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[2010] ZACC 13
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Malachi v Cape Dance Academy International (Pty) Ltd and Others (CCT 05/10) [2010] ZACC 13; 2010 (6) SA 1 (CC) ; 2010 (11) BCLR 1116 (CC) (24 August 2010)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 05/10
[2010] ZACC 13
In the matter between:
TATIANA MALACHI Applicant
and
CAPE DANCE ACADEMY INTERNATIONAL
(PTY) LTD First Respondent
HOUSE OF RASPUTIN PROPERTIES (PTY) LTD Second Respondent
ADDITIONAL MAGISTRATE, DISTRICT OF
CAPE TOWN Third Respondent
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fourth Respondent
MINISTER FOR HOME AFFAIRS Fifth Respondent
COMMANDING OFFICER,
POLLSMOOR PRISON Sixth Respondent
Heard on : 25 March 2010
Decided on : 24 August 2010
JUDGMENT
MOGOENG J:
Introduction
[1] This is an
application for the confirmation of an order of constitutional
invalidity made by Hlophe JP in the Western Cape
High Court, Cape
Town (High Court).
1
[2] The declaration of
constitutional invalidity relates to section 30(1) and (3)
2
(impugned provisions) of the Magistrates’ Courts Act (Act).
This section empowers a magistrate to issue an order for the
arrest
and detention of a debtor in circumstances where a creditor
reasonably believes that a debtor is about to flee the country
in
order to avoid paying what is owed to a creditor. That procedure is
known as arrest
tanquam suspectus de fuga
.
3
[3] The High Court
referred its order declaring both the common law and section 30(1)
and (3) constitutionally invalid to
this Court for confirmation in
terms of section 167(5) and section 172(2) of the
Constitution.
4
However, the Registrar of the High Court failed to lodge a copy of
the order with the Registrar of this Court as required by
rule 16(1)
of the Rules of this Court.
5
The applicant rescued the situation by bringing an application to
this Court for the confirmation of the order of invalidity
6
only in so far as it relates to the impugned provisions, and
supplied the necessary order. The Constitution does not make

provision for the confirmation of an order of constitutional
invalidity of the common law. The applicant’s approach is,

therefore, the correct one.
[4] It is convenient at
this stage to set out the factual background.
Factual
background
[5] The applicant, Ms
Tatiana Malachi, is a citizen of the Republic of Moldova. She was
recruited from Moldova and employed by
Cape Dance Academy
International (Pty) Ltd (first respondent) and House of Rasputin
Properties (Pty) Ltd (second respondent),
as an exotic dancer. The
first and second respondents are jointly referred to as “the
employers”.
[6] Upon the applicant’s
arrival in South Africa, a representative of the employers caused
her to surrender her passport
to him. When she subsequently asked
for it, he refused to give it back to her unless she reimbursed her
employers the money
they had allegedly spent on her pursuant to the
terms of the contract of employment.
[7] In terms of the
contract of employment, the employers were to make and pay for all
of the applicant’s visa and travel
arrangements. They also
had to provide her with rented accommodation. The applicant was in
turn obliged to reimburse them.
A cursory reading of the contract
of employment reveals that more is said about her duties and what
she was required to pay
to her employers than about the benefits
that would accrue to her for services rendered. After working for
several months, the
applicant expressed dissatisfaction to her
employers with her conditions of employment.
[8] Eventually, she
enlisted the assistance of the Consul General of Russia to secure an
air ticket to return to her country of
origin.
7
She was scheduled to depart on 9 July 2009. Somehow her employers
got to know about her plans. They then applied for and were
granted
an order by the Magistrates’ Court, Cape Town, to have the
applicant arrested in terms of the impugned provisions.
The basis
for the application, and for the granting of the arrest order, was
that the applicant owed her employers about R100 000
and that
they reasonably suspected that she was about to flee the country
permanently in order to escape payment of the debt.
[9] On the same day, the
applicant was arrested and detained in Pollsmoor Correctional
Centre. She was incarcerated from 9 to
24 July 2009.
Aggrieved by the order for her arrest, she approached the High Court
to secure her liberty.
Proceedings
in the High Court
[10] The applicant
challenged the constitutional validity of both the impugned
provisions and the common law in so far as they
empower a court to
make an order for arrest
tanquam suspectus de fuga
.
[11] By agreement
between the parties, the applicant was released before the
application was heard. She, however, insisted on
the determination
of the constitutional issues raised in her application.
8
[12] The High Court held
that the common law and the impugned provisions infringed the
applicant’s constitutional rights.
9
It made the following order:
“
1. The words “arrest
tanquam suspectus de fuga
” as contained in
section
30(1)
of the
Magistrates’ Courts Act 32 of 1944
are declared
unconstitutional and invalid and must therefore be deleted.
2. The whole of
section 30(3)
of the
Magistrates’ Courts Act 32 of 1944
is declared to be
inconsistent with the Constitution and invalid.
3. The common law which
authorises arrests
tanquam
suspectus de fuga
is
declared to be inconsistent with the Constitution and invalid.
4. [The Minister for Justice
and Constitutional Development] is to pay the costs of this
application including the costs of two
counsel.”
The
issues
[13] The applicant
attacks the validity of the impugned provisions on the basis that
they violate her rights.
[14] Of
the constitutional rights allegedly infringed by the impugned
provisions,
10
the most directly implicated is the right to freedom and security of
the person in terms of section 12(1) of the Constitution
which
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 sources;
(d) not to be tortured in any
way; and
(e) not
to be treated or punished in a cruel, inhuman or degrading way.”
[15] The main issue that
arises in this matter is thus whether arrest
tanquam suspectus de
fuga
as authorised by the impugned provisions is consistent with
the Constitution. This issue is broken down as follows:
(i) Does the arrest of a potential debtor in terms of the impugned
provisions limit the arrestee’s right to freedom of
the
person? More specifically, is it “arbitrary” or
“without just cause”?
(ii) If the right is limited, is the limitation justifiable?
(iii) If not, what is
the appropriate remedy?
[16] Before I consider
the constitutional validity of section 30, it is necessary to set
out the history of arrest
tanquam suspectus de fuga
.
The
history of arrest tanquam suspectus de fuga
[17] Arrest
tanquam
suspectus de fuga
owes its origin to Roman law.
11
It was introduced in South Africa as part of Roman-Dutch law
12
and was first reported as a part of the rules of court from as early
as 1842. The procedure existed at common law as well as
in a
codified form in various rules of court.
13
Arrest
tanquam suspectus de fuga
is ordered when a creditor
on reasonable grounds suspects that a debtor, whose liability has
not yet been acknowledged or proven
in a court of law, is about to
flee the country in order to prevent the adjudication of the dispute
in this country.
14
Only a court of law is, in terms of the common law as well as
section 30(1) and (3) of the Act read with rule 56 of the
Magistrates’
Courts Rules
15
and section 19 of the Supreme Court Act
16
read with rule 9 of the Uniform Rules of Court,
17
entrusted with the authority to order arrest
tanquam
suspectus de
fuga
.
[18] Even at the
inception of a debtor’s arrest, the courts were reluctant to
grant orders of arrest because of their interference
with the
arrestee’s right to personal freedom.
18
In
Chaloner v Corrie
it was held that to grant an order of
arrest on poorly reasoned grounds was not right as this would be
“carrying the law
to great extremes” and that it was “an
undue interference with a man’s liberty to adopt that
course.”
19
Ninety years on the sentiment of the courts had not changed. In
Segal v Diners Club South Africa
the court warned that “[i]f
the debtor has been wrongly deprived of his freedom it cannot be put
right in the subsequent
suit. The harm to him is irreparable.”
20
This historical perspective leads to a discussion on the
constitutionality of the arrest.
Constitutional
validity of the impugned provisions
[19] Section 30 of the
Act provides:
“
(1) Subject to the
limits of jurisdiction prescribed by this Act, the court may grant
against persons and things orders for arrest
tanquam
suspectus de fuga
, attachments, interdicts and
mandamenten
van spolie
.
(2) Confirmation by the court
of any such attachment or interdict in the judgment in the action
shall operate as an extension
of the attachment or interdict until
execution or further order of the court.
(3) No order of personal arrest
tanquam suspectus de fuga
shall be made unless—
(a) the cause of action appears
to amount, exclusive of costs, to at least forty rand;
(b) the applicant appears to
have no security for the debt or only security falling short of the
amount of the debt by at least
forty rand; and
(c) it appears that the
respondent is about to remove from the Republic.”
[20] An order in terms of
the impugned provisions, as interpreted by the courts,
21
must be aimed at the debtor who: (i) allegedly owes the creditor at
least R40 excluding costs; (ii) is reasonably believed to
be about
to leave the Republic, but not one who appears to be leaving one
part of the country for another;
22
and (iii) intends leaving permanently and whose departure is
imminent.
23
Furthermore, the creditor must appear to have no, or insufficient,
security for the debt.
24
[21] The impugned
provisions empower a magistrate to issue an order for the arrest of
a debtor even though the debtor’s
liability has not been
acknowledged or proven in a court of law. Peté
et al
describe arrest
tanquam suspectus de fuga
as follows:
25
“
In a situation where a
debtor owes money to a creditor, who holds no security for the
payment of the debt, and there are reasonable
grounds for believing
that the debtor is about to leave the country in order to avoid
paying creditors, the creditor may make
use of a procedure known as
arrest
ta[n]quam suspectus de fuga
. This literally
translated, means ‘an arrest as if being suspected of being a
fugitive’. The purpose of the procedure
is to prevent a
person against whom a creditor intends to institute, or has already
instituted, an action, from fleeing from
the jurisdiction of the
court, with the purpose of avoiding or delaying payment of the
claim. The object of the arrest is not
to force the debtor to pay
the claim. The object is to ensure that he remains within the
jurisdiction of the court until the
court has given judgment in the
matter. The phrase generally used is to ‘abide the judgment
of the court’. Of course,
if the debtor gives sufficient
security for the claim, it does not matter if he leaves the
country.” (Footnotes omitted.)
These views capture the
essence of the nature and purpose of this arrest, which is to stop
an alleged debtor from fleeing this
country with the intention of
preventing the adjudication of the dispute within it.
26
As Wunsh J correctly pointed out, the object of the arrest “is
to enable the plaintiff to obtain a judgment against the
defendant,
not to keep him or her in custody until payment is made.”
27
[22] The procedure to be
followed in applying for the order of arrest is set out in the
Magistrates’ Courts Rules.
28
Rule 56 regulates the section 30 process by providing
that an application for an arrest
tanquam suspectus de fuga
may be made
ex parte
.
29
An order made
ex parte
shall call upon the debtor to show
cause against its grant on the first court day after its service on
the debtor,
30
which may be anticipated by the debtor upon 12 hours’
notice to the creditor.
31
A copy of the order obtained
ex parte
and of the affidavit,
if any, on which it was based must be served forthwith on the
debtor.
32
[23] Although section
30(1) and section 30(3) refer only to arrest and not to detention,
the process of arrest is always effected
by the police and thus
prevents flight by actually limiting the arrestee’s freedom
until the debt is paid, adequate security
is furnished or judgment
is handed down.
[24] There can be no
doubt that section 12 is designed to bury our painful history
of random, unjust and arbitrary deprivation
of physical liberty and
to ensure that abuse of state power never again rears its ugly
head.
33
Section 12(1)(a) was discussed in
De Lange
v Smuts NO
.
34
[25] The protection of
the right to freedom of the person in terms of section 12(1)(a) has
both a substantive and a procedural
dimension. The substantive
aspect ensures that a deprivation of liberty cannot take place
arbitrarily or without just cause
whereas the procedural element
ensures that the deprivation will only take place in terms of a fair
procedure.
35
O’Regan J outlined the two interrelated constitutional
aspects in
Bernstein v Bester
:
36
“
In my view, freedom has
two interrelated 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.”
[26] This foundation was
built upon in
S v Coetzee
37
where O’Regan J said that 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. I will deal
only
with the first of the two constitutional aspects of freedom, namely
the substantive, since that will dispose of the matter.
Substantive
aspect
[27] Ackermann J
explained the substantive aspect of freedom in
De Lange v Smuts
NO
38
as follows:
“
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.”
[28] An arrest and
detention, by its nature, limits the freedom of a person. The right
to freedom of the person is limited if
the deprivation is done
arbitrarily, or without just cause. The question is whether the
deprivation or limitation of freedom
authorised by the impugned
provisions is arbitrary or without a just cause. In the view I take
of the matter, I choose to deal
with just cause.
Just
cause
[29] In
De Lange v
Smuts NO
,
39
Ackermann J had the following to say about just cause:
“
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. 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
and gathered from the provisions of the
Constitution as a whole.” (Footnote omitted.)
[30] In
Bid Industrial
Holdings
,
40
which dealt with arrest to found jurisdiction, Howie P found that
the section 12(1)(a) right is infringed where there is
an
absence of just cause or fair trial. Since there was no question of
a trial in that case, he addressed just cause in the
following
terms:
“
In assessing whether
establishing jurisdiction for purposes of a civil claim can be ‘just
cause’ it is necessary,
first, to consider whether arresting
the defendant can enable the giving of an effective judgment. There
is a crucial difference
between attaching property and arresting a
person. . . . [T]he property attached will, unless essentially
worthless, obviously
provide some measure of security or some
prospect of successful execution. Arrest, purely by itself,
achieves neither. Security
or payment will only be forthcoming if
the defendant chooses to offer one or other in order to avoid arrest
and ensure liberty.
It is therefore not the arrest which might
render any subsequent judgment effective but the defendant’s
coerced response.
The impotence of an arrest
itself to bring about effectiveness is illustrated by the result
that would ensue were the arrested
defendant to do nothing either
before, or in answer to, judgment for the plaintiff. Pending
judgment there is no legal mechanism
to enforce security or payment
and failure to pay the judgment debt does not expose the defendant
to civil imprisonment. Consequently,
deprivation of liberty does
not of itself serve to attain effectiveness.”
41
(Footnote omitted.)
[31] Although
Bid
Industrial Holdings
did not deal with arrest
tanquam
suspectus de fuga
, the observations relating to what would
constitute just cause for the purpose of the arrest apply with equal
force to this matter.
There can be no doubt that arrest
tanquam
suspectus de fuga
has the effect of limiting the arrestee’s
fundamental right to freedom.
42
[32] The object of the
arrest “is to ensure that [the potential debtor] remains
within the jurisdiction of the court until
the court has given
judgment in the matter.”
43
As soon as judgment is given, a debtor would, however, be free to
catch the next flight to any foreign destination even if this
is
done to evade payment and no realisable asset exists in the country,
from the proceeds of which payment may be effected.
Arrest does
not, therefore, ensure the satisfaction of the judgment debt.
Admittedly, the unfairly exerted pressure of incarceration
may at
times force the arrestee to pay the debt or provide security.
But, that does not detract from the fact that the arrest does not
necessarily render the judgment any more executable or beneficial
to
the creditor than would have been the case had the debtor left the
country. It simply limits the fundamental right to freedom
of the
person for no just reason.
[33] The order for the
arrest of persons
tanquam suspectus de fuga
under the
impugned provisions is ordinarily made at the time when their civil
liability has not yet been established.
44
Their debt is only alleged on affidavit, often in an urgent
application brought
ex parte
. The potential debtor is often
only afforded the opportunity to resist the severe curtailment of
the right to freedom, by the
order, on the return date. Potentially
the detention may endure for as long as the action is pending.
45
The effect of this deprivation was more aptly captured in
Segal
v Diners Club South Africa
where we are warned that “[i]f
the debtor has been wrongly deprived of his freedom it cannot be put
right in the subsequent
suit. The harm is irreparable.”
46
Nothing can undo the degrading effect of incarceration,
particularly if the order were obtained
ex parte
. This is
the position in which the applicant in this matter found herself for
16 days.
[34] Since there is no
legal basis for the imprisonment of someone who has been found
civilly liable,
47
it is inconceivable that any legal justification can ever exist for
putting behind bars a person whose civil liability is yet
to, or
will possibly never, be proven. Although an order for arrest is
granted by a court, the intervention of the judicial
process can not
legitimise the deprivation of freedom, since the arrest may stem
from a debt which has itself not been established
through the
judicial process. I therefore conclude that there is no just cause
for the arrest in terms of the impugned provisions.
48
[35] Having found that
the right to freedom is limited, I will now consider whether such
limitation is justifiable in terms of
section 36 of the
Constitution.
Justification
analysis
[36] The dictum in
Makwanyane
49
has essentially been codified in section 36(1) which provides:
“
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.”
What falls to be
considered is the justification of the limitation of freedom.
[37] Section 30(1) and section 30(3) are laws of general
application. Arrest
tanquam suspectus de fuga
, which they
authorise, plays a role in facilitating debt collection.
Unfortunately, the impugned provisions go further than
is necessary
to achieve the objective. They do so without any regard to less
invasive options that are available. They also
do not insist on the
exhaustion of less restrictive remedies before pursuing the option
of arrest and detention.
50
[38] As was found in
Coetzee v Government
, albeit in a different context, the
impugned provisions are overbroad.
51
Although they are meant to facilitate the adjudication of the
dispute in the country and the effective execution of a subsequent

judgment debt against a debtor who has the means to pay but refuses
to do so, they also strike at debtors, like the applicant,
who
cannot pay. This is what led this Court in
Coetzee v Government
to find that a similar limitation cannot be justified as
reasonable.
52
[39] Even
in the writings of the first Roman-Dutch authors, arrest
tanquam suspectus de fuga
was treated
as an extraordinary remedy
53
and the rules of court originally set a high monetary threshold for
the granting of this remedy.
54
A paltry amount of R40, which is the threshold for the
deprivation of a person’s liberty, probably the cost of two
small
chickens, highlights the disproportionality of the means and
the purpose. Although the employers’ claim is about R100 000,

this does not detract from the fact that a debtor could potentially
be deprived of freedom for being suspected of intending to
flee the
country to avoid the adjudication of a claim for R40.
55
[40] Freedom is an
important right. The detention of any person without just cause is
a severe and egregious limitation of that
right. It is difficult to
imagine the circumstances in which a law that allows detention
without just cause could ever be justifiable.
[41] Other comparable
jurisdictions have done away with arrest and detention that aims to
prevent flight or to recover civil debts.
56
I therefore conclude that the limitation is not reasonable and
justifiable in an open and democratic society based on human

dignity, equality and freedom.
[42] For these reasons
the order of constitutional invalidity stands to be confirmed. It
is necessary to say something about
the High Court order relating to
the common law.
[43] The impugned
provisions are essentially a codified version of the common law.
There is no real difference between the two.
The High Court has
already declared the common law equivalent of the impugned
provisions unconstitutional. Although this Court
is seized with the
impugned provisions and not with the common law, our finding that
the impugned provisions are unconstitutional
is not at odds with
that of the High Court that the common law is unconstitutional.
[44] The appropriate
remedy is next in line for consideration.
Severability
[45] The appropriate way
to remedy the unconstitutionality is to sever the offensive parts of
subsection (1) and to strike out
subsection (3) in its entirety.
[46] As in
Coetzee v
Government
, severability of the impugned provisions presents
itself for consideration in this matter. The test for severability
as developed
by this Court is:
“
Although severability in
the context of constitutional law may often require special
treatment, in the present case the trite
test can properly be
applied: if the good is not dependent on the bad and can be
separated from it, one gives effect to the good
that remains after
the separation if it still gives effect to the main objective of the
statute. The test has two parts: first,
is it possible to sever the
invalid provisions and, second, if so, is what remains giving effect
to the purpose of the legislative
scheme?”
57
(Footnote omitted.)
[47] The impugned
provisions do not insist on the exhaustion of alternatives that are
less extensive and yet effective before
an order that infringes the
potential debtor’s right could be resorted to. Any attempt by
this Court to ensure that the
constitutional invalidity is cured,
would be nothing short of legislating. And that would fall foul of
the separation of powers
doctrine. The impugned subsections of
section 30 can be severed from the section and what remains will
still give effect to
the purpose of section 30 and the purpose of
the legislative scheme. As Hlophe JP correctly held, the words
“arrest
tanquam suspectus de fuga
” must be
excised from section 30(1) of the Act. Similarly, the whole of
subsection (3) must be severed from section
30 of the Act.
58
Retrospectivity
[48] The intricate
question that arises in this matter is whether the retrospective
effect of the declaration of invalidity should
be limited; and if
so, to what extent? The High Court simply declared the impugned
provisions invalid. This means that, in
terms of the doctrine of
objective constitutional invalidity, the impugned provisions become
invalid from the date on which the
Constitution came into
operation.
59
[49] This issue was not
debated at the hearing and we did not have the benefit of the
parties’ submissions on it. It is
necessary to limit the
retrospective application of the order. The order should apply to
all pending cases. In other words,
the declaration will not apply
to cases where the review and appeal processes have been finalised.
Consequently those potential
debtors who are presently incarcerated
in terms of this law will have to be released with immediate effect.
Costs
[50] The Minister for
Justice and Constitutional Development (fourth respondent) is
enjoined by the constitutional development
leg of his portfolio to
ensure that pre-Constitution laws which are inconsistent with the
Constitution are identified for repeal
or suitable amendment. The
impugned provisions are in point. The fourth respondent omitted to
amend or repeal section 30(1)
and (3). The ill effects are
evident in this case. Not only was the applicant struck by the
provisions, but she had to approach
both the High Court and this
Court to ensure that these unconstitutional provisions are removed
from the statute books. For
that reason her costs must, at least to
some extent, be borne by the fourth respondent who correctly
conceded such an order.
[51] Mr Katz, for the
applicant, sought a costs order against the employers on the basis
that the employment arrangement with
the applicant amounts, for all
intents and purposes, to human trafficking. The employers were not
notified that an order for
costs would be sought against them on
this basis. It was a novel point. To have them mulcted in costs on
the basis that they
were involved in human trafficking, would not be
just and equitable. The application for costs on this basis must
therefore
be dismissed.
[52] Ordinarily, costs
follow the result. The applicant is the successful party and would
ordinarily be entitled to costs against
the first and second
respondents as well. Nevertheless, Mr Katz informed this Court that
the applicant and the employers agreed
that the applicant would not
seek costs against them even if her application for the confirmation
of the order of constitutional
invalidity succeeds. Consequently,
Mr Katz did not ask for costs against the first and second
respondents except on the basis
of human trafficking. This Court
is, however, not bound by that agreement. Costs are a matter which
lies entirely within the
discretion of this Court, to be exercised
with due regard to the particular circumstances of each case.
60
The first and second respondents launched an application against
the applicant and obtained an order for her arrest and detention
in
terms of the impugned provisions. When the order was challenged
they failed to offer any justification for the order or for
the
statutory provisions invoked to obtain it, in either the High Court
or in this Court, choosing instead to abide the decision
of both
courts. Sight should not be lost of the fact that had they not
initiated those proceedings, it would not have been necessary
for
the applicant to approach this Court.
[53] In these
circumstances, despite the agreement on costs referred to above, it
appears that it may be just and equitable to
order the first and
second respondents to pay half of the applicant’s costs in
this Court. Since this issue was not debated
during the hearing,
all the parties will be afforded the opportunity to make submissions
on the appropriateness of the costs
order. A provisional order for
costs will now be issued ordering the fourth respondent to pay half
of the costs of the proceedings
in this Court and the first and
second respondents to pay the other half.
Order
[54] In the result, the
following order is made:
(a) The order of constitutional invalidity made by the Western Cape
High Court, Cape Town is confirmed to the following extent:
(i) The words “arrest
tanquam suspectus de fuga
”
as contained in
section 30(1)
of the
Magistrates’ Courts
Act 32 of 1944
are declared unconstitutional and invalid.
(ii) The whole of
section 30(3)
of the
Magistrates’
Courts Act 32 of 1944
is declared to be inconsistent with the
Constitution and invalid.
(b) The Minister for Justice and Constitutional Development is to
pay the costs of the applicant in the High Court.
(c) The Minister for Justice and Constitutional Development is
ordered to pay half of the costs of the proceedings in this Court.
(d) The Cape Dance Academy International (Pty) Ltd and House of
Rasputin Properties (Pty) Ltd are ordered jointly and severally
to
pay half of the costs of the proceedings in this Court.
(e) The orders in subparagraphs (c) and (d) are provisional.
(f) The parties are invited to make representations as to the
appropriateness or otherwise of these orders before Tuesday, 28

September 2010 and before a final order is made.
Ngcobo
CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Nkabinde J, Skweyiya J, Van der Westhuizen J and Yacoob J
concur in
the judgment of
Mogoeng J.
For the
applicant:
For the
fourth respondent:
Advocate A Katz SC and Advocate R Garland instructed by Eisenberg &
Associates.
Advocate P Bezuidenhout instructed by the State Attorney, Cape Town.
1
Malachi v Cape Dance Academy International (Pty) Ltd
and
Others
2010 (7) BCLR 678
(WCC)
.
2
The text of section 30 of the Magistrates’ Courts Act 32 of
1944 (Act) is set out in [19] below.
3
It appears that some commentators prefer to refer
to it as “
tamquam suspectus de
fuga
”, however for the sake of
consistency we will use “
tanquam
”
as it appears in the Act and in the cases. See an explanation of
what arrest
tanquam suspectus de fuga
means at [17] and [21] below.
4
Section 167(5) reads:
“
The Constitutional Court makes the final
decision whether an Act of Parliament, a provincial Act or conduct
of the President is
constitutional, and must confirm any order of
invalidity made by the Supreme Court of Appeal, a High Court, or a
court of similar
status, before that order has any force.”
Section 172(2)
reads:
“
(a) 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.
(b) A court which makes an order of constitutional
invalidity may grant a temporary interdict or other temporary relief
to a party,
or may adjourn the proceedings, pending a decision of
the Constitutional Court on the validity of that Act or conduct.
(c) National legislation must provide for the referral
of an order of constitutional invalidity to the Constitutional
Court.
(d) Any person or organ of state with a sufficient
interest may appeal, or apply, directly to the Constitutional Court
to confirm
or vary an order of constitutional invalidity by a court
in terms of this subsection.”
5
Rule 16(1) of the Constitutional Court Rules, 2003 reads:
“
The Registrar of a court which has made an order
of constitutional invalidity as contemplated in section 172 of
the Constitution
shall, within 15 days of such order, lodge
with the Registrar of the Court a copy of such order.”
6
Rule 16(4) of the Constitutional Court Rules reads:
“
A person or organ of state entitled to do so and
desirous of applying for the confirmation of an order in terms of
section 172(2)(d)
of the Constitution shall, within 15 days
of the making of such order, lodge an application for such
confirmation with the
Registrar and a copy thereof with the
Registrar of the court which made the order, whereupon the matter
shall be disposed of
in accordance with directions given by the
Chief Justice.”
Had the
applicant not applied to this Court for the confirmation of the
order of invalidity, the High Court order would have been
without
any force since it would not have been confirmed by this Court. See
section 167(5) read with section 172(2)(a) of the
Constitution.
7
It is not clear whether the applicant had a passport when she
returned to Moldova.
8
In the High Court the applicant alleged that her arrest violated her
rights, among others, to equality (section 9), dignity

(section 10), freedom and security of the person (section 12)
and freedom of movement (section 21).
9
These rights are equality (section 9), dignity (section 10),
freedom and security of the person (section 12) and
freedom of
movement (section 21).
10
Id.
11
Van Zyl
The Theory of the Judicial Practice of the Colony of the
Cape of Good Hope
2 ed (Juta, Cape Town 1902) at 129. While our
law of arrest
tanquam suspectus de fuga
has its origins in
Roman and Roman-Dutch law, it should be noted that imprisonment for
debt was also adopted into the law of
England as early as the 13
th
century. See Cole “A Modest Proposal for Bankruptcy Reform”
(2002) 5
Green Bag
2d 269 at 271-2.  Cole describes the
historical origins of this procedure in English law:
“
In 1267, the Statute of Marlbridge created the
first form of imprisonment for debt. This form of imprisonment was
limited, however,
to holding the debtor over until a trial could
establish the obligation. This interlocutory form of detention came
to be known
as imprisonment upon mesne process, and was largely
intended to prevent flight.
Civil imprisonment was extended to merchants’
debtors with the Statute of Acton Burnell in 1283. . . . The
creditor could
insist upon the continued confinement of the debtor
until he ‘made agreement (to satisfy the debt) or his friends
for him.’
. . . The Statute of Merchants, passed in 1285,
permitted debtors to be incarcerated after judgment for the first
time. It was
this structure of imprisonment for debt, coercive
before judgment and punitive after judgment, which remained
relatively unchanged
until its abolition in the nineteenth century.”
(Footnotes omitted.)
See also Aird
“The Scottish Arrestment and the English Freezing Order”
(2002) 51(1)
International and Comparative Law Quarterly
155
at 156.
According to
Aird, another English law mechanism designed to assist creditors was
later developed.  It is known as the Mareva
Injunction.
This injunction (also known as a freezing order) prevents an asset
from being removed from the jurisdiction
of a court so as to ensure
that a future judgment is effective. This type of order was first
given in the English case of
Nippon Yusen Kaisha
(1975) 1 WLR
1093
, but it was the case of
Mareva Compania Naviera SA v
International Bulk Carriers SA
(1975) 2 Lloyd’s Rep 509
which provided the name by which it is commonly referred. The
Mareva Injunction was initially
restricted to cases where it was
likely that a foreign debtor would remove his or her assets from the
jurisdiction of a court
which would make those assets incapable of
being attached to satisfy a judgment debt. However, the Mareva
Injunction has since
been widened in its application and has
subsequently been codified in section 37(3) of the English Supreme
Court Act, 1981.
See Aird at 156-7.
Despite the
existence of section 37(3) of the Supreme Court Act, 1981 the arrest
of a debtor is still possible in English law,
although a high
standard of evidence is required to succeed with such an arrest
order.  Furthermore, the English courts
have followed a strict
interpretation of the requirements.  The requirements for an
arrest order are: “that the action
must be good [in law], that
there is a probable cause for believing that the [debtor] is about
to quit the English jurisdiction
unless arrested and that his
departure will necessarily prejudice the [creditor] in the
prosecution of his case.” Germany
has a similar procedure
known as the Persönlicher Arrest whereby a debtor is detained
until he or she has deposited or provided
security for a claim.
However, this procedure is rarely used.  See Aird at 160-1.
12
Voet
His Commentary on the Pandects
translated by Buchanan
(Juta, Cape Town 1880) at 227; and van der Linden
Institutes of
Holland
translated by Juta 3 ed (Juta, Cape Town 1897) at 288.
13
See in this regard
Salm v Kohn
1914 TPD 55
;
Robertson v
Wilkinson
1877 Buch 43;
Thompson v Andrews
(1842) 3 Menz
128
; and
Roberts v Tucker
(1842) 3 Menz 130.
See for
instance rule 12 of the Rules of the Court of the Cape of Good Hope
Provincial Division,
Government Gazette
2493 GN 41, 13
January 1938; rule 16 of the Rules of Superior Courts of the
Transvaal in Rorke
Rules of the Superior Courts of the Transvaal
(African Book Company, Grahamstown 1906) at 128-32; Order VIII
of the Rules of the Supreme and Circuit Courts of the Colony of
Natal, in Civil and Criminal Cases,
The Natal Government
Gazette
3593 GN 79, 5 February 1907; and rule 16 of
the Rules and Regulations of the High Court of the Orange River
Colony,
Government Gazette of the Orange River Colony
124
GN 221, 23 July 1902.
14
Erasmus and van Loggerenberg
Jones & Buckle: The Civil
Practice of the Magistrates’ Courts in South Africa
–
Volume 1: The Act
9 ed (Juta, Cape Town 1996) at 82.
15
Government Gazette
2103 GN R1108, 21 June 1968.
16
59 of 1959.
17
Government Gazette
999
GN R48,
12 January 1965.
18
See
Segal v Diners Club South Africa (Pty) Ltd
1974 (1) SA
273
(T) at 275E; and
Chaloner v Corrie
[1904] LKCA 36
;
(1887) 8 NLR 42.
19
Chaloner
v Corrie
above n 18 at 44. See also
Stayn v Bolus and Co
1915 EDL 60
at 62; and
African Realty
Trust v Sherman
1907 TH 34
at 36.
20
Segal v Diners Club South Africa
above n 18.
21
The requirements for the granting of the order for the arrest
tanquam suspectus de fuga
are set out in section 30(3)
of the Act. Erasmus and van Loggerenberg above n 14 at 84-6
also set out the requirements
including those which were developed
by the courts as and when they interpreted the section.
22
See
Segal v Diners Club South Africa
above n 18 at 275H;
and
Taylor Brothers Limited v Blackhurst
(II)
(1917)
38 NLR 69
at 78.
23
See
Norden v Sutherland
(1845) 3 Menz 133
at 139;
Taylor
Brothers Limited v Blackhurst (II)
above n 22 at 76; and
Frazer v Sievewright
(1885) 3 SC 342
at 343.
24
Section 30(3)(b) of the Act.
25
Peté
et al Civil Procedure: A Practical Guide
(New
Africa Books, Claremont 2005) at 418.
26
Van Winsen
et al Herbstein and Van Winsen:
The Civil
Practice of the Supreme Court of South Africa
4 ed (Juta, Cape
Town 1997) at 112 reads:
“
It is of prime importance to a creditor to
obtain a valid judgment against his debtor. Such a step would
enable the creditor
to seek satisfaction of the judgment in most of
the civilized countries of the world. The court will accordingly
assist the
creditor to keep the debtor within its jurisdiction until
such time as it has given judgment against him, but for no longer.
The debtor is arrested, not to perform the judgment, but to abide
the judgment of the court.” (Footnote omitted.)
27
Alliance Corporation Ltd v Blogg: In re Alliance Corporation Ltd
v Blogg and Others
[1999] 3 All SA 262
(W) at 266B.
28
Above n 15.
29
Rule 56(1).
30
Rule 56(5)(b).
31
Rule 56(6).
32
Rule 56(7).
33
In
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA
785
(CC);
1998 (7) BCLR 779
(CC) this Court held at paras 26-7:
“
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 s 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.
Even where a derogation from a s 12(1)(b) right has
validly taken place in consequence of a state of emergency duly
declared under
the provisions of the 1996 Constitution, 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. 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 s 37 could properly be justified under s 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.” (Footnotes
omitted.)
See also para
115.
34
Id at para 23, quoted at [27] below.
35
See
S v Coetzee and Others
[1997] ZACC 2
;
1997 (3) SA 527
(CC);
1997 (4) BCLR 437
(CC) at para 159; and
Bernstein and
Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 145.
36
Bernstein v Bester
above n 35.
37
S v Coetzee
above n 35.
38
De Lange v Smuts NO
above n 33 at para 23.
39
Id at para 30.
40
Bid Industrial Holdings (Pty) Ltd v Strang and
Another (Minister of Justice and Constitutional Development, Third
Party)
2008 (3) SA 355
(SCA) at para
37.
41
Id at paras 38-9.
42
Id at para 36.
43
Peté
et al
above n 25.
44
See Mathopo J’s remarks in
Amrich 159 Property Holding CC v
van Wesembeeck
2010 (1) SA 117
(GSJ) at paras 28 and 31.
45
Id at para 31.
46
Segal v Diners Club South Africa
above n 18.
47
Abolition of Civil Imprisonment Act 2 of 1977. See also
Gouveia
v Da Silva
1988 (4) SA 55
(W) at 62F-G. Further, see article 11
of the International Covenant on Civil and Political Rights and
article 1 of Protocol
4 to the European Convention for the
Protection of Human Rights and Fundamental Freedoms.
48
See also the remarks in
Bid Industrial Holdings
above n 40
at para 41 which reads as follows:
“
Apart from the fact that arrest does not serve
to attain jurisdictional effectiveness it cannot be ‘just
cause’ to
coerce security or, more especially, payment, from a
defendant who does not owe what is claimed or who, at least, is
entitled
to the opportunity to raise non-liability in the proposed
trial. If there is no legal justification for incarcerating a
defendant
who has been found civilly liable there cannot be any for
putting a defendant in prison whose liability has not yet been
proved.
And as to the function of arrest to enable the court to
take cognisance of the suit, that could be appropriately achieved if
the defendant were in this country when served with the summons and
there were, in addition, significant factual links between
the suit
and South Africa. . . . Accordingly, there is no ‘just cause’
for the arrests sought.”
49
S v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA
391
(CC);
1995 (6) BCLR 665
(CC) at para 104.
50
Coetzee v Government
of the Republic of
South Africa; Matiso and Others v Commanding Officer, Port Elizabeth
Prison, and Others
[1995] ZACC 7
;
1995
(4) SA 631
(CC);
1995 (10) BCLR 1382
(CC)
at para 22.
The first less invasive option is to sue the debtor in the country
to which the debtor has fled. The other
less intrusive alternative,
provided for by section 30(1), is that a creditor may apply for
an interdict restricting a debtor
from leaving the country, subject
to appropriate conditions.
Those conditions
could, for example, include that the debtor stays either where he or
she has been staying all along or at some
other address within the
court’s jurisdiction, which should be made known to the
creditor or the sheriff.
51
Id at para 13.
52
Id at paras 13-4.
53
Van der Linden above n 12 at 292.
54
For instance the cause of action must have been in the amount of £25
or more under rule 12(1) of the Rules of the
Cape of Good Hope
Provincial Division above n 13; £20 or more under rule 16 of
the Rules of the Supreme Court of the Transvaal
above n 13 at 128;
more than £20 under rule 16 of the Rules and Regulations of
the High Court of the Orange River Colony
above n 13; and more than
£15 under order VIII of the Rules of the Supreme and Circuit
Courts of the Colony of Natal, in
Civil and Criminal Cases above n
13.
55
In the High Court this amount is R400. See rule
9 of the Uniform Rules of Court.
56
England, Australia and New Zealand retain the procedure for the
imprisonment of a fleeing debtor in very limited and clearly

demarcated circumstances. With regard to the practice in England
and Germany see Aird above n 11 at fns 44-7. Australia
retains
the English mechanism of the Mareva Injunction, however, it is
seldom used. See Kercher “Legal History and the
Study of
Remedies” (2001) 39
Brandeis Law Journal
619 at 627 8.
In New Zealand, section 55 of the Judicature Act, 1908 read with
Part 17 Subpart 8, 17.88-9 of the Judicature
(High Court Rules)
Amendment Act, 2008 provides the legal mechanism for arresting an
absconding debtor.
In a query we conducted
through our involvement in the European Commission for Democracy
through Law (the Venice Commission) it
emerged that of the 14
countries that submitted replies only three allow for the detention
of fleeing debtors. These countries
are Georgia, Norway and Sweden.
The countries which did not have similar provisions are Poland,
Slovenia, Bosnia and Herzegovina,
Hungary, Bulgaria, Croatia,
Lithuania, Brazil, Luxembourg, Switzerland and Belarus.
57
Coetzee
v Government
above n 50 at para 16.
58
Malachi
v Cape Dance Academy
above n 1 at para 66.
59
Ferreira v Levin
NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC)
at
para 27. The Constitution came into effect on 4 February 1997.
60
See
Chonco
and Others v
President of the Republic of South Africa
[2010] ZACC 7
;
2010
(6) BCLR 511
(CC) per Khampepe J at para 6 and the authorities cited
therein.