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[2010] ZAWCHC 1
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Malachi v Cape Dance Academy Int (Pty) Ltd and Others (14830/09) [2010] ZAWCHC 1; 2010 (7) BCLR 678 (WCC) [2010] 3 All SA 86 (WCC) (7 January 2010)
IN
THE HIGH COURT OF SOUTH AFRICA REPORTABLE
WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 14830/09
In
the matter between
TATIANA
MALACHI
APPLICANT
and
CAPE
DANCE ACADEMY INT. (PTY) LTD
FIRST
RESPONDENT
HOUSE
OF RASPUTIN PROPERTIES (PTY) LTD
SECOND
RESPONDENT
ADDITIONAL
MAGISTRATE,
DISTRICT
OF CAPE TOWN
THIRD
RESPONDENT
MINISTER
OF JUSTICE
FOURTH
RESPONDENT
MINISTER
OF HOME AFFAIRS
FIFTH
RESPONDENT
THE
COMMANDING OFFICER,
POLLSMOOR
PRISON
SIXTH RESPONDENT
JUDGMENT
DELIVERED ON THIS 7
TH
DAY JANUARY 2010
Hlophe
JP:
A.
Introduction
[1]
On 22 July 2009 the applicant brought an urgent application to this
court pursuant to an order made by the third respondent
for her
arrest in case 19806/09 of 9 July 2009. The applicant sought to set
aside the order of third respondent and to further
order her
immediate release from Pollsmoor Prison by the sixth respondent. The
applicant also sought to declare section 30(3) of
the Magistrates’
Courts Act 32 of 1944 (“the Act”) and the common law rule
of arrest
tanquam suspectus
de fuga
unconstitutional
and invalid. By agreement between the parties, the first and second
respondents secured the discharge of the arrest
warrant by the third
respondent and the applicant was released from custody of the sixth
respondent on 24 July 2009.
[2]
Mr Katz appeared together with Mr Garland for the applicant in this
matter. First, second and third respondents filed a notice
of
intention to abide by the decision of this court. Fourth respondent
initially filed a notice of intention to abide by the decision
of
this court, but later filed its notice of intention to oppose. On 17
September 2009 the court ordered the fourth respondent
to deliver its
answering affidavit on or before 1 October 2009 and its heads of
argument on 29 October 2009. The fourth respondent
failed to
timeously file its answering affidavit and sought condonation
thereof. Mr Bezuidenhout appeared on behalf of fourth respondent.
On
5 November 2009 this court condoned the late filing of the answering
affidavit by fourth respondent. Fifth and sixth respondents
were
unrepresented and no opposing affidavits were filed. Fourth
respondent in its heads of argument and during the hearing of
this
application conceded that it was not opposing the relief sought by
the applicant in relation to the constitutional invalidity
of section
30 of the Act. Fourth respondent opposed the relief sought by the
applicant in respect of declaring the common law rule
of arrest
tanquam suspectus de fuga
constitutionally invalid as it is
argued that the issue has already been decided upon and therefore
merely academic.
B.
Factual Background
[3]
The facts giving rise to this application are by and large common
cause.
Applicant
is a citizen of the Republic of Moldova. She was employed as an
exotic dancer at a nightclub managed by the first and
second
respondents. On her arrival in South Africa during March 2009,
applicant handed her passport to the owner of second respondent.
Applicant was initially informed that her passport would be kept for
30 days in order to have it registered at the Police station.
Second
respondent subsequently kept applicant’s passport during the
entire period of her employment. The owner of second
respondent
informed applicant that he would not return her passport unless the
applicant paid him $2000 for her air ticket and
R20 000 as a levy.
The applicant was unable to pay either of these amounts, as she was
not earning sufficient income during her
employment with second
respondent.
Applicant
sought and received the assistance of the Consul General of Russia to
facilitate her return to her home country Moldova.
Prior to her
departure from South Africa on 9 July 2009, applicant was arrested
and taken into custody at Pollsmoor Prison. The
arrest was made
pursuant to a court order issued by the third respondent ex parte on
9 July 2009 and warrant of arrest
tanquam
suspectus de fuga
. The
applicant was to remain in custody pending the return date, which was
to be 30 July 2009. If the applicant furnished adequate
and
satisfactory security for the total claim of R100 000 plus interest
and costs, the applicant would be released from custody
and the order
for arrest discharged. The applicant had no assets of any tangible
value in South Africa and therefore was unable
to furnish adequate
and satisfactory security. By agreement between the parties, the
first and second respondents secured the discharge
of the arrest
warrant by the third respondent and the applicant was released from
the custody of the sixth respondent on 24 July
2009.
C
.
The issues to be decided
[4]
The applicant sought an order:
4.1
deleting the words “arrest
tanquam
suspectus de fuga
”
from
section 30(1)
of the
Magistrates’ Courts Act;
4.2
declaring Section 30(3) of the Act unconstitutional and invalid; and
4.3
declaring the common law rule of arrest
tanquam
suspectus de fuga
unconstitutional
and invalid;
[5]
The issues to be decided upon in this matter relate to the
constitutionality of sections 30(1) and 30(3) of the Act and the
common law relating to arrest
tanquam
suspectus de fuga
and the
alleged infringement upon fundamental human rights guaranteed in the
Constitution.
It
is necessary for purposes of the judgment to quote the provisions of
section 30 of the Magistrates’ Courts Act in full.
Section
30 of the Act provides for:
“
30
Arrests and interdicts
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
.
.
. .
No
order of personal arrest
tanquam
suspectus de fuga
shall be
made unless-
the
cause of action appears to amount, exclusive of costs, to at least
forty rand;
[Para.
(a) amended by s. 4 of Act 19 of 1963.]
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
[Para.
(b) amended by s. 4 of Act 19 of 1963.]
(c)
it appears that the respondent is about to remove from the Republic.
[Para.
(c) amended by s. 11 of Act 53 of 1970.]”
[6]
The common law rule relating to arrest
tanquam
suspectus de fuga
allows a
judicial officer to issue a writ of arrest and for the procedure to
be used prior to and after a judgment.
1
This common law rule was encoded in
section 30 of the Act.
Suspectus
de fuga
was regarded as an
extension of the common law principle of contempt of court,
notwithstanding the Abolition of Civil Imprisonment
Act 2 of 1977
which provides that no court shall have the power to order the civil
imprisonment of a debtor for his failure to
pay a sum of money in
terms of any judgment. Jones and Buckle state that “The
legislature clearly did not intend to modify
the common law by the
enactment of section 30 of the Act. The intention rather seems to
have been to endow the magistrates’
court by statute with all
common-law powers in regard to arrest
tanquam
suspectus de fuga
.”
2
Constitutionality of
section 30 of the Act
[7]
Mr Katz argued on behalf of applicant that numerous constitutional
rights have been infringed by section 30 of the Act and further
that
the infringement of these rights is not reasonable and justifiable in
terms of section 36 of the Constitution of the Republic
of South
Africa, 1996 (‘ the Constitution’) , namely the
limitations clause. Therefore Mr Katz argued section 30 of
the Act
and the related common law should be declared unconstitutional and
invalid.
[8]
He submitted further that a case which may be regarded as moot should
be decided where it raises important questions of law
on which there
is little authority and are bound to arise again. The issue of the
constitutionality of an arrest procedure in terms
of section 30 has
not yet been decided upon by the courts. The authorities relied upon
in court have dealt with the constitutionality
of enforcement
procedures in relation to other legislation. However the applicable
principles are of equal importance to the legislative
provisions
under consideration.
Right
to equality:
[9]
The applicant argued that section 30 of the Act violates the right to
equality, which is guaranteed by section 9 of the Constitution.
Section 9 of the Constitution provides that everyone is equal before
the law and has the right to equal protection and benefit
of the law.
Equality involves the full and equal protection of all rights and
obligations. Applicant submitted that section 30
infringes upon the
right to equality as the defendant is placed in an unequal position
vis- a- vis the prospective civil claim
by the plaintiff and further
placed in an inferior and prejudicial position in relation to other
litigants in general who have
a financially higher standing and are
able to furnish security and avoid arrest. A defendant who is unable
to furnish adequate
security will be obliged to remain incarcerated
pending the return date whereby the defendant would then be required
to show cause
why the order of arrest should not be confirmed and
made final. A defendant who has adequate assets will be able to
furnish adequate
and satisfactory security and therefore be able to
secure his or her release. Clearly, Mr Katz submitted, this infringes
upon the
right to equality.
[10]
This is particularly true as it relates to poor debtors or defendants
who may be willing but unable to satisfy a judgment debt
or to
provide adequate security for the claim. The debtor in this inferior
financial position will therefore be subjected to an
arrest and
detention in terms of section 30 of the Act. Such a debtor is treated
in a manner less equal than other debtors.
Furthermore
a debtor in a civil matter is treated unfairly compared to an accused
person in a criminal case. The procedural rights
of an accused person
in a criminal case are contained in section 35 of the Constitution.
Section 35 (2) of the Constitution provides
that everyone who is
detained has the right to be informed promptly of the reason for
being detained, to choose and to consult
with a legal practitioner
and to have a legal practitioner assigned at state expense. An
accused person may therefore challenge
the lawfulness of the
detention before a court and if the detention is unlawful he or she
may be released. Section 35(2) of the
Constitution further provides
that a detained or sentenced prisoner has the right to conditions of
detention that are consistent
with human dignity and to communicate
and be visited by family, a chosen religious counsellor and chosen
medical practitioner.
[11]
Section 30 of the Act makes no provision for the defendant who is
arrested and detained to be informed of his constitutional
right to
legal representation, or even to have any of his other constitutional
rights explained to him. Furthermore section 30
does not make any
provision for a debtor to be informed of available defences to an
arrest
suspectus de fuga
.
Therefore a defendant who may have a valid defence could be arrested
and detained in terms of section 30. The facts relied upon
in an ex
parte application may have been fabricated. However in terms of
section 30 the defendant would not be able to challenge
this. The
only way to avoid arrest and detention is to pay the amount claimed
by the applicant or to provide adequate security
for the claim.
[12]
Fourth respondent conceded that section 30 of the Act is
unconstitutional inasmuch as it is inconsistent with the
constitutional
right to equality.
[13]
Applicant has rightfully submitted that a person arrested pursuant to
suspectus de fuga
has less rights than a detained person
in terms of section 35(2) of the Constitution. With civil
imprisonment there is no obligation
for a defendant to be brought
before the court within any specific time period. An arrest in terms
of section 30 of the Act can
be made on an ex parte basis. In
Coetzee
v Government of Republic of South Africa, Matiso and others v
Commanding Officer, Port Elizabeth Prison and others
[1995] ZACC 7
;
1995
(4) SA 631
(CC),
the
Constitutional Court was called to decide upon the constitutional
validity of the provisions of
sections 65A
-
65M
of the
Magistrates’
Courts Act 32 of 1944
which provided for the imprisonment of judgment
debtors in certain circumstances. The court found that the said
provisions were
inconsistent with the right to personal freedom. In
analysing the constitutionality of these provisions the court found
that the
defendant cannot challenge the prima facie claim prior to
being detained. Therefore this tends towards a trial in absentia
since
the effect of the order as it relates to imprisonment is final.
The procedure makes no provision for recourse by the debtor once
an
order of committal has been made.
3
[14]
In my view the defendant in a civil matter is in a worse position
than an accused in criminal proceedings. As stated above
an accused
has the right to be informed promptly of the reason for being
detained and to consult with a legal practitioner. Furthermore
South
African criminal law and procedure recognizes the general principle
of presumption of innocence as a substantive principle
of fundamental
justice and has protected the fundamental rights of liberty and human
dignity of any person accused by the state
of committing a crime. In
S v Acheson
1991
(2) SA 805
(Nm) the court stated (at 822A-B) that:
“
An
accused person cannot be kept in detention pending his trial as a
form of
anticipatory
punishment
.
The presumption of the law is that he is innocent until his guilt has
been established in Court. The Court will therefore ordinarily
grant
bail to an accused person unless this is likely to prejudice the ends
of justice.”
[15]
Applicant further submitted that since it is unlawful for a debtor to
be imprisoned in order to execute against a judgment
then the same
principle should apply to a debtor prior to any judgment being
granted. In the unreported judgment in
Amrich
159 Property Holding CC v Van Wesemb Eeck
(25846/09)
delivered on 21 August 2009
4
the court dealt with an ex parte
application for the arrest of the respondent
tanquam
suspectus de fuga
. The
court stated that the procedure of arrest was not devised to prevent
a debtor’s departure from the Courts jurisdiction
but to
prevent flight. In
Amrich
Property Holdings
above the
court aligned itself with the reasoning of the Supreme Court of
Appeal in
Bid Industrial
Holdings (Pty) Ltd v Strang and another
(
Minister of Justice and
Constitutional Development, third party
)
2008 (3) SA 355
(SCA),
and held “that if there is no
obligation 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”.
5
[16]
Mr Katz submitted that
section 30
coerces the individual to furnish
security or make payment in order to avoid arrest. In
Amrich
Property Holding
above,
Mathopo, J said (para 28) that “The continued arrest in such
circumstances would be tantamount to coercing security
or payment
especially where it is manifestly clear that his liability has still
not been established and is disputed”. Further
In
Coetzee
v Government of South Africa
above
the court stated (at 641D-E) that:
“
...
the
law seems to contemplate that imprisonment should be ordered only
where the debtor has the means to pay the debt, but is unwilling
to
do so. . . it is clear that the law does not adequately distinguish
between the fundamentally different categories of debtors:
those who
cannot pay and those who can pay but do not want to. . . . “
Effectively
section 30 of the Act coerces security for payment in order to avoid
imprisonment. An arrested person who has no money
to secure payment
or pay a debt will remain in prison for reasons unrelated to the
effectiveness of a future judgment. In any event
if it is found that
the suspect is liable for payment, imprisonment is normally not an
option for enforcement of that civil judgment
or order. This is so
because of the provisions of the Abolition of Civil Imprisonment Act
2 of 1977 which prohibit imprisonment
to enforce civil judgments.
[17]
Section 34 of the Constitution allows for equal access to the courts
and a fair civil trial. The applicant submitted that the
defendants’
ability to conduct any prospective civil claim is materially
compromised by the fact that the applicant would
be forced to conduct
the trial on the merits from prison.
6
In
Coetzee
v Government of South Africa
above
the court found several reasons why the provisions relating to
jurisdictional arrest were indefensible; these include a situation
where even if a person has notice of the hearing, he can be
imprisoned without knowing of the possible defences available to him
and accordingly without any attempt to advance any of them. It was
also found that the provisions allowed persons to be imprisoned
without actual notice of either the original document or of the
hearing.
7
Section 30 of the Act does not make
any provision for a debtor to be informed of available defences to an
arrest
suspectus de fuga.
[18]
I am inclined to agree with Mr Katz that section 30 infringes the
constitutional right to equality as a defendant in a civil
matter is
treated unfairly in relation to a defendant who is able to furnish
adequate security for his or her release from detention.
Furthermore
a debtor in a civil matter is treated unequally compared to an
accused in a criminal case; an accused person has constitutionally
guaranteed fair trial rights as contained in section 35(2) of the
Constitution. Section 30 of the Act does not make provision for
any
of the constitutional rights contained in section 35 of the
Constitution.
(ii)
Right to Dignity:
[19]
Applicant submitted that section 30 of the Act also infringes upon
the right to dignity as set out in section 10 of the Constitution.
Section 10 provides that “everyone
has
inherent dignity and the right to have their dignity respected and
protected”. Applicant submitted that section 30 of
the Act
infringes upon the right to dignity in that the defendant is
imprisoned alongside accused and convicted persons for an
indefinite
period of time in a prospective civil matter on the basis of a debt
which has not been tested or proved in a court of
law. Fundamental
rights such as the right to be free from cruel, inhuman or degrading
treatment, the right to privacy, to equal
treatment and to security
of the person are so closely linked to the concept of the right to
dignity. Section 30 allows for degrading
treatment in that a debtor
or defendant is arrested and detained on the basis of a prima facie
claim by the plaintiff. For that
reason alone, Mr Katz argued,
section 30 infringes the constitutional right to dignity and cannot
withstand constitutional muster.
In
Amrich
Property Holdings
above
the
court
stated (para 28) that “. . . To order the arrest of the
respondent on the basis that he is unable to give security would
in
my view offend his right to dignity, equality and freedom of movement
as enshrined in the Bill of Rights.”
In
Bid Industrial Holdings
the
court stated (at 366B) that “The most obvious concomitant would
be breach of the defendant’s respective rights to
equality,
human dignity and freedom of movement. . .”
[20]
In my view in terms of Section 30 of the Act a debtor may be
incarcerated for an amount claimed by the applicant. To incarcerate
a
debtor on this basis would be tantamount to an arbitrary deprivation
of liberty thereby infringing upon the right to dignity
as the arrest
procedure in section 30 also allows a defendant to be subjected to
cruel and degrading treatment. I am further inclined
to agree with
applicant’s submission that since a debtor is imprisoned
alongside a criminal accused for an untested civil
matter for an
indefinite period of time, the right to dignity is infringed upon by
section 30 of the Act.
(iii)
Right to freedom of movement:
[21]
Applicant submitted that section 30 infringes on the right to freedom
of movement in terms of section 21 of the Constitution.
Section 21
provides that everyone has the right to freedom of movement and the
right to leave the Republic. Counsel for applicant
argued that since
the defendant is incarcerated indefinitely, this right is defeated in
its entirety. The defendants are unable
to leave South Africa on the
basis of an untested and prospective civil claim and without regard
to the ability to satisfy any
judgment in the event that liability is
proved in respect of such claim. Freedom of movement is an important
aspect of the right
to liberty and is recognized internationally.
8
[22]
Fourth respondent in its heads of argument conceded that the arrest
of a debtor would involve physical detention entailing
a serious
deprivation of the liberty of the defendant. This of course directly
affects the right to freedom of movement and the
right to leave the
Republic.
[23]
In my view section 30 in as far as it authorizes an arrest
tanquam
suspectus
infringes on the
right to freedom of movement in that a defendant who does not have
any assets to furnish adequate security to secure
his or her release
from prison will face incarceration indefinitely. Freedom to leave
South Africa will be affected by an untested
and prospective civil
claim without regard to a defendants’ ability to satisfy any
part of the debt. Freedom to leave the
Republic is therefore limited
by the arrest
tanquam
suspectus de fuga
provision.
(iv)
Right to freedom and
security of the person:
[24]
Applicant submitted that section 30 of the Act offends against the
right to freedom and security of the person in terms of
section 12 of
the Constitution.
9
In
terms of this section everyone has the right not to be deprived of
freedom arbitrarily or without just cause, not to be detained
without
trial and not to be treated in a cruel, inhumane and degrading way.
Section 30 of the Act has the effect that the liberty
of a defendant
could be deprived where security for the debt cannot be furnished or
where payment in relation to a prospective
claim cannot be made. It
is
worth
noting
that
previous legislation infringing upon the right to freedom of the
person have been struck down.
10
[25]
In
Bid Industrial Holdings
above
the
court had to decide upon the constitutionality of an arrest to found
or confirm jurisdiction as provided for by section 19(1)(c)
of the
Supreme Court Act 59 of 1959. The court found that the jurisdictional
arrest aimed to limit the arrestee’s liberty
and his right to
freedom and security of the person as entrenched in section 12 of the
Constitution. In terms of section 19(1)(c)
any High Court may issue
an order for attachment of property or arrest of a person to confirm
jurisdiction. The court had to deal
with the constitutionality of
jurisdictional arrest whether founding or confirming jurisdiction.
The court in
Bid Industrial
Holdings
addressed the
constitutional arguments relating to jurisdictional arrest on the
basis that there is no legal obligation on a foreign
defendant to
consent to jurisdiction or to provide a monetary basis in order to
avoid arrest or its consequence, where that consequence
can only be
detention.
The
court in
Bid Industrial
Holdings
stated (at 364G)
that:
“
Although
S19(1) (c) does not refer to detention, the process of arrest is
always to engage the relevant agencies of the State to
effect the
arrest and then to restrict the arrestee’s freedom pending
attainment of some lawful purpose. If, for example,
that purpose is
not attained on the day of the arrest, the arrestee must necessarily
remain in detention by the State until it
is attained. . .
Jurisdictional arrest therefore unquestionably aims to limit the
arrestee’s liberty.”
In
Coetzee v Government of the
Republic of South Africa
above
the Constitutional Court held that the civil imprisonment under
sections 65A
-
65M
of the
Magistrates’ Courts Act concerning
judgment debtors who had failed to pay their judgment debts was an
unconstitutional limitation of the fundamental right of freedom
of
the person.
[26]
It was argued on behalf of fourth respondent that the purpose of
arrest
tanquam suspectus de
fuga
is for the protection
of the creditor by the apprehension and detention of the debtor who
is about to flee in order to avoid paying
a debt. An arrest in terms
of the section would involve a serious deprivation of liberty where
the debtor is unable to provide
such security. Should an arrest be
effected, the debtor would then have to wait for the return date of
the order. Fourth respondent
further submitted that section 30 of the
Act which authorizes arrest
tanquam
suspectus de fuga
infringes
upon the fundamental right of a debtor to freedom and security of his
or her person as provided for in terms of section
12 in that there is
no legal obligation on a foreign debtor to consent to jurisdiction or
to provide a monetary basis to avoid
arrest or detention. It was
further submitted that when a debtor who is either a citizen or
foreigner provides no security for
the claim or any prospect of
successful execution, the arrest in itself will not satisfy the
claim.
[27]
It is my judgment that section 30 infringes upon the right to freedom
and security of a person as set out in section 12 of
the Constitution
in that a defendant would arbitrarily be deprived of his or her
freedom where an arrest is merely made pursuant
to an ex parte
application. The defendant may have a valid defence to the alleged
claim and may be willing but unable to furnish
security for the
disputed claim. The effect of the order for an arrest in terms of
section 30 will be that the defendant is detained
without a trial.
The common cause facts show that the basis for second respondent
obtaining the arrest warrant was a contractual
claim and as she was
unable to put up security for her disputed claim she was obliged to
remain incarcerated for an indefinite
period of time until the claim
was pursued by second respondent at its discretion and when a
decision was reached by the judicial
officer in respect of the merits
of second respondents claim.
[28]
In my judgment the arrest and civil imprisonment of defendants in
advance of any trial on the merits is a limitation of the
right
protected by section 12(1)(b) of the Constitution not to be detained
without trial. Any law or action which limits the right
to freedom
should be reasonable and the means employed for achieving that goal
should be reasonable. In
Coetzee
v Government of South Africa
above
it was said that the legislation under consideration was meant to
provide for the enforcement of judgment debts as well as
the securing
of payment for a debt. The court stated (at 642C) that:
“
.
. .
Certainly
to put someone in prison is a limitation of that person’s right
to freedom. To do so without any criminal charge
levelled or any
trial being held is manifestly a radical encroachment upon such
right. . . ”
[29]
Based on the reasons set out above, I find that section 30 infringes
upon the right to freedom and security of the person as
set out in
section 12 of the Constitution.
The section 36
enquiry
[30]
Section 36 of the
Constitution provides that any limitation on fundamental human rights
must be reasonable and justifiable in an
open and democratic society
based on human dignity, equality and freedom.
11
Having examined the
various constitutional rights infringed upon by section 30 of the
Act, the enquiry now turns on whether in terms
of section 36 of the
Constitution the limitation on these fundamental human rights can be
seen as 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.
The
limitation must further also be authorized by a law of general
application.
(a)
The nature of the right:
[31]
The nature of the fundamental rights in question has been discussed
in the preceding paragraphs above.
(b)
The importance of the
purpose of the limitation:
[32]
It seems that the main purpose of an arrest in terms of section 30 of
the Act is to prevent judgment debtors or defendants
from absconding
and therefore allowing litigants to enforce prospective judgments.
This is irrational and illegitimate as it allows
for an arrest of an
indigent person who may not have any assets in South Africa. It
further allows for the detention of certain
debtors, which may serve
no rational purpose in enabling a potential judgment creditor to
enforce any judgment in any civil case
that may successfully be
brought against the imprisoned person. In the case of
Bid
Industrial Holdings
the
court stated (at 364E-F) that “...there is no legal obligation
on a prospective debtor to furnish security or make payment;
the
arrest itself does not render any prospective judgment effective”.
In the case of
Getaz v
Stephen
1956 (4) SA 751
(N)
the court set out the common law that the procedure for arrest was
not devised to prevent the departure of a debtor from the
jurisdiction of the Court, but to prevent him from departing with the
intention of evading or delaying payment of his indebtedness.
It is a
form of relief available to a creditor who on reasonable grounds
suspects that a debtor against whom he has instituted
an action or
against whom he intends instituting an action for the recovery of a
debt is about to depart from the jurisdiction
of the court in order
to escape responsibility for the debt.
12
In
Amrich Property Holdings
above the court stated that the
procedure of arrest was not devised to prevent a debtor’s
departure from the courts jurisdiction
but to prevent his departure
with the intention of evading or delaying payment. The court stated
(para 17) that “. . . The
reason for leaving the country with
the intention of evading or delaying payment of his debts must
account for all the proven facts.
It is not the effect but the
requisite intention which is material.” The court further
considered all the objective facts
and came to the conclusion that
the applicant failed to prove that the respondent made the
arrangements to depart with the intention
of evading or delaying
payment of his debts.
[33]
In my judgment although it seems that the main purpose of the
limitation contained in section 30 of the Act is to prevent judgment
debtors from absconding, thereby giving creditors an option of
enforcing judgment debts or prospective judgment debts, the
limitation
is arbitrary and cannot be justified in an open and
democratic society. As will be shown there are certainly less
restrictive means
to achieve this purpose.
(c)
Nature and extent of the
Infringement of rights:
[34]
The nature and extent of the infringement of the relevant rights have
been discussed in the preceding paragraphs.
As
was shown above, section 30 of the Act extensively infringed upon the
rights to equality, dignity and freedom. It was also shown
that the
liberty of a defendant was arbitrarily infringed upon where the
defendant could not secure his or her release by providing
security
or payment for the debt. The arrest contemplated in section 30
unquestionably aims to limit the arrestee’s liberty.
The right
to equal protection and benefit of the law was further shown to be
infringed on by section 30 of the Act in that a defendant
in an
inferior financial position would be denied the opportunity to equal
access to the courts. The defendant in this position
would certainly
be in a less advantageous position than those who have sufficient
assets and therefore adequate security to ensure
their release from
prison. Further a civil debtor is denied the fair trial rights
afforded to an accused person in terms of section
35 of the
Constitution. Accordingly the nature and extent of the infringement
of the rights shown above cannot be reasonable and
justifiable in an
open and democratic society based on human dignity and freedom.
(d)
The relationship between the
limitation and its purpose:
[35]
The aim of effecting an arrest for the fulfillment of a judgment debt
or payment for security of a debt is to provide a creditor
with the
mechanism with which to enforce a judgment debt or secure payment for
that debt. However the arrest itself does not serve
to attain the
fulfillment of such debt. Therefore it cannot be ‘just cause’
to coerce security or payment from a defendant
who is entitled to the
opportunity to raise non-liability in the proposed trial in
subsequent legal proceedings.
The
court in
Bid Industrial
Holdings
stated (at 365
B-D) that:
“
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. Attachment ordinarily involves no
infringement of constitutional rights (absent, for example,
seizure
of the means by which the defendant's livelihood is earned). But,
more importantly, the 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.
“
(e)
Less restrictive means to achieve
the purpose:
[36]
The goal of securing payment for a judgment debt or security for
payment can be achieved by less restrictive measures other
than an
arrest procedure in terms of section 30 of the Act. Applicant
submitted that the second respondent could have obtained
a judgment
against the applicant and would then have the option to execute the
judgment against the applicant in her home country
or place of
residence. A creditor may also take the judgment to most civilized
countries to seek satisfaction of the judgment.
13
Applicant correctly submitted that
other court proceedings may be used such as interdict proceedings or
sequestration, if the defendant
has assets in South Africa. In
Gouveia v Da Silva
1988 (4) SA 55
(WLD) the court (at
62F-G) stated that “No marked injustice will follow if the
applicant is left to the enforcement of the
judgments in that country
to which the respondent moves. . . “Fourth respondent conceded
that the function of arrest is to
enable a court to take cognizance
of a suit and that this can be achieved through less invasive means.
Fourth respondent further
conceded that the limitations imposed by an
arrest
tanquam suspectus
are not reasonable and justifiable in
an open and democratic society and cannot pass the limitations test
set by section 36 of the
Constitution.
[37]
South Africa recognizes judgments of other jurisdictions. In the
unreported judgment of
Mahon
v Mahon and Others
(CPD)
case no 14918/2008 delivered on 29
July 2009, the judgment of the Family Division of the High Court of
Justice in the United Kingdom
was relied upon to issue a summons for
provisional sentence against the applicant in the High Court of South
Africa. The correctness
of the judgment of the English court in this
matter was not contested.
[38]
The Enforcement of Foreign Civil Judgments Act 32 of 1988
14
provides for a procedure designed to
reduce the time and costs involved in the common law enforcement
action. The Act only applies
to countries designated specifically by
the Minister of Justice. Reciprocal treatment by the chosen states is
not required. Non-monetary
judgments and those based on penal or
revenue laws are excluded in terms of section 1 of the Act. The Act
only applies to enforcement
proceedings in the magistrate courts
where the financial limit on actions is R100 000. Foreign judgments
in excess of this must
be applied for in the High Court.
15
Foreign judgment creditors may sue
under the common law, which entails bringing an application to have
the judgment made into an
order of a local court.
In
Bid Industrial Holdings
supra the court stated (at 368 B-D)
that:
“
Consideration
of a substitute practice can usefully start with the observation that
this court has accepted, for purposes of reciprocal
enforcement of a
foreign judgment, that the defendant's mere physical presence within
the foreign jurisdiction when
the
action was instituted is sufficient, according to South African
conflict of law rules, for a finding that the foreign court
had
jurisdiction. It may also be noted that in England, for example,
service on a foreign defendant while physically present-albeit
temporarily- within its borders is sufficient for jurisdiction
provided the case has a connection with that country. These are
pointers to the acceptability - subject to the presence of sufficient
evidential links - of mere physical presence as being an
acceptably
workable substitute for a detained presence. One might add - a
self-evidently more acceptable substitute
.”
[39]
The court in
Bid Industrial
Holdings
therefore noted
that for purposes of reciprocal enforcement of a foreign judgment,
the courts have accepted that the defendants’
mere physical
presence within the foreign jurisdiction when the action was
instituted is sufficient, according to the South African
conflict of
law rules, for a finding that the foreign court has jurisdiction.
[40]
Other applicable legislation for the enforcement of foreign judgments
include the Reciprocal Enforcement of Maintenance Orders
Act 80 of
1963 which provides accelerated procedures for enforcing awards
emanating in South Africa and in countries abroad. The
Act applies
only to countries designated by the Minister of Justice. There are
further alternative ways in which a debt can be
secured; such
measures would include the furnishing of security or payment of the
claim. In
Bid
Industrial
Holdings
supra the
appellant failed to attach an asset belonging to the respondent,
which was capable of being attached in order to found
or confirm
jurisdiction. In terms of section 19(1)(c) of the Supreme Court Act
59 of 1959 only a High Court may issue an order
for attachment of
property or arrest of a person to confirm jurisdiction. As submitted
by applicant, if the judgment creditor were
to obtain a judgment
order, the applicants’ presence in the Republic would not
affect the effectiveness of that judgment.
The creditor would still
have the option to execute the judgment in the home country of the
debtor or defendant.
[41]
There are certainly less restrictive means in which a claim or
judgment may be pursued and which would not violate fundamental
human
rights. Section 30 of the Act cannot pass the test as set out in
section 36 of the Constitution as the governmental purpose
which
serves to interfere with fundamental human rights cannot be justified
in an open and democratic society based on human dignity,
equality
and freedom. Furthermore there are less restrictive means which can
be utilized in order to serve the same purpose without
infringing
upon the said constitutional rights. Accordingly the relevant
provisions in the
Magistrates Courts Act relating
to arrest
tanquam
suspectus de fuga
are
declared unconstitutional and invalid.
[42]
A limitation logically connected to its objective could also be
unreasonable if it undermined a long established and now entrenched
right, imposed a penalty that was arbitrary, unfair or irrational or
used means that were unreasonable.
16
The limitation should also be
necessary in an open and democratic society. Applicant further
submitted that if section 30 of the
Act remained on the statute book,
the confidence in our legal system would be eroded as various
international and regional instruments
repudiate the core element of
the institution of civil imprisonment. Sachs J in
Coetzee
v Government of South Africa
above
(para 51) stated “. . . we need to locate ourselves in the
mainstream of international democratic practice. . . ”
[43]
The constitutionality of Section 30 should also be considered in
light of the
National Credit Act 34 of 2005
.
17
In terms of this Act, the emphasis has
moved to the enforcement of the rights of consumers and is meant to
protect consumers through
addressing and preventing over-indebtedness
of consumers, and providing mechanisms for resolving
over-indebtedness, providing for
a consistent and accessible system
of consensual resolution of disputes arising from credit agreements;
providing for a consistent
and harmonised system of debt
restructuring, enforcement and judgment, which places priority on the
eventual satisfaction of all
responsible consumer obligations under
credit agreements.
18
Interestingly Didcott J in
Coetzee
v Government of South Africa
above
stated well before the contemplation of the
National Credit Act (at
646G-J) that the creditor should explore all other means for
execution of the judgment. This should be preceded by a full enquiry
into the reasons why the debtor had failed to pay and the amount that
he owed/disclosed from his financial state of affairs...the
legislation does not insist upon the exhaustion by the creditor of
lesser remedies.
The
Constitutionality of the common law rule relating to arrest
suspectus
de fuga
[44]
The common law rule relating to arrest
tanquam
suspectus de fuga
allows
for a judicial officer to issue a writ of arrest. The rule allows for
the procedure to be used prior to and after a judgment.
As stated
above the common law rule was encoded in section 30 of the Act.
Applicant submitted that notwithstanding the introduction
of the
Abolition of Civil Imprisonment Act 2 of 1977, the courts
jurisdiction to order an arrest
suspectus
de fuga
was held not to be
ousted. This is because
suspectus
de fuga
was regarded as an
extension of the common law principle of contempt of court. Applicant
is seeking a declaration of invalidity
of the common law rule
relating to arrest
tanquam
suspectus de fuga
.
Applicant submitted that this Court has a constitutional obligation
to develop the common law in accordance with the spirit, purport
and
objects of the Bill of Rights.
[45]
Section 2 of the Constitution states that “This Constitution is
the supreme law
of
the Republic; law or
conduct inconsistent with it is invalid, and the obligations imposed
by it must be fulfilled
.”
This court has the
inherent power in terms of section 173 of the Constitution to protect
and regulate its own process and to develop
the common law taking
into account the interest of justice. In doing so regard should be
had to sections 7, 8 and 39(2) of the
Constitution. Section 39(2) of
the Constitution provides that 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. Furthermore
section 172(1) of the Constitution
obliges a court to declare a legal provision invalid to the extent of
its inconsistency with
the Constitution.
(i)
Mootness of the legal
issue:
[46]
Fourth respondent opposed the relief sought by applicant in respect
of declaring the common law rule relating to arrest
tanquam
suspectus de fuga
constitutionally
invalid. Fourth respondent argued that the issue is academic and had
already been decided by the Supreme Court
of Appeal in the matter of
Bid Industrial Holdings
above. Fourth respondent conceded,
however, that the legislature clearly did not intend to modify the
common law by the enactment
of section 30 of the Act and that the
intention rather seems to have been to endow the magistrates’
court by statute with
all common law powers in regard to arrest
tanquam suspectus de fuga.
Furthermore fourth respondent proposed
the enactment of remedial legislation in order to cure the
constitutional invalidity of section
30 of the Act.
[47]
Applicant submitted, on the other hand, that even though the
applicant was released from custody, the issue of law as it pertains
to the arrest and detention of civil debtors remains of considerable
importance. The issue of law in this matter impacts on the
interests
of other detained persons who are similarly incarcerated due to the
suspectus de fuga
procedure. Applicant further submitted
that both creditors and debtors have an interest in knowing what the
law is and that the
issue in this case is likely to arise again in
future. Counsel for applicant submitted that in
Bid
Industrial Holdings
above,
the court did not deal with arrest
suspectus
de fuga
. In
Bid
Industrial Holdings
, the
Supreme Court of Appeal declared section 19(1)(c) of the Supreme
Court Act and the common law rule allowing arrest to found
or confirm
jurisdiction unconstitutional. The constitutionality of an empowering
provision for the arrest to found or confirm jurisdiction
was
challenged.
[48]
The Supreme Court of Appeal found that the common law came to deal
with the attachment of property and the arrest of the person
(this
was to enable an effective judgment or security to be obtained) and
that the governmental purpose of the limitation was to
favour
plaintiffs in line with the common law by seeking to enable them to
establish jurisdiction which would not otherwise exist
and therefore
to avoid the expense of suing abroad.
19
The
Supreme Court of Appeal (para 48) stated that if the common law is to
be developed by abolishing jurisdictional arrest, that
development
must necessarily involve practical expedients for cases where
jurisdiction is sought to be established and there can
be neither
arrest nor attachment. Similarly if the common law relating to arrest
to found or confirm jurisdiction is declared unconstitutional,
there
are as set out above less restrictive measures to achieve the
objective.
[49]
In
Amrich Property Holdings
above, Mathopo J dealt with the issue
of arrest
suspectus de fuga
.
However the constitutionality of Section 30, although discussed, was
not pronounced upon. Therefore the legal issue has not yet
been
decided upon. In my view the constitutionality of an arrest
suspectus
de fuga
will continue to be
the subject of legal proceedings before the courts. It is in the
interests of justice to decide upon the constitutionality
of section
30 of the Act. Furthermore the Magistrate Courts in terms of section
170 of the Constitution do not have the power to
enquire into the
constitutionality of section 30 of the Act or any other legislation.
Therefore it is incumbent upon this court
to make a finding on the
constitutionality of the section under consideration.
[50]
In
Freedom of Expression
Institute and others v President, Ordinary Court Martial and Others
1999 (2) SA 471
(C), the court dealt
with the issue concerning the constitutional validity of the Defence
Act 44 of 1957 and section 78(3) of the
Military Disciplinary Code.
These relevant sections provide for the establishment and composition
of a court martial. Certain charges
in terms of this Act were brought
against the applicants in this matter and if convicted on the
charges, they would face the possibility
of terms of imprisonment of
up to two years. The court found section 78(3) of the above Act to be
unconstitutional as it did not
accord with the norms of a civilized
and democratic society. The court further held that the section
offends against an accused
persons constitutional rights in terms of
section 35(3)(c) of the Constitution. The court further found that
the section was not
consonant with section 34 of the Constitution. On
this basis it was found that the section was unconstitutional and
should be struck
down. (at 478B-E)
[51]
In the
Freedom of Expression
Institute
case above
counsel submitted that since the Defence legislation was currently
being revised, it would be a purely academic exercise
to decide the
constitutional issues, and therefore it would be unnecessary for this
Court to pronounce on the constitutional validity
or otherwise of the
various provisions of the Defence Act and the Military Disciplinary
Code. The court however disagreed and held
(at 485G-486I) that:
“
Firstly
we should remind ourselves that the first and most sacred duty of the
Court, where it is possible to do so, is to administer
justice to
those who seek it (
Hurley
and Another vv Minister of Law and Order and Another
)
1985 (4) SA 709
( D) at 715G). It follows from this principle that
the Court should be loath to close its doors to a litigant because of
what happened
subsequent to the launching of proceedings. Secondly,
and in any event, our Courts have laid down on
numerous
occasions that
pronouncements
to
the effect that a Court will not enquire into matters which are of
intellectual or academic interest only should not be misconstrued.
As
appears from the judgment of the Appellate Division in
Lendalease
Finance ( Pty) Ltd v Corporacion de Mercadeo Agricola and Others
1976
(4) SA 464
(A) at 486H, those pronouncements ‘dealt with the
situation where the issue presented for decision to the court of
first
instance was
at
that stage
of
abstract or intellectual interest only’...”
[52]
The court further found that when the application was presented to
court there was a very real and ‘live’ issue
and the fact
that subsequent concessions were made by the respondents was of no
importance. The court stated the following at 486B-D.
emphasis added)
“
The
issues
raised in the present case are not purely academic but of
real
and practical consequence
.
There are interested parties upon whom the declaratory order would be
binding. The application involves a matter of public and
not private
law. The issues raised are very much alive and if not resolved in
these proceedings they will inevitably come before
Court in the near
future. The
issues
will certainly affect not just the applicants before us but many more
people in similar circumstances
.
The raising of these issues in legal circles has surely caused
uncertainty and anxiety in the minds of people who may similarly
be
affected. Therefore it is only proper that this Court should
pronounce on these issues. It would be unwise, in my view, to
abdicate our responsibility on the basis that the matter is currently
being reviewed by the work group. Surely the judgment of this
Court
would be of relevance to the work group in updating the Defence
legislation in line with the Constitution. Further authorities
for
the view that pronouncing on a matter of public interest is not an
academic exercise include
Ex
parte Chief Immigration Officer, Zimbabwe
1994
(1) SA 370
(ZS) at 376-7; Tribe American Constitutional law 2
nd
ed
at 88. “
(ii)
Developing the common law
rule suspectus de fuga:
[53]
Applicant has referred to the unreported judgment of Mathopo, J in
Amrich Property Holdings
above where the court concluded (para
35) that:
“
.
. .
to
the extent that the common law may be at odds or variance with the
Constitution it should be developed, because an arrest under
such
circumstances cannot pass the limitation test in section 36, as it is
contrary to the spirit, purport and objects of the bill
of rights.”
Developing
the common law would entail considerations and adoption of a legally
acceptable substitute practice. It was held in
Bid
Industrial Holding
case (at
368B-C) that:
“
...
this
court has accepted for purposes of reciprocal enforcement of a
foreign judgment, that the defendant’s mere physical presence
within the foreign jurisdiction when the action was instituted is
sufficient, according to South African conflict of law rules,
for a
finding that the foreign court had jurisdiction...” See
Richman
v Ben-Tovim
2007 (2) SA 283
(SCA)
paras
7 to 9.”
[54]
It was submitted on behalf of applicant that even if section 30 is
deleted, the common law power to issue a writ of arrest
still remains
and that the court needs to make an order declaring the common law in
this regard as unconstitutional. It was further
submitted that no
harm would be caused by declaring the common law as unconstitutional.
The unconstitutionality of the common law
has been addressed in the
case of
Amrich Property
Holdings
above. The court
in this instance relied upon the judgment of Flemming J in
Gouveia
v Da Silva
the court stated
(at 62F-G) that:
“
...
the
imprisonment which is sought...so closely approximates that civil
imprisonment to which the 1977 legislation refers that, if
not
covered thereby, the modern policies regarding imprisonment for debt
cannot be lost sight of. No marked
injustice
will follow if the applicant is left to the enforcement of the
judgments in that country to which the respondent moves...”
[55]
Applicant further submitted that there was no evidence that there
would be a lacuna in the law should the court order a declaration
of
invalidity. The High court still has an obligation to make a
declaration of invalidity. In
Coetzee
v Government of South Africa
above
the court held that it is not the function of the Court to fill in a
lacuna in pre-Constitution statutes to save them from
invalidity. In
terms of the Constitution the courts are permitted the pared- down
construction of legislation so as to rescue it
from a declaration of
invalidity; however this does not require a restricted interpretation
of fundamental rights so as to interfere
as little as possible with
pre-existing law.
20
[56]
I am inclined to agree with applicant’s submission that the
proposal by fourth respondent for the enactment of remedial
legislation is not required as it is difficult to understand what
effective and alternative provision could be enacted which would
have
a less drastic effect on the liberty, dignity and equality of a
person who is affected by section 30 of the Act. In
Dawood
, Shalabi and Thomas v Minister of Home Affairs
2000
(3) SA (CC) 936 the Constitutional Court considered the appropriate
orders to be made where legislative provisions are found
to be
unconstitutional. The Constitutional Court stated that a court is
obliged once it has concluded that a provision of a statute
is
unconstitutional, to declare that provision to be invalid to the
extent of its inconsistency with the Constitution. The court
may also
make any order that it considers just and equitable, including an
order suspending the declaration of invalidity for sometime.
The
court said (at 972 B-C) that:
“
.
. . The inconsistency with the Constitution therefore lies in a
legislative omission, the failure to provide guidance to the
decision-maker. As such, therefore, it cannot be cured by the
technique of actual or notional severance employed by this Court,
for
example in
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell No and Others
”
[57]
In
National Coalition for
Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others
1999 (1) SA 6
(CC) ,
the Constitutional Court held that it would introduce words into a
legislative provision if such an order was appropriate.
In deciding
whether such an order was appropriate, the court held that there are
two primary considerations. Firstly, the need
to afford appropriate
relief to successful litigants and secondly the need to respect the
separation of powers, and in particular
the role of the Legislature
as the institution constitutionally entrusted with the task of
enacting legislation. In
Dawood,
Shabala and Thomas
above
the court stated that it would be inappropriate for this court to
seek to remedy the inconsistency in the legislation under
review and
that it would be appropriate to leave the legislature to determine in
the first instance how the unconstitutionality
should be cured and
that the court should be slow to make the choices which are primarily
the choices suitable for the legislature.
21
The Constitutional Court in
National
Coalition
supra found it
appropriate to suspend the order of invalidity for a period of two
years, which should be sufficient time to permit
the Legislature to
attend to rectifying the cause for constitutional complaint in the
legislation. The court in
Dawood
supra took into account the fact that
the department published a fundamental review of the legislation
under scrutiny and therefore
suspended the order of invalidity for a
period of two years and further afforded appropriate interim relief
to affected persons.
[58]
The unconstitutional provisions contained in section 30 of the Act in
this case cannot be cured by a suspension of invalidity.
This is so
because the fourth respondent cannot rectify the constitutional
complaint under consideration with an appropriate substitute.
In
contrast to
Dawood, Shabala
and Thomas
above it was
said that there are a range of possibilities that the Legislature may
have adopted to cure the unconstitutionality
of the provision. The
Constitutional Court in the latter instance granted relief in the
form of a mandamus pending the amendment
or replacement of the Act.
[59]
In
Matatiela Municipality
and Others v President of Republic of South Africa and Others
[2006] ZACC 12
;
2007
(6) SA 477
(CC) the Constitutional Court dealt with the
constitutional challenge to the Twelfth Amendment to the Constitution
and the Repeal
Act in question. The court in this instance had to
deal with the appropriate remedy for the unconstitutional conduct of
a provincial
legislature
.
In considering whether
it was just and equitable to order a suspension of invalidity of a
legislative provision or constitutional
amendment the courts should
have regard to the potentiality of prejudice being sustained if an
order of invalidity is not suspended,
the interests of the parties as
well as that of the public; and the need to promote the
constitutional project and prevent chaos.
22
[60]
In
Mabuza v Mbatha
2003 (4) SA 218
(C), the court had to
decide upon the declaration of
section 7(1)
of the
Recognition of
Customary Marriages Act 120 of 1998
insofar as it conflicted with
section 9 of the Constitution; and a declaration that the customary
marriage be regarded as a marriage
in community of property as
envisaged by section 7(2) in the
Recognition of Customary Marriages
Act 120 of 1998
. The court emphasized the constitution as the supreme
law as set out in section 2 of the Constitution.
The
court stated the following:
“
...
if
one accepts that African customary law is recognized in terms of the
Constitution and relevant legislation passed thereunder,
such as the
Recognition of Customary Marriages Act 120 of 1998
referred to above,
there is no reason, in my view, why the Courts should be slow in
developing African customary law. Unfortunately
one still finds
dicta
referring
to the notorius repugnancy clause as though one were still dealing
with a pre-1994 situation...The
proper
approach is
to
accept that the Constitution is the
supreme
law of the Republic.
Thus
any custom which is inconsistent with the Constitution cannot
withstand constitutional scrutiny....The Courts have a constitutional
obligation to develop African customary law, particularly given the
historical background referred to above. Furthermore, and in
any
event, section 39(2) of the Constitution enjoins the Judiciary when
interpreting any legislation, and when developing the common
law or
customary law, to promote the spirit, purport and objects of the Bill
of Rights. . . the test is not, in my view, whether
or not African
customary law is repugnant to the principles of public policy or
natural justice in any given case.
The
starting point is to accept the supremacy of the Constitution, and
that law and/or conduct inconsistent therewith is invalid.
Should
the Court in any given case come to the conclusion that the customary
practice or conduct in question cannot withstand constitutional
scrutiny, an appropriate order in that regard would be made. The
former approach, which recognizes African law only to the extent
that
it is not repugnant to the principles of public policy or natural
justice, is flawed. It is unconstitutional.
(At
227J-228F emphasis added)
[61]
The question of severability was dealt with by the Constitutional
Court in
Coetzee v
Government of South Africa
above where it was said (at 644
I-645A) that:
“
.
. .
there
are two questions to be answered with regard to the possible
severance of the provisions of the law not consistent with the
Constitution. First, can one excise the provisions which render the
option of imprisonment unconstitutional because they do not
distinguish between those that can pay but will not from those who
cannot pay? If not, can the provisions which provide for imprisonment
itself be severed from the rest of the system for enforcement of
judgment debts? “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?”
The
court concluded that it is possible to sever the provisions which
make up the option of imprisonment and still the object of
the
statute will nevertheless remain to be carried out. Severance in
terms of section 30(3) of the Act is not an option. Should
the court
sever the provisions relating to the option of imprisonment, the
provision will then become redundant. Severance in terms
of section
30(1) however is possible as the object of the section relating to
the enforcement of judgment debts will not be prejudicially
affected
as there are other less drastic measures which may be utilized for
this purpose.
[62]
Fourth respondent did not oppose the application to declare section
30(3) of the Act unconstitutional. However he argued that
the order
of invalidity should not be made regarding the common law rule of
suspectus de fuga
.
In my judgment it is not possible to separate the good from the bad
i.e the common law rule is inconsistent with the constitutional
rights relating to freedom, equality and dignity. Fourth respondent
argued for the enactment of remedial legislation over a period
of 24
months to enable it to draft legislation replacing section 30(3) of
the Act. Applicant argued that such was totally unnecessary
as it was
not possible to sever the good from the bad provisions of section
30(3).
[63]
In my view Parliament need not be given the opportunity to correct
the constitutional defect contained in section 30 of the
Act through
the adoption of a fresh amendment.
In
Matatiele Municipality
above the court was able to order a
suspension of invalidity of the legislation for a period of 18 months
as it was capable of being
replaced or amended by the legislature. It
remains a mystery to the court why Parliament did not abolish Section
30 of the Act
and the common law rule of arrest
suspectus
de fuga
after the
Bid
Industrial Holdings
judgment
which was reported in 2008. Surely had Parliament done that, this
application would not have been necessary in the first
place. I
therefore find that the appropriate remedy would be to sever the
offensive wording contained in section 30 (1) of the
Act, the
offensive words being “ arrest
tanquam
suspectus de fuga
”
and
that section 30(3) of the Act should be deleted in its entirety.
Accordingly the common law is struck down in its entirety.
[64]
Section 172(2) of the Constitution provides that an order of
constitutional invalidity has no force unless it is confirmed
by the
Constitutional Court. Accordingly this matter (declaration of section
30 and the related common law) is referred to the
Constitutional
Court in terms of section 172 (2) of the Constitution.
Costs
[65]
In regard to costs, applicant submitted that fourth respondent should
pay the costs of this application, including the costs
of two
counsel. The Constitutional Court has previously ruled that the state
has an obligation to amend legislation, which violates
constitutional
rights. To date there is no forthcoming legislation in respect of
section 30 of the Act. Section 30 remains unconstitutional
insofar as
it allows for arrest
suspectus
de fuga.
The court
considers that it is just and equitable that fourth respondent should
therefore pay the costs of this applicaton.
Accordingly
the fourth respondent is ordered to pay the costs of this application
such costs to include the costs of two counsel.
[66]
In the result the following order is made:
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.
The
common law which authorizes arrests
tanquam
suspectus de fuga
is
declared to be inconsistent with the Constitution and invalid.
Fourth
respondent is to pay the costs of this application including the
costs of two counsel.
__________
Hlophe
JP
1
HJ
Erasmus, Jones and Buckle:
The
Civil Practice of the Magistrates’s Courts in South Africa
,
Ninth edition Volume 1: The Act at p83. See further the case of
Elliot v Fourie
1992 (2) SA 817 (C).
2
Ibid
at p83
3
[1995] ZACC 7
;
1995
(4) SA 631
(CC) at 644F
4
[2009]
ZAPG JHC 40.
5
Para
30 where Mathopo J further states that “. . . the liability of
the respondent has not been determined. To order his
arrest
particularly since he has a counter claim which on his version
exceeds the applicant’s unliquidated claim would
be contrary
to the spirit of the Constitution
6
See
Amrich Property Holdings
para 31 &
Bid
Industrial Holdings
para
43.
7
At
page 643 D-G.
8
Article 13(1)
of the Universal Declaration of Human Rights; article 12 of the
International Covenant on Civil and Political
Rights; article 2
of the Fourth Protocol to the European Convention for the Protection
of Human Rights and Fundamental Freedoms;
article 22 of the
American Convention on Human Rights; and article 12 of the
African Charter of Human and People’s
Rights make provision
for it.
9
Section
12 provides that (1) Every person shall have the right to freedom
and security of the person, which includes 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.
10
Lawyers
for Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
( C)
where the Constitutional Court stated at para 36 “ The
importance of the right to freedom and, in particular, not
to be
detained without trial can never be overstated. The right has
particular significance in the light of our history during
which
illegitimate detentions without trial of many effective opponents of
pre-1994 government policy of apartheid abounded.
We must never
again allow a situation in which that is countenanced” See
also
De
Lange v Smuts No and Others
[1998] ZACC 6
;
1998
(3) SA 785
(C) at para 24;
Freedom
of Expression Institute and Others v President Ordinary Court
Martial
,
and Others
1999 (2) SA 471
( C);
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) at
para 10.
11
Section
36 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,
(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.
12
Elliot
v Fourie
1992 (2) SA 817
(C) at 819G-J
13
See
Jones & Buckle above at p83
14
The
recognition and enforcement of foreign judgments is the subject of
the South African Law Reform Commission Project 121
Consolidated
Legislation Pertaining to International Judicial Co-operation in
Civil Matters
Report
December 2006. The proposed bill contained in Project 121 provides
for the recognition and enforcement of foreign civil
judgments in
Magistrates courts and the High Courts in the Republic and for
matters connected thereto.
15
The
South African law reform commission has found that the common-law
method for recognizing and enforcing foreign judgments in
South
Africa is a vital adjunct to the accelerated statutory procedure
available under the Enforcement of Foreign Civil Judgments
Act 32 of
1988. An accelerated procedure for enforcing foreign judgments in
South Africa and for assisting local litigants to
enforce the
judgments of South African courts abroad is available under the
Enforcement of Foreign Civil Judgments Act 32 of
1988. undesignated
countries will still have to rely on the common law. See para 4.3.1
of Project 121 December 2006
.
16
Sachs
J in
Coetzee v Government
of South Africa
at 659F.
17
Section
3 of Act 34 of 2005 provides that “The purposes of this Act
are to promote and advance the social and economic welfare
of South
Africans, promote a fair, transparent, competitive, sustainable,
responsible, efficient, effective and accessible credit
market and
industry, and to protect consumers, by-...”
18
ibid
19
Bid
Industrial Holdings at paragraphs 30 & 45
20
At
para 62.
21
Para
62-62
22
Zondi
v MEC Traditional and Local Government Affairs and Others
2006 (3) SA 1
(CC) para
[47]