer any question put to
him, whether by the prosecution, the accused or the
court, notwithstanding that
the reply thereto may incriminate him with regard to the offence so specified by
the prosecutor or with
regard to any offence in respect of which a verdict of
guilty would be competent upon a charge relating to the offence so
specified.
(2) If a witness referred to in subsection (1), in the opinion of the court,
answers frankly and honestly all questions put to
him-
(a) such witness shall, subject to the provisions of subsection (3), be
discharged from prosecution for the offence so specified by
the prosecutor and
for any offence in respect of which a verdict of guilty would be competent upon
a charge relating to the offence
so specified; and
(b) the court shall cause such discharge to be entered on the record of the
proceedings in question.
(3) The discharge referred to in subsection (2) shall be of no legal force or
effect if it is given at preparatory examination proceedings
and the witness
concerned does not at any trial arising out of such preparatory examination,
answer, in the opinion of the court,
frankly and honestly all questions put to
him at such trial, whether by the prosecution, the accused or the
court.
(4) (a) Where a witness gives evidence under this section and is not
discharged from prosecution in respect of the offence in question,
such evidence
shall not be admissible in evidence against him at any trial in respect of such
offence or any offence in respect of
which a verdict of guilty is competent upon
a charge relating to such offence.
(b) The provisions of this subsection shall not apply with reference to a
witness who is prosecuted for perjury arising from the giving
of the evidence in
question, or for a contravention of section 319(3) of the Criminal Procedure
Act, 1955 (Act 56 of 1955), or in
the case of the territory, for a contravention
of section 300 (3) of the Criminal Procedure Ordinance, 1963 (Ordinance 34 of
1963),
arising likewise.
[7]
1978 (3) SA 896
(O) 898E-F.
[8]
See generally
Ferreira v
Levin, Vryenhoek v Powell
1996 (1) BCLR 1.
[9]
CCT 23/95 delivered on 27 March
1996 paras 58 to 63.
[10]
No 61 of 1973 (as
amended).
[11]
Supra note 9 para 60.
[12]
Id para 61.
[13]
Branzburg v Hayes et
al
[1972] USSC 169
;
408 US 665
(1972) 688.
[14]
Supra note 9 paras 62 and
63.
[15]
See, for example, the
discussion in Du Toit, De Jager
et al, Commentary on the Criminal Procedure
Act
23-50B to 23-53. In
Attorney-General, Transvaal v Kader
[1991] ZASCA 135
;
1991 (4)
SA 727
(A) 735B-C the Appellate Division held that the term goes beyond matters
of privilege, compellability and admissibility.
[16]
Bernstein v Bester
supra note 9 paras 62 and
63.
[17]
In
S v Heyman
1966 (4) SA 598
(A) the Appellate Division was called upon to construe the
provisions of section 212 of the Criminal Procedure Act 56 of 1955(as
amended)
whose provisions, save for the length of the sentence that could be imposed,
were in all material respects identical to
subparagraphs (1) to (5) of section
189 of the CPA. At 601G Steyn CJ said the following:
Sec. 212 (1) does not in specific terms create an offence or require the
presentation of a formal charge to which the witness has
to plead, and the
provision in sub-sec. (4) for an appeal against the sentence as if it were a
sentence imposed in a criminal case
clearly implies that an enquiry under this
section does not constitute criminal proceedings.
[18]
See
Natal Law Society v N
1985 (4) SA 115
(N) 116F.
[19]
See section 189(3) of the
CPA and
S v Heyman
supra note 17 at 601H.
[20]
In re Nevitt
117 F
448
, 461 (CA 8th Cir 1902);
Shillitani v United States
[1966] USSC 110
;
384 US 364
(1966)
368. See also La Fave and Israel
Criminal Procedure
2 ed (1992) 382.
[21]
For example those contained
in section 153 of the CPA; as to which see generally Du Toit, De Jager
et al
supra note 15 at 22-6A to 22-8.
[22]
La Fave and Israel supra
note 20 at 376, 390 and
United States v Procter & Gamble Co et al
[1958] USSC 102
;
356
US 677(1958)
681-682, quoting
United States v Rose
[1954] USCA3 227
;
215 F 2d 617
,
628-629.
[23]
Richmond Newspapers Inc
et al v Virginia et al
[1980] USSC 154
;
448 US 555
(1980) 580-581 (and in particular
footnote 18), 598 (and in particular footnote 24).
[24]
See generally, Du Toit, De
Jager
et al
supra note 15 at 23-15ff and Hiemstra
Strafproses
5 ed
(Johan Kriegler) 465ff.
[25]
By section 11 of Act 204 of
1993.
[26]
La Fave and Israel supra
note 20 at 382.
[27]
Id 382.
[28]
Id 383 and footnote 2. See
also
Harris v United States
[1965] USSC 171
;
382 US 162
(1965) 164 - 167;
Shillitani v
United States
[1966] USSC 110
;
384 US 364
(1966) 368 - 371;
Cheff v Schnackenberg
[1966] USSC 106
;
384
US 373
(1966) 377, 380.
[29]
See
Cheff v Schnackenberg
supra note 28.
[30]
Strafprozessordnung
(StPO).
[31]
In BVerfGE 76, 363 II
[383,386]; BVerfGE 25, 296[304]; BVerfGE 64, 108[116].
[32]
For example
S v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995 (7) BCLR 793
(CC);
Ferreira v Levin (No 1)
1996 (1) BCLR 1
(CC) paras 6-8 and
Bernstein v Bester
supra note 9
para 2.
[33]
Supra note 9 para 2.
[34]
CCT 5/95 delivered on 19
March 1996 para 9.