De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (28 May 1998)

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[1998] ZACC 6
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De Lange v Smuts NO and Others (CCT26/97) [1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (28 May 1998)

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CONSTITUTIONAL COURT
OF SOUTH AFRICA
                                                                                                                       Â
CaseÂ
CCT
26/97
DOUGLAS
MICHAEL DE LANGE
                                                                 First
Appellant
versus
FRANCOIS
J SMUTS NO
                                                                           Â
First
Respondent
E M FREY NO
(LIQUIDATOR, PAARL
OLIVE FARMS CC)                                                                                Â
Second
Respondent
C R S GOODEN NO (LIQUIDATOR,
PLATTENBOSCH FARMS
CC)                                                                Â
Third
Respondent
H M SANGIORGIO NO
(LIQUIDATOR,
TIERFONEIN
BOERDERY CC)                                                              Â
Fourth
Respondent
THE MASTER OF THE
HIGH COURT                                                     Â
Fifth
Respondent
Heard on:     Â
20 November
1997
Decided on:   28 May 1998
JUDGMENT
ACKERMANN J
:
[1]
       This matter
concerns the correctness of a declaration of constitutional invalidity of
subsection (3) of section 66 ("the
subsection" or "section
66(3)") of the Insolvency Act 24 of 1936 ("the
Insolvency Act&quot
;)
made by Conradie J in the Cape of Good Hope High Court, on 29 August 1997.
1
  The subsection reads as
follows:
"(3) If a
person summoned as aforesaid, appears in answer to the summons but fails to
produce any book or document which he was
summoned to produce, or if any person
who may be interrogated at a meeting of creditors in terms of subsection (1) of
section
sixty-five
refuses to be sworn by the officer presiding at a
meeting of creditors at which he is called upon to give evidence or refuses to
answer any question lawfully put to him under the said section or does not
answer the question fully and satisfactorily, the officer
may issue a warrant
committing the said person to prison, where he shall be detained until he has
undertaken to do what is required
of him, but subject to the provisions of
subsection (5)."
[2]
       This declaration
was made and referred to this Court for confirmation under section 172(2)(a) of
the Constitution of
the Republic of South Africa 1996 ("the 1996
Constitution").
2
  At the request of the President, the Minister of Justice
was represented at the hearing by counsel who addressed written and oral
argument as to why the declaration ought not to be confirmed.  The Association
of Insolvency Practitioners of Southern Africa initially
applied to be admitted
as an amicus curiae in the proceedings but did not proceed with its
application.
[3]
       The applicant was
the only member of three close corporations ("the corporations")
which were finally wound
up on 15 December 1994.  The second, third and fourth
respondents are the liquidators, respectively, of the corporations.  Various
provisions of the
Insolvency Act, including
sections 64
,
65
and
66
thereof,
are, by section 416 of the Companies Act 61 of 1973 ("the Companies
Act") made applicable, mutatis mutandis, in
various ways to proceedings
under section 414 and 415 of the latter Act, to the extent that they can be
applied and are not inconsistent
with its provisions.
3
[4]
       By section 66(1) of
the Close Corporations Act 69 of 1984 ("the
Close Corporations Act&quot
;)
the provisions of the aforementioned
section 416
(as well as
sections 414
,
415
and various other provisions) of the Companies Act are made similarly
applicable to the liquidation of a corporation in respect of
any matter not
specifically provided for in any other provision of the
Close Corporations Act.
href="#_ftn4" name="_ftnref4" title="">
4
lang=EN-GB style='font-size:13.0pt;line-height:200
%'>  Likewise the provisions
of
section 39(2)
of the
Insolvency Act, to
which reference will be made
presently, are to be applied to the liquidation of a corporation.
5
  Save for the order made
at the conclusion of this judgment, any reference hereinafter to a provision of
the
Insolvency Act must
be understood, unless the contrary is stated, as a
reference to such provision as incorporated into the
Close Corporations Act in
the above manner.
[5]
       The applicant was
summoned under
section 64(2)
of the
Insolvency Act to
attend the adjourned
second meeting of creditors of the corporations on 13 and 14 January 1997.  He
was also required under
section 64(3)
to produce, amongst other things, the
books of account and other financial records of the corporations.  The
applicant’s interrogation
under
section 65
commenced on 14 January 1997.  On
that date application was made on behalf of the second, third and fourth
respondents for the issue
of a warrant committing the applicant to prison under
section 66(3)
on the grounds that he had, in breach of the injunctions of the
subsection, failed to produce the books and documents he had been
summoned to
produce and that he had failed to answer questions lawfully put to him under
section 65(1)
fully and satisfactorily.  The application was postponed for
argument and thereafter the presiding officer (first respondent) issued
a
warrant on 22 February 1997 committing the applicant to prison.  The warrant
was therefore issued after the commencement of the
1996 Constitution on 4
February 1997 and accordingly this Constitution is the applicable one.  Save to
observe that the warrant
was subsequently conditionally suspended and that the
application which Conradie J ultimately heard was launched on 9 May 1997, it
is
unnecessary to deal with any of the intervening or other events.
[6]
       In the application
before Conradie J various orders were sought but only two were relevant.  The
one was for an order
reviewing and setting aside the first respondent’s
decision to commit the applicant to prison.  The grounds relied upon were not
of a constitutional nature.  The second was for an order declaring section
66(3) to be constitutionally invalid and on that ground
to review and set aside
the committal.  The learned judge found that there was no merit in the
applicant’s non-constitutional
review attack and in those circumstances
correctly held that the issue of the constitutional invalidity of section 66(3)
would, one
way or the other, be dispositive of the case.
[7]
      In the result the
learned judge held that the subsection was invalid because of its inconsistency
with section 12(1)(b)
of the Constitution which guarantees the right "not
to be detained without trial" and held further that the limitation
of this
right by the subsection could not be justified under section 36(1).  Although
he did not express himself explicitly on this
issue, the general tenor of his
judgment, and in particular his reliance on the judgments of this Court in
Bernstein
and Others v Bester NO and Others
6
and
Nel v Le Roux NO and Others
,
7
warrants the conclusion
that Conradie J considered that, substantively, the "process in aid"
8
which the subsection
provides to compel examinees, who are under a legal duty to do so, to testify
or produce documents, was constitutionally
unobjectionable.  The thrust of the
judgment went to determining whether the applicant had, for purposes of section
12(1)(b) of
the Constitution, received a "trial";  the learned judge
evidently assumed, in favour of the applicant, that committal
to prison under
section 66(3) constituted "detention".  Conradie J held, in effect,
that the only "trial" envisaged
by section 12(1)(b) of the
Constitution was a trial by a court of law.
[8]
     Â
Section 39(2)
of
the
Insolvency Act provides
that all meetings of creditors are to be presided
over by the Master or by an officer in the public service, designated by the
Master;
or by a magistrate or by an officer in the public service designated by
the magistrate.  In a district wherein there is a Master’s
office a magistrate
does not preside.
9
  In the present case the presiding officer (first
respondent) was a magistrate.  Conradie J held that a meeting of creditors
presided
over by any of these persons did not constitute a court of law and
that consequently such meeting was not a trial for purposes of
section 12(1)(b)
of the Constitution.  He considered that even where the meeting is presided
over by a magistrate this does not constitute a court
of law because a
magistrate, in so presiding, is merely fulfilling an administrative function.
[9]
       Mr Bryan Hack, on
behalf of the applicant, sought confirmation of Conradie J’s order and advanced
essentially two lines
of argument in support thereof.  The first was that the
subsection unjustifiably infringes paragraph (a) of section 12(1) of the
Constitution, which guarantees to everyone the right "not to be deprived
of freedom arbitrarily or without just cause."Â
It did so, the argument
went, because the objectives sought to be achieved by obtaining the oral and
documentary information with
which the meeting and interrogation under
sections
64
and
65
of the
Insolvency Act are
concerned do not constitute such "just
cause" for depriving examinees of their physical freedom by imprisonment
under the
impugned provisions of
section 66(3).Â
[10]
     It was submitted that
the only "just cause" for which a person can be imprisoned is the
prevention or punishment
of crime or possibly "in the broader sense"
where necessary for the maintenance of law and order, but not for any other
non-punitive coercion.  In developing this argument Mr Hack correctly pointed
out that in South African criminal law, since the
death penalty and certain
forms of corporal punishment have been declared to be unconstitutional,
1
0
imprisonment is the most
severe punishment that the state can impose on a criminal and that both the
legislature and the courts have
sought to develop innovative alternative forms
of punishment which are less harsh and invasive of a person’s physical freedom
than
imprisonment.
1
1
Â
[11]
     He also correctly
pointed out that our courts emphasise that imprisonment should only be resorted
to after other appropriate
forms of punishment have been considered and
excluded.
1
2
  It is also correct that in the past there has been much unwarranted
deprivation of physical freedom in order to achieve particular
social and
political goals.  This all emphasises the great importance to be attached to
physical freedom, but does not by itself
afford much assistance in considering
the correctness of the submission that deprivation of physical freedom may only
be used as
punishment for a crime.
[12]
     The second line of
argument was that the subsection infringes paragraph (b) of
section 12(1)
because committal of an examinee constitutes "detention" which has
not been preceded by the "trial" envisaged
by paragraph (b).  Mr Hack
contended that in all cases the requisite trial had to be a trial before a duly
constituted court of
law following due and proper trial procedures and that the
presiding officer at a meeting of creditors is not presiding over a court
regardless of whether such officer is a magistrate or not.  I shall deal with
these arguments presently.
[13]
     Before doing so it is
necessary to analyse
section 66(3)
briefly in its context. The presiding
officer at a meeting of creditors under
section 64
of the
Insolvency Act may
,
as previously indicated, be the Master, an officer in the public service or a
magistrate.  The presiding officer is under
section 66(3)
authorised to commit
certain persons to prison under given circumstances.  A person summoned to
produce a book or document under
section 64(3)
who fails to do so may be
committed;  so may any person who is liable to be interrogated in terms of
section 65(1)
and who refuses to be sworn when called upon to give evidence or
who refuses to answer any question lawfully put under
section 65
or who does
not answer the question fully and satisfactorily.Â
[14]
     Under
section 66(5)
persons so committed may apply to court for their discharge from custody and
the court may order their discharge if it finds that
they were wrongfully
committed to prison or are being wrongfully detained.  Subject hereto, persons
are detained under
section 66(3)
until they have undertaken to do what is
required of them.  Under
section 66(4)
, if persons who have been released from
prison after having so undertaken fail to fulfil their undertaking, the
presiding officer
may commit them to prison as often as may be necessary to
compel them to do what is required of them.  In addition, any act or omission
for which a person has been or might have been lawfully so committed is a
punishable offence.
1
3
  As will be discussed more fully later, the
section
66(3)
committal provision is a mechanism to compel the furnishing of
information so that the legitimate objectives of the insolvency law
may be
properly and efficiently realised. Its purpose is not in the first instance
punitive.  It is a form of process in aid or
a form of statutory civil contempt
power.
[15]
     The provisions of
section 11
of the interim Constitution
1
4
need to be compared with those of
section 12(1) of the 1996 Constitution.
1
5
  Section 11 of the interim
Constitution provides:
“(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.
(2) No person
shall be subject to torture of any kind, whether physical, mental or emotional,
nor shall any person be subject to cruel,
inhuman or degrading treatment or
punishment.”
Section 12(1) of the 1996
Constitution provides:
“ Everyone has
the right to freedom and security of the person, which includes the right -
(a) not to be
deprived of freedom arbitrarily or without just cause;
(b) not to be
detained without trial;
(c) to be free
from all forms of violence from either public or private Â
     sources;
(d) not to be
tortured in any way; and
(e) not to be
treated or punished in a cruel, inhuman or degrading way.”
[16]
     Paragraphs (d) and
(e) of section 12(1) of the 1996 Constitution embody a reformulation of section
11(2) of the interim Constitution
and a subdivision of its contents into two
parts.  Paragraph (c) of section 12(1) either incorporates a new right or else
makes
explicit what was previously implicit; the true explanation is not
relevant for present purposes.  A comparison between section
11(1) of the
interim Constitution with the first line of section 12 (1) of the 1996
Constitution and paragraphs (a) and (b) thereof,
is of greater significance for
the present enquiry because it indicates that the constitution makers wished to
clarify something
which had previously been implicit, namely, that a person’s
right to freedom could not be encroached upon arbitrarily or without
just
cause.
[17]
     Before indicating
what I believe the consequences of the above changes are I wish to refer to
certain dicta of O'Regan J
in relation to section 11(1) of the interim
Constitution, with which I agree and fully endorse. In
Bernstein's
case
1
6
O'Regan J observed in
general terms:
"In my
view, freedom has two inter-related constitutional aspects:  the first is a
procedural aspect which requires that no-one
be deprived of physical freedom
unless fair and lawful procedures have been followed. Requiring deprivation of
freedom to be in accordance
with procedural fairness is a substantive
commitment in the Constitution.  The other  constitutional aspect of freedom
lies in
a recognition that, in certain circumstances, even  when fair and
lawful procedures have been followed, the deprivation of freedom
will not be
constitutional, because the grounds upon which freedom has been curtailed are
unacceptable."
1
7
In the same judgment my
learned colleague stated the following:
"Section
25 is the principal provision in chapter 3 that requires procedural fairness
when a person is deprived of physical freedom.Â
It contains detailed rules
which must be followed to protect the rights of persons who have been detained,
arrested or charged. Section
11(1), which contains no detailed procedures or
rules, other than the prohibition of detention without trial, is supplementary
to
section 25.  In cases where people are deprived of physical freedom in
circumstances not directly governed by section 25, section
11(1) will require
that fair procedures be followed, as was held in
Coetzee v Government of the
Republic of South Africa
1995 (4) SA 631 (CC)
;
1995 (10) BCLR 1382
(CC)."
1
8
[18]
     In
S v Coetzee
& Others
1
9
(a case decided under the provisions of the interim Constitution)
O'Regan J, in that part of her judgment with which I concurred,
stated the
following:
"[These
questions] raise two different aspects of freedom: the first is concerned
particularly with the reasons for which the
state may deprive someone of
freedom; and the second is concerned with the manner whereby a person is
deprived of freedom.  As I
stated [in
Bernstein’s case
at paragraphs
145-147] our Constitution recognises that both aspects are important in a
democracy: the state may not deprive its citizens
of liberty for reasons that
are not acceptable, nor, when it deprives its citizens of freedom for
acceptable reasons, may it do so
in a manner which is procedurally unfair.”
2
0
[19]
   Â
In
Nel's
case
2
1
this Court dealt with a
constitutional attack on section 205 (incorporating as it does section 189) of
the Criminal Procedure Act
(the CPA)
2
2
based on an alleged infringement of
a person’s right under section 11(1) of the interim Constitution “not to be
detained without
trial”.  Section 205 of the CPA provides for the compulsory
examination of “any person who is likely to give material or relevant
evidence
as to an alleged offence”  before a judge of the supreme court, a regional
court magistrate or magistrate.  Section
189 of the CPA, which applies to
section 205, provides, amongst other things, that if any sworn witness in
criminal proceedings:
“. . . 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 varying periods of time]”.
[20]
     A unanimous Court
held that fair procedure was implicit in the trial component of the section
11(1) right
2
3
and further held:
“The mischief
at which this particular right is aimed is the deprivation of a person’s
physical liberty without appropriate procedural
safeguards . . . The nature of
the fair procedure contemplated by this right will depend upon the
circumstances in which it is invoked.Â
The “trial” envisaged by this right does
not . . . 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.”
2
4
The Court did not
explicitly address itself to the substantive aspect of the right to freedom
referred to in paragraphs 15 and 16
above, namely, that the state may not
deprive its citizens of liberty for reasons that are not acceptable, because
the section 11(1)
challenge was not brought on this basis.  It is, however,
implicit in the Court’s judgment that this was an essential component
of the
right to freedom and that the reasons or purposes for  the imprisonment of an
examinee under the circumstances provided for
by section 205 read with section
189 of the CPA are constitutionally acceptable.Â
[21]
     Thus it was stated:
“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 . . .”
2
5
and more particularly:
2
6
"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.  '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.'  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.'  Rule 42(a) of the Federal Rules
for Criminal Procedure
authorises summary criminal contempt proceedings in
matters other than grand jury investigations. In Germany section 70 of the
Criminal
Procedure Code 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."
[22]
   Â
It can therefore be
concluded that section 12(1), in entrenching the right to freedom and security
of the person, entrenches the two
different aspects of the right to freedom
referred to above.  The one that O’Regan J has, in the above-cited passages,
called
the right not to be deprived of liberty "for reasons that are not
acceptable" or what may also conveniently be described
as the substantive
aspect of the protection of freedom, is given express entrenchment in section
12(1)(a) which protects individuals
against deprivation of freedom
"arbitrarily or without just cause".  The other, which may be
described as the procedural
aspect of the protection of freedom, is implicit in
section 12(1) as it was in section 11(1) of the interim Constitution.
[23]
     The substantive and
the procedural aspects of the protection of freedom are different, serve
different purposes and have
to be satisfied conjunctively.  The substantive
aspect ensures that a deprivation of liberty cannot take place without
satisfactory
or adequate reasons for doing so.  In the first place it may not
occur “arbitrarily”;  there must in other words be a rational
connection
between the deprivation and some objectively determinable purpose.  If such
rational connection does not exist the substantive
aspect of the protection of
freedom has by that fact alone been denied.  But even if such rational
connection exists, it is by itself
insufficient; the purpose, reason or “cause”
for the deprivation must be a “just” one.  What “just cause” more precisely
means will be dealt with below.
[24]
     Although paragraph
(b) of section 12(1) only refers to the right “not to be detained  without
trial” and no specific
reference is made to the other procedural components of
such trial it is implicit that the trial must be a “fair” trial, but
not that
such trial must necessarily comply with all the requirements of section 35(3).Â
This was the Court’s unanimous holding
in respect of section 11(1) of the interim
Constitution in
Nel’s
case
2
7
and is equally applicable to section 12(1)(b) in the
context of the entrenchment of the "right to freedom and security of the
person" in section 12(1) of the 1996 Constitution, there being no material
difference between the two provisions.
[25]
     In the interests of
clarity it is necessary to point out that where the 1996 Constitution has, in
relation to a specific
subject matter, dealt with the procedural aspect of the
right to liberty in a particular provision, it is to such provision that
one
must turn in order to determine the nature and extent of the procedural liberty
right guaranteed in that particular context,
and not to the general provision
of section 12(1)(b).  This would seem to follow from both a structural and
purposive approach to
the chapter 2 Bill of Rights.  Thus, in order to
determine, for example, what the procedural freedom rights are of persons
arrested
for allegedly committing an offence and of accused persons, one would
have regard to the provisions of subsections (1) and (3) respectively
of
section 35 and of persons after their detention one would have regard to
section 35(2).  This will be dealt with more fully below.Â
At the same time,
however, sight must not be lost of the fact that, for example, accused persons
are entitled to challenge the constitutional
validity of a criminal offence
with which they are charged on the substantive freedom right ground that such
offence does not, for
purposes of section 12(1)(a), constitute “just cause” for
the deprivation of their freedom.
[26]
     When viewed against
its historical background, the first and most egregious form of deprivation of
physical liberty which
springs to mind when considering the construction of the
expression “detained without trial” in section 12(1)(b), is the notorious
administrative detention without trial for purposes of political control.  This
took place during the previous constitutional dispensation
under various
statutory provisions which were effectively insulated against meaningful
judicial control.  Effective judicial control
was excluded prior to the
commencement of the detention and  throughout its duration.  During such
detention, and facilitated by
this exclusion of judicial control, the grossest
violations of the life and the bodily, mental and spiritual integrity of
detainees
occurred.  This manifestation of detention without trial was a
virtual negation of the rule of law and had serious negative consequences
for
the credibility and status of the judiciary in this country.
[27]
     Even where a derogation
from section 12(1)(b) right has validly taken place
2
8
in consequence of a state
of emergency duly declared under the provisions of the 1996 Constitution,
2
9
and such derogation has
excluded a trial prior to detention, detailed and stringent provisions are made
for the protection of the
detainee and in particular for subsequent judicial
control by the courts over the detention.
3
0
  It is difficult to imagine that any
form of detention without trial which takes place for purposes of political
control and is
not constitutionally sanctioned under the state of emergency
provisions of section 37, could properly be justified under section
36.  It is
however unnecessary to decide that issue in the present case.  History
nevertheless emphasises how important the right
not to be detained without
trial is and how important proper judicial control is in order to prevent the
abuses which must almost
inevitably flow from such judicially uncontrolled
detention.
[28]
     Although
administrative detention without trial for purposes of political control (or
for that matter completely arbitrary
detention without trial) might very well
be the  most serious infringement of section 12(1)(b), the protection afforded
by the right
guaranteed thereunder goes considerably further.  In its ordinary
grammatical sense “detention” is a word of wide meaning and
relates to “keeping
in custody or confinement; arrest.  Used
spec
of the confinement of a
political offender . . . bodily restraint.”
3
1
  In legal use its meaning is
determined by the context and can relate to a variety of physical restraints.
3
2
  In fact
section 66(3)
of
the
Insolvency Act itself
describes the committal to prison as being
“detained”.  The context in which it is used in
section 12(1)(b)
does not
require it to be given a strained or limited meaning.  It applies to the
restriction of physical movement.  For purposes
of this judgment it is
unnecessary to decide the nature or extent of the space to which the
restriction must apply; for whatever
limits might apply to either, the
committal of a person to prison pursuant to the provisions of
section 66(3)
clearly falls within them and constitutes detention.
3
3
  I can see no difference
in principle between the nature and extent of the spatial confinement under
section 66(3)
and that under
section 189
of the CPA where “imprisonment” is
ordered and whose confinement this Court found in
Nel’s
case, albeit
implicitly, to constitute detention for purposes of
section 11(1)
of the
interim Constitution.  I turn now to deal more specifically with the two
grounds on which the constitutional validity of
section 66(3)
was attacked.
The Attack Based on the Substantive Aspect of the
Right to Freedom.
[29]
     As foreshadowed
above, committal to prison under
section 66(3)
clearly constitutes detention for
purposes of
section 12(1)(b)
of the 1996 Constitution.  It was not contended in
argument, nor could it reasonably have been, that such committal constituted
an
arbitrary deprivation of freedom.  Its clear and only purpose is to compel
examinees to comply properly with their obligations
to supply the information,
books and documents required by the relevant provisions of the Insolvency Act.Â
[30]
     The only real issue
on this part of the case is whether the objective of committal to prison under
section 66(3)
constitutes “just cause” for such committal.  It is not possible
to attempt, in advance, a comprehensive definition of what
would constitute a
“just cause” for the deprivation of freedom in all imaginable circumstances.Â
The law in this regard must
be developed incrementally and on a case by case
basis.  Suffice it to say that the concept of “just cause” must be grounded
upon and consonant with the values expressed in section 1 of the 1996
Constitution
3
4
and gathered from the provisions of the Constitution as a whole.  I wish
to say no more about “just cause” than is necessary
for the decision of the
present case.Â
[31]
     It seems to me that,
on first principles, and in the context of the Constitution and its underlying
values, the objective
of the detention under the subsection does constitute
“just cause” for the committal and consequent deprivation of freedom.Â
In a
constitutional  democratic state, which ours now certainly is, and under the
rule of law (to the extent that this principle
is not entirely subsumed under
the concept of the constitutional state) “citizens as well as non-citizens are
entitled to rely
upon the state for the protection and enforcement of their
rights.
3
5
  The state therefore
assumes the obligation of assisting such persons to enforce their rights,
including the enforcement of their
civil claims against debtors.”
3
6
[32]
     This it does through
its courts and legal system generally and by its insolvency laws in
particular.  These laws constitute
a last resort for creditors to enforce valid
claims against their debtors and they also ensure a fair and just distribution
of debtors’
assets among competing creditors in the event of such debtors’
liabilities exceeding their assets.
3
7
[33]
     The section 66(3)
committal to prison is also a form of process in aid to ensure that the
legitimate goals of the insolvency
laws are achieved and creditors protected.Â
This form of process is sometimes referred to as "civil contempt".Â
The purpose
of the provisions of
sections 64
,
65
and
66
of the
Insolvency Act
is
, amongst others, to enable trustees of insolvent estates to establish what
the assets of the estate are and what has happened to
them;  to recover such
assets and all claims due to the estate; and to acquire all information that
might be required by the trustees
or the creditors.
3
8
  Almost invariably the
trustee comes to the administration of the insolvent estate with little or no
knowledge thereof or of the
dealings of the insolvent.  Full knowledge of these
matters is essential for the protection of creditors and the winding up of the
estate.  The insolvent is often the only or most important person who can
furnish the necessary information.
[34]
     It is of compelling
public interest that such information be obtained and the recalcitrant
insolvent compelled to furnish
it as well as to produce relevant books and
documents to that same end or to furnish information as to where such books and
documents
are to be found.  The public interest in this regard is no less
compelling than in the case of the winding up of a company and the
necessity of
compelling the insolvent to furnish such information no less than in the case
of the director of a company in the process
of being wound up.  The reasons
therefore in the latter instance have been fully explained in the judgments of
this Court in
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell
NO and Others
3
9
and
Bernstein’s
case
4
0
and it is unnecessary to
repeat them here.  In the case of insolvency it is likewise in the interest of
the general body of creditors
that all the assets of the insolvent be
established and recovered and collusive dealings and impeachable transactions
with particular
creditors exposed.  To this end it is vital to ensure that
insolvents and other persons who are in a position to give important
information on such matters do not evade supplying it.
[35]
     Although insolvency
proceedings are civil in nature, the public interest in compelling the
insolvent to disclose all such
information regarding the insolvent estate would
in many instances be even greater than in the case of a witness at a criminal
trial
who is compelled to testify by the provisions of
section 189
of the CPA,
because the insolvent is very often the only source of particular information.Â
Where the examinee under
section 66(3)
is not the insolvent, the public
interest in coercing such person to testify would be at least as compelling.
[36]
     Just as in the case
of sentencing a witness to imprisonment in proceedings under
section 189
of the
CPA
4
1
, a committal to prison
under
section 66(3)
is no more than process in aid of the essential
governmental objective of compelling persons who are under a legal duty to
testify
to do so.  The examinees under
section 66(3)
also “carry the keys of
their prison in their own pockets”
4
2
, for the effect of the concluding
part of the subsection is that the detention of an examinee comes to an end
when the examinee “has
undertaken to do what is required of him.”Â
[37]
   Â
Section 66(3)
has, as
far as I am aware, only been the referred to in one case,
4
3
which does not, for
present purposes throw any light on the nature of the detention following
committal.  In principle, however,
the underlying purpose and nature of the
committal proceedings under
section 66(3)
are essentially the same as the
imprisonment under
section 189
of the CPA.  Just as in the case of the
committal proceedings under
section 189
of the CPA,
4
4
the
section 66(3)
committal also cannot be regarded as a criminal proceeding, does not result in
the examinee being convicted of any offence and the
detention of an examinee
cannot be regarded as a criminal sentence or be treated as such.
[38]
     This is really placed
beyond doubt when regard is had to the special penal provision of
section
139(1)
of the
Insolvency Act, already
referred to, which makes an act or omission,
for which a person has or might have been lawfully committed to prison under
section 66(3)
, a punishable offence.  Imprisonment under
section 189
of the CPA
and committal to prison under
section 66(3)
are for present purposes
indistinguishable.
[39]
     It is significant
that the use of committal to prison as a means to enforce the disclosure of
information in insolvency proceedings
is not considered constitutionally or
otherwise objectionable in other  open and democratic societies based on
dignity, equality
and freedom.  This is the case, for example, in England,
4
5
Australia,
4
6
Canada,
4
7
the United States of
America
4
8
and Germany.
4
9
  No authority was cited
to us, and we are unaware of any, where committal to prison under such
circumstances has been regarded as
infringing an insolvent’s constitutional
rights.
[40]
     As indicated above,
committal to prison under
section 66(3)
serves a compelling and indispensable
public purpose.  There is no less severe measure which would adequately
guarantee that the
required information would be forthcoming from the
examinee.  A mere fine would often be ineffectual, inasmuch as the examinee
might
well prefer to pay a fine rather than supply the necessary information.Â
To make it effective the fine would have to be very substantial
and in the case
of the insolvent it would be counterproductive and undesirable to execute such
fine against the insolvent estate.Â
There is in addition the important feature
that recalcitrant examinees who are committed
to prison can immediately
obtain their own release by deciding to furnish the information they are
obliged to give.Â
[41]
     A further significant
safeguard to the examinee’s rights is provided by
section 66(5)
which
stipulates the following:
“Any person
committed to prison under this section may apply to the court for his discharge
from custody and the court may order
his discharge if it finds that he was
wrongfully committed to prison or is being wrongfully detained.”
This postulates an
unrestricted reconsideration of the grounds for the examinee’s committal and
continued detention.  In this sense
the imprisonment mechanism is very closely
tailored to the purpose it is intended to serve and goes no further than is
absolutely
necessary to achieve its objective.  In the result I conclude that
the important public objective sought to be achieved by the enforcement
mechanism under consideration, when regard is had to its narrow formulation and
in-built safeguards,  constitutes “just cause”
under section 12(1)(a) of the
1996 Constitution for depriving section 66(3) examinees of their freedom.  The
applicant’s substantive
freedom attack on the subsection must accordingly fail.
The attack based on the
Fair Procedure aspect of the Right to Freedom
[42]
     Having come to the
conclusion that the concept of “fair” is implicit in the “trial” guarantee of
section 12(1)(b)
of the 1996 Constitution, this part of the attack requires
addressing the crucial question of what is to be understood by “fair
trial”.Â
In particular  it raises the question whether, as contended for by Mr Hack,
this “fair trial” guarantee  requires
that the officer presiding at the meeting
of creditors and issuing the warrant committing the examinee to prison under
section 66(3)
must be a member of the judicial arm of the state, acting as such
at the time.  This is a matter not covered by the judgment in
Nels’s
case.
5
0
Â
[43]
     This question, though
simple, raises profound issues concerning the nature of the constitutional
state and the separation
of powers which must ultimately be resolved within the
context of the 1996 Constitution.  It is essential, in my view, to consider
our
constitutional history prior to the introduction of the interim and 1996
Constitutions in the process of determining what the
purpose of the 1996
Constitution is in regard to these and related matters and ultimately in
determining the correct construction
of the fair trial guarantee in section
12(1)(b).Â
[44]
     One of the values
expressed in section 1(c) of the 1996 Constitution as being foundational to the
South African democratic
state is the “[s]upremacy of the constitution and the
rule of law” and in section 2 it is enacted that the Constitution is the
“supreme law of the Republic and that “law or conduct inconsistent with it is
invalid”.  In section 7(1) the Bill of Rights
is stated to be the “cornerstone
of democracy in South Africa”, section 7(2) obliges the state to “respect,
protect, promote
and fulfil the rights in the Bill of Rights” and chapters 4 to
8 provide for a clear separation of powers between the legislature,
executive
and judiciary.  We are here concerned only with the separation of powers as
between the judiciary and the executive, to
the extent that it is relevant to
the present enquiry, and not that between the legislature and the executive.
5
1
Â
[45]
     When formulating in
section 12(1) the “right to freedom and security of the person” and including
therein (in paragraphs
(a) and (b) respectively) the right “not to be deprived
of freedom arbitrarily or without just cause” and “not to be detained
without
trial” the Constitutional Assembly chose to do so in broad and unqualified
terms.  It did not, in the description or definition
of these rights, exclude
from the ambit of their protection specific cases of detention, as was done in
article 5.1 of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms.  In this Convention, the following forms of detention
are,
amongst others, excluded from the “right to liberty and security of
person”:
“the lawful
arrest or detention of a person for non-compliance with the lawful order of a
court or in order to secure the fulfilment
of any obligation prescribed by law
”,
5
2
 “the lawful
detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics
or drug addicts or vagrants”,
5
3
 “the lawful
arrest or detention of a person to prevent his effecting an unauthorised entry
into the country or of a person against
whom action is being taken with a view
to deportation or extradition”.
5
4
Situations such as these
will be adverted to later in this judgment.  The broad protection in our
Constitution must moreover be evaluated
in the light of the foundational
constitutional commitment to the rule of law.
[46]
     Dicey
5
5
in propounding his
concept of the rule of law, explains that in the first instance it means:
“. . .
that no man is punishable
or can be lawfully made to suffer in body or goods except for a distinct breach
of law established in the
ordinary legal manner before the ordinary courts of
the land.  In this sense the rule of law is contrasted with every system of
government based on the exercise by persons in authority of wide, arbitrary, or
discretionary powers of constraint.”Â
Wade’s interpretation
5
6
of this aspect of the rule of law is that:
“. . . disputes
as to the legality of acts of government are to be decided by judges who are
independent of the executive.  In
Britain, as in the principal countries of the
Commonwealth and in the United States of America, such disputes are adjudicated
by
the ordinary courts of law.  Although many disputes may be taken before
special tribunals (‘administrative tribunals’), these
tribunals are themselves
subject to control by the ordinary courts and so the rule of law is preserved”.
Mathews
5
7
has reformulated Dicey’s first proposition as
follows:
“Government
according to the rule of law means that with a view to the protection of the
basic rights enumerated in the second proposition
below [the basic freedoms of
person, conscience, speech, information, movement, meeting and association],
the relevant laws shall
take the form of pre-announced, general, durable and
reasonable precise rules administered by regular courts or similar independent
tribunals according to fair procedures.”
[47]
     It must be borne in
mind that we are here dealing with the rule of law in relation to personal
freedom.  In the sphere of
personal freedom, particularly, the 1996
Constitution must be seen as a decisive rejection of and reaction against the
severe erosion
of the rule of law in relation to personal freedom in the
apartheid era by a government which fits very closely Dicey’s description,
quoted in the preceding paragraph, namely one “based on the exercise by persons
in authority of wide, arbitrary, or discretionary
powers of restraint.”  The nature
and extent of these inroads is detailed by Mathews
5
8
who reminds us that as recently as
1988 internal security law made provision for no less than six forms of what
may be called administrative
detention, three which fell into the category of
preventative detention and three into that of pre-trial detention.  The
singular
importance of the judiciary as the protector of constitutional
guarantees, seen also as a manifestation of the separation of powers
doctrine,
is well illustrated by the judgment in
Minister of the Interior and Another
v Harris and Others
.
5
9
Â
[48]
     In attempting to give
flesh to fundamental constitutional concepts and values such as the separation
of powers and the rule
of law, it is instructive to note how other democratic
countries based on freedom and equality regulate detention or committal to
prison in circumstances comparable to those of the present case, and to what
extent the intervention of a judicial officer is considered
essential.  At the
end of the day it is of course our Constitution which has to be construed and
its values applied in the South
African context.
[49]
     Under the bankruptcy
legislation of the United States of America the power to commit to prison
someone who refuses to answer
questions
6
0
is reserved to a judicial tribunal;
the debate is about which tribunal or court.  Judges of the federal courts of
general jurisdiction
are appointed under Article III of the US Constitution.
6
1
  The jurisdiction of
certain specialist courts such as the United States Bankruptcy Court has been
established by Congress under
Article I.  In the case of bankruptcy courts
Congress is empowered to “establish . . . Laws on the subject of Bankruptcies
throughout
the United States.”
6
2
  Unlike federal judges, judges of the bankruptcy
courts lack life tenure (they are appointed for a term of 14 years) and
complete
salary protection (their salaries are set by statute but may be
reduced during their term of office).  Nevertheless Title 28 of
the United
States Code accords them a significant measure of judicial independence.
6
3
[50]
     Under Bankruptcy
Rule 9020
6
4
, bankruptcy court judges are permitted to make “determinations” of
contempt which, in the absence of timely objection, become
final.  If
objections are timeously filed, the matter is sent to the United States
District Court for de novo review.  The United
States Courts of Appeal have
divided over whether bankruptcy court judges may exercise civil contempt power
although the weight of
authority seems to support an affirmative answer.
6
5
  What this debate does
emphasise, however, is that civil contempt power is a judicial one and cannot
be exercised by the executive.
[51]
     In Canada committal
for contempt on refusing to answer questions at a bankruptcy examination is a
matter for the court.Â
The court reviews the matter and if it determines that
the questions in issue are proper will order the witness to attend the
examination
and answer the questions.  If the witness still refuses a motion
can be made to commit the witness for contempt.
6
6
[52]
     Section 104 II 1 of
the German GG provides that only a judge may decide on the permissibility and
continuation of detention.
6
7
  Section 104 II 2 GG provides that where such
detention is not based on the order of a judge a judicial ruling shall be
obtained
without delay.  This is, however, only permitted in exceptional cases
where a constitutionally permissible objective can simply
not be achieved if a
judicial decision had to precede the deprivation of liberty.
6
8
Â
[53]
     As indicated above
6
9
the refusal by a bankrupt
to furnish information in given circumstances is dealt with in England by means
of committal for contempt.Â
Although the general rule, as stated in Halsbury’s
Laws
of England
7
0
is that “[a]nything to be done under or by virtue of the Insolvency Act
1986 or the Insolvency Rules 1986 by, to or before the
court may be done by, to
or before a judge or registrar”, paragraph 2(i) of the “Practice Direction” in
[1988] 3 All ER 984
, which direction applies to insolvency proceedings in
relation to individuals, requires that applications for the committal of any
person to prison for contempt “shall be made direct to the judge and unless
otherwise ordered shall be made in open court.”
[54]
     The civil contempt
provisions under the Australian Bankruptcy Act 1966
7
1
are not exercised by the
Registrar or Magistrate conducting the examination. If persons being examined
refuse to disclose information
or produce documents which they are obliged to
do, the examination is adjourned to the court, which can then commit for
contempt.Â
This procedure “is constitutionally necessary because of the
restrictions on the powers of the Registrar and Magistrate: R v Davison
(1954)
90 CLR 353.”
7
2
[55]
     In
Davison’s
case
the High Court of Australia found that section 24(1) of the Bankruptcy Act
1924-1950, which, when read together with certain
other provisions of the Act,
authorised the registrar or deputy registrar to make a sequestration order, was
unconstitutional as
it purported to authorize a person not constituting a court
under section 71 and 72 of the Constitution to exercise part of the judicial
power of the Commonwealth.  In this regard the High Court held (per Nixon CJ
and Mc Tiernan J):
“In the
present case the thing done is the making of an order characteristic of the
courts . . .  When s. 24(1) is construed with
the definition of ‘the court’ and
applied to ss. 54 and 57, it becomes clear that the function of making an order
of sequestration
is treated as judicial and is confided to the registrar in the
same character as it is confided to the court.  In other words it
is the
intention of the legislature that the registrar should make an order operating
as an order of court.  That is exactly what
he has done in the present case.Â
For upon its face the order is one which could not be made except by a court
constituted as it
is in conformity with s. 71 and s. 72 of the Constitution.
It follows
that what has been done is an attempt to authorize a person not constituting a
court under ss. 71 and 72 of the Constitution
to exercise part of the judicial
power of the Commonwealth and is not authorized by the Constitution.”
7
3
 Â
[56]
     It is true that the
foreign jurisprudence is mostly of a negative nature, in the sense that no
example has been found where
a statute, authorising an administrative official
to issue a committal order in insolvency proceedings, has been found to be
unconstitutional
or contrary to the particular country’s core common law
values.  Nevertheless the fact that no such statutory provision has been
cited
to us, or is known to us, does strongly suggest that there are no such
provisions because they would be inimical to the fundamental
norms and values
of such countries relating to the separation of powers and the rule of law.Â
[57]
     Viewed in the light
of all these considerations I would conclude that the “(fair) trial” prescribed
by section 12(1)(b)
requires, apart from anything else, a hearing presided over
or conducted by a judicial officer in the court structure established
by the
1996 Constitution and in which section 165(1) has vested the judicial authority
of the Republic.
[58]
     In coming to this
latter conclusion I have not overlooked the argument which Mr Trengove,
appearing for the respondents,
pressed on us.  He submitted that in the vast
majority of cases creditors’ meetings under the Insolvency Act are presided
over
by officers in the public service, designated for that purpose under the
provisions of section 39(2) of the Act.  These officers,
he submitted, are
persons of integrity and suitably qualified by way of legal knowledge, skill
and experience to discharge all the
functions of presiding officers under the
relevant provisions of the Insolvency Act with a high degree of competence.Â
[59]
     I will assume all
that in favour of the respondents.  Such officers do not, however, meet one
fundamental and indispensable
criterion.  However admirable they may be in all
the respects mentioned, and I do not for a moment question any of these high
qualities,
they are officers in the public service — in the executive branch of
the state — and therefore do not enjoy the judicial independence
which is
foundational to and indispensable for the discharge of the judicial function in
a constitutional democracy based on the
rule of law. This independence, of
which structural independence is an indispensable part, is expressly
proclaimed, protected and
promoted by subsections (2), (3) and (4) of section
165 of the Constitution in the following manner:
“(2) The
courts are independent and subject only to the Constitution and the law,
which         they must apply impartially
and without fear, favour or
prejudice.
(3) No person
or organ of state may interfere with the functioning of the courts.
(4) Organs of
state, through legislative and other measures, must assist and protect theÂ
     courts to
ensure the independence, impartiality, dignity, accessibility and effectiveness
of the
     courts.”
[60]
     In our first
certification judgment dealing with the 1996 Constitution,
In re:
Certification
of the Constitution of the Republic of South Africa
,
7
4
we stated that although it
is clear that pursuant to Constitutional Principle VI the Constitution provides
for a system of separation
of powers among the three co-equal branches of
government, "[t]here is . . . no universal model of separation of powers,
and
in democratic systems of government in which checks and balances result in
the imposition of restraints by one branch of government
upon another, there is
no separation that is absolute."
7
5
  I have no doubt that over time our
courts will develop a distinctively South African model of separation of
powers, one that fits
the particular system of government provided for in the
Constitution and that reflects a delicate balancing, informed both by South
Africa’s history and its new dispensation, between the need, on the one hand, to
control government by separating powers and enforcing
checks and balances, and,
on the other, to avoid diffusing power so completely that the government is
unable to take timely measures
in the public interest. Â
[61]
     This is a complex
matter which will be developed more fully as cases involving separation of
powers issues are decided.Â
For the moment, however, it suffices to say that
whatever the outer boundaries of separation of powers are eventually determined
to be, the power in question here — i.e., the power to commit an uncooperative
witness to prison — is within the very heartland
of the judicial power and
therefore cannot be exercised by non-judicial officers.
[62]
     This principle has
long been established in other open and democratic societies.  In the United
States, for example, the
sole authority of judicial officers to commit
recalcitrant witnesses was established as far back as 1893.
7
6
  The Supreme Court based
its holding partly on separation of powers concerns:
"The
inquiry whether a witness before the Commission is bound to answer a particular
question propounded to him, or to produce
books, papers, etc., in his
possession and called for by that body, is one that cannot be committed to a
subordinate administrative
or executive tribunal for final determination.  Such
a body could not, under our system of government, and consistently with due
process of law, be invested with authority to compel obedience to its orders by
a judgment of fine or imprisonment.  Except in the
particular instances
enumerated in the Constitution . . . the power to impose fine or imprisonment
in order to compel the performance
of a legal duty imposed by the United
States, can only be exerted, under the law of the land, by a competent judicial
tribunal having
jurisdiction in the premises."
7
7
[63]
     The principle
articulated in
Brimson
and implicit in the jurisprudence of other
democracies is clear:  only judicial officers may, consistent with the proper
separation
of government powers, commit recalcitrant witnesses to prison.Â
Judicial officers enjoy complete independence from the prosecutorial
arm of the
state, and are therefore well-placed to curb possible abuse of prosecutorial
power.  However, were executive branch officials
to be invested with the power
to compel, upon pain of imprisonment, cooperation with their investigative
demands, this necessary
check on the prosecutorial power would vanish, because
it would allow the executive to pass judgment on the lawfulness of its own
prosecutorial decisions.
[64]
     There is another line
of reasoning which reaches the same conclusion or which supports such
conclusion.  The 1996 Constitution
distinguishes between criminal trials,
arrests and other legal proceedings.  Section 35(3) entitles every accused
person to a fair
trial which, under paragraph (c) must be “a public trial
before an ordinary court” and in respect of persons arrested for allegedly
committing an offence, their detention is dealt with under section 35(1).Â
Section 35(2) deals with “everyone who is detained”
and paragraph (d) thereof
confers the right on every detained person “to challenge the lawfulness of the
detention in person before
a court and if the detention is unlawful, to be
released” without prescribing what constitutes a lawful detention, either
substantively
or procedurally.Â
[65]
     However obvious it
might be to underscore this, I would emphasise that in this case we are also
not dealing with, nor does
this judgment touch upon, the constitutional or
other criteria for the valid arrest of a person for allegedly committing an
offence.Â
In respect of other legal proceedings the governing section is
section 34, which entrenches the right to have any dispute that can
be resolved
by the application of law decided “in a fair public hearing before a court or,
where appropriate, another independent
and impartial tribunal or forum.”
[66]
     A recalcitrant
examinee at an insolvency enquiry is not an accused person and does not, any
more than the recalcitrant examinee
at an examination under section 205 of the
CPA,
7
8
have the right under section
35(3) to claim a trial before an ordinary court.  The factual and legal enquiry
necessary to determine
whether a recalcitrant examinee at an insolvency enquiry
ought to be committed to prison under subsection 66(3) is, for purposes
of
section 34, a dispute which can be resolved by the application of law and such
examinee is entitled under section 34 to have that
dispute resolved before “ .
. . a court or, where appropriate, another independent and impartial tribunal
or forum.”
[67]
     In
Nel v Le Roux
this Court held that the “trial” envisaged by the right not to be detained
without trial did not “in all circumstances require
a procedure which
duplicates all the requirements and safeguards embodied in section 25(3) of the
[interim] Constitution” but in
most cases required “the interposition of an
impartial entity, independent of the executive and the legislature to act as
arbiter
between the individual and the state.”
7
9
  Although the Court did not refer
specifically to section 22 of the interim Constitution
8
0
(the predecessor of the
current section 34) the above finding does not diverge in substance from the
provisions of either section
22 of the interim Constitution or section 34 of
the 1996 Constitution.  The Court left open the question whether the “impartial
entity” referred to had in all cases to be “a judicial officer who ordinarily
functions as such in the ordinary courts” because
it held that as far as
section 205 of the CPA was concerned “the entity is indeed a normal judicial
officer who ordinarily functions
in the ordinary courts” and that 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
[interim] Constitution.”
8
1
[68]
     When regard is had to
the provisions of section 34 of the Constitution in the context of the
foregoing, the question which
arises is whether it can be said:
(a) that the presiding
officer at an insolvency inquiry who commits a recalcitrant examinee to prison
under subsection 66(3) is, for
purposes of section 34 of the Constitution,
either-
(i)  a
“court”; or,
(ii) “another
independent and impartial tribunal or forum” and if so, whether it is
“appropriate” to have the issue of committal
to prison decided by such tribunal
or forum and,
(b) that the investigation
of such committal and the committal itself by such presiding officer
constitutes the “[fair] trial”
required by section 12(1)(b), which is itself linked
to the criterion of “appropriateness” referred to in (a)(ii) above.
[69]
     Section 11(d) of the
Canadian Charter guarantees a person who is charged with an offence the right
“to be presumed innocent
until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal . . . .”  It is of
course immediately apparent that this provision differs significantly from that
of section 35(3)(c) of the 1996 Constitution which
guarantees every accused a
fair public trial before “an ordinary court.”  For the limited purpose however
of deciding what an
“independent . .  tribunal or forum” is for purposes of
section 34 of the 1996 Constitution, the views of the Canadian Supreme
Court on
section 11(d) of the Charter are instructive.
[70]
     In
Canada v
Beauregard
8
2
Dickson CJC summarised the essence of independence as follows:
“Historically, the generally accepted
core of the principle of judicial independence has been the complete liberty of
individual
judges to hear and decide the cases that come before them: no
outsider — be it government, pressure group, individual or even another
judge —
should interfere in fact, or attempt to interfere, with the way in which a
judge conducts his or her case and makes his
or her decision.  This core continues
to be central to the principle of judicial independence.
                                                  Â
. . . .
The ability of
individual judges to make decisions on concrete cases free from external
interference or influence continues . . .
to be an important and necessary
component of the principle.”
In the leading case of
R
v Valente
8
3
three essential
conditions of independence were identified, that could be applied independently
and were capable of achievement by
a variety of legislative schemes or
formulas.
8
4
  The first was security of tenure,
which embodies as an essential element the requirement that the decision-maker
be removable only
for just cause, “secure against interference by the executive
or other appointing authority.”
8
5
  The second was a basic
degree of financial security free from “arbitrary interference by the executive
in a manner that could
affect judicial independence.”
8
6
  The third was “institutional independence with
respect to matters that relate directly to the exercise of the tribunal’s
judicial
function . . . judicial control over the administrative decisions that
bear directly and immediately on the exercise of the judicial
function.”
8
7
[71]
     In
Valente
the fundamental  distinction between the concepts of independence and
impartiality, which is particularly relevant in the present
case, was
emphasised in the following two passages in the Court’s judgment:
“ Although
there is obviously a close relationship between independence and impartiality,
they are nevertheless separate and distinct
values or requirements.Â
Impartiality refers to a state of mind or attitude of the tribunal in relation
to the issues and the parties
in a particular case.  The word ‘impartial’ . . .
connotes absence of bias, actual or perceived. The word ‘independent’
in s.
11(d) reflects or embodies the traditional constitutional value of judicial
independence.  As such, it connotes not merely
a state of mind or attitude in
the actual exercise of judicial functions, but a status or relationship to others,
particularly the
Executive Branch of government, that rests on objective
conditions or guarantees.”
8
8
“Although
judicial independence is a status or relationship resting on objective
conditions  or guarantees, as well as a state
of mind or attitude in the actual
exercise of judicial functions, it is sound, I think, that the test for
independence for purposes
of s. 11(d) of the Charter should be, as for
impartiality, whether the tribunal may be reasonably  perceived as
independent.  Both
independence and impartiality are fundamental not only to
the capacity to do justice in a particular case but also to individual
and
public confidence in the administration of justice.  Without that confidence
the system cannot command the respect and acceptance
that are essential to its
effective operation.  It is, therefore, important that a tribunal should be
perceived as independent,
as well as impartial, and that the test for
independence should include that perception.  The perception must, however, as
I have
suggested, be a perception of whether the tribunal enjoys the essential
objective conditions or guarantees of judicial independence,
and not a
perception of how it will in fact act, regardless of whether it enjoys such
conditions or guarantees.”
8
9
[72]
     At the same time it
was pointed out in
Valente
that:
“. . . it
would not be feasible, however, to apply the most rigorous and elaborate
conditions of judicial independence to the constitutional
requirement of
independence in s. 11(d) of the Charter, which may have to be applied to a
variety of tribunals.  The legislative
and constitutional provisions in Canada
governing matters which bear on the judicial independence of tribunals trying
persons charged
with an offence exhibit a great range and variety.  The
essential conditions of judicial independence for purposes of s. 11(d) must
bear some relationship to that variety.”
9
0
Nevertheless “the essence
of the security afforded by the essential conditions of judicial independence”
must be provided or guaranteed,
although this need not be done by “any
particular legislative or constitutional formula”.
9
1
  The above approach and the principles enunciated in
Valente
were
more recently confirmed again by the Supreme Court in
R v Genereux
.
9
2
  In the latter case the requirement of independence
was further elaborated by pointing out that the status of a tribunal must
guarantee
not only its freedom from interference by the executive and
legislative branches of government but also by “any other external
force, such
as business or corporate interests or other pressure groups”.
9
3
[73]
     When the above
principles are applied to the present case it illustrates even more clearly why
officers in the public service
do not enjoy the necessary independence,
notwithstanding their actual competence and impartiality, for making the
judicial decision
to commit a recalcitrant examinee to prison.  I am far from
convinced that the first two essential requirements for independence
referred
to in the Canadian cases, namely those of security of tenure and a basic degree
of financial security free from arbitrary
interference by the executive in a
manner that could affect judicial independence, are present in the case of
officers in the public
service.  It is unnecessary, however, to pronounce
definitively on these requirements, for such officers undoubtedly lack the
required
objective structural independence and are not reasonably perceived to
possess it.  As indicated above, Mr Trengove’s submissions
only address the
issue of impartiality, but not that of independence.Â
[74]
     There is a further
consideration. Section 35(3)(c) of the 1996 Constitution unambiguously limits
the adjudication of criminal
offences to an “ordinary court.” This must be kept
in mind in construing the phrase “when appropriate” which qualifies theÂ
permissibility in section 34 of the Constitution of allowing the resolution of
a dispute in a hearing before “another independent
and impartial tribunal.”Â
These provisions and their interrelationship are not fortuitous, but rather, I
am convinced, a deliberate
constitutional reaction to the recent history in
this country regarding detentions and deprivations of physical liberty and are
aimed
at affording the individual greater constitutional protection. Although
committal to prison under section 66(3) is not incarceration
following upon a
criminal conviction it is, from the perspective of the persons deprived of
their freedom, analogous.  Accordingly,
when considering whether it isÂ
“appropriate” under section 34 for “another independent and impartial tribunal”
to commit
a person to prison under section 66(3) it strengthens the conclusion
that this would only be appropriate where such tribunal were
constituted, or
presided over, by a judicial officer of the court structure established by the
1996 Constitution and in which section
165(1) has vested the judicial authority
of the republic.
[75]
     In sum, officers in
the public service, who answer to higher officials in the executive branch, do
not enjoy the independence
of the judiciary and therefore cannot, without
danger to liberty, commit to prison witnesses who refuse to cooperate in
proceedings,
such as the present.
9
4
  I accordingly conclude that the committal provision
of section 66(3) infringes section 12(1)(b) of the Constitution, at least to
the extent that a person who is not a magistrate is authorised by the
subsection, read with section 39(2) of the Insolvency Act,
to issue a warrant
committing to prison an examinee at a creditors’ meeting held under section 65
of the Insolvency Act.
[76]
     I say at least to
such extent, because in certain circumstances magistrates may be designated to
preside at meetings of creditors
and Mr Hack submitted that even for a
magistrate to issue a warrant of committal was constitutionally impermissible.Â
The thrust
of his submission was that in issuing such a warrant the magistrate
was discharging an administrative and not a judicial function
and in any event
was not sitting in a judicial capacity as a magistrate.  In this regard he
placed great reliance on the following
passage from Conradie J’s judgment:
“Where it is
the magistrate who presides [over a meeting of creditors], it is clear that, in
doing so, he fulfils one of the many
administrative functions with which he is
by law charged. Subsection 66(6) of the Insolvency Act confers on him the
immunity which
is enjoyed by a judicial officer in connection with any act
performed by him in the exercise of his functions.  That it should have
been
thought necessary to confer such an immunity on the presiding officer, even
where he is a magistrate, shows that he or she is
not considered to be acting
as such in presiding at the meeting.  There accordingly appears to be no room
for an argument that the
magistrate presides over a court which, while not an
ordinary court such as that to which an accused has a right, is nevertheless
a
court of some kind or other.”
9
5
[77]
     This passage was the
last step in the learned judge’s process of reasoning before concluding that
the subsection was in
conflict with section 12(1)(b) of the Constitution.
Section 12(1)(b) does not
in terms require that the “trial” be before a court, but in an earlier passage
of his judgment Conradie
J reached just that conclusion when stating that-
“Section 12(1)(b) declares, therefore, that only a court of law may deprive a
person of liberty ”
9
6
(explaining later that
this is implied in the section
9
7
).  This conclusion he
based primarily, though not exclusively, on the Oxford English Dictionary
definition of “trial” as being:
“. . . the
examination and determination of a cause by a judicial tribunal; determination
of the guilt or innocence of an accused
person by a court”
and the definition put
forward in
Catherwood v Thompson
9
8
:
“In a general
sense , the term ‘trial’ denotes the investigation and determination of a matter
in issue between parties before
a competent tribunal, advancing in progressive
stages from its submission to the court or jury to the pronouncement of
judgment .
. .”
[78]
   Â
These definitions do not, I believe, go as far as Conradie J suggests;
the second meaning in the first quotation relating clearly
only to a criminal
trial and the second quotation being wide enough to encompass “tribunal”.  In
any event the meaning of a
particular word must be determined in its proper
statutory context.  The learned judge also appears not to have given sufficient
weight to what was decided in
Nel’s
case
9
9
, or the implication thereof; there
being no difference between the meaning of “trial” in section 11(1) of the
interim Constitution,
which was the subject of inquiry in
Nel’s
case,
and its use in section 12(1)(b) of the 1996 Constitution.  It is nowhere
suggested in
Nel’s
case that the envisaged trial was limited to one
before an ordinarily constituted court.  In this regard the following was
said:  Â
“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.”
10
0
[79]
     The proceedings under
section 205, read with section 189 of the CPA, which were held in
Nel’s
case
to constitute a proper trial for purposes of section 11(1), do not constitute
an examination or investigation of any matter or
cause in issue between any
parties.  The purpose is to obtain material or relevant information as to an
alleged offence.  Yet in
substance as well as in form they are judicial
proceedings albeit of an inquisitorial rather than adversarial nature.
10
1
  In this sense they are
in principle no different from the interrogation under the relevant sections of
the Insolvency Act which
is also aimed at obtaining relevant information
concerning the insolvency in question.  In presiding over the examination under
section 205 of the CPA, and when considering under section 189 whether to
sentence an examinee to prison and in so sentencing the
examinee, the presiding
officer is not presiding in a court over a trial which would meet the criteria
of the definitions on which
Conradie J relied.  Yet, despite that, we held in
Nel
10
2
that it did constitute a
trial for purposes of section 11(1) of the interim Constitution.  In my view
Conradie J took too narrow
a view of the concept of trial in section 12(1)(b)
of the 1996 Constitution and in so doing erred.
[80]
     I am also unable to
agree with the learned judge’s conclusion that where it is the magistrate who
presides over a meeting
of creditors “it is clear that, in doing so, he fulfils
one of the many administrative functions with which he is by law charged”
to
the extent that this is applied to the committal procedure under section
66(3).  It is unnecessary for purposes of this case
to consider whether the
officer presiding at a meeting of creditors is, in respect of other aspects of
the meeting and the examination
of persons thereat, performing an
administrative or a judicial function.  The crucial enquiry relates to
proceedings for issuing
a committal warrant.
10
3
  In such proceedings the presiding
officer determines whether the witness has complied with the statutory
obligation to produce
documents and answer questions and the sanction to be
imposed if this has not been done.  The witness is entitled to legal
representation
and may apply to the High Court for his discharge from custody.Â
This is in substance a judicial proceeding even if it is not conducted
in a
court of law.  I have no doubt in my mind that the process of factual and legal
evaluation involved in deciding whether or
not to commit an examinee to prison
and the act of issuing the committal warrant, are clearly judicial and nothing
else.Â
[81]
     It is true that the
magistrates who preside at meetings of creditors and who issue committal
warrants under section 66(3),
derive their authority to do so, not from the
Magistrates’ Courts Act,
10
4
but from section 39(2) of the Insolvency Act.  This
is no different from their position when presiding over an examination under
section 205 of the CPA; here too their authority is derived from an Act other
than the Magistrates’ Courts Act.  In neither case
does this circumstance alter
the fact that when sending persons to prison magistrates act in a judicial
capacity; it also does not
diminish their judicial independence when so doing.
[82]
     Conradie J, in
reaching the conclusion that magistrates acting in terms of section 66(3)
perform an administrative function
and not a judicial function in their
capacity as magistrates, also placed reliance on the fact that under section
66(6) of the Insolvency
Act
10
5
a magistrate is granted the same immunity as
presiding officers who are not magistrates:
“That it
should have been thought necessary to confer such an immunity on the presiding
officer, even where he is a magistrate,
shows that he or she is not considered
to be acting as such in presiding at the meeting.”
10
6
I would repeat that we are
not concerned about the capacity in which the magistrate is presiding over the
meeting as a whole, but
rather when the committal is considered and ordered.Â
In the immunity provision magistrates are not mentioned by name; they are
embraced therein only because, under section 39(2), they can in certain
circumstances be presiding officers.  Had magistrates been
excluded
specifically from the immunity it might well have created the impression that
they enjoyed no such immunity.  It is more
likely, to my mind,  that the
formulation of section 66(6), read with section 39(2), was allowed to cover
magistrates as well, in
order to prevent such an incorrect impression or at
least out of excessive care.  I accordingly disagree with the above inference
drawn by the learned Judge.
[83]
     I am unable to agree
with this portion of Conradie J’s judgment.  When issuing  a committal warrant
under section 66(3)
the magistrate performs a judicial function.  The magistrate
is a judicial officer whose appointment is regulated by section 174(7)
of the
1996 Constitution and is in all material respects an “impartial entity,
independent of the executive and the legislature”
who, in relation to the
committal process, is interposed “to act as arbiter between the individual and
the state” as required
by our judgment in
Nel’s
case.
10
7
Â
To require the magistrate
to postpone the enquiry if such an issue arises to enable another magistrate to
conduct it in separate proceedings
places form above substance and, in my view,
such formality is not required by section 12 of the 1996 Constitution.  I
accordingly
hold that the committal provision of section 66(3), read with
section 39(2) of the Insolvency Act, infringes section 12(1)(b) of
the 1996
Constitution only to the extent that a person who is not a magistrate is
authorised by the subsection to issue a warrant
committing to prison an
examinee at a creditors’ meeting held under section 65 of the Insolvency Act.
[84]
     This holding, in so far
as it decides that the section 66(3) provision for committal by a magistrate
does not infringe section
12(1)(b), is in conformity with and flows logically
from part of the judgment of this court in
Bernstein’s
case
10
8
in which a broad attack,
based amongst others on the provisions of section 11(1) of the interim
Constitution and directed at the
provisions of sections 417 and 418 of the
Companies Act as a whole, had to be considered.  In its process in aid
provisions, section
418 (which deals with examinations by Commissioners) draws
a distinction between Commisioners who are magistrates and those who are
not.Â
In the case of the former, section 418(2)
10
9
provides, amongst other things, that
a Commissioner,
who is a magistrate
, has the same powers of "punishing
defaulting or recalcitrant witnesses, or causing witnesses to be apprehended  .
. . as the
Court referred to in section 417."  The Commissioner who is not
a magistrate does not have this power; section 418(5) creates
a substantive
offence in respect of the defaulting or recalcitrant witness before such a
Commissioner.
11
0
  In dismissing the abovementioned attack, the Court in
Bernstein
necessarily, albeit implicitly, concluded that these section 418(2) provisions
in relation to a Commissioner who is a magistrate,
did not infringe section
11(1) of the interim Constitution.
11
1
  It must be pointed out, however,
that in
Bernstein
the Court did not apply its mind to the contention,
because it had not been argued that a magistrate who exercises these section
418(2)
powers is acting purely administratively and not as a judicial officer
exercising a judicial function.
[85]
     Section 66(3) does
not in express terms prescribe the procedures to be followed before an examinee
may be committed to prison.Â
More importantly, it contains no explicit
provision which obliges a presiding officer to conduct the proceedings
antecedent to committal
in any manner inconsistent with any norm of procedural
fairness required by the constitution or the common law.  The inescapable
conclusion,
in my view, is that whosoever is constitutionally permitted to issue a
committal warrant under section 66(3), it is implicit
in the provisions of the
subsection that the relevant proceedings must be conducted by such presiding
officer in a manner which is
not inconsistent with any norms of procedural
fairness required by the Constitution or the common law.  That being the case,
section
66(3) is in no way inconsistent with any fair procedure right protected
by section 12(1) of the Constitution.  This was the very
approach adopted and
the conclusion reached by this Court in
Bernstein’s
case
11
2
in dismissing an attack
on sections 417 and 418 of the Companies Act based on section 11(1) of the
interim Constitution.  In
Jeeva’s
 case
11
3
the Supreme Court of Appeal in
effect held this to be the position at common law in relation to proceedings
under sections 417 and
418.
11
4
  The same approach was adopted and conclusion reached
unanimously by this Court in
Nel’s
case
11
5
when it rejected an attack against
section 205 of the Criminal Procedure Act based on section 11(1) of the interim
Constitution.
11
6
  Neither in
Bernstein’s
case, nor in
Nel’s
case, did the
Court, in rejecting the constitutional attack based on section 11(1) of the
interim Constitution, place any reliance
on section 35(2) of the interim
Constitution
.
11
7
  The fact that the provisions of section 35(2) of the interim
Constitution have not been repeated in the 1996 Constitution is therefore
irrelevant to the decision in the present matter.  In any event, they do no
more than give expression to a sound principle of constitutional
interpretation
recognised by other open and democratic societies based on human dignity,
equality and freedom such as, for example,
the United States of America, Canada
and Germany, whose constitutions, like our 1996 Constitution, contain no
express provision to
such effect.
11
8
  In my view the same interpretative
approach should be adopted under the 1996 Constitution.  I am therefore
constrained to disagree
with my colleague Mokgoro J where she reaches a
different conclusion on this issue in her dissenting judgment.
Limitation of the section 12(1)(b) right under section
36(1) of the 1996 Constitution.
[86]
     Section 36(1)
provides as follows:
“The rights in
the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is
reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all
relevant factors, including-
(a)        the
nature of the right;
(b)        the
importance of the purpose of the limitation;
(c)        the
nature and extent of the limitation;
(d)        the
relation between the limitation and its purpose; and
(e)        less
restrictive means to achieve the purpose.”
Although section 36(1) differs
in various respects from section 33 of the interim Constitution
11
9
its application still involves a process, described
in
S v Makwanyane and Another
12
0
as the “weighing up of competing values, and ultimately an assessment
based on proportionality . . . which calls for the balancing
of different
interests.”
[87]
     In
Makwanyane
the relevant considerations in the balancing process were stated to 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.”
12
1
  The relevant
considerations in the balancing process are now expressly stated in section
36(1) of the 1996 Constitution to include
those itemised in paragraphs (a) to
(e) thereof. In my view this does not in any material respect alter the
approach expounded in
Makwanyane
, save that paragraph (e) requires that
account be taken in each limitation evaluation of “less restrictive means to
achieve the
purpose [of the limitation].”
[88]
     The balancing of
different interests must still take place.  On the one hand there is the right
infringed; its nature; its
importance in an open and democratic society based
on human dignity, equality and freedom; and the nature and extent of the limitation.Â
On the other hand there is the importance of the purpose of the limitation.  In
the balancing process and in the evaluation of proportionality
one is enjoined
to consider the relation between the limitation and its purpose as well as the
existence of less restrictive means
to achieve this purpose.
[89]
     The right we are here
concerned with is the right not to be detained without a fair trial, but more
particularly with the
right to be tried, following on the conclusion earlier
reached, in a hearing presided over or conducted by a judicial officer of
the
court structure established by the 1996 Constitution and in which section
165(1) has vested the judicial authority of the Republic.
12
2
  This is a core and most
important procedural component of the right not to be detained without trial.Â
It is the pre-eminent,
if not the only, guarantee against arbitrary
administrative detention and is indispensable for the upholding of the rule of
law and
the separation of powers in a constitutional state.
[90]
     The subsection of the
Insolvency Act in question, to the extent indicated, takes away this procedural
guarantee entirely.Â
Admittedly this deprivation is only temporary, because the
person committed can apply immediately under section 66(5) to the appropriate
High Court for discharge from prison.  I agree in this regard with Mr
Trengove’s submission that section 66(5) does not amount
to a mere appeal or
review; it entitles examinees to a full re-hearing and reconsideration of the
lawfulness of their committal to
prison.  This does not, however, cure the
deprivation of the right, it merely limits the deprivation in time.  For the
period of
deprivation, persons committed to prison consequentially suffer a
deprivation of the most important aspect of their right to freedom,
namely
bodily or personal freedom without the constitutional procedural guarantee in
question.
[91]
     I have already found
that the process in aid constituted by the section 66(3) committal to prison
serves a public interest
no less compelling than in the case of the winding up
of a company and the necessity of compelling the  insolvent to furnish the
requisite information no less than in the case of the director of a company in
the process of being wound up.
12
3
  We are not, however, under section 36(1), presently
considering the justification of any limitation of the substantive freedom
right, but the justification for limiting the procedural right, namely, the
right to having the committal to prison adjudicated upon
by a judicial
officer.  When considering the “importance of the purpose of the limitation”
under section 36(1)(b) it is the
importance of the purpose of this latter
limitation that must be focussed on; in other words, the importance of the
purpose of having
an officer in the public service (and not a judicial officer)
committing a recalcitrant examinee to prison.
[92]
     Under the interim
Constitution it is for the legislature, or the party relying on the
legislation, to establish justification,
and not for the party challenging it
to show that it was not justified.
12
4
  Neither the wording, structure nor
purpose of section 36(1) of the 1996 Constitution warrants a different
approach.  If factual
information, other than facts of which judicial notice
may properly be taken, is necessary as a basis for establishing justification,
it is for the party relying on justification to establish those facts and
failure to do so may result in such party being unable
to establish
justification.  A court cannot be asked to speculate on justification in the
absence of any factual basis therefor.Â
In the present case no such factual
basis was laid either by proof of facts or by agreement.  I accordingly find
myself on unsound
ground for positively evaluating or determining the
importance of having an officer in the public service committing the
recalcitrant
examinee to prison.  If such positive determination is not
possible then very little has been established which can counterpose
the
importance of the right infringed.Â
[93]
     I accept, as already
indicated, that the public service officers designated to preside over
creditors’ meetings are skilled
and experienced.  That by itself does not
explain why they must have the right to incarcerate examinees.  It does not
follow, as
a matter of logic, that if they do not have this right that their
skill and expertise can no longer be used for presiding over meetings.Â
There
are simply too many unknown factors in the equation to warrant such a
conclusion.Â
[94]
     We have no evidence,
or other admissible factual material, to indicate (whether statistically or by
way of informed expert
opinion) what the actual deterrent effect of the summary
committal procedure is or how effective the criminal sanction in section
139(2)
of the Insolvency Act would be in the absence of the summary committal procedure.Â
It was suggested in argument that if the
public service officers did not have
summary committal powers this would give rise to delays which would undermine
the efficacy of
the sequestration process.  It is not self-evident to me why
this must be so, if creditors’ meetings and courts are efficiently
run.
[95]
     There is nothing
before us to show why these public service officers cannot legitimately be
accommodated in the magisterial
judiciary and used exclusively to preside over
creditors’ meetings or why, for that matter, specialist insolvency or
bankruptcy
courts cannot effectively be established under the Constitution in
which their expertise can also be fully employed.
12
5
  As judicial officers, with true
structural and constitutional independence, there could be no objection to them
committing examinees
to prison.Â
[96]
     Another avenue also
remains unexplored.  Provision could be made for a procedure whereby, if an
examinee refuses to answer
a question or produce documents, the matter is
automatically referred to an appropriate court to determine the propriety of
the question
and the witness ordered to answer the question or produce the
document.  If the witness still refuses, committal for contempt can
follow very
rapidly without any delay or disruption of the creditors’ meeting.  These, or
analogous procedures, are used in England,
Australia and Canada.  There is
nothing to suggest that they do not work efficiently, nor that the procedures
or their efficacy
are dependant on economic or other resources of which our own
country is not possessed.
[97]
     On a broader and
more general basis, no example has been offered to us nor been found by us, of
any other country which
finds it necessary, in the sphere of insolvency, to
permit a non-judicial officer to commit a recalcitrant examinee to prison.Â
Nor
has it  in any way been established that economic or other factors play a role
in the other insolvency regimes which are inappropriate
to our own
circumstances.
[98]
     As far as the
importance of the purpose of the limitation of the procedural right in the
present case is concerned there
is simply nothing before us to establish it.Â
No example of any other South African statutory provision was cited to us, and
I am
unaware of any, which empowers any other tribunal or forum, not being an
ordinary court in the judicial arm of the state, to commit
a person to prison
for civil contempt.  It is significant that, for example, such a power is not
conferred under the Commissions
Act.
12
6
  Instead section 6(1) of the Act
makes it a punishable offence for a witness to fail to attend, to refuse to be
sworn, to fail to
furnish documents or to fail to answer fully and
satisfactorily questions lawfully put at the enquiry.
12
7
  A similar approach is
adopted under the Labour Relations Act.
12
8
 Section 142(1) of the Act
confers wide powers on a commissioner, appointed by the Commission for
Conciliation, Mediation and Arbitration
under section 142(1), to resolve a
dispute, to subpoena witnesses to produce documents, to furnish information and
to give evidence.Â
Although section 142(8) makes extensive provision for
various acts and omissions of a witness to constitute contempt of the
Commission,
the Commission itself has no power to commit for contempt.Â
Instead, section 142(9) provides that any contempt is to be referred
“to the
Labour Court for an appropriate order.”
12
9
[99]
     The examples of
alternative procedures in other jurisdictions indicate, on their face at least,
that there are not merely
less restrictive procedural means to achieve the
purpose at which summary committal is directed in insolvency proceedings, but
that
these purposes can be achieved without restricting at all the component of
fair trial right with which we are here dealing.  This
also means that there is
no proportionality, or at best very little, between the nature and extent of
the limitation of the procedural
right here in question and the purpose sought
to be achieved by the limitation.  In the result it has not, in my view, been
established
that the limitation in question in this case is reasonable or
justifiable in an open and democratic society based on human dignity,
equality
and freedom.
[100]
   In argument we were
referred by Mr Trengove to sections 44 to 51 of the Aliens Control Act 96 of
1991 which confer sweeping powers
of arrest and expulsion of aliens on the
executive without the interposition of a judicial officer.  Reference was also
made to
deprivations of freedom in other contexts, such as disease control and
mental health, which might occur without the interposition
of a judicial
officer.  It was contended that it did not necessarily follow that deprivation
of bodily freedom in such circumstances
would be unconstitutional.  I have
already referred to the fact that in the European Convention certain forms of
detention are excluded
from the right to liberty and the security of the person
13
0
and that in Germany there
are exceptions to the strict constitutional provision that detention may only
be ordered by a judge before
such detention takes place.
13
1
[101]
   It may well be that in
such, and other cases, the interposition in all cases of a judicial officer
before detention takes place,
would make the achievement of an important and
legitimate governmental goal impossible to achieve, and that for these and
possibly
other reasons a limitation of the right in question could be justified
under section 36(1).  It is however unnecessary to decide
such cases now or
express any views on them, for the simple reason that in the present case such
circumstances are not present.Â
The present decision does not inhibit an
unfettered examination of such cases if and when they present themselves.
The Order
[102]
   Having concluded that
the limitation by section 66(3) of the right not to be detained without trial
(to the extent already indicated)
is not justifiable under section 36(1) of the
1996 Constitution, it follows that, to that extent also, the subsection is
inconsistent
with the Constitution.
[103]
   It was submitted on
behalf of the respondents that if such were our conclusion regarding the extent
of the subsection’s constitutional
inconsistency, we should not strike down the
subsection in its entirety, but issue an order indicating the extent of the
inconsistency
as was done in
Ferreira v Levin.
13
2
 I agree.  Here, like in
that case, while the subsection is not linguistically severable, it is
notionally so, and it would otherwise
be appropriate to make an order in such
form.
[104]
   Section 171(1)(b) of
the 1996 Constitution provides that when deciding a constitutional issue within
its power, a court -
“may make an
order that is just and equitable, including -
(i)  an order
limiting the retrospective effect of the declaration of
   Â
invalidity; and
(ii) an order
suspending the declaration of invalidity for any
      period
and on conditions, to allow the competent authority to correct the
     defect.”
The present seems an
appropriate case to give the declaration of invalidity no retrospective effect,
but to make it operative only
from the time of the making of the order.Â
Persons who have, since the coming into operation of the Constitution, been
unconstitutionally
committed to prison, can unfortunately not be afforded
effective relief in the sense of undoing any detention they might have suffered
prior to the making of this order.
[105]
   Moreover, if the order
is granted any retrospective effect it could raise uncertainties as to whether
a person unconstitutionally
committed to prison in the past had a claim for
damages in respect of a committal which was unassailable at common law at the
time
and ordered in good constitutional faith.  If it were to transpire that
the retrospective  operation of the order does not provide
a cause of action
for damages, then persons unconstitutionally detained in the past suffer no
prejudice in relation to damages.Â
If it has the effect of giving rise to such
a claim, then it seems to be a most undesirable consequence, having regard to
the fact
that the committal took place in good faith.  Retrospectivity can in
any event not assist the applicant, inasmuch as his committal
was ordered by a
magistrate and was therefore constitutional.
[106]
   A case has also not
been made out for suspending the declaration of invalidity under section
172(1)(b)(ii).  Magistrates can
continue validly and constitutionally to make
committal orders and presiding officers who are not magistrates can still
continue
to preside at meetings and the criminal sanctions available to punish
recalcitrant examinees can be invoked to induce them to discharge
their
obligations.  It would moreover be unconscionable to continue to allow persons
to be committed to prison unconstitutionally
in the future.
[107]
   Although the applicant
was ultimately unsuccessful in obtaining any relief which would assist him,
inasmuch as a magistrate issued
his warrant for committal, the constitutional
matters raised by him were ones of substance.  In the circumstances he ought
not to
be mulcted in costs.
[108]
   The first respondent,
who was the  presiding officer at the meeting of creditors in question and who
issued the warrant on 22
February 1997 committing the applicant to prison under
section 66(3), is a magistrate.  Paragraph 3 of the order made by Conradie
J is
to the effect that “[p]ending the confirmation or otherwise [of his order
declaring section 66(3) to be constitutionally invalid]
the first respondent is
interdicted from having the warrant for the imprisonment of the applicant
issued on 22 February 1997 executed.”Â
In the light of the conclusion I have
reached that section 66(3) is  inconsistent with the Constitution only to the
extent indicated,
it follows that the order of constitutional invalidity made
by Conradie J can be confirmed to that extent only.  Under these circumstances,
and having regard to the fact that the first respondent is a magistrate and the
above finding that it is not unconstitutional for
a magistrate to issue a
warrant of committal under section 66(3), it is for Conradie J to determine the
fate of the above temporary
interdict granted by him in the light of the order
to be made by this Court
.
[109]
   The following order is
made :
1.  The order of
constitutional invalidity made by Conradie J is confirmed to the following
extent only:
Section 66(3),
read with
section 39(2)
of the
Insolvency Act No 24 of 1936
, is
constitutionally invalid to the extent that it authorises a presiding officer
who is not a magistrate to issue a warrant committing
to prison an examinee at
a creditors’ meeting held under
section 65
of the
Insolvency Act.
>
2.  No order is made as to
costs.
3.  The matter is referred
back to Conradie J to be dealt with in the light of this judgment and the order
in 1 above.
Chaskalson P, Langa DP and
Madala J concur in the judgment of Ackermann J.
[110]
   I share the view taken
by Ackermann J that
section 66(3)
of the
Insolvency Act (24
of 1936) is
constitutionally valid where it empowers a magistrate presiding over a meeting
of creditors to issue a warrant for the
committal to prison of anyone who
refuses or fails, when lawfully required, to do what the subsection specifies.Â
In my opinion,
however,  the same goes for the corresponding empowerment of an
officer who presides over a meeting although he or she is not a
magistrate but
another official designated under
section 39(2)
of the statute.  On that point
I therefore dissent from the judgment which  Ackermann J has prepared and from
the order proposed
by him.  I believe that we should instead declare the whole
of
section 66(3)
to be unobjectionable.
[111]
 Â
Section 66(3)
lists the
three grounds on any of which somebody present at a meeting of creditors may be
committed to prison.  The first is the
failure of the person to produce a book
or document which he or she has been summoned to produce.  The second is the
person’s
refusal to be sworn as a witness once he or she must submit to
interrogation.  And the third, arising should the person testify,
is either a
refusal to answer a lawful question or a failure to do so fully and
satisfactorily.
[112]
   That third ground was
considered by Tebbutt J in
Nieuwoudt v Faught NO en Andere
.
[1]
His judgment, in which King J
concurred, examined
section 66(3)
and its context closely.  He then came to
this conclusion about the effect which the subsection had in dealing with the
failure
to answer questions fully and satisfactorily.  What that part hit, he
held, was an unwillingness to answer pertinently and completely.Â
A general
lack of credibility did not count.  Nor even did the apparent untruthfulness of
the answer given to a particular question,
unless the response was such obvious
nonsense that it amounted to an intentional refusal to answer.  Unwillingness,
it seems to
me, is no less an element  of the other refusals and failures which
the subsection mentions.  For its target appears to be obstructive
behaviour
rather than that which is otherwise unsatisfactory.
[113]
   The witness may, of
course, present an excuse for any of the refusals or failures that are
described, and should no doubt be
invited to do so.  Not many good excusesÂ
seem, however, to be available.  The most obvious that occur to me at once are
these.Â
The witness was not a person liable to be interrogated or summoned to
produce books or documents, and had been treated as such by
mistake.  The
required information, oral or documentary, was privileged and thus protected
from disclosure.  Or the witness did
not have the information and could not
find or obtain it, even if allowed time for an attempt.  The enquiry into the
soundness of
those and all other excuses must usually be factual in the first
place and quite simple in the second.  I do not see why a junior
magistrate
with short experience on the bench, let us say, should by virtue of his or her
office be thought peculiarly competent
to decide the matter, let alone by
comparison with an official on the Master’s staff, when one presides, who has
been trained in
the due administration of estates and become well versed in the
ways of the insolvency world.
[114]
   I agree with Ackermann
J that, in the light of the clearly legitimate and important purposes described
by him that are served
by
section 66(3)
and its related provisions, a committal
to prison under the subsection does not amount to an invasion of the personal
freedom “arbitrarily
or without just cause” which section 12(1)(a) of the
Constitution (Act 108 of 1996) forbids.  We are then left with the proposition
that the person so committed is nevertheless “detained without trial” in
conflict with section 12(1)(b) once the warrant gets
issued by a presiding
officer who happens not to be a magistrate.
[115]
   Those words, the words
“detained without trial”, ought not in my opinion to be  construed separately.Â
They comprise a
single and composite phrase which expresses a single and
composite notion and must therefore be read as a whole.  Both the usage
of the
phrase in this country and the provenance here of the notion are unfortunately
familiar to us all.  Neither should be viewed
apart from our ugly history of
political repression.  For detention without trial was a powerful instrument
designed to suppress
resistance to the programmes and policies of the former
government.  The process was an arbitrary one, set in motion by the police
alone on grounds of their own, controlled throughout by them, and hidden from
the scrutiny of the courts, to which scant recourse
could be had. And it was
marked by sudden and secret arrests, indefinite incarceration, isolation from
families, friends and lawyers,
and protracted interrogations, accompanied often
by violence.  Detentions without trial of that nature, detentions which might
be
disfigured by those or comparable features, were surely the sort that the
framers of the Constitution had in mind when they wrote
section 12(1)(b).
[116]
   A committal to prison
of the kind now in question bears no resemblance to a detention with such evil
characteristics.  It is
not a legacy of apartheid and has nothing to do with either
that era or the supposed security of the state.  Nor does it serve any
other
political purpose.  Indeed, the state has no interest in the proceedings but to
oil the statutory machinery constructed for
the proper administration of
insolvent estates.  No dispute about the occasion for any committal concerns
it.  The parties to that
are private individuals, the trustee and the creditors
on one side, the insolvent and recalcitrant witnesses on the other, between
whom the presiding officer acts as a referee.  The proceedings are open to the
public.  Legal representation is allowed.  The
person committed to prison,
should that happen, can obtain a release at any time by undertaking to supply
all the information required.Â
If the undertaking is withheld, or furnished
unsuccessfully, he or she may apply immediately to the High Court under section
66(5)
for a discharge from custody, which it will grant on finding the
committal to have been, or the continuing imprisonment to be, wrongful
on any
score.  The application would doubtless be brought before and treated by it as
a matter of urgency, in accordance with the
practice invariably observed once
personal liberty is at stake.  A loss of liberty might admittedly have been
suffered in the meantime.Â
But the same occurs whenever someone arrested and
detained on a criminal charge  remains in custody until the opportunity arises
for a release on bail, and longer still if bail is denied.  Yet that can hardly
be called detention without trial.  Even so brief
a period of imprisonment
would be avoided by a  witness, however, were the presiding officer or the High
Court itself to suspend
forthwith the warrant of committal, pending its
decision on the application.  That course was followed in this very case, after
all, and is highly likely to be taken in all similar ones.
[117]
   I therefore conclude
that, whether or not the presiding officer is a magistrate, an imprisonment
ordered in terms of section
66(3) cannot rightly be stigmatised, for the
purposes of section 12(1)(b), as a detention without trial.
[118]
   A word or two had
better be said in that connection about
Nel v Le Roux NO and  Others,
[2]
where we
considered section 189 of the Criminal Procedure Act (51 of 1977) which
provided for the imprisonment of recalcitrant witnesses
in criminal
proceedings.  One of the criticisms levelled at the section was that it allowed
a witness to be “detained without
trial”, a remedy likewise prohibited by
section 11(1) of the interim Constitution (Act 200 of 1993).  We seem to have
accepted
that an imprisonment might fall foul of section 11(1) in circumstances
not going the length of the infamous detentions that I have
described.  But the
supposition does not obstruct me from taking a different view now  since, in
the particular circumstances postulated
by section 189, we dismissed the
objection in any event.
[119]
   Nor, to my mind, is our
earlier judgment in point anyhow.  Section 189 has a dual purpose, coercion in
the first place and punishment
in the second.  The imprisonment  which it
sanctions is specifically called a “sentence” in four places and “punishment”
in one.  That is something meted out only in a criminal trial and by the court
hearing it.  A committal in terms of section 66(3),
on the other hand, cannot
truly be rated as punishment.  Its object is not that, but coercion alone.Â
That is why the intended
duration of the imprisonment lasts until the coercion
works whereas, whenever imprisonment punishes, its period is fixed in advance.Â
Punishments are imposed for crimes.  Section 66(3) creates none.  That is done
elsewhere, in section 139(1) of the statute which
makes it an offence to behave
in a way warranting a committal and prescribes a sentence of imprisonment as
one that may be passed
on the offender, even if the same conduct has resulted
already in his or her prior imprisonment under section 66(3).  Yet double
punishment can scarcely have been envisaged.  Imprisonment is common, to be
sure, to committals and punishments.  But it is all
they have in common.  To
equate them on that account would sound rather like regarding the penalties
exacted by customs and revenue
officials as the fines resembled in their
effect, and therefore as punishments.
[120]
   The conclusion to which
I have come disposes straight away, in my opinion, of the reliance placed by
counsel on section 12(1)(b).Â
I ought to comment nevertheless on an important
consideration that the reasoning of Ackermann J takes into account under the
same
heading.  It is the general principle, which I accept without question,
that nobody should be deprived of personal liberty in a
manner that is
procedurally unfair.
[121]
   In examining whether
imprisonment under section 66(3) meets that requirement I do not think it
necessary to classify either the
committals or the enquiries leading to them as
judicial, quasi-judicial or administrative proceedings, since the principle
operates
whichever label they may aptly bear.  Nor do I find it helpful to
investigate what is done  in foreign jurisdictions about recalcitrant
witnesses, or even how other statutes of ours deal with coercion when the need
for its use arises within their areas.  Such investigations
may tend to
distract our attention from where it should now be focussed, on the particular
purposes that section 66(3) has been designed
to achieve and on the particular
circumstances prevailing in this country which are relevant to those purposes.Â
In that situation,
I believe, the threat of a subsequent prosecution under
section 139(1) would not suffice by itself as coercion, however satisfactorily
its counterparts may happen to work elsewhere.  Here the threat is too remote.Â
The notorious delays in the progress of prosecutions
see to that, delays which
were experienced even before the current congestion in the criminal courts
prolonged them and, given our
systems and procedures, are likely to remain
inevitable despite any reduction in their duration that may realistically be
expected.Â
One cannot safely brush aside the delays as mere inconveniences.Â
They would gravely damage the efficient administration and liquidation
of
insolvent estates if we had to rely on the prospect of prosecutions as the sole
means by which witnesses might be compelled to
co-operate in the process.  A
threat much more immediate is essential, a swift one taking effect before assets
of the estate disappear
or information about its affairs becomes unobtainable.
[122]
   The use of committals
rather than prosecutions in the endeavour to overcome recalcitrance has the
result, of course, that the
coercion thus exerted is not controlled by  the safeguards
against procedural unfairness which are prescribed for criminal trials.Â
That
does not mean, however, that witnesses threatened with committals enjoy no such
protection.  For the common law entitles them
to the procedural fairness on
which the rules of natural justice insist.
[3]
Those certainly cover the right to be told precisely what is wanted of them in
case they do not realise that already from the history
of their attendance, the
right to be warned about the potential consequence of not complying, the right
of each to oppose the application
for a warrant, and his or her right to be
heard in opposition to the application.  To that list the statute adds, in
section 65(6),
the right to be legally represented during the proceedings and,
in section 66(5), the right of recourse to the judiciary in the event
of a
committal.  I can therefore see nothing unfair in the way in which the
proceedings are required or allowed to be run.  Nor
does Ackermann J, not
surprisingly since he finds no fault with committals ordered by magistrates and
the procedure followed then
is exactly the same as  that observed whenever
others officiate.
[123]
 Â
Ackermann
J believes it to be procedurally unfair, even so, for anybody but a magistrate
to issue a warrant of committal.  His reason
has to do with the very source of the
decision.  He considers that, in accommodating the performance by others of so
grave a function,
the structure for the conduct of the proceedings is
intrinsically flawed because it does not conform to a couple of cardinal
principles,
the separation of powers and the rule of law.
[124]
   The separation between
the executive and the judiciary is not total in South Africa.  We need look no
further than the magistracy
to see a striking illustration of an overlap.Â
Besides their judicial work magistrates attend to a host of administrative
tasks
that fall within the exercise of executive power, moving readily and
frequently from the bench to the bureaucracy and back. Â
[125]
   Ackermann J maintains,
however, that sending people to jail should always be the  function of the
judiciary alone; that the
reason lies in the judicial independence and
impartiality which is fundamental to the separation of powers, indeed to the
rule of
law itself; that presiding officers who are not drawn from the ranks of
the magistracy possess no such qualities; and that both principles
are harmed
by their lack of those in issuing warrants under section 66(3).  That seems to
concentrate on form at the expense of
substance.  Presiding officers situated outside
the magistracy are unlikely to be less independent or impartial in doing their
duty
than those located within it.  They, like magistrates, must make up their
own minds about committals.  Not to do so, but to obey
the instructions,
succumb to the pressure or defer to the wishes of departmental superiors, would
be an improper exercise of their
powers and a reviewable irregularity.  It
seems fanciful, in any event, to imagine a superior wanting to influence the
decision
of a presiding officer on the case for a committal.  The executive has
no interest to promote or protect in that area.  And no
reason of policy, good
or bad, suggests why it should care what happens there.  Then one has the
ultimate safeguard against an irregularity
of that or any other sort, which is
the immediate opportunity for an approach to the High Court and the consequent
intervention of
the judiciary.  In all those circumstances, I consider, section
66(3) contains nothing that infringes or imperils either the rule
of law or the
doctrine of separate powers.
[126]
   No dangerous precedent would be
set, in my opinion, by a ruling along the lines that I accordingly favour.Â
Interferences with
personal liberty are always scrutinised intensively and
controlled strictly by this Court and others.  Section 12(1)(a) ensures
that
the supervision will continue.  It will be exercised in accordance with the
merits or
demerits of each particular
interference.  So nobody need fear that such a ruling might be applied in the
future to any case distinguishable
from the present one.
Kriegler J concurs in the judgment of
Didcott J.
MOKGORO J:
[127]
   My views have been informed by the
opportunity I have had to read the judgments of Ackermann, Didcott, O’Regan and
Sachs JJ.Â
I respectfully disagree with the view of Didcott J that
section
66(3)
of the
Insolvency Act
lang=EN-GB>1
(the
Act) is wholly unobjectionable.  However, I associate
myself with much in his interpretation (and Sachs J’s intimations in that
direction
2
) of section 12(1)(b),
3
and to the extent that he
construes “detention without trial” to have a particular historical and
political meaning,
4
I agree with his view.  Like O’Regan J, though, I am also in
respectful disagreement with the view of the matter taken by Ackermann
and
Sachs JJ:  I do not in these circumstances distinguish between judicial
officers officiating under appointment of the Master
in quasi-judicial
proceedings, and non-judicial appointees of the Master officiating in a similar
capacity.
5
  This case is in my respectful opinion not about office, but
about process.  I however have a narrow point of
disagreement with O’Regan J.  Whereas her emphasis is
on a judicial forum where fairness is presumed, my emphasis is more centrally
on the fairness required of process, regardless of office or forum.  In arriving
at the same decision as she does, I have merely
taken a different route which I
will explain below.
[128]
   Section 12 protects the freedom
and security of the person.  I hold it as uncontroversial that a decision which
deprives persons
of their freedom or their security is policed by at least the
twin notions of procedural and substantive fairness.  Procedural fairness
ordinarily refers to the manner in which a decision is made, and it involves
scrutinising the steps that are followed and the checks
and balances put in
place prior to the decision being taken.  The notion of substantive fairness, I
believe, is a tool that generally
helps us to focus our attention on the
reason, grounds or basis of the decision.  Considerations of procedural and
substantive fairness
are therefore instruments that operate in an interactive
way to protect an adjudicator from the real possibility of making an unjust
decision.  Procedural fairness is a hedge that society places around public
decision-making
6
in an effort to ensure that the rule of law is upheld and
seen to be upheld.  Where an interest of paramount importance is at issue,
then
stringent procedures are called for: indeed, we expect them to be more precise
than when a lesser interest is implicated, and
our contemplation of the
substance of the matter will influence our attitude toward the procedure
required.  It may, however, be
stated that while there are often clear examples
of substantive and procedural issues that might be contrasted, sometimes the
line
is too fine to be drawn.
[129]
   The notions of
procedural and substantive fairness accord with virtually universally held
views on the subject, and were already
well-established principles of justice
in our pre-constitutional era.
7
  These principles, then and even
more so now, are respectful of the fundamental premise that decisions affecting
paramount human
interests be made for good reason and in a fair manner.  In
giving meaning to section 11(1)
8
of the interim Constitution,
9
this Court upheld this
viewpoint in the cases of
Bernstein and others v Von Wielligh Bester NO and
others
,
1
0
S v Coetzee & others
,
1
1
and
Nel v Le Roux NO and others
.
1
2
  The dicta in these cases
are succinctly set out in paragraphs 17 to 21 of the judgment of Ackermann J
and I refer to them as they
are cited therein so far as they develop the point
that fairness in adjudication includes considering both the merits and the
process.Â
However, I do not come to the same interpretive conclusion as to the
necessary construction to be placed on section 12(1)(b) of the
1996
Constitution that that judgment does.
[130]
   Whether procedural and
substantive fairness are implicit in section 12(1) as a whole or not,
1
3
I find them at least
present in the specified inclusion of section 12(1)(a) which provides that:
            “12.(1)  Everyone has the right to freedom and security of
the person, which includes the right -
                        (a)        not to be deprived of freedom
arbitrarily or without just cause;”
I agree with the view that
the phrase “without just cause” constitutes the substantive fairness leg of the
inquiry, but go further
to find in the requirement “not to be deprived of
freedom arbitrarily” the additional constitutional protection of procedural
fairness, subject, of course, to the knowledge that it is sometimes difficult
to draw a clear distinction between what is procedural
and what is substantive.
[131]
   When contemplating the
essential purpose of the protection afforded through the notion of procedural
fairness, my sight is arrested
by this fact:  at heart, fair procedure is
designed to prevent arbitrariness in the outcome of the decision.  The
time-honoured
principles that no-one shall be the judge in his or her own
matter
1
4
  and that the other side should be heard,
1
5
aim toward eliminating the
proscribed arbitrariness in a way that gives content to the rule of law.  They
reach deep down into the
adjudicating process, attempting to remove bias and
ignorance from it.  Everyone is entitled to an impartial judge, not because
this guarantees a correct decision, but because the human arbiter, not being
omniscient, should not be presented with a point of
view that his or her
position inherently loads.  Everyone has the right to state his or her own
case, not because his or her version
is right, and must be accepted, but
because in evaluating the cogency of any argument, the arbiter, still a
fallible human being,
must be informed about the points of view of both parties
in order to stand any real chance of coming up with an objectively justifiable
conclusion that is anything more than chance.  Absent these central and core
notions, any procedure that touches in an enduring
and far-reaching manner on a
vital human interest, like personal freedom, tugs at the strings of what I feel
is just, and points
in the direction of a violation.  When the clear basis for
committing a person to prison is coercive rather than punitive, warning
lights
begin to flash.
[132]
   Procedural fairness is,
however, not confined to the twin maxims referred to above.
1
6
  The exact content has
eluded judicial definition.  In
Van Huyssteen v Minister of Environmental
Affairs and Tourism
,
1
7
Farlam J considered its content for the purpose of
Administrative Justice.  While interpreting the content of section 24(b) of the
interim Constitution,
1
8
he came to the conclusion that:
“. . . a party entitled to procedural
fairness under the paragraph is entitled, in appropriate circumstances, to more
than just
the application of the
audi alterem partem
and the
nemo
iudex in sua causa
rules.  What he [or she] is entitled to is, in my view,
what Lord Morris of Borth-y-Gest described as ‘the principles and procedures
.
. . which, in (the) particular situation or set of circumstances, are right and
just and fair’.”
Whatever its precise
content, the interest implicated will determine the standard of procedural
fairness.  If the interest implicated
is as important as personal liberty, the
standard of procedural protection must be high.
[133]
   The disturbing
consequence
1
9
that section 66(3) of the Act has is that a person arraigned in the
Act’s terms may be confined to prison, or have the confinement
renewed in
circumstances where the usual safeguards that imprisonment would demand are not
afforded the examinee.  The imprisonment
may be for an indeterminate period.Â
There is no process of automatic review.
2
0
  It occurs in a summary fashion
where there has not been adequate time to prepare.
2
1
  And since this is not a criminal
trial there is no constitutional right to legal representation at State
expense, notwithstanding
the fact that the imprisonment, something ordinarily
reserved for criminal sanction, occurs.
2
2
  Whether these factors are
procedural or substantive is not the important consideration.  What is
important is that the section
66(3) process does not allow for sufficient or
adequate safeguards before inroads are made into an important right such as
freedom
and security of the person. The sum of all these factors is sufficient
to constitute a violation of the right, in my view.
[134]
   In scrutinising other
statutes for equivalent provisions relating to the way in which contempt of
proceedings is dealt with,
2
3
one observes that in every instance where the forum
which was held in contempt was something other than a court of law, the statute
first creates an offence, and only after procedural safeguards afforded by a
trial and conviction before a court of law, is the offender
liable to
imprisonment.  The formula replicates itself again and again:  contempt is
offensive, so offensive that it may result
in incarceration, but only after the
intervention of a properly constituted trial procedure which is seen to be fair
for the purposes
of incarceration.
2
4
  While I do not hold that only a
court of law can uphold procedural fairness required by my interpretation of
section 12(1)(a),
what is clear is that these other statutes require the
intervention of a fair trial procedure prior to confinement, which is not
the
case with section 66(3).  Instances of detention
2
5
in the absence of a criminal
conviction authorised in our law might fall into at least two identifiable categories:
on the one hand
there are the well-known instances of arrest that precede a
trial.  Here the person
must
be brought to trial or else released, and a
court of law, again with the safeguards of fair procedure, decides on the
conditions
of a continued confinement if there is to be any.  On the other
hand, there are those instances, other than those where it occurs
for the
reasons set out in the interpretation of detention without trial in terms of
section 12(1)(b) and analysed in the judgment
of Didcott J, where persons can
be detained without any prospect of a trial.  These are also the well known
instances of prohibited
aliens,
2
6
mental patients
2
7
or  persons placed under quarantine.
2
8
  In these instances, each
confinement is limited in time to establish a procedure that regulates the
fairness or otherwise of any
continued confinement.  In the case of the
first-mentioned category, a prohibited immigrant may only be held for a maximum
period
of forty-eight hours.
2
9
He or she is then to be released, unless the
detention is for purposes of deportation, in which case the period of detention
is limited
to thirty days.  Any extension will then only be granted on the
approval of a High Court Judge, where subsequent identical renewals
will be
required every ninety days.  In the case of detainees in terms of the Mental
Health Act,
3
0
they may only be detained on the strength of a reception order issued by
a magistrate, where the validity of the order is limited
to a maximum period of
forty-two days.  In addition, a magistrate may only issue the reception order
after satisfying himself or
herself as to the jurisdictional facts, while being
assisted by two medical practitioners.  Persons placed under quarantine
3
1
are released as soon as
the danger of infection is passed, and it is at least tenable to draw a
distinction in this case on the strength
of the danger to the public that
communicable diseases present.  Without pronouncing on their constitutionality,
a comparison of
these procedures with the one created by the
Insolvency Act,
shows
that they seem to differ in important respects, namely the duration of
the imprisonment, and the safeguards that surround the detention.
[135]
   This Court had the
occasion to examine provisions in relation to contempt proceedings in
Bernstein
3
2
and
Nel
.
3
3
  Passages in those
judgements purport to require that a benevolent construction be given to the
provisions of statutes.
3
4
  Application of this principle allows for, for
example, the following statement in
Nel
:
3
5
“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.”
And in
Bernstein
3
6
it was expressed as follows:
“I have no
doubt that our Supreme Courts will continue to develop that body of law having
due regard to the spirit, purport and
objects of the Constitution’s chapter of
fundamental rights.  It is accordingly not open to argue that, because the
provisions
of
sections 417
and
418
are general in terms and contain no express
limitations as to their application, the constitutionality of these sections is
to be
adjudicated on the basis that they permit anything which is not expressly
excluded.  It is trite law that a statutory power may
only be used for a valid
statutory purpose.  The constitutionality of
sections 417
and
418
must
therefore be assessed in the light of the control which the Supreme Court
exercises over their implementation.”
There are, however,
important differences between a meaning that might be attributed to these
statements, and their interpretation
within the context of the 1996
Constitution.Â
Section 35(2)
of the interim Constitution states that:
“No law which
limits any of the rights entrenched in this Chapter shall be constitutionally
invalid solely by reason of the fact
that the wording used prima facie exceeds
the limits imposed in this chapter, provided such a law is reasonably capable
of a more
restricted interpretation which does not exceed such limits, in which
event such law shall be construed as having a meaning in accordance
with the
said more restricted interpretation.”
3
7
This section required that
law be looked at through a particular lens in the construction of its meaning.Â
It was a manifestly benign
lens.  However, no such similar provision is to be
found in the interpretive injunctions of section 39 of the 1996 Constitution
which is now applicable.  Instead, section 39(2) is less permissive:
“When
interpreting any legislation, and when developing the common law or customary
law, every court tribunal or forum must promote
the spirit purport and objects
of the Bill of Rights.”
3
8
At this stage I wish only
to say that “promoting” is not equivalent to “reading in”.  If that were so,
many statutes would
not have been invalidated.  Furthermore, the problem with
the section 66(3) process is that its valid purposes are different from
and more
intrusive than the procedures considered in
Bernstein
and
Nel
.Â
Even if the section 66(3) procedure is used for its valid purposes as the
common law or our constitution requires, its standard
of safeguards simply
fails the test for the protection of personal liberty.
[136]
   In
Bernstein
3
9
contempt of proceedings
in terms of section 417 and 418 of the Company’s Act
4
0
constituted an offence.
4
1
  Only after conviction
for the offence could the person in contempt be imprisoned.  It thus fits the
formula for confinement described
above, and is therefore distinguishable from
the section 66(3) procedure . It also complies with the sentiments in relation
to the
necessity of a fair procedure expressed in this judgment.  In that
decision we held:
“
The sanction of imprisonment
for ignoring, or failing without sufficient cause to give effect to a subpoena
issued under section 417
or 418 of the Companies Act, is a reasonable and
necessary sanction. So too is the power to cause a person in breach of such a
subpoena
to be arrested and brought before the Master or other person appointed
to conduct the enquiry.Â
Imprisonment follows in accordance with the normal
procedural safeguards, therefore neither section 11(1) nor section 25 is
impaired
; and it is not a sanction which is disproportionate to the
offence, therefore sections 11(1) and 11(2) are not impaired.  The sanctions
are necessary to enforce the legislation, and in so far as they have to comply
with Section 11(1) read with Section 33, they clearly
do so.”
4
2
  (My emphasis)
.
[137]
   In
Nel
,
4
3
dealing with section 205
of the Criminal Procedure Act, and therefore under circumstances and within a
context where fair procedure
obtained, we held:
“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
.”Â
(My emphasis)
Leaving open the question
of what constituted appropriate procedural safeguards,
Nel
further held:
“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.”
4
4
However, it is the pattern
of Ackermann J’s judgment in the instant case that seeks to conclude that this
entity must be a judicial
officer that I have disagreement with:  I reaffirm
that this case is about process and not office.  The light by which I navigate
this case is captured in the saying of Lord Acton that “[t]here is no worse
heresy than that the office sanctifies the holder of
it”.
4
5
  The mere fact without more, that a person committing
the recalcitrant witness to prison is in name a judicial officer, in my view,
is, in itself, not an adequate safeguard that the committal is acceptable in an
open and democratic society that has such high regard
for individual liberty.Â
While it is true that the “judicial authority of the republic vests in the
courts”,
4
6
that is so, not due to the presence
of the judicial officers, but because of the rule of law which is upheld
there.  Any normative
procedure of a court that does not comply with the rule
of law loses its legitimacy, and in so undermining the rule of law, may well
infringe section 12.
4
7
  This is because process
has both instrumental and intrinsic value.
[138]
   Accordingly, Section
66(3) infringes section 12(1)(a) and it now remains to seek grounds of
justification in favour of permitting
this infringement.  As has been so
regularly affirmed by this Court, the policy considerations that are relevant
in the justification
process are to be balanced in a reasonable and justifiable
way, taking into account all the relevant factors, and especially those
enumerated in section 36(1).
4
8
  The right whose boundary is trespassed secures
values of great importance: there are surely few human interests that are more
important
than physical security and freedom of the person.  The purpose of the
limitation being argued for here boils down to one of commercial
substance:Â
while not seeking to undermine the legitimacy of the purposes of the
Insolvency
Act in
general, what does it say of a society when commercial interests weigh
heavier than personal liberty and security?  It surely does
not matter that the
person is in fact a miserable thief or an embezzler of other people’s money:Â
the means by which the limitation
of a right-holder’s personal liberty occurs
can be more judiciously guarded.
[139]
   In this particular
case, several less intrusive means present themselves: for example, the
questions that an examinee fails to
answer can be dealt with in the way that
other statutes do.
4
9
  Admittedly creating a separate offence and going
through the trial procedure may not expedite the process, but it is the price
we pay for living in a society that has committed itself to the preservation of
liberty.  Alternatively, the legislature may opt
for a model that could, in
turn, expedite these procedures without great difficulty, with surely the
equivalent coercive end-result,
and in a way that matches the limitation’s
purpose in a manner consonant with the interest that the right protects.
[140]
   In the view that I take
of the matter, my decision does not rest on the status or classification of the
process as judicial or
quasi-judicial.
5
0
  The definitive difference between
judicial and quasi-judicial proceedings is something that is not easy to settle
upon.  In
Rex v Beukman
,
5
1
after referring to the then existing authorities,
5
2
the learned Acting Judge
held:
“. . . it is
clear from the decisions in our Courts that (a judicial proceeding) is not
confined to proceedings in a Court of justice.
. . .  All these authorities
indicate in my view that although the term “judicial proceedings” is not
confined to proceedings
in a Court of law yet it must refer to proceedings in
which rights are legally determined and liability imposed by a competent
authority
upon a consideration of facts and circumstances placed before it.”
In
S v Carse
5
3
the learned judge states:  “It is clear that judicial
proceedings do not mean only proceedings in a court of law.” These judgments
therefore resist confining judicial proceedings to proceedings before a court
of law.  I reiterate, with respect: this matter is
not about forum; forum does
not necessarily determine fair process.
[141]
   When responding to the
question:  “what is it about courts of law that justifies their being the site
where far-reaching decisions
are made ?”, I find it difficult to accept that it
is exclusively either the judicial status of their presiding officers or the
nature of the forum that warrants the reverence we display toward them.Â
Instead, in my view, it is the way procedure there serves
the rule of law.  In
the case of the
section 66(3)
proceedings, however, the defining criteria here
are the fairness or otherwise of the process under scrutiny, the nature of the
rightÂ
involved, and the existence of less intrusive means to effectively match
means with end.  Accordingly, but for the reasons set out
in this judgment, I
concur in the finding of O’Regan J that
section 66(3)
is unconstitutional.
O’REGAN J:
[142]
   I have had the
opportunity of reading the judgment written by Ackermann J in this case.  I
agree with him that section 66(3)
of the Insolvency Act, 24 of 1936 (“the
Insolvency Act”) is in conflict with the provisions of section 12 of the 1996
ConstitutionÂ
to the extent that it permits a person presiding over a
creditors’ meeting who is not a judicial officer to order the imprisonment
of a
person who refuses to testify or produce documents to the meeting.  He holds
however, in paragraphs 76 to 83 of his judgment,
that where a magistrate
presides over the meeting of creditors, there is no breach of section 12.  I am
in respectful disagreement
with this aspect of my colleague’s decision for the
reasons given in this judgment.
[143]
   Section 12(1) of the
1996 Constitution provides that:
“Everyone has
the right to freedom and security of the person, which includes the right –
(a) not to be
deprived of freedom arbitrarily or without just cause;
(b) not to be
detained without trial;
(c) to be free
from all forms of violence from either public or private sources;
(d) not to be
tortured in any way; and
(e) not to be
treated or punished in a cruel, inhuman or degrading way.”
I agree with Ackermann J at
paragraph 22 of his judgment where he states that, amongst other things, this
section protects individuals
from the deprivation of physical freedom save
where there is a good reason for the deprivation and where appropriate
procedural safeguards
exist.  I also agree with Ackermann J that there can be
no doubt that in this case there are good reasons for the deprivation of
freedom which section 66(3) authorises.  The real difficulty lies in the
question of whether there are appropriate procedural safeguards
accompanying
that deprivation.  Of course, there is no rigid rule as to what procedural
safeguards are appropriate in the context
of section 12(1).  The procedural
safeguards required will depend on the nature of the deprivation and its
purpose.  It is necessary
therefore to examine the nature of deprivation of
freedom occasioned by section 66(3) as well as its purpose.  This analysis
requires
an understanding of the role and nature of creditors’ meetings in the
insolvency process.
[144]
   The
Insolvency Act requires
that whenever a final order of sequestration has been granted two creditors’
meetings be held.
1
  The meetings are presided over either by the  Master of the
High Court, or a public service official designated by the Master,
or a
magistrate (in districts where there is no Master’s Office) or an officer of
the public service designated by a magistrate.
2
  Notice of the meetings
is given in the
Government Gazette.
3
  The purpose of the
meetings is to permit creditors to appoint a trustee; to prove their claims
against the insolvent estate; to
provide the trustee with directions in
connection with the administration of the estate and to receive the trustee’s
report.
4
  The presiding officer may summon any person to the meetings
whom the officer considers may be able to give material information
concerning
the insolvent or his or her affairs.
5
The presiding officer may administer
the oath to persons summoned in this way and permit the trustee or any creditor
who has proved
a claim against the estate to interrogate such person concerning
all matters relating to the insolvent or his or her affairs.  The
presiding
officer must disallow any irrelevant question.
6
[145]
   Where a person summoned
to the meeting attends, but fails to bring the required documents, or refuses
to be sworn in as a witness
by the presiding officer, or refuses to answer a
particular question put to her or him, or does not answer the question fully or
satisfactorily,
section 66(3)
empowers the presiding officer to issue a warrant
committing that person to prison until he or she has undertaken to do what is
required.
7
Â
Section 66(4)
then provides that a person may be repeatedly
imprisoned as often as may be necessary to compel the person to do what is
required
of him or her.
[146]
 Â
Section 66(5)
permits a
person who has been imprisoned in terms of
section 66(3)
to apply to a High
Court for discharge from custody.  The court is empowered to order the
discharge if it finds that the person
was wrongfully committed to prison or is
being wrongfully detained.Â
Section 66(6)
confers a judicial immunity upon any
presiding officer of a creditors’ meeting who exercises the powers of committal
conferred
upon the officer by
section 66.
[147]
   There can be no doubt
that the power conferred upon presiding officers of creditors’ meetings is an
extraordinary one.
8
  It is the power to imprison a person indefinitely until
that person complies with what is required of him or her.  The purpose
of
imprisonment, in these circumstances, is not punishment but coercion.  The
power to order the summary imprisonment of a person
in order to coerce that
person to comply with a legal obligation is far-reaching.  There can be no
doubt that indefinite imprisonment
for coercive purposes may involve a
significant inroad upon personal liberty.  Clearly it will constitute a breach
of section 12
of the Constitution unless both the coercive purposes are valid
and the procedures followed are fair.  In this case, there is no
dispute that
the purpose is a legitimate one.  It also seems necessary and proper however
for the exercise of the power to be accompanied
by a high standard of
procedural fairness.
[148]
   In
Nel v Le Roux NO
and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC), this Court had to
consider the question of whether section 205,
9
read with
section 189
1
1
98" name="_ftnref198" title="">0
of the
Criminal Procedure
Act, 51 of 1977
was in breach of section 11(1) of the Constitution of the
Republic of South Africa, Act 200 of 1993 (“the interim Constitution”).Â
As
Ackermann J has outlined in his judgment at paragraphs 15 - 16 and 22 - 24
above, section 11(1) entrenched the right to freedom
and security of the person
in slightly different terms to the provisions of section 12 of the 1996
Constitution.  The applicant
in that case argued that the procedure in section
189 was unconstitutional in that it authorised a magistrate to sentence a
recalcitrant
witness to imprisonment after the magistrate has enquired into the
refusal “in a summary manner”.  In particular, the applicant
argued that the
procedure permitted by section 189 did not constitute a “trial” and that
therefore the section permitted “detention
without trial” in breach of section
11(1) of the interim Constitution.  Ackermann J speaking for a unanimous court
dismissed this
argument  in the following way:
“[14]  The s
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 s 25(3) of the
Constitution.Â
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
s 205
of the
Criminal
Procedure Act is
concerned the entity is indeed a normal judicial officer who
ordinarily functions in the ordinary courts.  The ‘court’ before
which the
s
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
s 25(3)
of the Constitution.”
[149]
   The procedure
authorised by
section 205
of the
Criminal Procedure Act is
quite different from
a meeting of creditors convened in terms of the Insolvency Act.Â
Section 205
is
part of the criminal justice system which seeks to ensure that persons who may
be in possession of material or relevant information
concerning alleged
criminal offences can be compelled to make that evidence available.  It serves
an important function in our criminal
justice process in relation to the
investigation of crime.  It also contains safeguards to limit the extent to
which it prejudicially
affects the rights of citizens.
1
1
Similar procedures to
facilitate the investigation of crime also exist in other countries.
1
2
As Ackermann J held in
Nel
’s
case, cited above, the court in
section 205
“is in every material respect,
particularly insofar as its independence and impartiality is concerned,
identical to the ‘ordinary
court of law’ envisaged by
s 25(3)
of the
Constitution”.
[150]
   Creditors’ meetings, on
the other hand, are part of a process to regulate insolvency.  The primary
function of the meetings
is to attend to the proof of claims by creditors.  A
decision by a presiding officer not to admit a claim is not final.  A creditor
can submit it once again at a later meeting of creditors, or he or she can seek
relief in a court.
1
3
  In addition to the business of the proof of claims,
the meeting may engage upon an investigation of the affairs of the insolvent.Â
Any person who in the opinion of the presiding officer may be able to provide
material information concerning the affairs of the
insolvent may be required to
do so.  This investigative aspect of creditors’ meetings is a fact-finding
process aimed at identifying
assets of the insolvent.  It can be likened to
many fact-finding processes authorised by our law in a wide range of
circumstances.Â
It is therefore correct to understand a creditors’ meeting as
an administrative or quasi-judicial proceeding, rather than judicial
proceedings, and our courts have so held on several occasions.
1
4
  It is extremely rare as
I outline below, not only in our law, but in other jurisdictions as well for
agencies exercising such powers
to be granted summary powers of imprisonment to
coerce information from unwilling witnesses.
[151]
   In
Bernstein and
Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC), we were concerned with a challenge to the provisions of sections 417 and
418 of the Companies Act, 61 of 1973.  We concluded
that those provisions were
not in conflict with the provisions of the interim Constitution.  Section
418(2) of the Companies Act
provides that:
“A
commissioner shall in any matter referred to him have the same powers of
summoning and examining witnesses and of requiring the
production of documents,
as the Master who or the Court which appointed him, and, if the commissioner is
a magistrate, of punishing
defaulting or recalcitrant witnesses, or causing
defaulting witnesses to be apprehended, and of determining questions relating
to
any lien with regard to documents, as the Court referred to in section 417.”
Although not expressed in
the same terms as
section 66(3)
of the
Insolvency Act,
lang=EN-GB style='font-size:12.0pt;line-height:200%'>1
name="_ftnref203" title="">5
there are obvious similarities between the powers
contained in the two sections.  I agree with Ackermann J where he states at
paragraph
84 of his judgment in this matter that in that case this Court did
not apply its mind to the argument that a magistrate who exercises
powers under
section 418(2) of the Companies Act is acting in an administrative and not a
judicial capacity and therefore may not
permissibly be clothed with powers to
imprison witnesses who refuse to testify to coerce them to do so.  The issue
raised in this
case therefore does not fall within the ambit of our judgment in
Bernstein.
[152]
   Our common law concerning
contempt of court has long recognised the power of courts of law to imprison
people at least in part
to coerce them to comply with court orders.  As Steyn
CJ held in
S v Beyers
1968 (3) SA 70
(A) at 80C-E:
“Dat daar
*
n gevestigde prosedure
bestaan waarvolgens
*
n gedingvoerder wat
*
n bevel teen sy teenparty
verkry het, in sy eie belang bestraffing van sy teenparty weens minagting van
die Hof kan aanvra om gehoorsaamheid
aan die bevel af te dwing, val nie te
betwyfel nie.  Dit is
*
n proses van tweeslagtige
aard wat volgens sivielregtelike prosedures afgehandel word.  (Vgl.Â
Afrikaanse
Pers-Publikasie (Edms.) Bpk.  v. Mbeki,
1964 (4) S.A. 618
(A.A.)  op bl.Â
626).  In navolging van die Engelse reg word die minagting dan beskryf as
siviele minagting.  Dit is egter ewe
duidelik dat hierdie vorm van minagting
nie deurgaans
*
n strafregtelike inhoud onts
L
is nie.  Dit word telkens
beskryf en behandel as
*
n misdaad met geen
aanduiding dat dit anders as die gemeenregtelike minagting van die hof beskou
word nie.  Of dit in ooreenstemming
met die Engelse reg is, is minstens te betwyfel,
maar na my oordeel weinig ter sake, omdat die omskrywing van die misdaad in ons
reg nie deur die Engelse reg bepaal word nie.”
[153]
   The common law powers
of the courts have been repeated and in some circumstances
1
6
extended by statute.Â
Section 31 of the Supreme Court Act, 59 of 1959 provides that when a witness
refuses to testify without just
excuse the court may adjourn the proceedings
for eight days and issue a warrant committing the witness to prison for that
period.Â
Upon resumption of the proceedings, if the witness persists in his or
her refusal, the proceedings may once again be adjourned for
eight days and the
witness once again committed to prison.
1
7
[154]
   Section 108 of the
Magistrates’ Court Act, 32 of 1944 confers upon magistrates the power to punish
persons for certain acts
committed in the court room during court proceedings.
1
8
  So a person who wilfully
insults a magistrate during the court’s sitting or interrupts the proceedings
or “otherwise misbehaves”
is liable to be sentenced summarily or upon summons
to a fine not exceeding R2 000 or to imprisonment for a period less than six
months.  It may be that a refusal to answer a relevant question will constitute
a breach of this section.
1
9
  It is clear, however, that this power may only be
exercised when magistrates are carrying out their judicial functions as
magistrates
in terms of the Magistrates’ Courts Act and not when they are
performing administrative or quasi-judicial functions allocated to
them by
other legislation.
2
0
[155]
   Section 51(2) of the
Magistrates’ Courts Act also provides that a person who refuses to obey a
subpoena to attend court may
be fined R300 or imprisoned for three months.
2
1
  It should be noted that
in both section 108 and section 51(2) the extent of the punishment that may be imposed
is limited and may
not be of an indefinite duration as is permitted by section
66(3).  On the other hand,
section 189
of the
Criminal Procedure Act
lang=EN-GB>2
2
regulates the situation
in criminal proceedings before magistrates.  A witness who refuses to be sworn
in or to answer a particular
question in the absence of a just excuse may be
sentenced to imprisonment for a period not exceeding two years.
2
3
Â
Section 189(2)
specifically provides that after the expiration of the first sentence, a
witness may be subjected to further imprisonment if he or
she persists with a
refusal to testify.  Other institutions which enjoy similar powers are the Land
Claims Court
2
4
and courts martial.
2
5
[156]
   Powers of contempt to
coerce recalcitrant witnesses have however generally not been conferred upon
administrative or quasi-judicial
bodies established by statute, even where
those bodies are exercising powers very similar to the powers of a court of
law.  Indeed,
outside the provisions of the
Insolvency Act under
consideration
now,
2
6
similar provisions in the
Companies Act,
2
7
and courts martial, counsel could point to no example in our law where
powers such as those contained in
section 66(3)
of the
Insolvency Act were
conferred upon any person or institution that was not a court of law.  So, for
example, powers of contempt are not conferred upon
commissions by the
Commissions Act, 8 of 1947 even where the commission is led by a judge.Â
Section 5 of that Act stipulates that
a person who wilfully obstructs or
hinders the conduct of a commission shall be guilty of an offence and section 6
establishes that
a person who has been summoned to give evidence at a
commission and fails to do so, or refuses to be sworn, or to answer a
particular
question shall similarly be guilty of a criminal offence.  The
criminal offence will have to be prosecuted in a court having jurisdiction.Â
The industrial court established in terms of the Labour Relations Act, 1956
(now repealed), was also not granted powers of contempt
even for the purposes
of ensuring compliance with its orders.
2
8
  The Commission for Conciliation,
Mediation and Arbitration established by the
Labour Relations Act, 66 of 1995
also has no independent contempt powers.  Instead, section 142(8) of the Act
provides that certain forms of conduct shall constitute
contempt of the
commission and section 142(9) provides that the commission may refer any
contempt to the Labour Court so that that
court can make an appropriate order.
[157]
   The reluctance to
confer powers of civil contempt upon institutions other than courts of law is
not peculiar to our legal system.Â
In the United Kingdom, as well, both the
legislature and the courts have demonstrated an unwillingness to confer powers
of civil
contempt upon tribunals or agencies that are not courts of law.
2
9
  In the United States of
America, as well, the Supreme Court has held that administrative agencies may
not be given powers of coercive
imprisonment.
3
0
[158]
   It seems to me that
there are sound reasons for the legislative and judicial reluctance,
illustrated above, to extend powers
of coercive imprisonment to institutions
other than courts.  Indefinite imprisonment for coercive purposes is
potentially an extremely
dangerous mechanism.  Like imprisonment for punitive
purposes, it is a form of deprivation of physical freedom which requires
thorough
procedural safeguards.  Our Constitution provides detailed and careful
procedures to be followed when a person is charged with a
crime, including the
requirement that the trial should take place before an “ordinary court”.
3
1
  Imprisonment for
coercive purposes should be attended by substantially similar safeguards.  It
is probably for this reason that
institutions, other than courts of law, have
generally not been granted the powers of coercive imprisonment by the legislature.Â
This reluctance is embedded in an understanding of the nature of courts on the
one hand and the requirements of appropriate procedural
constraints upon the
exercise of the power of coercive imprisonment on the other.
[159]
   The requirement that it
is only a court, or an institution similar to a court, that may exercise powers
that involve indefinite
deprivation of liberty for coercive purposes is based
not only on the nature of the officer presiding but also on the institution
itself. There can be no doubt that for the requirements of procedural fairness
to be met, the presiding officer must be impartial
and independent.Â
Independence of a presiding officer is, as Ackermann J states in his judgment
at paras 71 - 4, assured by security
of tenure and financial security.  But the
independence and impartiality of the presiding officer is only the first aspect
of judicial
independence. In addition to the independence and impartiality of
the presiding officer, it seems to me that the institution or proceedings
over
which the officer presides must also exhibit independence and impartiality in
the judicial sense.  As Le Dain J held in
Valente v The Queen
(1985) 24
DLR (4
th
) 161 at 171:
“It is
generally agreed that judicial independence involves both individual and institutional
relationships: the individual independence
of a judge, as reflected in such
matters as security of tenure, and the institutional independence of the court
or tribunal over
which he or she presides, as reflected in its institutional or
administrative relationships to the executive and legislative branches
of
government . . . . The relationship between these two aspects of judicial
independence is that an individual judge may enjoy the
essential conditions of
judicial independence but if the court or tribunal over which he or she
presides is not independent of the
other branches of government, in what is
essential to its function, he or she cannot be said to be an independent
tribunal.”
3
2
[160]
   I have outlined the
functions and nature of the creditors’ meeting in paragraphs 144-6 and 150
above.  It is a form of proceeding
which does not finally determine the rights
of creditors.
3
3
  In relation to its primary purposes, the appointment of a trustee, the
proof of claims, the giving of directions to the trustee
and the receipt of the
trustee’s report, therefore, it is not carrying out judicial functions.
3
4
  The creditors’ meeting
therefore does not resemble, in function or in form, a judicial body.  In
addition, it is not a body
which is in any sense independent of the executive
in the manner that the judiciary is.  It is presided over by an official of the
Master’s office and it is attended by creditors (who have voting powers
3
5
) as well as the
insolvent.  The Master is an officer in the public service appointed in terms
of
section 2
of the
Administration of Estates Act, 66 of 1965
who may only act
within the terms of the powers statutorily conferred expressly or by necessary
implication.
3
6
  It seems to me, therefore, that it cannot be said that a creditors’
meeting itself carries the hallmarks of judicial independence
and impartiality
required of our courts of law.  The second aspect of judicial independence, the
institutional aspect, is absent.
[161]
   Ackermann J holds that
although a creditors’ meeting may for most purposes constitute an
administrative or quasi-judicial proceeding,
the power to imprison for coercive
purposes is a judicial function.  He reasons further that when the meeting is
presided over by
a magistrate, it is permissible for that magistrate to
exercise that judicial function at the meeting.  I disagree.  I agree with
Conradie J that when a magistrate presides at a creditors’ meeting, the
magistrate is not acting as a judicial officer but is fulfilling
an
administrative function, one of many which historically magistrates have
performed.  As stated above, our courts have on several
occasions made it plain
that they consider the proceedings at a creditors’ meeting not to constitute
judicial proceedings.  As
Baker AJ held in
S v Carse
1967 (2) SA 659
(C)
at 664 - 5:
“. . . if a
tribunal has no power to settle disputes nor to determine rights as between
contending parties it is not a judicial
tribunal and the proceedings are not
judicial proceedings.  A claimant at a creditors’ meeting is not a plaintiff
and he is not
there for the purpose of having his rights in the insolvent
estate settled or determined by the presiding officer.Â
Secs 44(3)
and
45
(3)
make this quite clear.  The presiding officer does not, in my opinion, sit as a
Judge or magistrate (even though, as in the present
matter, he was a
magistrate).  I consider his functions to be administrative in essence
although, as I have said, superficially
the proceedings may be judicial in
appearance.”
3
7
The fact that a person who
is a judicial officer presides over the creditors’ meeting does not transform
the proceedings of a creditors’
meeting into a judicial proceeding.  Nor can
the fact that the legislature confers a power generally reserved only to courts
of
law upon the presiding officer at such proceedings change the overall
character of the proceedings.  They remain administrative
or quasi-judicial
proceedings, albeit ones which have been clothed with an extraordinary and, in
my view,  procedurally unfair and
inappropriate power.
[162]
   I conclude, therefore,
that it is a requirement of procedural fairness that no person may be
imprisoned indefinitely for coercive
purposes except by a court of law, or an
independent and impartial institution of a character similar to a court of
law.  As a creditors’
meeting convened in terms of the
Insolvency Act is
not
such an institution even when it is presided over by a magistrate, it is my
view that the provisions of
section 66(3)
of the
Insolvency Act are
in breach
of section 12 of the Constitution.
[163]
   The finding that
generally speaking there will be a breach of section 12(1) of the Constitution
where a power to imprison a person
for coercive purposes is conferred upon an
institution other than a court of law or similar institution, does not preclude
the possibility
that the conferral of such powers may be justified in terms of
section 36 of the Constitution.  Section 36(1) provides that:
“The rights in
the Bill of Rights may be limited only in terms of law of general application
to the extent that the limitation is
reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all
relevant factors, including –
(a) the nature
of the right;
(b) the
importance of the purpose of the limitation;
(c) the nature
and extent of the limitation;
(d) the
relation between the limitation and its purpose; and
(e) less
restrictive means to achieve the purpose.”
Although the language of
section 36(1) differs from the equivalent provisions in the interim Constitution,
the test to be adopted
is in most respects similar to the one established by
Chaskalson P in
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995
(6) BCLR 665
(CC) at para 104 where he held:
“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 s 33(1).Â
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.Â
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.”Â
(Footnote omitted.)
[164]
   To determine whether
section 66(3) may be justifiable in terms of section 36(1), it is necessary
therefore to place its purpose,
effect and importance on one side of the scales
and the nature and effect of the infringement it causes on the other.  It is
also
necessary to consider whether the same goal could be achieved by less
restrictive means. Counsel for the respondents argued that
the purpose of
section 66(3) was to further the interests of creditors in the insolvency
process.  I have no doubt that protecting
the interests of creditors is an
important and legitimate purpose.
3
8
  Counsel argued further that section
66(3) is an extremely effective coercive tool.  I do not doubt this either.Â
Indeed, it is
stated in the Master’s Report to us that the powers contained in
section 66(3) have never as far as can be recalled been used to
incarcerate a
reluctant witness.  Similarly, it is recorded that the powers under section
66(2), not in issue in this case, have
only been used once in the past fifteen
years.  This is evidence indeed of effective coercive powers.
[165]
   However, on the other
hand, it is necessary to realise that the infringement of the procedural
fairness requirement of section
12(1) is not insignificant.  A person is
entitled to expect that he or she will not be summarily imprisoned by a body
other than
a court of law for an indefinite period for coercive purposes.Â
People in all walks of life and in a wide range of circumstances
are regularly
required to provide evidence to administrative agencies.  It seems to me that
it is an element of procedural fairness
that such people have the right not to
be summarily and indefinitely imprisoned by such agencies without the
intervention of a court,
or a tribunal with the qualities of judicial
independence and impartiality.  It is true that where a magistrate presides
over the
enquiry, the extent of the breach of section 12 will be reduced
because the magistrate will have the skills and experience of a judicial
officer in making the order of imprisonment, but the institutional requirements
of judicial independence and impartiality remain
absent.Â
[166]
   On balance, although
the purposes of section 66(3) are important, I am not sure that they are
sufficiently important to outweigh
the infringement to section 12(1) occasioned
by the section.  In particular, it is not clear to me that the purposes for
which the
powers under section 66(3) are granted are any more pressing than the
purposes for which a variety of non-judicial proceedings are
instituted in our
law which do not enjoy powers of coercive imprisonment.  I find it hard to
accept that all non-judicial proceedings
presided over by a magistrate but
engaged upon investigation and fact-finding could automatically be given powers
as sweeping as
those contained in section 66(3).  It seems to me that to
establish justification under section 36(1) something more is needed than
the
importance of the fact-finding investigation.  I can see no special reason
which singles out creditors’ meetings from other
non-judicial proceedings which
are engaged in the process of fact-finding.
[167]
   This conclusion is
strengthened by the fact that, as counsel conceded, another mechanism already
exists in the
Insolvency Act to
obtain the compliance of recalcitrant
witnesses.Â
Section 139
of the
Insolvency Act provides
that a person who may
have been committed to prison in terms of
section 66(3)
shall also be guilty of
a criminal offence and subject to a fine or imprisonment.  This provision is
similar to the criminal offences
created by the Commissions Act referred to
above.  Counsel argued and I accept that, unlike the proceedings under section
66(3)
which are summary, the institution of a criminal prosecution under
section 139 could lead to inconvenient delays.  I accept that
the technique of
a criminal prosecution to obtain compliance may not be as efficient or as quick
as the mechanism in section 66(3).Â
It is however far less invasive of the
rights of the recalcitrant witness.  In addition to the criminal offence
contained in section
139, however, other mechanisms could be employed.  For
example, one similar to that contained in
section 142(8)
of the
Labour
Relations Act, 1995
, which would permit an official presiding at a creditors’
meeting to refer a recalcitrant witness to court for an appropriate order
to be
made.  Such a mechanism may be more efficient and speedy than a criminal
prosecution.
[168]
   In determining whether
the limitation on the applicant’s
section 12(1)
right is justified, the
question of whether similar provisions have been adopted in other jurisdictions
is also relevant, though
not determinative.  Indeed, in interpreting the Bill
of Rights, section 39(1) of the Constitution provides that:
“When
interpreting the Bill of Rights, a court, tribunal or forum –
(a) must
promote the values that underlie an open and democratic society based
                             on human dignity, equality and freedom;
(b) must
consider international law; and
(c) may
consider foreign law.”
In his careful and
thorough judgment, Ackermann J has pointed to the fact that powers to imprison
a recalcitrant witness in insolvency
enquiries are generally reserved to courts
of law.
3
9
  It is unnecessary to repeat the
references to the foreign jurisdictions here.  Suffice it to say, that in all
jurisdictions to
which he refers, the power to imprison a recalcitrant witness
in insolvency enquiries in order to compel that witness to testify
is reserved
for courts of law and is not exercised by administrative or
quasi-administrative institutions.
[169]
   It is true that
section
66(5)
of the
Insolvency Act operates
as a safeguard by permitting a person
imprisoned pursuant to
section 66(3)
to approach a court which is empowered to
consider the matter afresh.  This provision is a statutory invocation of the
common law
interdictum de homine libero exhibendo.  However, it is noticeable
that there is no automatic or necessary review of the
section 66(3)
proceedings
required by
section 66(5).Â
There can be no doubt that an automatic review
would constitute a greater safeguard than the simple entitlement afforded by
section 66(5)
which, for a variety of reasons, an imprisoned person may not be
in a position to seek.
[170]
   For these reasons,
therefore, I am not persuaded that
section 66(3)
may be considered a
justifiable limitation of
section 12(1)
of the Constitution.  Counsel for the
appellant did not rely on section 165 of the Constitution which vests the
judicial authority
of the Republic in the courts.  Accordingly, I wish to
express no view on the question of whether the power to imprison a person
for
coercive or punitive purposes forms part of the “judicial authority”
contemplated by that provision.
[171]
   I agree, therefore, with the
decision of Conradie J in the court a quo and would
accordingly dismiss the appeal.  As this is a minority
opinion of the court, it is not necessary for me to consider the appropriate
order to be made in the circumstances.
SACHS J:
[172]
   I agree with the order proposed by
Ackermann J for reasons that are similar to his in philosophy but different in
logic and articulation.Â
I accept his conclusion that in entrenching the right
to freedom and security of the person, section 12(1) of the Constitution
1
either expressly or
implicitly protects persons against deprivations of freedom that are
substantively unacceptable or procedurally
unfair.
2
  In addition, I concur
fully with his eloquent explanation of the special meaning that the phrase
“detention without trial”
has acquired in South Africa.
3
  I have grave doubts,
however, about the more extended interpretation on which he relies,
4
and in this respect would
wish to associate myself with the clear and forceful observations on the
subject by Didcott J.
5
  In my view, section 12(1)(a) serves far more comfortably
than does 12(1)(b) as the basis for any analysis of freedom rights in
the
present case.  I accordingly express my supportÂ
for the remarks both by Didcott J and by Mokgoro J
6
on this score, and add
the following comment.Â
[173]
   Section 12 of the
Constitution revises and enriches section 11 of the interim Constitution in a
number of substantial ways, with
the result that the text before us is
manifestly different from that which this Court was called upon to analyse in
Nel
v Le Roux NO and Others
.
7
  In particular, the 1996 text itemises and outlaws three
specific invasions of freedom and security of the person which were not
expressly articulated in the interim Constitution:Â
(a)        the right “not
to be deprived of freedom arbitrarily or without just cause” [12(1)(a)],
(b)        the right “to be free from all forms of violence from either
public or private sources” [12(1)(c)] and
(c)        the right “to bodily and psychological integrity”.   [12(2)]
In the interim
Constitution, on the other hand, the words “detention without trial” stood
alone as an express bar to physical
restraint by the state, and accordingly had
to function as the sole textual basis for analysing the constitutionality of
all forms
of coercive state power involving physical restraint.  Now it is just
one item in an extensive and nuanced catalogue, and therefore
needs to be given
a specific significance which both justifies its place in the list and
separates it from the other items.  It
accordingly reclaims its commonly
accepted identity in South Africa as relating to a specific and unmistakable
prohibition of the
special and intense form of deprivation of liberty that
scarred our recent history.  So firm is the prohibition, as Ackermann J
points
out,
8
that even in the extreme conditions
where a state of emergency is declared, rigorous constitutional conditions are
imposed on the
use of detention without trial.
9
  I accordingly tend strongly to the view that the manner in
which the phrase “detention without trial” was construed in
Nel v Le Roux
1
0
needs to be revisited.
[174]
   In my opinion,
however, it is not necessary to resolve the problems of how to construe section
12.  As I see it, the matter
falls properly to be determined by the application
of the doctrine of separation of powers.Â
Section 66(3)
of the
Insolvency Act
gives
authority to appointees who happen not to be judicial officers to send
recalcitrant witnesses to jail.
1
1
  Even though the processes followed by non-judicial
but experienced appointees may in practice show the utmost procedural fairness
and even if the dangers of abuse may in reality be minimal, there is a simple,
profound and well-understood principle which I believe
this Court should
uphold, and that is that only judicial officers should have the power to send
people to prison.
[175]
   Section 165(1) of the
Constitution makes it clear that “[t]he judicial authority of the Republic is
vested in the courts.”Â
The appointee of the Master or the magistrate,Â
however, need not be a judicial officer serving in any court.
1
2
  When such appointee is
not a judicial officer, he or she should not be able to exercise what is really
a crucial part of the authority
reserved in democratic states to the judiciary,
namely the power to punish misconduct or penalise recalcitrance by means of
incarceration
in a state jail.Â
[176]
   These remarks refer
only to the authority to imprison someone as a penalty to mark state
reprobation.  The situation may be
different where persons are deprived of
liberty in non-punitive circumstances and where, subject to respect for
fundamental rights
of personality being maintained, reasons of exigency might
render it constitutionally permissible for restraint first to be applied
and
judicial control to take place only afterwards.  Thus, it is not uncommon in
democratic states for custodial powers to be conferred
initially on persons who
are not judicial officers where the purpose to be achieved is not that of
imposing a penalty, but, for example,
that of securing immigration control or
dealing with severe health risks.  Here the medium of imprisonment is not
regarded as the
message, but only as the means.  In these circumstances custody
or physical restraint does not serve in itself  as a mechanism
for commanding
respect for the law.  It is neither punishment for past defiance nor compulsion
to future compliance but  simply
the only reasonable way in which a
non-punitive objective of pressing public concern can be achieved.  By way of
contrast, the authority
to incarcerate for purposes of imposing penalties for
past or continuing misconduct belongs to the judiciary, and to the judiciary
alone.  In my view, the doctrine of separation of powers prevents Parliament
from entrusting such authority to persons who are not
judicial officers
performing court functions as contemplated by section 165(1).
[177]
   The question that
remains is whether magistrates functioning in terms of
section 66(3)
of the
Insolvency Act can
be said to be exercising the authority reserved to courts by
section 165(1)
of the Constitution.  The word “court” may refer to a building,
to an institution exercising judicial functions and to the persons
who carry
out such functions.  Normally the three go together.  In the present case, the
issue is whether persons selected, because
of their membership of judicial
institutions to exercise the intrinsically judicial function of sending people
to jail, are acting
within the authority conferred on courts by section 165(1)
of the Constitution, even though they may do so outside of the physical,
institutional and procedural setting within which courts normally function.Â
With some hesitation I come to the conclusion that,
in the context of the
present case, they are.
[178]
   The essential
characteristics of the courts exercising judicial authority as contemplated by
the Constitution are that "[they]
are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear,
favour or prejudice.”
1
3
  Unlike other appointees, magistrates exercising
powers of committal to prison under
section 66(3)
of the
Insolvency Act will
enjoy institutional independence and can be expected to apply the law
impartially and without fear, favour or prejudice.  Furthermore,
they will
exercise their powers within the matrix of the superior hierarchical judicial
control to which they are institutionally
and habitually accustomed.
1
4
  The principles embodied
in and the values to be protected by the separation of powers will accordingly
be secured.  In this respect,
I agree with the broad evaluation made by
Ackermann J on the character of the judicial function,
1
5
and support the
distinction which allows magistrates to order committal to prison and denies
that power to other state functionaries.Â
For these reasons, I concur in the
order he proposes.
For the applicant:                                          B Hack
instructed by W N Reyneke
Inc.
For the 2
nd
, 3
rd
and 4
th
Respondents:          W
Trengrove SC and B Manca instructed by
Sonnenberg Hoffman &
Galombik Inc.
For
the Minister of Justice:             M Naidoo and T M Masipa instructed by the
State Attorney Johannesburg.
1
               Reported
in
1997 (11) BCLR 1553
(C).
2
             Â
Section 172(2)(a)
provides:
"The Supreme Court of Appeal, a High Court or a court of
similar status may make an order concerning the constitutional validity
of an
Act of Parliament, a provincial Act or any conduct of the President, but an
order of constitutional invalidity has no force
unless it is confirmed by the
Constitutional Court."
For the procedure to
obtain such confirmation pending the enactment of legislation under section
172(2)(c) of the Constitution or
the promulgation of an applicable
Constitutional Court rule, see
Parbhoo and Others v Getz NO and Another
1997 (10) BCLR 1337
(CC);
1997 (4) SA 1095
(CC) paras 1 to 6.
3
               Section
416(1)(a) of the Companies Act provides, amongst other things, that the
provisions of
section 66
of the
Insolvency Act apply
in this way to any person
who is in terms of section 414(1) of the Companies Act required to attend any
meeting of creditors of any
company being wound up and which is unable to pay
debts, as if such person were an insolvent required to attend any meeting
referred
to in section 64 of the Insolvency Act.  Section 416(1)(b) of the
Companies Act provides, amongst other things, that the provisions
of
section 66
of the
Insolvency Act apply
in the same way to any person subpoenaed in terms
of section 414(2) of the Companies Act to attend any meeting of the creditors
of
a company being wound up and which is unable to pay its debts or to produce
any book or document at any such meeting.  Section 416(1)
of the Companies Act
further provides that the provision of
sections 65
of the
Insolvency Act apply
in the same way in relation to the production of any book or document or the
interrogation of any person under section 415 of the
Companies Act, as if such
person had been subpoenaed to produce any book or document or were being
interrogated under
section 65
of the
Insolvency Act.
>
4
               Subparagraphs
(i) and (iii) of
section 66(2)(a)
of the
Close Corporations Act provides
that,
for
purposes
of
section 66(1)
, any reference in a relevant provision of the Companies Act,
and any provision of the
Insolvency Act, made
applicable by any such provision,
to a "company" must be construed as a reference to a
"corporation" and any
reference to a "member, director,
shareholder or contributory" of any company, must be construed as a
reference to a "member"
of a corporation.
5
               See
section 339 of the Companies Act which provides that in the winding up of a
company unable to pay
its debts the provisions of the law relating to
insolvency shall, in so far as they are applicable, be applied mutatis mutandis
in
respect of any matter not specifically provided for by the Companies Act,
and section 66(1) of
Close Corporations Act.
>
6
             Â
[1996] ZACC 2
;
1996
(4) BCLR 449
(CC);
1996 (2) SA 751
(CC).
7
             Â
[1996] ZACC 6
;
1996
(4) BCLR 592
(CC);
1996 (3) SA 562
(CC).
8
               Id
para 11.
9
             Â
Section 39(2)
provides:
"All
meetings of creditors held in the district wherein there is a Master’s office
shall be presided over by the Master or
an officer in the public service,
designated, either generally or specially, by the Master for that purpose.Â
Meetings of creditors
held in any other district shall be held in accordance
with the direction of the Master and shall be presided over by the magistrate
of the district, or by an officer in the public service, designated, either
generally or specially, by the magistrate for that purpose."
10
             InÂ
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (6) BCLR 665
(CC);
1995 (3) SA 391
(CC) and
S v Williams and Others
[1995] ZACC 6
;
1995 (7) BCLR 861
(CC);
1995 (3) SA 632
(CC).
11
             See, for example, the provisions of
section 276A
of the
Criminal Procedure Act in
regard to correctional supervision as a form of
punishment.
12
           Â
S v R
1993 (1) SA 476
(A) 488 F-J and
S v
Williams and Others
above n 10 at para 67.
13
           Â
Section 139(1)
of the
Insolvency Act provides
:
“Any person
shall be guilty of an offence and liable to a fine not exceeding R500 or to
imprisonment without the option of a fine
for a period not exceeding six months
if he is guilty of an act or omission for which he has been or might have been
lawfully committed
to prison in terms of subsection (2) or (3) of
section 66.”
14
             The Constitution of the Republic of South Africa Act
200 of 1993.
15
             The reason why subsection (2) of section 12 of the 1996
Constitution is not the subject of comparison is
because the rights that are
protected therein did not feature at all in section 11 of the interim Constitution.
16
             Above n 6.
17
             Id para 145.
18
             Id  para 146.
19
           Â
[1997] ZACC 2
;
1997 (4) BCLR 437
(CC);
1997 (3) SA 527
(CC) para 159.
20
             Id  para 159.
21
             Above n 7.
22
             Act 51
of 1977.
23
             Above n 7 paras 11 and 12.Â
24
             Id  para 14.
25
             Id  para 11.
26
             Id  para 22.
27
             Above n 7 at paras 12 to 14.
28
             Under the provisions of section 37(4) and (5) of the
1996 Constitution.
29
             Under section 37(1), (2) and (3) thereof.
30
             See section 37(6), (7) and (8) of the 1996
Constitution.
31
             The primary meanings given in the
Oxford English Dictionary
.
32
             See, for example,
Stroud’s Judicial Dictionary
5ed (1986) 698 and Claassen
Dictionary of Legal Words and Phrases
(1975)
vol 1 402.
33
             Nor is it necessary to attempt to draw the dividing
line between “detention” in the section 12(1)(b)
right and restrictions on
“freedom of movement” as guaranteed in section 21(1).  It is recognised that it
is not always easy
to distinguish between the right to physical liberty of the
person and the right to freedom of movement (See Bailey, Harris and Jones
 Civil
Liberties
3ed 777).
34
             Section 1 provides:
“The Republic of South Africa is one, sovereign, democratic state
founded on the following values:
(a)  Human dignity, the achievement of equality and the advancement
of
      human rights and freedoms.
(b)  Non-racialism and non-sexism.
(c)  Supremacy of the constitution and the rule of law.
(d)  Universal adult suffrage, a national common voters roll,
regular elections
      and a multi-party system of democratic government, to ensure
accountability,
      responsiveness and openness.”
35
             It is not suggested that this only occurs in a
constitutional state with a rigid and completely written constitution
but we
are here dealing with our Constitution and it is therefore unnecessary to
consider the position in any other form of democratic
state.
36
             Compare the following comments of Mahomed DP in
Du
Plessis and Others v De Klerk and OthersÂ
[1996] ZACC 10
;
1996 (5) BCLR 658
(CC);
1996 (3)
SA 850
(CC) para 79:
“[the common
law’s] continued existence and efficacy in the modern State depends, in the
last instance, on the power of the State
to enforce its sanction and its duty
to do so when its protection is invoked by the citizen who seeks to rely on
it.”Â
37
             See, generally, De Wet en Yeats
Kontraktereg en
Handelsreg
4ed 420-1 and Smith
The Law of Insolvency
3ed 1-4.Â
38
             See in this regard
Nieuwoudt v Faught NO en Andere
1987 (4) SA 101
(C) 106-7.
39
           Â
[1996] ZACC 27
;
1996 (4) BCLR 441
(CC);
1996 (2) SA 621
(CC).
40
             Above n 6.
41
           Â
Nel’s
case
above n 7 para 11.
42
             Id.
43
           Â
Nieuwoudt’s
case above n 38. This
notwithstanding the fact that section 66(3) has been  in existence since the
inception of the
Insolvency Act. Its
predecessor, the Insolvency Act No. 32 of
1916, embodied a similar provision in section 133.Â
44
             See
Nel v Le Roux NO and Others
above n 7 para
11 and the authorities there cited.
45
             In terms of the Insolvency Act 1986 (“the Act”)
bankrupts have a wide range of obligations to provide
information in different
contexts and failure to make proper disclosure is regarded as civil contempt of
court and liable to be punished
by committal to prison.  (See generally the
annotation to section 288 of the Act in
Halsbury’s Statutes of England and
Wales
, 4ed vol 4 and
Halsbury’s Laws of England
4ed (Butterworths,
London 1974) vol 9 para 101).  In this way bankrupts can, for example, be
punished by committal to prison for
failing to comply with their obligations to
submit statements of affairs (section 288(1) and (4) of the Act); for failure
to attend
their public examinations (section 290(3) and (5)); for failure to
deliver possession of their estates or to deliver up possession
of relevant
books, papers and records (section 291(1) and (6)); and for failure to give the
trustee such information as to their
affairs as the trustee may reasonably
require (section 333(1)(a) and (4)).Â
46
             Under section 54(3) of the Australian Bankruptcy Act
1966 the failure by a bankrupt to file a statement of
affairs is punishable as
contempt of court (see
Re Maher; Maher v Official Trustee in Bankruptcy
[1993] FCA 529
;
(1993)
118 ALR 519
(Federal Court of Australia) 523).  Provision is made in the
Act for public examinations.  Under sections 264A, 264C and 264D thereof,
failure to attend an examination under the Act, refusal to be sworn or to give
evidence, prevarication and evasion is punishable
as a statutory offence.Â
Punishment for contempt includes imprisonment.  (See McDonald, Henry and Meek
Australian Bankruptcy Law and Practice
5ed Part XIV p 8734 and following; D
Rose
Lewis’ Australian Bankruptcy Law
10ed by D Rose, The Law Book Company
Ltd, Sydney (1994) 192-4 and following; and
Re Maher; Maher v Official
Trustee in Bankruptcy
, above). Â
47
             In Canada, if a witness refuses to answer a question at
an official receiver’s examination such witness
may, if the refusal is
persisted in after the propriety of the question has been confirmed by court
and the witness ordered to answer
the question, be committed for contempt of
court.  (See Holden and Morawetz
The 1996 Annotated Bankruptcy and
Insolvency Act
(Carswell, Ontario 1995) 364 and the authorities there
cited.)Â
48
             In the United States of America the courts have
jurisdiction under the relevant bankruptcy legislation to
commit to prison a
witness who refuses to answer a question in bankruptcy proceedings. (See,
Bankruptcy Rule 9020.  See generally
Michaelson v United States ex rel.
Chicago, St Paul, Minneapolis & Omaha Ry. Co.
266 US 42
(1924)). The
only matter of contention concerns the issue whether in addition to the United
States District Courts, the United States
Bankruptcy Courts have this power.
This will be alluded to later in this judgment.
49
             Section 2(2) of the German Basic Law (GG) provides as
follows:
"Jeder hat das Recht auf Leben und körperliche Unversehrtheit.Â
Die Freiheit der Person is unverletzlich.  In diese Rechte
darf nur auf Grund
eines Gesetzes eingegriffen werden."
(Everyone has the right to life and physical integrity.  Personal
freedom is inviolable. These rights may not be encroached upon
save pursuant to
a law.)
(This, and all other translations off the Basic Law, are from the
official translation, Press and Information Office of the Federal
Republic of
Germany October 1994.)
Section 100 of the
Konkursordnung (“KO”) (The Insolvency Act) provides that persons who have been
declared insolvent are obliged
to furnish full information concerning the
circumstances of their insolvency to the trustee, the creditors’ committee and
(by order
of court) to the creditors’ meeting.  Section 101(2) provides,
amongst others, that insolvents may be committed to prison if they
do not
fulfil the obligations imposed on them by law.  Section 807 of the
Zivilprozesordnung (“ZPO”) (Civil Procedure Act) provides
a mechanism whereby a
debtor, who has had writ of execution issued or a judgment taken against him or
her by only one creditor, is
not subjected to the usual execution procedures if
the writ or judgment cannot be satisfied.  In such event however, the debtor
is
obliged to furnish documents and a formal declaration concerning his or her
financial circumstances.  This obligation is enforceable
by committal to prison
under section 901 ZPO.   In BVerfGE 61, 126 (135) the German Constitutional
Court held that these committal
provisions did not infringe the basic right to
personal freedom under section 2(2) of the Basic Law.  The Court held, at 135,
that
the committal mechanism was essential; there was no less invasive measure
which would guarantee the result in the same way.  It
was also held that there
was proportionality between the severity of the infringement on the debtor’s right
and the importance
of the reasons for justifying the infringement. It was
emphasised (at 136) that the debtors could easily fulfil their obligations
and
avoid imprisonment; if they possessed no disposable property they suffered no
disadvantage and if they were solvent and only
wanted to hide property, they
deserved no protection. Â
50
             Above n 7 paras 14 and 15.
51
             The latter was canvassed in
Executive Council,
Western Cape Legislature, and Others v President of the Republic of South
Africa and Others
[1995] ZACC 8
;
1995 (10) BCLR 1289
(CC);
1995 (4) SA 877
(CC).
52
             Article
5.1(b) of the Convention.
53
             Article
5.1(e) of the Convention.
54
             Article
5.1(f) of the Convention.
55
             Dicey
Introduction to the Study of the Law of the
Constitution
10ed (MacMillan, London 1959) 188.
56
             Wade
and Forsyth
Administrative Law
7ed (Clarendon Press, Oxford 1994) 25 -
26
(footnote omitted)
.
57
             Mathews
Freedom, State Security and the Rule of Law
(Sweet & Maxwell, London
1988) 20
(footnote omitted)
.
58
             Above n 57 in Chapter 7.
59
           Â
1952 (4) SA 769
(A), in particular 784D-H, 786H-787C,
788H-789A, 792E-793D and 796C-H.
60
             This power is also referred to as “civil contempt”
power.
61
             Article III section 1 provides:
“The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may
from time to
time ordain and establish.  The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good
Behaviour, and shall, at stated
Times, receive for their Services, a Compensation, which shall not be
diminished during their Continuance
in Office.”
Federal judges
appointed under Article III are sometimes referred to as “Article III judges”.
62
             US Constitution art I s 8 cl 4.
63
           Â
Appointment and Removal
28 U.S.C s 152 governs the appointment and removal of bankruptcy
judges.  Under Section 152(a), bankruptcy judges are appointed for
a fixed term
of 14 years.  Bankruptcy judges may be removed from office under section 152(e)
"only for incompetence, misconduct,
neglect of duty, or physical or mental
disability and only by the judicial council in the circuit in which the judge’s
official
duty station is located."  Further, "removal may not occur
unless a majority of all the judges of such council concur
in the order of removal
. . . [and] before any order of removal may be entered, a full specification of
charges shall be furnished
to such bankruptcy judge who shall be accorded an
opportunity to be heard on such charges."
Salary Protection
Under 28 U.S.C s 153,
the salaries of bankruptcy judges are set at a uniform annual rate equivalent
to 92% of the salary of a judge
of United States District Court.  Of course,
unlike the salaries of Article III judges, the salaries of bankruptcy court
judges
may be diminished during a judge’s 14-year term via amendment to section
153.  It seems unlikely, however, that section 153 could
be amended in a
fashion intended to punish an individual bankruptcy judge for an unpopular
decision.  It is far from clear that
such an amendment — intended, whether explicitly
or by implication, to punish an individual judge or an identifiable group of
judges
—  would withstand constitutional attack as a "bill of
attainder"; i.e., a legislative punishment proscribed by article
I,
section 9, clause 3 of the Constitution.   See e.g.
United States v Lovett
,
[1946] USSC 104
;
328 US 303
(1946) (striking down a bill of attainder statute denying
compensation to three government employees found by the House Un-American
Activities Committee to be engaged in "subversive activity").
64
             The relevant part of Bankruptcy Rule 9020 reads as
follows:
“(a)
Contempt Committed in Presence of Bankruptcy Judge
.
Contempt committed in the presence of a bankruptcy judge may be determined
summarily by a bankruptcy  judge.  The order of contempt
shall recite the facts
and shall be signed by the bankruptcy judge and entered of record.
(b)
Other Contempt.
 Contempt committed in a case or
proceeding pending before a bankruptcy judge, except when determined as
provided in subdivision
(a) of this rule, may be determined by the bankruptcy
judge only after hearing on notice. . . .”
65
             In
Plastiras v Idell (In re Sequoia Auto Brokers
Ltd.),
827 F 2d 1281
, 1289 (9
th
Cir 1987) it was held that
neither 28 USC s 157 nor 11 USC s 105 impliedly conferred civil contempt power on
bankruptcy judges. The
case therefore turned on whether the enabling statute
conferred such power.  In
Mountain America Credit Union v Skinner (In re
Skinner),
917 F2d 444
, 447-9 (10
th
Cir 1990), the contrary view
was taken, the court disagreeing with the 9
th
Circuit. in
Plastiras
and holding that the power to order civil contempt is clearly implicit in
11 USC s 105(a).  It considered this view to be in accord
with the weight of
authority  (See e.g.
Burd v Walters (In re Walters),
[1989] USCA4 339
;
868 F 2d 665
(4
th
Cir 1989),
Kellog v Chester
, 71 Bankr 36, 37 (ND Tex 1987) and the other
authorities there cited.  In
Skinner
the court further held, following
Burd
v Walters,
that the grant of such authority by Congress was not
unconstitutional, an issue it was unnecessary to decide in
Plastiras.
Â
66
             See Holden and Morawetz above n 43.
67
             Section 104 II 1 GG provides:
“Über die Zulässigkeit und Fortdauer einer Freiheitsentziehung hat
nur der Richter zu entscheiden.”  ("Only a judge may
decide on the
admissibility or continuation of detention.")
The rendering by
Currie
The Constitution of the Federal Republic of Germany
(University
of Chicago Press 1994) 388, of “Zulässigkeit” as “permissibility” seems
preferable to the official rendering
of “admissibility”.  Since the deprivation
of freedom is the most severe infringement of personal liberty (BVerfGE 10, 302
(323)),
there has to be a decision by a judge about the permissibility and
continuation of detention in every case (see Kunig in von Münch
Grundgesetzkommentar
2. Aufl. Art 104 Rn 17).
68
             This was expressly so held in BVerfGE 22, 311 (317).Â
See also, Kunig in von Münch above n 67, Art. 104
Rn 21; Hill in Isensee and
Kirchhof
Handbuch des Staatsrechts
VI 1344 Rn 78; and Grabitz id
VI
121-2 Rn 25.
69
             N 45 above and accompanying text.
70
             Volume 3(2) 4ed reissue para 747 (footnotes omitted).
71
             Referred to above n 46 and accompanying text.
72
             Rose (above n 46) at 194.
73
             (1954)
CLR 353
at 370-1.
74
           Â
1996 (10) BCLR 1253
(CC).
75
             Id paras 106-8.
76
             In
Interstate Commerce Comm. v Brimson
154 US
447
, 485 (1893), the United States Supreme Court considered the
constitutionality of section 12 of the Interstate Commerce Act, which
(1)
obliged witnesses testifying before the Interstate Commerce Commission to
answer all questions put by the Commission and to produce
all relevant books
and records, and (2) conferred upon the United States Circuit Courts authority
to impose fines or imprisonment
upon recalcitrant witnesses in aid of the
Commission’s investigations.  The objection to section 12 arose in the context
of the
Commission’s investigation into potential hidden and illegal ownership
by a steel company of several railroad lines.  In the course
of that
investigation the Commission subpoenaed the chairman of several of the rail lines
in question, and asked whether a majority
of shares in those lines were held by
the steel company. The chairman refused to answer, the Commission requested
that the Circuit
Court impose contempt sanctions, and the chairman objected, on
the grounds that section 12, by giving authority to the Circuit Court
to
enforce a subpoena of the Commission, was repugnant to the Constitution because
it conferred upon the Court a power that was not
judicial.  The Supreme Court
upheld section 12 of the Act, stating that "[w]ithout the aid of judicial
process of some kind,
the regulations that Congress may establish in respect to
interstate commerce cannot be adequately or efficiently enforced."
77
             Id
485
(internal citations omitted).
78
             As was held in
Nel v Le Roux
above n 7 para 11.
79
             Above n 7 para 14.
80
             Which provides:
“Every person
shall have the right to have justiciable disputes settled by a court of law or,
where appropriate, another independent
and impartial forum.”
81
             Above n 7 para 15.
82
             (1986) 30 DLR (4
th
) 481, 491.
83
             (1985)
24 DLR (4
th
) 161 in which Le Dain J delivered the judgment of a
unanimous Court after conducting a comprehensive and illuminating review of an
extensive body of relevant materials.
84
             Id
176.
85
             Id
180.
86
             Id
184.
87
             Id
187
and 190.
88
             Id
169-70.
89
             Id
172-3.
90
             Id
175.
91
             Id.
92
             (1992)
88 DLR (4
th
) 110.
93
             Id
128
c-d.
94
             I limit my holding to imprisonment; i.e., I express no
opinion today regarding whether lesser sanctions,
such as fines or procedural
disabilities, may be imposed by administrative officers without the
intervention of a judge.
95
             Above
n1 at 1557 C-E.
96
             Id
1556
I.
97
             Id
1557
A.
98
             (1958)
OR (not “QR” as reported in the judgment at 1556 H) 326.
99
             Above n 7.
100
           Id
paras 14 to 15.
101
            Compare
R v du Toit
1950 (2) SA 469
(A) 472 and
R
v Beukman
1950 (4) SA 261
(O)  263E - H, in which reference was made,
amongst others, to an enquiry under section 96 of Act 31 of 1917 (one of the
precursors
to section 205 of the CPA); and see also
S v Thompson
1968
(3) SA 425
(E) 428F.
102
            Above n7 paras 12-5.
103
            It has been held that the proceedings before a presiding
officer at a meeting of creditors in terms of the
Insolvency Act are
administrative in essence though superficially judicial in appearance; see
S
v Carse
1967 (2) (SA) 659 (C) 664H-665A and
Joel Melamed and Hurwitz v
Simmons NO and Others
1976 (4) SA 189
(T) 195B.  In the former case it was
also held, at the place cited that “[t]he presiding officer does not, in my
opinion, sit
as a Judge or magistrate (even though, as in the present matter,
he was a magistrate).”  In neither case was the question as to
what function
the presiding officer fulfils when issuing a committal warrant under section
66(3) in issue or considered.  On the
other hand, in
Receiver of Revenue,
Port Elizabeth v Jeeva and Others; Klerck and Others NNO v Jeeva and Others
[1996] ZASCA 5
;
1996
(2) SA 573
(A) 579 I, the Appellate Division of the Supreme Court held that the
commissioner conducting an inquiry under section 418 of the
Companies Act acts
in a quasi-judicial capacity.
104
            Act 32
of 1944.
105
            Which provides the following:
“In connection
with the apprehension of a person or with the committal of a person to prison
under this section, the officer who
issued the warrant of apprehension or
committal to prison shall enjoy the same immunity which is enjoyed by a
judicial officer in
connection with any act performed by him in the exercise of
his functions.”
106
           Above
n 1 at 1557 D-E.
107
            Above n 6 para 14.
108
            Above n 6.
109
            (2) A commissioner shall in any matter referred to him
have the same powers of summoning and examining witnesses
and of requiring the
production of documents, as the Master who or the Court which appointed him,
and, if the commissioner is a magistrate,
of punishing defaulting or
recalcitrant witnesses, or causing defaulting witnesses to be apprehended, and
of determining questions
relating to any lien with regard to documents, as the
Court referred to in section 417.
110
            (5) Any person who-
                                (a)           has
been duly summoned under this section by
a commissioner who is not a magistrate
and who fails, without sufficient cause, to attend at the time and place
specified in the
summons; or
                                (b)           has
been duly summoned under section 417 (1)
by the Master or under this section by
a commissioner who is not a magistrate and who-
                                                (i)            fails,
without
sufficient cause, to remain in attendance until excused by the Master
or such commissioner, as the case may be, from further attendance;
                                                (ii)           refuses
to
be sworn or to affirm as a witness; or
                                                (iii)          fails,
without
sufficient cause-
                                                                (aa)       Â
to
answer fully and satisfactorily any question lawfully put to him in terms of
section 417 (2) or this section; or
                                                                (bb)       Â
to
produce books or papers in his custody or under his control which he was
required to produce in terms of section 417 (3) or this
section,
shall be guilty of an
offence.
111
            Above n 6 at paras 51-5.
112
            Above n 6 at para 46, where the following was stated on
behalf of the majority of the Court:
“ . . . the courts in this country have. . . developed a considerable
body of case law the design of which is to prevent the mechanism
of sections
417 and 418 . . . being used oppressively, vexatiously or unfairly towards the
examinee.  I have no doubt that our Supreme
Courts will continue to develop
that body of law having due regard to the spirit, purport and objects of the
Constitution’s chapter
of fundamental rights. It is accordingly not open to
argue that, because the provisions of sections 417 and 418 are general in terms
and contain no express limitations as to their application, the
constitutionality of these sections is to be adjudicated on the basis
that they
permit anything which is not expressly excluded.  It is trite law that a
statutory power may only be used for a valid
statutory purpose.  The constitutionality
of sections 417 and 418 must therefore be assessed in the light of the control
which the
Supreme Court exercises over their implementation.” (Footnotes
omitted);
and at para 47, where it was further stated:
“A large number of . . . [the] . . . complaints . . . relate to the
manner in which the examination was conducted by the Commissioner
and not to
any provision in the sections of the Act under attack.  There is nothing in the
sections which mandates that the examination
be conducted in this way.  In
respect of all these complaints the applicants’ correct remedy was to approach
the Supreme Court
for relief on the basis that the examination was being
conducted in an oppressive, vexatious or unfair manner.”
No member of the Court
expressed disagreement with this approach.
113
            Above n 103.
114
            Id p 579 I, where Harms JA, writing for the Court,
stated:
               “[the Commissioner] has the main duty to examine the
witnesses.  He has to regulate and control the
interrogation.  Should he fail
in his duty to apply the procedural fairness appropriate to this forum, an
aggrieved party may approach
the Court for suitable relief (
Schulte v Van
der Berg and Others NNO
1991 (3) SA 717
(C)).”
115
            Above n 7.
116
            Id at paras 12-14; 16-21.
117
            Section 35(2) provides:
“No law which
limits any of the rights entrenched in this Chapter, shall be constitutionally
invalid solely by reason of the fact
that the wording used
prima facie
exceeds the limits imposed in this Chapter, provided such a law is reasonably
capable of a more restricted interpretation which does
not exceed such limits,
in which event such law shall be construed as having a meaning in accordance
with the said more restricted
interpretation.”Â
118
            See
Bernstein’s
case, above n 6, at para 59 and
the authorities cited in footnotes 85 and 87
.
119
           More
particularly in that the prohibition against the negation of “the essential
content of the right in question”
in section 33(1)(b) and the “necessary”
requirement in the proviso to section 33(1) have been omitted from section
36(1) of the
1996 Constitution.
120
           Above
n 10 at para 104.
121
            Id.
122
            See paragraph 74 above.
123
            See paragraphs 30 - 40 above.
124
          Â
Makwanyane’s
case above n 10 at para 102 and the
authority therein cited.
125
            See sections 166(e) and 170 of the 1996 Constitution.
126
            Act No 8 of 1947 as amended.
127
            Section 6(1) provides:
“ Any person summoned to attend and give evidence or to produce any
book, document or object before a commission who, without sufficient
cause (the
onus of proof whereof shall rest upon him) fails to attend at the time and
place specified in the summons, or to remain
in attendance until the conclusion
of the enquiry or until he is excused by the chairman of the commission from
further attendance,
or having attended, refuses to be sworn or to make
affirmation as a witness after he has been required by the chairman of the
commission
to do so or, having been sworn or having made affirmation, fails to
answer fully and satisfactorily any question lawfully put to
him, or fails to produce
any book, document or object in his possession or custody or under his control,
which he has been summoned
to produce, shall be guilty of an offence and liable
on conviction to a fine not exceeding fifty pounds or to imprisonment for a
period not exceeding six months, or to both such fine and imprisonment.”
128
            Act 66
of 1995.
129
            The Labour Court established under section 151(1) of the
Act is, in terms of section 151(2) thereof, a “superior
court” on which is
conferred “the authority, inherent powers and standing, in relation to matters
under its jurisdiction, equal
to that which a court of the provincial division
of the Supreme Court has in relation to matters under its jurisdiction.”
130
            Above para 45.
131
            Above para 52.  There are also statutory exceptions.Â
For example, section 28 of the Wehrdisziplinarordnung
(WDO, Military
Disciplinary Act) permits a sergeant to order the arrest of a soldier for
disciplinary reasons without prior judicial
intervention, but in BVerfGE 22,
311 it was held that such detention would be unconstitutional unless the arrest
was confirmed by
a judge.  Section 18(2) and 13 UG (Baden-Württembergisches
Gesetz ueber die Unterbringung von Geistekranken und Suchtkranken) an
act
dealing with the accommodation of mentally ill persons and drug addicts provide
for the arrest of such persons and section 3I1
UG authorises administrative
detention of such persons in a hospital if such persons constitute a danger to
themselves or others.Â
In BverfGE 58, 208 it was held that prior interrogation
by a judge was essential.  But under section 5 UG it is permissible to take
a
person into care without prior judicial intervention provided that the
necessity for such detention is confirmed by a medical certificate. Â
The
taking into care has to be reported to judicial authorities who then decide on
its validity.  Section 46I of the HSOG (Hessisches
Gesetz ueber die
oeffentliche Sicherheit und Ordnung - the Hessian public safety act) permits
the police to arrest persons in order
to prevent them from life threatening
danger or to prevent them from committing a crime.  Section 28 requires that
the arrest be
confirmed by a judge within 48 hours.  In BverfGE 83, 24 the
Federal Constitutional Court rejected a constitutional complaint against
these
provisions.
132
            Above n 35 at para 157.
[1]
            Â
1987 (4) SA 101
(C) at 109B - 114C.
[2]
            Â
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC).
[3]
            Â
Cf
Schulte v Van
der Berg and Others NNO
1991 (3) SA 717
(C) at 720 A-B;  Receiver of Revenue,
Port Elizabeth v Jeeva and Others; Klerck and Others NNO v Jeeva and Others
[1996] ZASCA 5
;
1996
(2) SA 573
(A) at 579 I-J.
1
               Act 24
of 1936.
2
               At paras 172-3.
3
               Of the Constitution of South Africa, 1996.  See
quotations and references to s 12(1) at paras 15-6 of
Judge Ackermann’s
judgment.
4
               At paras 115-7.
5
               See for example at paras 59-61, 75.
6
               For example, the decision to dismiss an employee must
comply with both standards.
7
               See for example Baxter, L
“Administrative Law”
(Juta & Co Ltd, Johannesburg, 1984) p 541-68.
8
               The precursor to section 12 in the 1996
Constitution.  See paras 15-6 of the main judgment.
9
               Constitution of the Republic of South Africa Act 200
of 1993.
10
           Â
[1996] ZACC 2
;
1996 (4) BCLR 449
(CC);
1996 (2) SA 751
(CC).
11
           Â
[1997] ZACC 2
;
1997 (4) BCLR 437
(CC);
1997 (3) SA 527
(CC).
12
           Â
[1996] ZACC 6
;
1996 (4) BCLR 592
(CC);
1996 (3) SA 562
(CC).
13
             See paragraph 22 of the main judgment for the way in
which the majority handle this issue.
14
             “
Nemo iudex in sua causa
”.
15
             “
Audi alterem partem
”.
16
             See note 14 and 15 above.
17
           Â
1996 (1) SA 283
(C), at 304-6.  See the authorities mentioned
therein.
18
             This section provides:
“24.        Administrative Justice. - Every person
shall have the right to -
                                (a)
. . .
(b)  Procedurally fair administrative action where any of his or her
rights or legitimate
       expectations is affected or threatened;
                                (c)
. . .
                                (d) . . .”
19
             For an interpretation of the way in which section 66(3)
operates within the context of the Act more generally,
see paras 13-4; 33-5 of
Ackermann J’s judgment, but especially paras 144-7, and 150 of the judgment of
O’Regan J.
20
             In
section 302
-
4
of the
Criminal Procedure Act 51 of
1977
, for example, the statute provides for automatic review of sentences that
include imprisonment for a period longer than three months
if the judicial
officer has not held the rank of magistrate or higher for a period of seven
years; or six months if the judicial
officer has held the rank of magistrate
for longer than seven years.
21
             The examinee attends the meeting with the knowledge
that he or she will be required to answer questions lawfully
put to him or her,
and is able to prepare on those issues.  However, under
section 66(3)
, he or
she is imprisoned, not for an answer given, but for an unwillingness to provide
an answer.
22
             Any guarantee of legal representation during the
proceedings is subject to the common-law advances on the
interpretation of what
constitutes procedural fairness, having regard to the fact that such an
important interest is concerned.
23
             I referred to the following statutes: Magistrates Court
Act 32 of 1944; Supreme Court Act 61 of 1984; Heraldry
Act 18 of 1962;
Publications Act 42 of 1974; Commission on Gender Equality Act 39 of 1996;
Independent Electoral Commission Act 150 of 1993
; Powers and Privileges of
Parliament Act 91 of 1963; Abolition of Civil Imprisonment Act 91 of 1963;
Credit Agreements Act 75 of
1980;
Constitutional Court Complementary Act 13 of
1995
; Vexatious Proceedings Act 3 of 1956;
Financial Markets Control Amendment
Act 74 of 1996
; Prevention of Public Violence and Intimidation Act 139 of 1991;
Child Care Act 33 of 1960; 74 of 1983; Income Tax Act 58 of 1962;
Labour
Relations Act 66 of 1995
;
Development Facilitation Act 67 of 1995
; Land Reform
(Labour Tenants) Act 3 of 1996;
Restitution of Land Rights Act 22 of 1994
;
Human Rights Commission Act 54 of 1994
;
Public Protector Act 23 of 1994
; Water
Act 54 of 1956; Defence Act 44 of 1957;
Promotion of National Unity and
Reconciliation Act 34 of 1995
and the Pension Funds Act 44 of 1957.
24
             The application of procedural fairness required in
adjudication, as was considered in
Bernstein
, above n 10 and
Nel
,
above n 12, and developed by our common law, would require fair administrative
procedure to be applied in administrative proceedings
and fair trial procedures
in criminal proceedings.
25
             Here I referred to: Magistrates Court Act 32 of 1944;
Supreme Court Act 61 of 1984; Aliens Control Act 96
of 1991;
Aliens Control
Amendment Act 76 of 1995
; Health Act 63 of 1977; Mental Health Act 18 of 1973.
26
             As defined by the Aliens Control Act 96 of 1991.
27
             In terms of the Mental Health Act 18 of 1973.
28
             Under the provisions of the Health Act 63 of 1977.
29
             Above n 26, section 55.
30
             Above n 27, sections 9-11.
31
             In terms of a regulation passed under the powers
granted by section 33 of the Health Act, above n 28.
32
             Above n 10.
33
             Above n 12.
34
             Bernstein
above n 10 at
paras 43 to 47;
Nel
above n 12 at paras 16 to 22.
35
             Above n 12, para 18.
36
             Above
n 10, para 46.
37
             Ackermann
J, above n 14, section 35(2).
38
             I
agree that Section 35(3) of the interim Constitution may have a similar effect
to section 39(2), but absent
the assistance of the equivalent of section 35(2),
the construction of section 39(2) under the 1996 Constitution is substantially
weaker, in my view, than section 35(3) under the interim Constitution.
39
             Above note 10.
40
             Act 61
of 1973.Â
41
             In particular, subsection 5 of section 418 of Act 61 of
1973 provides:
Any person who -
(a)           has been duly summoned under this
section by a Commissioner who is not a magistrate and who fails, without
sufficient cause, to attend at the time and place specified in the summons; or
(b)          has been duly summoned under section 417
(1) by the Master or under this section by a Commissioner who is not
a
magistrate and who-Â
(i)            fails, without sufficient cause, to
remain in attendance until excused by the Master or such Commissioner,
as the
case may be, from further attendance;
(ii)           refuses to be sworn or to affirm as a
witness; or   Â
(iii)          fails, without sufficient cause -
(aa)         to answer fully and satisfactorily any
question lawfully put to him in terms of section 417 (2) or this section;
or
               (bb)         to produce books or
papers in his custody or under his control which he was required
to produce in
terms of section 417 (3) or this section,
shall be guilty of an
offence.
42
             Above
n 10, para 55.
43
             Above n 12, para 14.
44
             Above
n 12, para 15.
45
             See
Collins
Dictionary of Quotations
, Jeffares and Gray (ed)
(Harper-Collins, Glasgow 1995) page 1.
46
             Section
165 of the 1996 Constitution,
47
             The
Courts mentioned in section 166 of the 1996 Constitution, and a court created
in terms of section 166(e),
for example, whose formal procedures flagrantly
disregard the principles of natural justice for the purposes of confinement
would
offend, in my opinion, the content of section 12 of the Constitution, and
may be unconstituional, notwithstanding the fact that its
presiding officers
were accorded the status of judicial officers. Â
In connection herewith, the dicta in
S v Mbatha; S v Prinsloo
[1996] ZACC 1
;
1996
(2) SA 464
(CC);
1996 (3) BCLR 293
(CC) para 10, although made in a different
context, is telling:
“No legal
system can guarantee that no innocent person can ever be  convicted.  Indeed,
the provision of corrective action by
way of appeal and review procedures is an
acknowledgement of the ever-present possibility of judicial fallibility.  Yet
it is one
thing for the law to acknowledge the possibility of wrongly but
honestly convicting the innocent and then provide appropriate measures
to
reduce the possibility of this happening as far as is practicable; it is
another for the law itself to heighten the possibility
of a miscarriage of
justice by compelling the trial court to convict where it entertains real
doubts as to culpability and then to
prevent the reviewing court from altering
the conviction even if it shares in the doubts.”
48
             See the discussion of this section in paragraph 163 of
the judgment of O’Regan J.  I however am cautious
about concluding that section
36(1) is the equivalent of the test laid down in
S v Makwanyane
referred
to therein.
49
             It already does this in section 139(1) of the Act, see
paragraph 14 and footnote 13 referred to therein.
50
             O’Regan J for example finds that these proceedings are
of an administrative nature by virtue of the fact
that their primary purpose is
an investigatory, or evidence gathering one.
51
           Â
1950 (4) SA 261
(O), at 263 E-F.
52
           Â
R v De Beer
1937 TPD 362
;
R v Werner
1939
EDL 41
;
R v Asslam
1936 CPD 527
;
R v Hassa
1939 NPD 161
;
R v
Bhayla
1939 NPD 162
;
Dabner v SAR&H
1920 AD 583
;
Hashe and
Others v Cape Town Municipality and Others
1927 AD 380.
53
           Â
1967
(2) SA 659
(C), at 665 A.
1
             Â
Section 40(1)
of the
Insolvency Act, 24 of 1936
.Â
Other creditors’ meetings may also be held in terms of
sections 41
and
42
as
well as
section 119(5)
of the
Insolvency Act.
>
2
             Â
Section 39(2)
of the
Insolvency Act, 24 of 1936
.  In
a district where there is no Master’s office, and the magistrate does not
preside, the presiding officer must note the reason
for the magistrate’s
absence
(section 39(4)).
3
             Â
Sections 40(1)
and (2) and
section 40(3)(b)
of the
Insolvency Act, 24 of 1936
.
4
             Â
Sections 40(1)
and (3) of the
Insolvency Act, 24 of
1936
.
5
             Â
Section 64(2)
of the
Insolvency Act, 24 of 1936
.
6
             Â
Section 65(1)
of the
Insolvency Act, 24 of 1936
.
7
               It should be observed that in
Nieuwoudt v Faught
NO
en Andere
1987 (4) SA 101
(C) at 109, Tebbutt J held that
section
66(3)
contains a requirement of unwillingness by the witness, not merely a
failure to testify.
8
               See the discussion, for example, in Discussion Paper
66 of the South African Law Commission, Project
63
Review of the Law of
Insolvency — Draft Insolvency Bill and Memorandum
published on 15 November
1996 at paras 4.6, 65.18, and 101.10.  The draft Bill proposed by the
Commission omits the powers contained
in
section 66(3).
9
             Â
Section 205
of the
Criminal Procedure Act provides
that:
“(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.”
10
           Â
Section 189
of the
Criminal Procedure Act provides
as
follows:
“(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.
(2) After the expiration of any sentence imposed under subsection
(1), the person concerned may from time to time again be dealt with
under that
subsection with regard to any further refusal or failure.
(3)  A court may at any time on good cause shown remit any
punishment or part thereof imposed by it under subsection (1).
(4) Any sentence imposed by any court under subsection (1) shall be
executed and be subject to appeal in the same manner as a sentence
imposed in
any criminal case by such court, and shall be served before any other sentence
of imprisonment imposed on the person concerned.
(5) The court may, notwithstanding any action taken under this
section, at any time conclude the criminal proceedings referred to
in
subsection (1).
(6) No person
shall be bound to produce any book, paper or document not specified in any
subpoena served upon him, unless he has such
book, paper or document in court.Â
(7) Any lower court shall have jurisdiction to sentence any person to the
maximum period of imprisonment
prescribed by this section.”
11
             See
section 205(4)
and the judgment of Ackermann J in
Nel
v Le Roux NO
at paragraph 20.
12
             Id at paragraph 22.
13
           Â
Section 44(3)
of the
Insolvency Act.
>
14
                See
S v Carse
1967 (2) SA 659
(C) at 664H - 665A;
Joel Melamed and
Hurwitz v Simmons NO and Others
1976 (4) SA 189
(T) at 195B, though see
R
v Werner
1939 EDL 41
and discussion of that case in
S v Carse
at
665.  In relation to the similar but not identical proceedings in terms of
section 418 of the Companies Act, 61 of 1973, see
Receiver of Revenue, PE v
Jeeva and Others; Klerck and Others NNO v Jeeva and Others
[1996] ZASCA 5
;
1996 (2) SA 573
(A) at 579I.
15
             It is
not clear, for example, precisely what powers a magistrate has in terms of
section 418(2) to punish
recalcitrant witnesses.  It is clear that a
Commissioner who is not a magistrate does not enjoy the powers conferred by
section
418(2); see the judgment of Tebbutt J in
Van der Berg v Schulte
1990 (1) SA 500
(C) at 507 and following.
16
             See, in particular,
section 108
of the
Magistrates’
Courts Act, 1944
and the commentary thereon in Erasmus and Van Loggerenberg
Jones
and Buckle: The Civil Practice of the Magistrates’ Courts in South Africa
9
ed (Juta & Co Ltd, Kenwyn 1996) Volume 1 at 394.
17
             The provisions of section 31 of the Supreme Court Act,
1959 apply to the Labour Court and Labour Appeal Court
by virtue of the
provisions of
section 184
of the
Labour Relations Act, 66 of 1995
.  Both these
courts enjoy a status equivalent to the High Court and Supreme Court of Appeal
respectively (see
sections 151(2)
and
167
(3) of the Labour Relations Act).Â
Section 31 of the Supreme Court Act provides in relevant part:
“(1) Whenever any person who appears either in obedience to a
subpoena or by virtue of a warrant issued under section
thirty
or is
present and is verbally required by the court to give evidence in any civil
proceedings, refuses to be sworn or to make an
affirmation, or, having been
sworn or having made an affirmation, refuses to answer such questions as are
put to him, or refuses
or fails to produce any document or thing which he is
required to produce without any just excuse for such refusal or failure, the
court may adjourn the proceedings for any period not exceeding eight days and
may, in the meantime, by warrant commit the person
so refusing or failing to
gaol unless he sooner consents to do what is required of him.
(2) If any
person referred to in sub-section (1) again refuses at the resumed hearing of
the proceedings to do what is so required
of him, the court may again adjourn
the proceedings and commit him for a like period and so again from time to time
until such person
consents to do what is required of him.”
18
             Section 108(1) provides that:
“If any person, whether in custody or not, wilfully insults a
judicial officer during his sitting or a clerk or messenger or other
officer
during his attendance at such sitting, or wilfully interrupts the proceedings
of the court or otherwise misbehaves himself
in the place where such court is
held, he shall (in addition to his liability to being removed and detained as
in subsection (3)
of section 5 provided) be liable to be sentenced summarily or
upon summons to a fine not exceeding R2 000 or in default of payment
to
imprisonment for a period not exceeding six months or to such imprisonment
without the option of a fine.  In this subsection,
the word ‘court’ includes a
preparatory examination held under the law relating to criminal procedure.”
A magistrates’ court
may not punish contempt of court summarily except as authorised by this
section.  However, it has jurisdiction
over the common law offence of contempt
of court when it is brought before it by way of a summons.Â
Duffey v
Attorney-General, Transvaal and Another
1958 (1) SA 630
(T) at 633D-F.
19
             See
R v Nzima Vuta
1914 EDL 192
;
S v Sokoyi
1984 (3) SA 935
(NC) at 943.
20
                See
Bredenkamp v Magistrate of Lichtenburg
1948 (4) SA 920
(T);
R v Botha
1953 (4) SA 666
(C) at 668.  See also, in the context of Commissioners’ Courts,
S v Thooe
1973 (1) SA 179
(O) at 180.
21
           Â
Section 51(2)(a)
of the
Magistrates’ Courts Act
provides
as follows:
“If any person,
being duly subpoenaed to give evidence or to produce any books, papers or
documents in his possession or under his
control which the party requiring his
attendance desires to show in evidence, fails, without lawful excuse, to attend
or to give
evidence or to produce those books, papers or documents according to
the subpoena or, unless duly excused, fails to remain in attendance
throughout
the trial, the court may, upon being satisfied upon oath or by the return of
the messenger that such person has been duly
subpoenaed and that his reasonable
expenses, calculated in accordance with the tariff prescribed under
section 51
bis
,
have been paid or offered to him, impose upon the said person a fine not
exceeding R300, and in default of payment, imprisonment
for a period not
exceeding three months, whether or not such person is otherwise subject to the
jurisdiction of the court.”
22
             For the text of
section 189
, see footnote 10 above.
23
             The period is extended to five years in relation to
certain offences including sedition, public violence,
arson, murder, kidnapping,
childstealing, robbery, housebreaking and treason
(section 189(1)
read with
Schedule 2,
Part III
of the
Criminal Procedure Act, 1977
).
24
             See
section 28C
read with 28F of the
Restitution of
Land Rights Act, 22 of 1994
.
25
             See item 34 in the First Schedule to the Defence Act,
44 of 1957.
26
             These provisions are incorporated into the provisions
of both the Companies Act and the
Close Corporations Act, however
.  In terms of
section 416(1) of the Companies Act, 61 of 1973 the provisions of
section 66
of
the
Insolvency Act apply
to creditors’ meetings held in relation to the winding
up of a company in terms of section 412 - 416 of the Companies Act, 1973.Â
Similarly,
section 66
of the
Close Corporations Act 69 of 1984
incorporates the
provisions of sections 412 - 416 of the Companies Act, 1973.
27
             See section 418(2) of the Companies Act, 1973.
28
             See
FAWU v Sanrio Fruits CC and Others
1994 (2)
SA 486
(T) at 488 and section 17(15) of the Labour Relations Act, 28 of 1956.
29
             See RSC Ord 52, rule 1(2)(a)(iii) which confers
jurisdiction upon the Divisional Court to determine contempts
of court
committed before “inferior courts”.  In
Attorney-General v BBC
[1981] AC
303
(HLE), the House of Lords refused to accept that a local valuation court
constituted an “inferior court” as contemplated by the
Rules.  The speeches of
the members of the House of Lords in this case illustrate their concern that
freedom of speech would be
impaired if powers of contempt of court were
extended to a wide range of tribunals.  That concern arose naturally enough on
the
facts of the case before them in which the Attorney-General sought an
injunction preventing the broadcast of a television programme
concerning a
local valuation court.
30
             See
Interstate Commerce Commission v Brimson
154
US 447
, 485 (1894) where Harlan J held that:
“The inquiry whether a witness before the Commission is bound to
answer a particular question propounded to him, or to produce books,
papers,
etc., in his possession and called for by that body, is one that cannot be
committed to a subordinate administrative or executive
tribunal for final
determination.  Such a body could not, under our system of government,
and
consistently with due process of law
, be invested with authority to compel
obedience to its orders by a judgment of fine or imprisonment.”  (My italics.)
This decision has been
questioned by academic writers, see Note “Use of Contempt Power to Enforce
Subpoenas and Orders of Administrative
Agencies” (1958) 71 Harvard LR 1541 at
1552 and following.
31
             Section 35(3)(c) of the 1996 Constitution.
32
             See
also
R v Lippé
(1991)
5 CRR (2d) 31 (SCC) at 53 (per Lamer CJC).
33
             See paragraph 150 above.
34
             See above n 14.
35
             Section 52 read with
section 48
of the
Insolvency Act.
>
36
             See
Die Meester v Protea Assuransiemaatskappy Bpk
1981
(4) SA 685
(T) at 690 and cases therein cited.
37
             See
also
Joel Melamed and Hurwitz v Simmons NO and Others
1976 (4) SA 189
(T) at 195 but see
R v Werner
1939 EDL 41.
38
             See
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at paragraph 47.
39
             See
paragraphs 49 - 55 of his judgment.
1
               The Constitution of South Africa 1996.
2
               Para 22 above.
3
               Paras 26-7 above.
4
               Para 28 above.
5
               Para 115 above.
6
               Paras 116-7 (per Didcott J);  para 127 (per Mokgoro J).
7
             Â
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC).
8
              Para 27 above.
9
              See
sections 37(6) and (7) of the Constitution.
10
             Above
n 7
11
             Act 24 of 1936.
                Section
39(2) reads as follows:
                                “All meetings of
creditors held in the district wherein there is
a Master’s office shall be presided
over by the Master or an officer in the public service, designated, either
generally or specially,
by the Master for that purpose.  Meetings of creditors
held in any other district shall be held in accordance with the direction
of
the Master and shall b presided over by the magistrates of the district, or by
an officer in the public service, designated either
generally or specially, by
the magistrate for that purpose.”
                 Section
66(3) reads as follows:
                                 “If a person . . . fails to produce
any book or document which
he was summoned to produce, or if any person who may
be interrogated at a meeting of creditors in terms of sub-section (1) of
section
sixty-five
refuses to be sworn by the officer presiding at a
meeting of creditors at which he is called upon to give evidence or refuses to
answer any question lawfully put to him under the said section or does not
answer the question fully and satisfactorily, the officer
may issue a warrant
committing the said person to prison, where he shall be detained until he has
undertaken to do what is required
of him, but subject to the provisions of
sub-section (5).”
12
             The "courts" are declared by section 166 of
the Constitution to be
:
              Â
"(a)
       Â
the Constitutional Court;
  (b)        the Supreme Court of Appeal;
  (c)         the High Courts, including any high
court of appeal that may be established by an Act of Parliament to hear
appeals
from High Courts,
 (d)         the Magistrates’ Courts; and
 (e)          any other court established or
recognised in terms of an Act of Parliament, including any court of a status
similar to either the High Courts or the Magistrates’ Courts".
The officers with the
power to commit to prison need not have any connection with any of the above.
See n 11 above.
13
             Section 165(2).
14
             Section 66(5) reads:
                                “Any person committed to prison
under this section may apply to the
court for his discharge from custody and
the court may order his discharge if it finds that he was wrongfully committed
to prison
or is being wrongfully detained.”
15
             Para 86-101 above.  His evaluation is made in the
context of limitation of rights analysis (section 36),
mine  in the framework
of separation of powers (section 165).