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RTF formatIN THE CONSTITUTIONAL COURT
OF SOUTH AFRICA
CASE NUMBER: CCT
5/95
In the matter between:
FERREIRA, CLIVE
Applicant
and
LEVIN, ALLAN NO
1st
Respondent
WILKENS, ANDREW DAVID
2nd Respondents
COOPER, BRIAN ST CLAIR
VAN DER MERWE, SCHALK WILLEM NO
In their capacities as the
joint
provisional liquidators of
Prima
Bank Holdings Limited
THE MASTER OF THE SUPREME COURT
3rd
Respondent
and
VRYENHOEK, ANN
1st Applicant
VRYENHOEK, LUKE JOHN
2nd Applicant
VRYENHOEK, ANDREW
3rd Applicant
and
POWELL, OLIVER NO
1st Respondent
BRETT, JJ NO 2nd
Respondent
AVFIN INDUSTRIAL FINANCE (PTY) LTD
3rd Respondent
Heard
on: 9 May 1995
Delivered
on: 6 December 1995
_____________________________________________________________________
JUDGMENT
____________________________________________________________________
Ackermann J.
The issues
[1]
The two referrals before us (the
"Ferreira referral" and the "Vryenhoek referral") were
heard together for the
sake of convenience (as they were in the Witwatersrand
Local Division of the Supreme Court by Van Schalkwyk J) because identical
issues arise in both cases. These issues concern the alleged inconsistency of
certain provisions in section 417 of the Companies
Act, No. 61 of 1973, as
amended ("the Act") relating to the examination of persons in
winding-up proceedings, with the
Constitution of the Republic of South Africa,
1993 ("the Constitution" or "the transitional
Constitution"). Section
417 of the Act provides as follows -
"417. Summoning
and examination of persons as to affairs of company.
(1) In
any winding-up of a company unable to pay its debts, the Master or the Court
may,
at any time after a winding-up order has been made, summon before him or
it any director or officer of the company or person known
or suspected to have
in his possession any property of the company or believed to be indebted to the
company, or any person whom
the Master or the Court deems capable of giving
information concerning the trade, dealings, affairs or property of the
company.
(1A) Any person summoned under
subsection (1) may be represented at his attendance before the Master or the
Court
by an attorney with or without counsel.
(2)(a) The Master or
the Court may examine any person summoned under sub-section (1) on oath or
affirmation concerning any matter
referred to in that subsection, either orally
or on written interrogatories, and may reduce his answers to writing and
require him
to sign them.
(b) Any such
person may be required to answer any question put to him at the examination,
notwithstanding that
the answer might tend to incriminate him, and any answer
given to any such question may thereafter be used in evidence against him.
(3)
The Master or the Court may require any such person to produce any books or
papers in
his custody or under his control relating to the company but without
prejudice to any lien claimed with regard to any such books
or papers, and the
Court shall have power to determine all questions relating to any such lien.
(4)
If any person who has been duly summoned
under subsection (1) and to whom a reasonable sum
for his expenses has been
tendered, fails to attend before the Master or the Court at the time appointed
by the summons without lawful
excuse made known to the Master or the Court at
the time of the sitting and accepted by the Master or the Court, the Master or
the
Court may cause him to be apprehended and brought before him or it for
examination.
(5)
Any person summoned by the Master under subsection (1) shall be entitled to
such witness
fees as he would have been entitled to if he were a witness in
civil proceedings in a magistrate's court.
(6)
Any person who applies for an examination
or enquiry in terms of this section or section
418 shall be liable for the
payment of the costs and expenses incidental thereto, unless the Master or the
Court directs that the
whole or any part of such costs and expenses shall be
paid out of the assets of the company concerned.
(7)
Any examination or enquiry under this
section or section 418 and any application therefore
shall be private and
confidential, unless the Master or the Court, either generally or in respect of
any particular person, directs
otherwise."
Although the matters before us are
referrals, and not appeals or applications in the ordinary sense,
the parties will be referred to (and
described) as they were in the Court below.
[2]
In the winding-up of two companies
unable to pay their debts, the applicants were summoned for examination
("the section 417
examination" or "the section 417
enquiry") pursuant to the provisions of sub-sections (1) and (2) of
section 417 of
the Act. During the course of their examination, the applicants
in both the Ferreira and the Vryenhoek cases objected to being compelled,
by
virtue of the provisions of section 417(2)(b), to answer questions put to them
which might tend to incriminate them. They applied
to the Witwatersrand Local
Division of the Supreme Court for a temporary interdict against the
respondents, prohibiting the further
interrogation of the applicants pending
the determination of the constitutionality of section 417(2)(b) of the Act.
[3]
On 28 November 1994 Van Schalkwyk J
dismissed both the applications for interim relief, granted leave to appeal
against such dismissal
to the full bench of the Transvaal Provincial Division
or the Witwatersrand Local Division, if the Judge President so directed, and
referred the following matters to the
"1.
Whether section 417(2)(b) of the Companies Act 68 of 1973, as amended
("the Act"),
is unconstitutional in that it compels a person summoned
to an enquiry to testify and produce documents, even though such person
seeks
to invoke the privilege against self-incrimination.
2.
Whether evidence given by a person at an enquiry in terms of section 417 of the
Act falls to be excluded in any subsequent criminal proceedings brought against
such person where the evidence may be incriminating
and was extracted without
recognition of such person's privilege against self-incrimination.
3.
Whether a person appearing at an enquiry in terms of section 417 of the Act is
entitled to have prior access to:
3.1
a copy of the record of the examination of all other persons examined at the
inquiry;
3.2
all documents in the possession of the liquidator or those prosecuting
the inquiry relevant to the interrogation of such person.
4.
Whether a person is required to give testimony at an inquiry in terms of
section
417 which testimony may tend or have the effect of supporting a civil
claim against such person.
5.
Whether a person who has given testimony at an enquiry in terms of section 417,
which testimony tends to support a civil claim against such person, may have
such testimony excluded in any subsequent civil proceedings."
The referral took place before the
current rules of the
[4]
Of the respondents in the two matters,
only the second respondent in the Ferreira application and the third respondent
in the Vryenhoek
application opposed the relief sought and were represented at
the hearing in this Court. The third respondent in the Ferreira application
(the Master) lodged a memorandum in the form of an affidavit but did not oppose
the relief sought. Certain of the partners and employees
of Coopers and
Lybrand, the auditors of Prima Bank Holdings Ltd. (one of the companies in
liquidation) were granted leave to intervene
as amici curiae in terms of
[5]
All parties were in agreement
(expressly or tacitly) that the matter in paragraph 1 of the order of referral
had been properly referred
to this Court by Van Schalkwyk J in terms of the
provisions of section 102(1) of the Constitution. The correctness of this
agreement
(or assumption) was not questioned at the hearing of the matter
before us. On reflection, the assumption appears to be wrong in law
and the
correctness of it, inasmuch as it involves a matter of law (constitutional law
in fact), must be considered by this Court.
In so doing it is necessary to say
something about the meaning and use of section 102(1) in general.
[6]
For present purposes the relevant part
of section 102(1) provides that -
"If, in any matter before a provincial or
local division of the Supreme Court, there is an issue which may be decisive
for the
case, and which falls within the exclusive jurisdiction of the
Constitutional Court in terms of section 98(2) and (3), the provincial
or local
division concerned shall, if it considers it to be in the interest of justice
to do so, refer such matter to the Constitutional
Court for its decision:
.................................................................................................................".
Section 102(1) does not confer a
general discretion on the Court in question to refer matters to the
(a)
there is an issue in the matter before
the Court in question which may be decisive for the case;
(b)
such issue falls within the exclusive
jurisdiction of the
and,
(c)
the Court in question considers it to be
in the interests of justice to refer such issue
to the
(I use the word "issue" in
paragraph (c) above instead of the word "matter", which appears in
the text of section
102(1), because this is the construction which Didcott J,
writing for the Court in S v. Vermaas; S v. du Plessis[1] gave to the word "matter" where
it appears for the second time in section 102(1)).
These conditions are conjunctive and
all have to be fulfilled before the Court has the power to refer an issue to
the
[7]
Section 103(4) of the Constitution
deals inter alia with the referral by a Provincial or Local division of
the Supreme Court to this Court of issues originating in Courts other than
Provincial or Local divisions of the Supreme Court and, in particular, with the
referral to this Court of an issue regarding the
validity of a law falling
within the exclusive jurisdiction of this Court. In addition to stipulating
other conditions precedent
for such referral, the sub-section requires the
Povincial or Local Division of the Supreme Court to be of the opinion
"that
there is a reasonable prospect that the relevant law or provision
will be held to be invalid." Although there is no such express
requirement
in section 102(1), Kentridge AJ, in Mhlungu and Others v. The State[2], held that "it was implicit
therein".[3]
He further explained that
"[t]he reasonable prospect of success is, of
course, to be understood as a sine qua non of a referral, not as in
itself sufficient ground. It is not always in the interests of justice to make
a reference as soon as the
relevant issue has been raised".[4]
(It is clear from the context of the
above passage, that Kentridge AJ was dealing only with condition (c) of my
above analysis.) He
explained why it was not always in the interests of justice
to make a referral immediately (an exposition which I need not repeat
here) and
laid down "as a general principle" that "where it is possible to
decide any case, civil or criminal, without
reaching a constitutional issue,
that is the course which should be followed".[5] Although the Court was divided in Mhlungu
as to the construction and application of section 241(8), there was unanimous
agreement with Kentridge AJ's construction and application
of section 102(1).
[8]
I round off this general discussion of
section 102(1) by pointing out that
"formulate in writing .... the reason why he
or she or they consider it to be in the interest of justice that the matter be
referred."
On the construction which this Court in
Mhlungu placed on the third pre-condition for referral (i.e. that it
must be in the interest of justice to do so), it therefore follows that
the
judge or judges referring to the Constitutional Court the issue of the
constitutionality of an Act of Parliament are obliged
to furnish written
reasons why it is considered that
(a)
there is a reasonable prospect that the Act of
Parliament in question will be held to be invalid;
and
(b)
the interest of justice requires this issue to
be referred at this particular stage.
(I hasten to add that when Van
Schalkwyk J referred the matter to this Court the judgment in Mhlungu
had not been delivered and rule 22(2) had not been promulgated).
[9]
These principles have to be applied to
the referral in the present case. The only matters before Van Schalkwyk J were
the applications
for interim interdicts against the relevant respondents to
prohibit further interrogation of the applicants. In dismissing both
applications
for interdicts Van Schalkwyk J in fact disposed of all (and the
only) matters properly before him. At this stage the issue of the
validity of
section 417(2)(b) had become irrelevant. He had decided, on the view he took of
the law, that the issue of the validity
of section 417(2)(b) was not relevant
to the matter before him. He could not, on his view of the law, even consider
the validity
issue as part of the interdict enquiry. In adopting this approach
he in fact decided (albeit implicitly) that the matter before him
could and
should be decided without reference to the validity issue, in other words, that
the validity issue could not be decisive
for the case. The implication of this
is that the first condition for a section 102(1) referral, mentioned in
paragraph [6](a) above,
has not been fulfilled. Accordingly the learned judge
was precluded from referring the constitutional validity of section 417(2)(b)
of the Act to this Court. He in fact precluded the operation of section 102(1)
by deciding the "case" or the "matter"
before him.
[10]
The possibility that the referral of
the paragraph (1) issue might be incompetent was not alluded to during argument
nor raised by
the Court with counsel. When, however, the question of the
competence of the referrals of the issues in paragraphs (2) - (5) of the
referral order was raised with Mr. Levine, he requested the Court to grant the
applicants direct access on these issues in terms
of section 100(2) of the
Constitution. I have no doubt that, if the incompetence of the referral of the
paragraph (1) issue had been
raised with him, Mr. Levine would likewise have
urged the Court to grant direct access on this issue as well. The matter has
been
fully argued before us and all the parties are clamant for a decision from
the Court. We were informed that many section 417 enquiries
were being held up
because the issue of the constitutionality of section 417(2)(b) had been raised
in such enquiries. This is substantially
hampering the proper liquidation of
companies and is therefore a matter of such urgency and public importance that
a ruling should
be given thereon. Under the exceptional circumstances of this
case it would be surrendering to the merest formalism if we did not
deal with
the paragraph (1) issue as one which was before us by way of direct access in
terms of section 100(2) of the Constitution.
It should therefore be treated as
such. The interested parties are amenable to the issue being dealt with on this
basis.
[11]
It was contended on behalf of the
respondents that the referral to this Court of the issues in paragraphs (2) -
(5) of the referral
order were not competent in terms of section 102(1) of the
Constitution because none of these issues falls within the exclusive
jurisdiction
of the Constitutional Court and, consequently, a condition
precedent to referral has not been fulfilled.
[12]
It is not immediately apparent whether
the issue referred in paragraph (2) of the referral order is premised on the
finding that section
417(2)(b) of the Companies Act is inconsistent with the
Constitution by this Court or premised on the finding that it is consistent.
On
either premise it is difficult to see how it can be contended that this issue
was properly referred. The only issue before van
Schalkwyk J was the interdict
sought by the applicants "to prohibit their further interrogation pending
the determination of
the constitutionality of section 417(2)(b) of the
Companies Act, by the
[13]
Even if the question of admissibility
had been an issue before Van Schalkwyk J, for example by way of an application
for a declaratory
order, it ought not to have been be referred to us, because
it does not fall within our exclusive jurisdiction. Although section
101(3)
nowhere expressly confers power on the Provincial or Local Divisions of the
Supreme Court to construe the Constitution, this
is an implied power, as found
by Kentridge AJ in S v. Mhlungu and Four Others.[7] These Courts are obliged to decide
constitutional questions within their jurisdiction, together with discharging
their customary
duties of construing statutes and applying them, as well as the
common law, under the ever present influence of the Constitution.
These are the
Courts which must, in the first instance, construe the Constitution and
statutory law, even (or perhaps especially)
when portions of a statute have
been declared to be invalid. In this context the following remarks of Kentridge
AJ, in S v. Zuma and Others bear repeating:
"The jurisdiction conferred on judges of the
Provincial and Local Divisions of the Supreme Court under section 101(3) is not
an optional jurisdiction. The jurisdiction was conferred in order to be
exercised."[8]
[14]
The issue in paragraph (2) relates
exclusively to the admissibility of evidence in subsequent criminal proceedings
against persons
who have testified pursuant to the provisions of section 417
and given evidence which tends to incriminate them. The question of
the
admissibility of evidence is, in the first instance, a matter for the Court
dealing with the criminal proceedings in question.
Should evidence be admitted
incorrectly, and this raises a constitutional issue, the
[15]
We were pressed in argument to deal
with such other issues because they are ancillary to the issue of the
invalidity of section 417(2)(b)
of the Act. Neither the context, wording nor
purpose of the sections in the Constitution dealing with this Court's
jurisdiction gives
this Court jurisdiction to deal with matters of evidential
admissibility on the basis that they are ancillary to a section 98(5)
declaration of invalidity. It was certainly not the purpose of the institution
of the
[16]
The matters referred to in paragraph 3
of the referral order relate to the construction of section 417 of the Act and
the conduct
of proceedings pursuant to it. These were not, for the reasons
previously mentioned, issues before van Schalkwyk, J. If examinees
feel
aggrieved by the way a section 417 enquiry is being conducted, they have their
ordinary remedies (including review remedies)
in the Supreme Court.[10] Had these issues been properly before
van Schalkwyk J he would have had the jurisdiction to deal with them. They do
not fall within
the exclusive jurisdiction of the
[17]
The issue in paragraph (4) of the
referral order is formulated as follows:
"Whether a person is required to give
testimony at an enquiry in terms of section 417 which testimony may tend or
have the effect
of supporting a civil claim against such person."
This issue does not raise the
constitutional validity of section 417(2)(b) or any other statutory provision.
In essence it seeks a
ruling from this Court as to whether the examinee has a
privilege to refuse to answer a question which might tend to support or have
the effect of supporting a civil claim against such person. This was not an
issue before van Schalkwyk J and could not therefore
have been referred to this
Court. If it had been an issue, it would have been one within his jurisdiction
and with which he was competent
to deal. For both these reasons, it ought not to
have been referred to this Court.
[18]
The issue referred in terms of
paragraph 5 of the referral order relates to the admissibility in subsequent
civil proceedings of testimony
given pursuant to the provisions of section 417
of the Act. For the reasons set forth, above this too is an issue which could
not
competently be referred to this Court.
[19]
The applicants, in their written
argument handed in at the hearing (as distinct from their heads of argument
lodged pursuant to Constitutional
Court rule 19), sought to counter the
problems relating to the competence of paragraph 3 of the referral order by
submitting that:
"The proper exercise of this court's
jurisdiction under section 98(5) would ... be to declare under such section as
follows:
.............
Section 417(2) of the Companies Act is declared to
be inconsistent with the Constitution of the Republic of South Africa Act, no.
200 of 1993, to the extent that it provides that a person summoned to give
evidence under section 417(1) of the Companies Act is
not entitled, as of
right, to prior access to -
(a)
all documents in the possession of the liquidator for an examination or inquiry
under section 417
or 418 of the Companies Act, in so far as it relates to such
person and the reason or purpose of requiring him to give evidence at,
and to
produce any books or papers in his custody or under his control relating to the
company under winding-up;
(b)
A copy of the record of the examination of all other persons examined at the
enquiry, in so
far as it relates to such person and the reason or purpose of
requiring him to give evidence at, and to produce any books or papers
in his
custody or under his control relating to the company under winding-up."[11]
This contention cannot prevail. The
invalidity of section 417 of the Act on this ground was not an issue before Van
Schalkwyk J and
was not referred to this Court in the order of referral. In any
event, section 417(2) simply does not contain the provision imputed
to it in
the above quoted passage. What applicants are seeking to obtain from this
Court, under the guise of an attack on the validity
of section 417(2), is a
declaration of rights concerning the proper conduct of a section 417 hearing.
This they cannot expect to
achieve and will not be permitted to achieve under a
referral pursuant to section 102(1) of the Constitution, because it was not
an
issue before Van Schalkwyk J and is not an issue within the exclusive
jurisdiction of the
The Constitutional validity of section 417(2)(b) of
the Companies Act
[20]
The way is now open to consider the
only issue properly before this Court, namely, the constitutional validity of
section 417(2)(b)
of the Companies Act. The grounds of constitutional
inconsistency were formulated as follows in the referral order:
".... it compels a person summoned to an
enquiry to testify and produce documents even though such person seeks to
invoke the
privilege against self-incrimination."
Section 417(2)(b) does not compel the
production of documents; section 417(3) does. The constitutionality of section
417(3) was not
referred to this Court and no amendment of the referral order
was sought to incorporate an attack on section 417(3). This ground
for the
invalidation of section 417(2)(b) is unfounded. Appreciating this difficulty,
the applicants limited their attack to seeking
an invalidation of section
417(2)(b)
".... to the extent that it requires a person
examined under section 417(2) of the Act to answer questions which might tend
to
incriminate him and provides that any answers given to any such question may
thereafter be used in evidence against him."
The issue properly before this Court is
therefore a relatively narrow one. In the case of Bernstein and Others v.
L.V.W. Bester NO and Others, CCT 23/95, heard subsequent to this case on 19
September 1995, a broader attack was launched against sections 417 and 418 of
the
Companies Act. Nothing contained in the present judgment is to be
interpreted as a prejudgment in any way of this broader attack.
The attack based on section 25(3) of the
Constitution
[21]
The main attack which Mr. Levine, on
behalf of the applicants, launched on the constitutionality of section
417(2)(b) of the Act was
that its provisions were inconsistent with an
accused's rights "to a fair trial" as provided in section 25(3) of
the Constitution.
For the sake of brevity these rights will be referred to as
"the section 25(3) rights" or "an accused's section 25(3)
rights." It was submitted that the right against self-incrimination is not
limited to detained, arrested or accused persons
(which are the classes of
persons to which the section 25 rights apply) but that "the right against
self-incrimination is a
right recognised under the Constitution in extra-curial
proceedings including proceedings at an enquiry constituted in terms of section
417 of the Companies Act."
[22]
Mr. Levine submitted that, properly
construed, the issue before this Court relating to the constitutionality of
section 417(2)(b)
of the Companies Act, was whether:
(a)
the statutory duty to give answers which might tend to incriminate the person
examined; and
(b)
the statutory provision that such answers may thereafter be used in evidence
against the examinee,
limit any right entrenched in Chapter 3
of the Constitution. Mr. Cilliers, on behalf of second respondents in the
Ferreira referral,
submitted that the attack based on section 25 of the
Constitution was, on the clear and unambiguous wording of the Constitution,
fundamentally flawed. As to (a), Mr. Cilliers submitted that there was no
general right against self-incrimination expressly enumerated
in Chapter 3. Mr.
Cilliers rightly conceded that some protection against self-incrimination was
extended by section 25(2) of the
Constitution to "[e]very person arrested
for the alleged commission of an offence" and in terms of section 25(3)(c)
and
(d) to "[e]very accused person" as part of such person's right to
a fair trial. However, the rights enumerated in section
25(2)(a) to (d) only
apply to arrested persons and the rights enumerated in section 25(3)(c) and (d)
only to an accused person while
such person is on trial.
[23]
As to (b), Mr. Cilliers submitted that
"the right to a fair trial" enacted in section 25(3) would, unless
the context otherwise
indicates, require self-incriminating evidence,
involuntarily given, to be excluded in the criminal trial of an accused. That
is
the rule of our common law. In R v. Camana,[12] Innes CJ observed as follows:
"Now, it is an established principle of our
law that no one can be compelled to give evidence incriminating himself. He
cannot
be forced to do that either before the trial, or during the trial."[13]
Mr. Cilliers also submitted that, unless
the context of section 25(3) otherwise indicated, the provisions of section
417(2)(b) of the Act, which enable the State to use self-incriminating evidence
obtained under the legal
compulsion of the latter section during a criminal
trial, limit the accused's section 25(3) right to a fair trial. On this
approach it is no answer to contend that, at the time of the examination
under
section 417 of the Act, the examinee is not yet an accused person. The
concluding words of section 417(2)(b) of the Act "and
any answer given to
such question may thereafter be used in evidence against him" do refer to
and find application, inter alia, during a subsequent criminal trial. On
the other hand, the mere statutory obligation to answer self-incriminating
questions in extra-curial
proceedings is not inconsistent with the "right
to a fair trial" (for the examinee is not an accused and therefore not
entitled to invoke the section 25(3) rights); only the subsequent use of such
answers at any criminal trial against the examinee
would fall within the
purview of section 25(3). The applicants are not accused nor is there any
suggestion that they will be accused.
Accordingly they cannot, at the time of
their examination under section 417(2)(b) of the Act, rely on the section 25(3)
rights.
[24]
The correctness of this attack by Mr.
Cilliers on the applicants' argument from section 25(3) of the Constitution
needs to be considered
first, before dealing with his other submissions. It
seems to me that the only line of reasoning which might counter Mr. Cilliers'
objection would be along the following lines. There is authority in Australia
and Canada for the proposition that the common law
privilege against
extra-curial self-incrimination is a substantive right and not merely a rule of
evidence;[14]
that, without being able to invoke such a right at trial, an accused cannot
obtain a fair trial, and therefore reliance upon such
right must be regarded as
an unenumerated section 25(3) right.[15]
When the examinee at a section 417 of the Act enquiry is asked a question which
might tend to incriminate the examinee, he or she
objects and raises the common
law right against self-incrimination. In so doing, the examinee is not invoking
a section 25(3) right,
but a substantive common law right. The examiner
counters this objection by pointing to the repeal of this common law right, in
the
context of section 417 enquiries, by section 417(2)(b) of the Act. The
rejoinder of the examinee is that such purported repeal is
invalid on the
grounds that section 417(2)(b) is unconstitutional by virtue of the fact that
it is inconsistent with the section
25(3) rights of an accused. The objection
that the examinee is not an accused in a criminal trial, and cannot therefore
rely on a
section 25(3) right which only accrues to an accused, is met by
appealing to section 4(1) and 7(4)(b) of the Constitution. Section
4(1)
provides in part that -
"This Constitution shall be
the supreme law of the Republic and any law inconsistent with [the
Constitution's] provisions shall,
unless otherwise provided expressly or by
necessary implication in this Constitution, be of no force and effect to the
extent of
this
inconsistency."
This provision came into operation on
27 April 1994. Section 7(4)(b) provides, inter alia, that the relief
referred to in section 7(4)(a) (which includes a declaration of rights) may be
sought by -
"(i)
a person acting in his or her own interest;
(ii)
...........
(iii)
...........
(iv)
...........
(v)
a person acting in the public interest."
[25]
There are four parts to the above line
of reasoning. The first relates to the question whether the invalidity (being
of "no force
and effect") of a statute (as a species of
"law") is determined by an objective or a subjective enquiry. The
second
relates to the question of the time at which such invalidity occurs. The
third relates to the circumstances under which an appeal
to invalidity may be
made (the question of justiciability) and the fourth to the question as to who may
invoke the invalidity (locus standi in the narrower sense).
[26]
The answer to the first question is
that the enquiry is an objective one. A statute is either valid or “of no force
and effect to
the extent of its inconsistency”. The subjective positions in
which parties to a dispute may find themselves cannot have a bearing
on the
status of the provisions of a statute under attack. The
"... the declaration of invalidity of a law or
a provision thereof -
(a)
Existing at the commencement of this Constitution, shall not invalidate
anything done or permitted
in terms thereof before the coming into effect of
such declaration of invalidity;"
[27]
The Court's order does not invalidate
the law; it merely declares it to be invalid. It is very seldom patent, and in
most cases is
disputed, that pre-constitutional laws are inconsistent with the
provisions of the Constitution. It is one of this Court's functions
to
determine and pronounce on the invalidity of laws, including Acts of
Parliament. This does not detract from the reality that pre-existing
laws
either remained valid or became invalid upon the provisions of the Constitution
coming into operation. In this sense laws are
objectively valid or invalid
depending on whether they are or are not inconsistent with the Constitution.
The fact that a dispute
concerning inconsistency may only be decided years
afterwards, does not affect the objective nature of the invalidity. The issue
of whether a law is invalid or not does not in theory therefore depend on
whether, at the moment when the issue is being considered,
a particular
person's rights are threatened or infringed by the offending law or not.
[28]
A pre-existing law which was
inconsistent with the provisions of the Constitution became invalid the moment
the relevant provisions
of the Constitution came into effect. The fact that
this Court has the power in terms of section 98(5) of the Constitution to
postpone
the operation of invalidity and, in terms of section 98(6), to
regulate the consequences of the invalidity, does not detract from
the
conclusion that the test for invalidity is an objective one and that the
inception of invalidity of a pre-existing law occurs
when the relevant
provision of the Constitution came into operation. The provisions of sections
98(5) and (6), which permit the Court
to control the result of a declaration of
invalidity, may give temporary validity to the law and require it to be obeyed
and persons
who ignore statutes that are inconsistent with the Constitution may
not always be able to do so with impunity.
[29]
There is also Canadian authority for
such an objective approach.[16]
Peter Hogg describes the position in that country as
follows:
"This practice of ‘prospective overruling' is
difficult to justify in theory, however attractive it may be in practice, and
it has never been accepted by Canadian Courts. For a
The
"Das verfassungswidrige Gesetz ist, wie das BverfG
formuliert, 'mit dem Grundgesetz unvereinbar und daher nichtig'. Das
verfassungswidrige
Gesetz ist von Anfang an (ex tunc) und dies ohne weiteren
gestaltenden Akt (ipso iure) unwirksam....Nach deutscher Auffassung hebt
das
BverfG verfassungswidrige Gesetze nicht auf, es vernichtet sie nicht: Es stellt
die Nichtigkeit nur (deklaratorisch) fest....”
(An unconstitutional law is, as
the
[30]
The second question has really been
resolved in the course of answering the first. The pre-constitutional law
becomes invalid when
the relevant provision of the Constitution came into
operation (i.e. 27 April 1994), notwithstanding the fact that this Court declares
it to be invalid at a later date and has, in terms of section 98(5) and 98(6)
of the Constitution, the power to postpone and regulate
the operation of invalidity.
[31]
For the sake of convenience, the
fourth question (locus standi in the narrower sense) will be addressed
next. The question in the present case is whether the applicants, as examinees,
are acting
in their own interest. Few, if any, countries have at all times
allowed all persons to invoke the jurisdiction of Courts to solve
all legal
problems. Some restrictions have always been placed on the locus standi
of a complainant. Section 7(4)(b) of the Constitution determines which persons
are entitled to apply to a competent Court of law
for appropriate relief. They
are:
"(i)
a person acting in his or her own interest;
(ii)
an association acting in the interest of its members;
(iii)
a person acting on behalf of another person who is not in a position to seek
such relief
in his or her own name;
(iv)
a person acting as a member of or in the interest of a group or class of
persons; or
(v)
a person acting in the public interest."
[32]
When an examinee at a section 417
enquiry attacks the validity of section 417(2)(b) on the grounds that it
conflicts with the implied
residual rights of an accused in terms of section
25(3) of the Constitution, the examinee's contention (properly understood) is
not
that the examinee is entitled, as an accused, to invoke the implied right
against extra-judicial self-incrimination in section 25(3)
of the Constitution,
but rather that section 417(2)(b) of the Companies Act is, as an abstract and
objective proposition, inconsistent
with the aforementioned constitutional
right and the examinee is entitled to a ruling thereon. The real question which
must therefore
be posed is whether an examinee who has previously been compelled
under section 417(2)(b) to give answers which incriminate him or
her may, at a
subsequent criminal trial of the examinee, successfully attack the introduction
of such incriminating answers on the
basis that section 417(2)(b) conflicts
with the unenumerated right against self-incrimination in section 25(3). If the
answer is
in the affirmative, the only remaining question is whether the
examinee may raise the issue of the unconstitutionality of section
417(2)(b) of
the Act at the stage when a question, the answer to which might tend to
incriminate him or her, is put to the examinee
in the section 417 examination.
[33]
In terms of section 418(5)(b)(iii) of
the Companies Act, any person who has been duly summoned under section 417(1)
of the Companies
Act and who
"fails, without sufficient cause - ... to
answer fully and satisfactorily any question lawfully put to him in terms of
section
417(2) ..."
is guilty of an offence and, in terms
of section 441(1)(f), liable upon conviction to a fine not exceeding R2000 or
to imprisonment
for a period not exceeding six months or to both such fine and
such imprisonment. The witness is surely entitled to know whether
a question,
the answer to which might tend to incriminate him or her, is a "question
lawfully put" and whether the witness
has "sufficient cause" to
refuse to answer it. This is dependant on whether section 417(2)(b) is
constitutionally valid.
If it is not, the witness can with equanimity refuse to
answer. If it is valid, the choice arises between refusing to answer and
being
punished, possibly with a prison sentence, or answering and possibly
prejudicing the witness's defence in a subsequent criminal
trial. This dilemma,
with the possible adverse consequences on either choice the witness makes,
gives the witness sufficient interest
of "his or her own" to entitle
the witness "to apply to a competent court of law for appropriate relief,
which may
include a declaration of rights" in terms of section 7(4)(a) of
the Constitution.
[34]
It seems to me, however, that the
suggested line of reasoning fails to meet the third requirement, namely that of
justiciability.
Section 7(4)(a) of the Constitution is introduced by the phrase
-
"When an infringement of or threat to any
right entrenched in this Chapter [Chapter 3] is alleged ..."
It is only when this condition is
fulfilled that the persons referred to in paragraph (b) "shall be entitled
to apply to a competent
court of law for appropriate relief." The crucial
question is whether, when an examinee is compelled by section 417(2)(b) to
answer a question which might tend to incriminate him or her and the section
further provides that "any answer given to such
question may thereafter be
used in evidence against him", a section 25(3) right to a fair criminal
trial is being infringed
or threatened with infringement.
[35]
Textually, the relevant wording of
section 7(4)(a) is clear. It is only when a Chapter 3 right is actually
infringed or threatened
with infringement that the prescribed persons are
entitled to seek relief from a competent Court of law. The purpose seems clear.
However widely the framers extended locus standi in section
7(4)(b), they did not wish abstract questions of constitutionality to be
pursued in the Courts; the only exceptions being
those specifically enacted in
the Constitution, such as sections 98(2)(d) and 101(3)(e) of the Constitution,
which, respectively,
confer jurisdiction on the Constitutional Court over any
dispute over the constitutionality of any Bill before Parliament or a
provincial
legislature and, in the case of a Provincial or Local Division of
the Supreme Court, over any dispute as to the constitutionality
of a Bill
before a provincial legislature.
[36]
The locus standi of all
persons referred to in subparagraphs (i) - (v) of subsection (4)(b) is governed
by the introductory phrase:
“ (b) The relief referred to in paragraph (a) may be sought by - ...”.
In my view the whole of subsection
(4)(b) of section 7 must be read as being subject to the qualification in
subsection (4)(a).
Subsection 4(a) expressly renders the right “to apply
to a competent court” conditional upon “when an infringement of or threat
to
any right entrenched in this Chapter is alleged.” The purpose of the
introductory phrase in subsection (4)(b), “[t]he relief
referred to in
paragraph (a) may be sought by”, is to indicate by whom such relief may
be sought. It neither textually, contextually nor teleologically alters the
condition stipulated in subsection (4)(a);
in particular it does not in any way
affect the impact of the words “when an infringement of or threat to any rights
entrenched
in this Chapter is alleged”.
[37]
Against this background, the
provisions of subparagraph (4)(b)(iii) become clear and lend further weight to
the above construction.
This subparagraph refers to “a person acting on behalf
of another person who is not in a position to seek such relief in his or
her
own name.” The words “such relief” can only refer to the “relief referred to in
paragraph (a)” mentioned in the introductory
words of paragraph (b), i.e. the
relief which may be sought “when an infringement of or threat to any right
entrenched in this
Chapter is alleged." Subparagraph (4)(b)(iii) means
that when it is alleged that a Chapter 3 right of A has been infringed or
threatened and A is not in a position to seek relief, B may do so on behalf of
A.
[38]
Under these circumstances the
provisions of subparagraph (4)(b)(i), namely -
“The relief referred to in paragraph (a) may be sought by -
(i) a person acting in his or her own interest”
can only mean that there must be an
“infringement of or threat to” a Chapter 3 right of the “person acting in his
or her own
interest”, for the “relief referred to in paragraph (a)” only
becomes available when there is “an infringement of or threat
to” a Chapter 3
right. In terms of subparagraph (4)(b)(iii) B acts for A when A’s Chapter
3 right is infringed or threatened
with infringement and A is not in a position
to seek such relief in his or her own name. In terms of subparagraph (4)(b)(i)
A acts
for himself or herself when A’s Chapter 3 right is infringed or
threatened with infringement and A is in a position to seek such relief
in his or her own name. Paragraph (4)(a) determines when the right to
invoke the aid of a Court arises; subsection (4)(b) determines by whom
that right (when it accrues) may be exercised. The locus standi of all
categories of persons in paragraph (4)(b) is qualified by paragraph (4)(a).
[39]
It was not suggested that such
limitation of justiciability was contrary to the values mentioned in section
35(1). The contrary was
not argued. Neither was it suggested that such
limitation of justiciability was contrary to the values mentioned in section
35(1),
namely, "the values which underlie an open and democratic society
based on freedom and equality"; nor that public international
law or
foreign law would lead one to a different answer. The jurisdictions of the
[40]
To my mind the inescapable
construction of subsection 7(4) leads to the conclusion that, if section 25(3)
of the Constitution is to
be relied upon, there must be an “infringement of or
threat to” a section 25(3) right, whether the right accrues to the
person seeking the relief (subparagraph (4)(b)(i)), or a person on whose behalf
someone else seeks
relief (subparagraph (4)(b)(iii)) or for whom a person acts
in the public interest (subparagraph (4)(b)(v)). This all follows from
the
express qualification in paragraph (4)(a) which is incorporated by reference in
paragraph (4)(b) in the manner referred to above.
[41]
The section 25(3) rights accrue,
textually, only to "every accused person". They are rights which
accrue, in the subjective
sense, when a person becomes an "accused
person" in a criminal prosecution. The examinee is not such an
"accused person".
It is a matter of pure speculation whether the
applicants will ever become accused persons. Even should they become accused
persons,
their rights against extra-curial self-incrimination (assuming for the
moment that such a right is an implied right in the larger
category "right
to a fair trial") are not automatically infringed when they become accused
persons. It will depend upon
whether self-incriminating evidence given by the
applicants at the section 417 enquiry is tendered in evidence against them. At
that
moment, for the first time, there is a threat to any section 25(3) right
against extra-curial self-incrimination. The inescapable
conclusion, therefore,
is that section 417(2)(b) does not constitute an infringement or threat of
infringement of any section 25(3)
rights of the applicants and that their
attack on section 417(2)(b) on this basis can accordingly not succeed. This was
in fact the
prima facie conclusion reached in Lynn NO and Another v.
Kreuger and Others.[23]
[42]
In the alternative, the applicants,
for their constitutional challenge to section 417(2)(b) of the Act, relied with
differing degrees
of enthusiasm and persistence on the rights protected in
sections 8, 10, 11, 13, 15, 22 and 24 of the Constitution. The main alternative
argument was, however, based on the rights to "freedom and security of the
person" and "personal privacy", respectively
entrenched in
sections 11(1) and 13.
[43]
Section 7(4)(a) of the Constitution
does not present any difficulty to the applicants in so far as they seek to
rely on such rights,
since these rights are not limited to any category of
persons nor restricted to any particular factual context. Such reliance does
not raise mere "academic" questions of law, but ones which become
justiciable the moment the applicants invoke these rights.
[44]
The task of determining whether the
provisions of section 417(2)(b) of the Act are invalid because they are
inconsistent with the
guaranteed rights here under discussion involves two
stages[24]
first, an enquiry as to whether there has been an infringement of the section
11(1) or 13 guaranteed right; if so, a further enquiry
as to whether such
infringement is justified under section 33(1), the limitation clause. The task
of interpreting the Chapter 3 fundamental
rights rests, of course, with the
Courts, but it is for the applicants to prove the facts upon which they rely
for their claim of
infringement of the particular right in question. Concerning
the second stage, "[it] is for the legislature, or the party relying
on
the legislation, to establish this justification (in terms of section 33(1) of
the Constitution), and not for the party challenging
it, to show that it was
not justified."[25]
The infringement of the section 11(1) right to
freedom and security of the person
[45]
In order to determine, at the first
stage of the enquiry, whether the provisions of section 417(2)(b) of the Act
are inconsistent
with the section 11(1) right to freedom and security of the
person, it is necessary, as a matter of construction, to define or circumscribe
the section 11(1) right to the extent necessary for purposes of this decision.
It is obviously unwise and undesirable (if not impossible)
even to attempt an
exhaustive or comprehensive definition or circumscription of the right designed
to hold good indefinitely and
for all further cases. Yet, even if the exact
nature and boundaries of the right are to be defined on a case to case basis,
some
attempt must be made at this stage to determine the meaning, nature and
extent of the right. As part of this enquiry it is also necessary
to determine
more precisely what it is about the nature and operation of the provisions of
section 417(2)(b) of the Act, and their
impact upon the examinee, which can be
said to be inconsistent with the right to freedom.
[46]
This Court has given its approval to
an interpretive approach
"which, whilst paying due regard to the
language that has been used, is 'generous' and 'purposive' and gives expression
to the
underlying values of the Constitution"[26]
as well as to that expressed in the
following passage in the Canadian case of R v. Big M Drug Mart Ltd.:
"The meaning of a right or freedom guaranteed
by the Charter was to be ascertained by an analysis of the purpose of
such a guarantee; it was to be understood, in other words, in the light of the
interests it was meant to protect.
In my view this analysis is to be undertaken, and
the purpose of the right or freedom in question is to be sought by reference to
the character and larger objects of the Charter itself, to the language chosen
to articulate the specific right or freedom, to the
historical origins of the
concepts enshrined, and where applicable, to the meaning and purpose of the
other specific rights and freedoms
with which it is associated within the text
of the Charter. The interpretation should be ... a generous rather than
legalistic one,
aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter's protection."[27]
In the words of Chaskalson P, the
provisions of Chapter 3
"must not be construed in
isolation, but in its context, which includes the history and background to the
adoption of the Constitution,
other provisions of the Constitution itself and,
in particular, the provisions of Chapter 3 of which it is part. It must also be
construed in a way which secures for 'individuals the full measure' of its
protection."[28]
I would, in the first place, read
"freedom" disjunctively from "security of the person" in
section 11(1). The
legislative history of the section would seem to confirm
this. It was only in the Sixth Report of the Technical Committee on Fundamental
Rights During the Transition that the right to "personal liberty" was
combined with the right to "security of the
person".[29] The right "to freedom" must be
construed as a separate and independent right, albeit related to the right to
"security
of the person."
[47]
Conceptually, individual freedom is a
core right in the panoply of human rights. The right to human dignity
("menswaardigheid")
is specifically entrenched in section 10 and has
been categorised by this Court, together with the right to life, as
"the most important of all human
rights ... ."[30]
[48]
In Makwanyane O'Regan J pointed
out that "without dignity, human life is substantially diminished"[31] and pronounced the prime value of
dignity in the following terms:
"The
importance of dignity as a founding value of the new Constitution cannot be
overemphasised. Recognising a right to dignity
is an acknowledgement of the
intrinsic worth of human beings: human beings are entitled to be treated as
worthy of respect and concern.
This right therefore is the foundation of many
of the other rights that are specifically entrenched in Chapter 3."[32]
I agree with these views. O'Regan J
also pointed out, rightly in my view, that
"[the] recognition and protection of human
dignity is the touchstone of the new political order and is fundamental to the
new
Constitution."[33]
[49]
Human dignity cannot be fully valued
or respected unless individuals are able to develop their humanity, their
"humanness"
to the full extent of its potential. Each human being is
uniquely talented. Part of the dignity of every human being is the fact
and
awareness of this uniqueness. An individual's human dignity cannot be fully
respected or valued unless the individual is permitted
to develop his or her
unique talents optimally. Human dignity has little value without freedom; for
without freedom personal development
and fulfilment are not possible. Without
freedom, human dignity is little more than an abstraction. Freedom and dignity
are inseparably
linked. To deny people their freedom is to deny them their
dignity. Although freedom is indispensable for the protection of dignity,
it
has an intrinsic constitutional value of its own.[34] It is likewise the foundation of many of
the other rights that are specifically entrenched.[35] Viewed from this perspective, the
starting point must be that an individual's right to freedom must be defined as
widely as
possible, consonant with a similar breadth of freedom for others.
[50]
There are other and more specific
indications in the Constitution that the right to freedom is to be extensively
interpreted. Section
35(1) embodies an injunction that, generally, in
interpreting the Chapter 3 provisions, a Court of law must promote the values
which
underlie an "open" and democratic society "based on
freedom and equality". An "open society" most certainly
enhances
the argument that individual freedom must be generously defined. It is a
society in which persons are free to develop their
personalities and skills, to
seek out their own ultimate fulfilment, to fulfill their own humanness and to
question all received
wisdom without limitations placed on them by the State.
The "open society" suggests that individuals are free, individually
and in association with others, to pursue broadly their own personal
development and fulfilment and their own conception of the "good
life".[36]
[51]
A teleological approach also requires
that the right to freedom be construed generously and extensively. In Makwanyane
O'Regan J, adopting such a teleological approach, correctly observed as
follows:
"Respect for the dignity of all
human beings is particularly important in
In my view exactly the same approach
needs to be adopted in the case of the right to freedom. This is not the place
to enumerate or
elaborate on the vast number of limitations which, in the
recent past and prior to the Constitution, had been placed on personal
freedom,
nor on the extent or variety of such limitations.[38] No right minded person in any society
which claimed to be democratic and based on freedom and equality would today
even try to justify
these limitations. They started at birth and continued
relentlessly until death. For the purposes of illustration, the most selective
outline of such restrictions must suffice. The Population Registration Act and
associated legislation eliminated or severely restricted
the freedom to
identify one's child[39]
and hospitalise[40]
or educate[41]
one's child. As an adult the curtailments of freedom related, amongst other things,
to where one could reside[42],
work[43]
or own property[44];
what work one could do[45];
who one could marry[46];
how one could express[47]
or organise oneself politically[48]
or where one could be buried.[49]
A feature common to all or many of these denials of freedom was a denial of the
freedom to choose or develop one's own identity,
a denial of the freedom to be
fully human. One of the main objects of the Constitution is to eradicate such
denial or restriction
of freedom, not in a casuistic way but as a profound
constitutional commitment. In Makwanyane I had occasion to
emphasise "the importance, in our new constitutional state, of reason and
justification when rights are sought
to be curtailed"[50] and to refer to the fact that the
Constitution is, in the words of Prof E Mureinik, "... a bridge to ... a
culture of justification".[51]
This further supports an extensive definition of freedom at the first stage of
the enquiry. It may, in the State's interest, be necessary
to limit the right
to freedom, but then it is for the body or person relying upon such limitation
to establish in terms of section
33(1) inter alia, in the case of the
limitation of a section 11(1) right, that such limitation is reasonable,
justifiable in an open and democratic
society based on freedom and equality,
and necessary.
[52]
I do not think that, in the context of
the Constitution as a whole, there is any difference between freedom and
liberty.[52]
In the negative sense freedom is, as pointed out by Isaiah
"involved in the answer to the question 'What
is the area within which the subject - a person or a group of persons - is or
should
be left to do or be what he is able to do or be, without interference by
other persons?'"[53]
In the positive sense freedom, so
contends
"is involved in the answer to the question
'What, or who, is the source of control or interference that can determine
someone
to do, or be, this rather than that?'"[54]
Section 11(1) is concerned with freedom
in the negative sense and that is the sense in which I shall hereafter use it.
It is essential
to distinguish between freedom (liberty) and the conditions of
its exercise. It could be dangerous to conflate the two concepts.
"If a man is too poor or too ignorant or too
feeble to make use of his legal rights, the liberty that these rights confer
upon
him is nothing to him, but it is not thereby annihilated. The obligation
to promote education, health, justice, to raise standards
of living, to provide
opportunity for the growth of the arts and the sciences, to prevent reactionary
political or social or legal
policies or arbitrary inequalities, is not made
less stringent because it is not necessarily directed to the promotion of
liberty
itself, but to conditions in which alone its possession is of value, or
to values which may be independent of it. And still, liberty
is one thing, and
the conditions for it another .... . Useless freedoms should be made usable,
but they are not identical with the
conditions indispensable for their utility.
This is not a merely pedantic distinction, for if it is ignored, the meaning
and value
of freedom of choice is apt to be downgraded. In their zeal to create
social and economic conditions in which alone freedom is of
genuine value, men
tend to forget freedom itself; and if it is remembered, it is liable to be
pushed aside to make room for these
other values with which the reformers or
revolutionaries have become pre-occupied ..... . To provide for material needs,
for education,
for such equality and security as, say, children have at school
or laymen in a theocracy, is not to expand liberty. We live in a
world
characterized by régimes (both right- and left-wing) which have done, or are
seeking to do, precisely this; and when they
call it freedom, this can be as
great a fraud as the freedom of the pauper who has a legal right to purchase
luxuries. Indeed, one
of the things that Dostoevsky's celebrated fable of the
Grand Inquisitor in The Brothers Karamazov is designed to show is
precisely that paternalism can provide the conditions of freedom, yet withhold
freedom itself."[55]
The fact that the right to freedom
must, in my view, be given a broad and generous interpretation at the first
stage of the enquiry,
must therefore not be thought to be premised on a concept
of the individual as being in heroic and atomistic isolation from the rest
of
humanity, or the environment, for that matter. I wish to emphasise quite
explicitly that a broad and generous interpretation of
freedom does not
deny or preclude the constitutionally valid, and indeed essential, role of
state intervention in the economic as well as the civil
and political spheres.
On the contrary, state intervention is essential to resolve the paradox of
unlimited freedom (where freedom
ultimately destroys itself) in all
these spheres.[56]
But legitimate limitations on freedom must occur through and be justified under
the principles formulated in section 33(1), not by
giving a restricted
definition of the right to freedom in section 11(1). Kant luminously
conceptualises freedom as the "only
one innate right" in the
following terms:
"Freedom (independence from the
constraint of another's will), insofar as it is compatible with the freedom of
everyone else
in accordance with a universal law, is the one sole and original
right that belongs to every human being by virtue of his humanity."[57]
[53]
I also accept that it is not possible
in all circumstances to fully harmonise all the Chapter 3 rights with one
another and that,
in a given case, one right will have to be limited in favour
of another. As Berlin points out:
"... since some values may conflict
intrinsically, the very notion that a pattern must in principle be discoverable
in which
they are all rendered harmonious is founded on a false a priori
view of what the world is like. If ... the human condition is such that men
cannot always avoid choices ... [this is] for one central
reason ... namely,
that ends collide; that one cannot have everything ... The need to choose, to
sacrifice some ultimate values to
others, turns out to be a permanent
characteristic of the human predicament";[58]
and further comments:
"If we wish to live in the light of reason, we
must follow rules and principles; for that is what being rational is. When
these
rules or principles conflict in concrete cases, to be rational is to
follow the course of conduct which least obstructs the general
pattern of life
in which we believe. ... [E]ven those who are aware of the complex texture of
experience, of what is not reducible
to generalisation or capable of
computation, can, in the end, justify their decisions only by their coherence
with some over-all
pattern of a desirable form of personal or social life, of
which they may become fully conscious only, it may be, when faced with
the need
to resolve conflicts of this kind. If this seems vague, it is so of
necessity."[59]
Although Berlin's views pertain to the
field of political and moral philosophy, they are in my view equally
applicable, mutatis mutandis, to constitutional interpretation and
adjudication, where for the touchstone of "some over-all pattern of a
desirable form of
personal or social life" one could substitute "some
over-all pattern of the norms and values of the Constitution."
Section
35(1) of our Constitution points to the norms and values "which underlie
an open and democratic society based on freedom
and equality." As a
prerequisite for the limitation of rights entrenched in Chapter 3 of the
Constitution, section 33(1)(a)(ii)
provides that such limitation shall be
permissible only to the extent that it is "justifiable in an open and
democratic society
based on freedom and equality". However, rights of
freedom and equality are not always reconcilable and in concrete situations
difficult choices may have to be made, because section 33(1)(a)(ii) does not
provide an obvious answer to the choice between freedom
and equality. Nor does
section 35(1). It is, however, neither necessary nor desirable, for purposes of
this case, to pursue this
aspect of the matter any further.[60]
[54]
In the light of all the aforegoing I
would, at this stage, define the right to freedom negatively as the right of
individuals not
to have "obstacles to possible choices and
activities"[61]
placed in their way by (for present purposes we need go no further) the State.
I am indeed mindful of the fact that, as alluded to
in paragraph [44] above,
specific “freedom rights” are separately protected in Chapter 3. So, for
example, the freedom to choose
one’s place of residence is specifically protected
in section 19, as is the right to enter, remain in and leave the Republic in
section 20. The meaning and ambit of these specifically and separately
protected freedom rights must of course, in my view, be construed
in the
context of their specific entrenchment with due regard to the rules of
constitutional construction and, in particular, the
purpose they were intended
to serve. It is also important to bear in mind that, when considering possible
limitations on these section
19 and 20 rights in terms of the provisions of
section 33(1) of the Constitution, such limitations do not, in addition to
being reasonable,
also have to be “necessary” for purposes of the provisos in
subparagraphs (aa) or (bb) of subsection 33(1).
[55]
Similarly the freedoms of expression,
assembly, demonstration and petition, association, and movement, are dealt with
separately and
specifically in sections 15 to 18 respectively. These rights,
too, have to be construed and defined separately, as indicated above.
Legitimate
limitations on these rights are not subject to the additional requirement of
being “necessary” in terms of proviso
(bb) to section 33(1) unless and insofar
as any such right “relates to free and fair political activity”.
[56]
There are also specifically enumerated
freedom rights where any limitation, in addition to being reasonable, must
under all circumstances
also be necessary in order to pass section 33(1)
scrutiny. Such rights include the section 14(1) rights to freedom of
conscience,
religion, thought, belief and opinion and the section 21 political
rights.
[57]
The implication of this separate
enumeration and independent protection of specific freedom rights is of course
that the freedom rights
protected by section 11(1) should more properly be
designated “residual freedom rights”. Consequently, when it is alleged that
any
freedom right has been infringed, the proper methodology would be first to
determine whether the right infringed is a specifically
enumerated freedom right.
This will be done by analysis and construction of the specific section
entrenching the right in question
and applying it to the case at hand. If any
limitation of such right is relied upon, regard will then be had to the
specific provision
in section 33(1) relating to such enumerated freedom right.
If the alleged infringement is not of an enumerated freedom right, then
the
enquiry will be directed to determining whether a residual freedom right
protected by section 11(1) has been infringed.
If so, any limitation of
such residual freedom right must, in addition to being reasonable, also be
necessary because section 11
is included in proviso (aa) to section 33(1). I
have had the benefit of reading the President's judgment in draft. I fully
agree
with his view that the ambit of the section 11(1) freedom right
"does not depend on the construction of the section in isolation
but on
its construction in the context of Chapter 3 of the Constitution." It is,
in fact, such an approach which has led me
to the conclusion that it is a
residual freedom right. I also agree, and have indeed adopted this approach,
that in considering a
constitutional challenge based on an alleged denial or
limitation of freedom the first step is to enquire whether the impugned act
falls within the freedoms elsewhere protected in Chapter 3.
[58]
It might be suggested that, because
the legislature has sought fit to subject any limitation of a residual freedom
right to stricter
scrutiny, that such residual freedom rights ought to be more
narrowly construed. In my view there is no warrant for such an approach,
for at
least two reasons. First, it would constitute an unjustified “second-guessing”
of the framers’ intention. They must
have been only too well aware that at
least some of the section 11(1) rights were residual freedom rights in view of
the fact that
so many freedom rights were specifically enumerated in other
sections of the Constitution. Despite this awareness, they chose to
confer the
higher level of protection on these rights in proviso (aa) to section 33(1). In
my view, this decision, which is quite
unambiguous, must be respected by this
Court. It is not our function to cut down artificially the patent protection
afforded by section
11(1) to residual freedom rights by giving a limited
construction, and a strained one at that, to these residual freedom rights.
Second, such a construction would be in conflict with the “generous” and “full
benefit” interpretative approach unanimously
approved by this Court in S v
Zuma and Others[62]
and in particular the following quotation approved of by Kentridge
AJ:
“Constitutional rights conferred
without express limitation should not be cut down by reading implicit
restrictions into them, so
as to bring them into line with the common law.”[63]
I respectfully disagree with the
President's view that those freedoms (and by implication other rights) whose
limitation is made subject
to the "necessary" test by section 33 of
the Constitution are necessarily of a "higher order" than those
freedoms
which are not subjected to such an onerous test. A limitation of the
section 8 equality right, for example, is not made subject to
the more
stringent "necessary" test, yet in my view it could scarcely be said
that this right is of a "lower"
order. I therefore consider it
unhelpful to focus, as the President does, on the fact that a limitation of the
section 13 right to
privacy is only subject to the "reasonable" test.
I certainly disagree, with respect, that this is anomalous. Even if it
were
anomalous, I do not believe that the anomaly assists this Court in construing
the section 11(1) right to freedom. It certainly
does not call for what I would
consider a strained and limited construction. There may well be good reason why
the limitation of
a section 13 right is only subject to the
"reasonable" test. It may be because of the natural tension between
this right
and the right to freedom, or for some other reason, about which it
is unprofitable to speculate. The fact that the guarantee against
"torture" in section 11(2) is made subject to any limitation at all
(particularly when regard is had to the fact that both
the International
Covenant on Civil and Political Rights and the European Convention on Human
Rights outlaw any derogation from this
right even in times of war[64] or public emergency threatening the life
of the nation[65])
I find far more anomalous, but I do not consider such anomaly useful in
construing other provisions of Chapter 3.
[59]
It needs to be emphasised that what is
being contended for in this judgment is not an unlimited right to
freedom or that the section 11(1) residual freedom rights are unlimited.
What is being postulated is a broad and generous construction of these rights,
which is quite different from contending that they
are unlimited. These rights
are indeed subject to limitation, but limitation justified in terms of section
33(1) of the Constitution.
[60]
It might be contended that, by giving
a broad and generous construction to the section 11(1) residual freedom rights,
the Court will,
in the fields of criminal law and general regulatory provisions
for example, be dragged into what are essentially legislative functions,
because the state will be called upon to show in all these cases that the
limitations imposed are necessary. I cannot, however, see that this
differs in any principled way from the task which the Court has to discharge
when it tests any
legislative or regulatory provision against the provisions of
the Constitution in order to determine the validity of the former.
Provisos
(aa) and (bb) to section 33(1) embody an extensive array of Constitutional
rights which, if infringed by any criminal statute
or regulatory provision,
would require the state (when rights enumerated in proviso (aa) are infringed
and, in certain circumstances,
when rights enumerated in proviso (bb) are
infringed) to establish that limitations are, in addition to any other
requirement, also
necessary.
[61]
It might also be contended that, by
giving such a broad and generous construction to the section 11(1) residual
freedom rights, the
Court will be inviting an intolerable workload because it
will be obliged to test a multitude of criminal and other statutory provisions
which are challenged on the grounds, inter alia, that the limitations
thus placed on residual freedom rights are not necessary. Such an argument
could proceed on the following basis:
(a) that the majority of
these statutory
provisions will only be attacked if the right to freedom in
section 11(1) is not narrowly construed;
(b) that the court will be flooded with
frivolous complaints; and
(c) that the court is powerless to prevent
this.
In my view none of these premises can
be assumed and all are unfounded.
[62]
Depending on the nature of the
criminal or other regulatory statutes involved, there are likely to be many
other Chapter 3 rights
which are facially involved. It cannot simply be
postulated that an internally unlimited residual freedom right will open the
floodgates.
[63]
It is patent that the overwhelming
substance of criminal and other regulatory legislative provisions constitute
constitutionally justified
limitations on rights, a fact which I believe is
well recognised even by the lay public. It is unduly pessimistic to expect a
deluge
of frivolous challenges to legislation based simply on a broad reading
of the section 11(1) right to freedom. In any event it is
reasonable to suppose
that most challenges will arise either in the Provincial and Local Divisions of
the Supreme Court or in other
Courts. In both cases the Supreme Courts (either
through section 102(1) of the Constitution or section 103(4), in the case of
matters
originating in other Courts) are well able, by a proper application of
these provisions in the Constitution, to dispose of challenges
where there is
not a reasonable prospect that the law or provision is
invalid.
[64]
This Court itself controls direct
access through the provisions of section 100(2) of the Constitution and the
Constitutional Court
rules, in particular rule 17. The United States and German
courts of equivalent jurisdiction have devised effective means of preventing
docket overload and there is no reason to believe that this Court is not able
to do likewise. If a frivolous or vexatious matter
does succeed in
slipping through the net there are appropriate ways (including an appropriate
punitive order as to costs) by which
this Court could discourage such matters
from being brought before it.
[65]
There may also be the anxiety that,
unless freedom is given a more restricted meaning, this Court will inevitably
be drawn into matters
which are the concern of the Legislature rather than the
Courts and could stand accused of what Tribe has described as being the
error
in decisions such as Lochner v New York[66] which was “a misguided understanding of
what liberty actually required in the industrial age.”[67] I believe this fear to be
unfounded. Lochner, a case in which the United States Supreme
Court invalidated maximum hour work laws as violative of contractual liberties
protected
by the Constitution, was decided in 1905 at a time and in a socio-economic
context completely different from ours in 1995. I do not
believe that we ought
to allow ourselves to be haunted by the Lochner ghost. It is to me
inconceivable that the broad sweep of labour legislation in this country[68] could be struck down because of an
argument that it infringed rights of contractual freedom protected by the
Constitution. This is
so for a number of reasons.
[66]
First, the interventionist role of the
state is no longer seen, in broad terms, as being limited to protecting its
citizens against
brute physical force and intimidation from others only, but is
seen as extending to the economic and social realm as well.[69] Second, there are specific provisions in
the Constitution itself which will ensure that appropriate labour and other
social legislation
will not be invalidated because of a “misguided
understanding” of what liberty requires.[70] Third, statutory limitations on
contractual freedom will (quite apart from the importance in this field of the
provisions of section
26(2) of the Constitution)[71] be justified under section 33(1),
assuming the other requirements for limitation to have been fulfilled, if they
are, in terms of
section 33(1)(a)(ii), “justifiable in an open and democratic
society based on freedom and equality”. As a general proposition
it is
difficult to see how labour and other social legislation would be struck down
where such legislation easily passes constitutional
scrutiny in countries such
as the United States of America, Canada and Germany.
[67]
It has been suggested that the “due
process” provisions of section 25, the prohibition against cruel, inhuman or
degrading punishment
in section 11(2) and the fact that substantive criminal
law must not be inconsistent with the provisions of Chapter 3, provide
accused persons with all the protection that one expects in an “open and
democratic society based on freedom and equality” and
that this is a strong
reason for holding that “freedom and security of the person" in section
11(1) should not be construed
as including freedom from criminal prosecution
and imprisonment in accordance with the laws of the land. This is a very broad
proposition
which would, in my view, require for its justification a very
detailed examination of our criminal law and the possible abuses to
which it
could be put. It is a proposition with which I am in any event unable to
agree. One can think offhand of many prohibitions
(such as an unqualified
prohibition against the possession of any fire-arm, the possession of liquor in
any form, the playing of
sport on Sunday, and the proscription of various activities
or where or when they may be carried out) which might be difficult to
challenge
under provisions of Chapter 3 other than the section 11(1) residual freedom
rights, but would be unacceptable in an “open
and democratic society based on
freedom and equality”.
[68]
A major difficulty with reading a
limitation into section 11(1) where the framers have not seen fit to do so is
the absence of any
neutral principle or norm for doing so. Neither the text,
context nor purpose of Chapter 3 requires it. To read a limitation into
the
subsection in these circumstances is to run the risk of injecting subjective
values into the text at the expense of a proper
interpretation of the
Constitution.
[69]
Even though the freedom rights
in section 11(1) are residual freedom rights, there is no justification for not
giving these
residual freedom rights the broad and generous interpretation I
have suggested. They constitute the residual rights of individuals
(where such
or similar rights are not protected elsewhere in Chapter 3) not to have
“obstacles to possible choices and activities”
placed in their way by (for
present purposes we need not, as already indicated, go any further) the State.[72]
[70]
What is it about the nature and
operation of the provisions of section 417(2)(b) of the Act, and their impact
upon the examinee, which
can be said to be inconsistent with the right in
question? Although it is section 417(2)(b) of the Act which is under attack, it
must be analysed in the full context of its operation with other relevant
provisions of the Act. In the first place, the examinees,
if they fall within
the classes of persons referred to in sub-section (1) of section 417 of the Act
(which all the applicants do)
appear at the examination under compulsion, for
if they are duly summoned and fail to attend voluntarily, the Master or the
Court
may, by virtue of the provisions of sub-section (4) cause them to be
apprehended and brought before the Master or Court for examination.
The
examinee has no choice but to attend. The examinee is, in terms of sub-section
(2) obliged to submit to examination. Moreover,
any examinee who fails, without
sufficient cause, to answer fully any question lawfully put to the examinee in
terms of sub-section
(2) is, in terms of the provisions of section
418(5)(b)(iii) of the Act, guilty of an offence and, in terms of section
441(1)(f),
liable upon conviction to a fine not exceeding R2000 or to
imprisonment for a period not exceeding six months or to both such fine
and
such imprisonment. Section 417 obliges the examinee to answer all questions
even though the answer given to any such question
may tend to incriminate him
or her. Examinees thus have a very restricted choice if they have in the past
acted in a way which might
make them liable to criminal prosecution in
connection with the trade, dealings, affairs or property of the company and
they are
examined in connection with such acts. If they refuse to answer, they
face conviction and sentence to a fine or imprisonment (or
both). If they
answer, they run the risk of prosecution and conviction under circumstances
where they might not have been prosecuted
or convicted but for their answers at
the examination, because section 417(2)(b) explicitly provides that even an
answer which tends
to incriminate the examinee may thereafter be used in
evidence against him or her.
[71]
It must be remembered that this stage
of the enquiry is not concerned with whether any infringement of an examinee's
section 11(1)
right is justified in terms of section 33(1) but merely whether
the right has been infringed. On the basis of the general principles
set forth
above, I would conclude that, prima facie, the restrictions placed by
section 417(2)(b) on an examinee's choices and activities constitute an
infringement of section 11(1).
[72]
It is appropriate to consider whether
comparable foreign case law would lead to a different conclusion. Direct
comparison is of course
difficult and needs to be done with circumspection
because the right to personal freedom is formulated differently in the
constitutions
of other countries and in the international and regional
instruments. Nevertheless, section 33(1) of our Constitution enjoins us
to consider,
inter alia, what would be “justifiable in an open and democratic society
based on freedom and equality” and section 35(1) obliges us to
promote the
values underlying such a society when we interpret Chapter 3 and encourages us
to have regard to comparable case law.
In construing and applying our
Constitution, we are dealing with fundamental legal norms which are steadily
becoming more universal
in character. When, for example, the United
States Supreme Court finds that a statutory provision is or is not in
accordance
with the “due process of law” or when the Canadian Supreme Court
decides that a deprivation of liberty is not “in accordance
with the principles
of fundamental justice” (concepts which will be dealt with later) we have
regard to these findings, not in
order to draw direct analogies, but to
identify the underlying reasoning with a view to establishing the norms that
apply in other
open and democratic societies based on freedom and equality.
[73]
Section 7 of the Canadian Charter entrenches
the right to liberty and security of the person in terms narrower than section
11(1)
of our Constitution. It provides:
"7.
Everyone has the right to life, liberty and security
of the person and the right not to be
deprived thereof except in accordance
with the principles of fundamental justice." (Emphasis added).
Section 8 of the Charter is to the
following effect:
"8.
Everyone has the right to be secure against
unreasonable search and seizure."
In Canada the general approach of the
Courts is that there is a deprivation of liberty within the meaning of section
7 of the Charter
where conduct is prescribed or proscribed by law, and
imprisonment is a possible consequence of disobeying the law in question.[73] In Reference Re ss 193 and 195.1(C)
of the Criminal Code Dickson CJC, writing for three of the six Justices,
held that
"... there is a clear infringement
of liberty in this case given the possibility of imprisonment contemplated by
the impugned
provisions."[74]
[74]
The decision of the Supreme Court of
Canada in Thomson Newspapers Ltd. et al. v. Director of Investigation and
Research et al[75]
is particularly instructive. The Canadian Combines Investigation Act[76] (the "CI Act") provided for a
system of investigation and research which allowed the Director to determine
facts relevant
to particular issues of market behaviour, including breaches of
prescribed guidelines set forth in the Act. Section 17 of the Act
allowed the
Director of Investigation and Research, in the course of carrying out an
investigation under the Act, to apply for an
order requiring any person to be
examined under oath and to produce business records. Section 20(2) of the Act
protected examinees
who were compelled to testify against subsequent use of
their oral testimony in criminal proceedings against them, but not against
the
subsequent use of evidence derived from that testimony. Officers of Thomson
Newspapers were served with orders to appear before
the Restrictive Trade
Practices Commission to be examined under oath and to make production of
certain documents. They attacked section
17 of the CI Act on the grounds of its
violation of sections 7 and 8 of the Canadian Charter. The Supreme Court of
Canada ultimately
held, Lamer and Sopinka JJ dissenting in part, and Wilson J
dissenting, that section 17 of the CI Act violated neither section 7
or section
8 of the Charter.
[75]
Each member of the Supreme Court
(Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ) gave a separate
judgment. The reasons
for all the judgments are not readily amenable to brief,
accurate summary. They are, however, instructive both on the issue of the
ambit
of the right to liberty in section 7 of the Charter (the right to freedom in
section 11(1) of our Constitution) and the possible
limitation of such right in
terms of section 1 of the Charter (section 33(1) of our Constitution). For the
present part of this judgment
I refer only to the former.
[76]
Section 17(1) of the CI Act makes
provision, inter alia, for the examination on oath of persons before a
member of the Commission who may make orders for securing the attendance of
witnesses
and their examination and "may otherwise exercise, for the
enforcement of such orders or punishment for disobedience thereof,
all the
powers that are exercised by any superior Court in Canada for the enforcement
of subpoenas to witnesses or punishment of
disobedience thereof." Lamer J,
without pronouncing on the section 7 issue, dismissed the section 7 challenge
on the basis that
the wrong section of the CI Act had been challenged, section
20(2) thereof and section 5(1) of the Canadian Evidence Act being the
relevant
statutory provisions which had to be challenged in order for the applicants to
succeed.[77]
Wilson J held that section 17 of the CI Act violated a person's right to
liberty and security of the person within the meaning of
section 7 of the
Charter[78],
stating that:
"There is, however, in my view a
vast difference between a general regulatory scheme (such as the rules of the
road for motorists)
designed to give some order to human behaviour and a
state-imposed compulsion on an individual to appear at proceedings against his
will and testify on pain of punishment if he refuses. The difference is even
greater, in my view, where the compelled testimony given
by the individual may
be used to build a case against him in what is, in effect, a subsequent
criminal prosecution. It is my opinion
that this compulsion, linked as it is to
the criminal process, touches upon the physical integrity of the individual as
well as that
individual's reasonable expectation of privacy. The fact that the
s. 17 procedure is in itself 'investigatory' as opposed to 'prosecutorial'
seems to me to be irrelevant when a criminal prosecution is a potential
consequence of the s. 17 enquiry."[79]
The learned Judge also found that the
infringement by section 17 of the appellants' section 7 rights was not "in
accordance with
the principles of fundamental justice"[80] (the phrase qualifying the section 7
right to "liberty and security of the person"), stating that:
"Although s. 20(2) of the Act
protects a witness who testifies under s. 17 from use of the testimonial
evidence in a subsequent
prosecution if one takes place, it does not protect
the witness against use of the derivative evidence. Accordingly, s.17 violates
the residual s.7 right of an individual not to be compelled to testify in an
investigatory proceeding with a view to possible subsequent
prosecution absent
legislative assurance that any derivative evidence obtained as a result of his
testimony cannot be used against
him in such prosecution."[81]
Section 11(1) of the South African
Constitution of course contains no such limitation to the "right to
freedom and security of
the person"; but the possible significance of this
aspect of the Thomson judgment for the present enquiry will be dealt
with later. La Forest J also found that section 17 of the CI Act constituted a
deprivation
of liberty within the meaning of section 7,[82] but concluded that it did so in
accordance with the principles of fundamental justice, holding that
".... complete immunity against such use [of
derivative evidence] is not required by the principles of fundamental justice.
The
immunity against use of actual testimony provided by s. 20(2) of the Act
together with the judge's power to exclude derivative evidence
where
appropriate is all that is necessary to satisfy the requirements of the
Charter."[83]
L'Heureux-Dubé J came to a similar
conclusion.[84]
Sopinka J, concurring with Wilson J in this respect, held that section 17 of
the CI Act violated section 7 of the Canadian Charter,
"in particular, the
principle of fundamental justice in which the right to remain silent is
embodied" to the extent that
the provisions of section 17 compelled
testimony.[85]
The learned Judge's reasons for concluding that section 17 violated this
principle of fundamental justice will be considered in due
course, but it is
clear that he considered that "the right of a suspect to remain silent
during the investigative stage"
had the "status of a principle of
fundamental justice" and that it was included in section 7, "the
repository of many
of our basic rights which are not otherwise specifically
enumerated."[86]
[77]
The Fifth Amendment to the United
States Constitution provides in part that -
"[No person] ... shall be
compelled in any criminal case to be witness against himself, nor be deprived
of life, liberty, or
property, without due process of law".
In dealing with the Fifth Amendment it
must of course be borne in mind, as pointed out by Wilson J in Thomson
Newspapers[87],
that the United States Constitution has no limitation clause (such as section 1
in the Canadian Charter or section 33(1) of our
Constitution) and that,
accordingly, any limitation on a constitutional right has to be read into the
right itself. Nevertheless
it is significant that the United States Fifth Amendment
right not to be so compelled "has consistently been accorded a liberal
construction"[88]
and "is available outside of criminal court proceedings and serves to
protect persons in all settings in which their freedom
of action is curtailed
in any significant way from being compelled to incriminate themselves."[89] It is regarded as a right in the broad
panoply of freedom rights which were added to the original Constitution
"in the conviction
that too high a price may be paid even for the
unhampered enforcement of the criminal law and that, in its attainment, other
social
objects of a free society should not be sacrificed."[90] It is viewed as one of the fruits of
"[t]he battle for personal liberty".[91] In defining explicitly the spirit in
which this privilege against self-incrimination should be approached,
Frankfurter J stated that
"[t]his command of the Fifth Amendment
... registers an important advance in the development of our liberty - 'one of
the great
landmarks in man's struggle to make himself civilized.'"[92]
[78]
As far as the breadth of our present
Constitution's section 11(1) right to freedom and security of the person is
concerned, Thomson's case[93]
provides some useful guidance. Reference has already been made[94] to the fact that the right to freedom is
the foundation of many of the other rights that are specifically entrenched in
the present
Constitution. The existence of these other freedom-based or
freedom-inspired rights does not warrant a restrictive interpretation
being
given to the section 11(1) rights. Section 13 of the Canadian Charter provides
an individual with a limited protection against
self-incrimination in the
following terms:
"13.
A witness who testifies in any proceedings has the right not to have any
incriminating evidence
so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of
contradictory
evidence."
Section 11(c) embodies a limited right
of non-compellability:
"11. Any
person charged with an offence has the right
........
(c) not to be compelled to be a witness
in proceedings against that person in respect of the offence."
In Thomson's case the appellants
could not take advantage of either section 13 or section 11(c) but contended
that section 7 protects similar
rights in contexts other than those to which
section 13, and section 11(c) relate. This contention was upheld by Wilson J
who stated
the following:
"The principle of statutory construction, expressio
unius, is ill-suited to meet the needs of Charter interpretation. It is
inconsistent with the purposive approach to Charter interpretation
which has
been endorsed by this court and which focuses on the broad purposes for which
rights were designed and not on mechanical
rules which have traditionally been
employed in interpreting detailed provisions of ordinary statutes in order to
discern legislative
intent",
and,
"Sections 8 to 14 of the Charter
are illustrative, but not exhaustive, of deprivations of life, liberty and
security of the person
which are not in accord with the principles of
fundamental justice. Otherwise, s. 7 would have no role to play. I conclude
therefore
that the specific enumerations in ss.11(c) and 13 do not prevent
residual content being given to s.7."[95]
This part of Wilson J's judgment was
concurred in by Lamer J,[96]
La Forest J,[97]
L'Heureux-Dubé J[98]
and Sopinka J (but only in regard to the section 11(c) right to remain silent).[99] For the reasons advanced by Wilson
J, I would hold that the fact that many other freedom rights are
entrenched in our present
Constitution does not for that reason mean that the
section 11(1) right to freedom does not protect similar rights in contexts
other
than those to which the more particular freedom rights in the
Constitution relate; the Court is not thereby precluded from giving
"residual content" to section 11(1). The same considerations also do
not warrant giving this residual freedom right a narrow
construction. In Thomson,
Wilson J construed the words "life, liberty and security of the person"
disjunctively, holding that:
"it is not necessary for the
citizen to show that his right to life, his right to liberty and his right to
security of the person
have all been violated in order to constitute a breach
of the section. It is sufficient that one of them has been violated: see Singh
v. Can. (Minister of Employment & Immigration) (1985), 17 D.L.R. (4th)
422, [1985] 1 S.C.R. 177, 14 C.R.R. 13."[100]
This is further support for the
disjunctive reading of "freedom and security of the person" which I
have favoured in para
[41] above.
[79]
I would, more specifically and in the
context of this case, apply the above interpretative approach to the rights
enumerated in section
25(3)(c) and (d) respectively of the Constitution, namely
the right of an accused person "to be presumed innocent and to remain
silent during plea proceedings or trial and not to testify during trial"
and "not to be a compellable witness against himself
or herself". In Zuma[101]
Kentridge AJ, writing for the Constitutional Court, pointed out that South
African courts have over the years recognised the origins
and the importance of
the common law rule placing the onus of proving the voluntariness of a
confession on the prosecution.[102] In this context he quoted with approval
the following passage from R v. Camane 1925 AD 570 at 575:
"Now, it is an established
principle of our law that no one can be compelled to give evidence
incriminating himself. He cannot
be forced to do that either before the trial,
or during the trial. The principle comes to us through the English law, and its
roots
go far back in history. Wigmore, in his book on Evidence (Volume
4, section 2250) traces very accurately the genesis, and indicates the limits
of the privilege. And he shows that however
important the doctrine may be, it
is necessary to confine it within its proper limits. What the rule forbids
is compelling a man to give evidence which incriminates himself"[103]
(Emphasis added).
After tracing the history of the
embodiment of this rule in South African legislation, Kentridge AJ concluded
that:
"the common law rule in regard to
the burden of proving that a confession was voluntary has not been a fortuitous
but an integral
and essential part of the right to remain silent after arrest,
the right not to be compelled to make a confession and the right not
to be a
compellable witness against oneself. These rights, in turn, are the necessary
reinforcement of Viscount Sankey's 'golden
thread' - that it is for the
prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington's
case (supra)). Reverse the burden of proof and all these rights are
seriously compromised and undermined. I therefore consider that the common
law
rule on the burden of proof is inherent in the rights specifically mentioned in
section 25(2) and 3(c) and (d), and forms part
of the right to a fair
trial."[104]
Even if it were not otherwise
sufficiently clear from the wording of section 25(3)(c) or (d) that these
rights include the right of
accused not to be compelled to give evidence which
incriminates themselves, the aforementioned approach unquestionably does. I
conclude
that the right of a person not to be compelled to give evidence which
incriminates such person is inherent in the rights mentioned
in section 25(2)
and (3)(c) and (d). The fact that such rights are, in respect of an accused
person, included (implicitly or otherwise)
in section 25(3) of the
Constitution, does not for that reason preclude the Court from giving residual
content to section 11(1) and
holding that section 11(1) protects rights similar
to those in section 25(3)(c) or (d) in contexts and in respect of persons other
than those there mentioned.
[80]
For this reason, the contention
advanced by Mr. Cilliers that, because the section 25(3) rights were enumerated
in such detail, it
was not possible, on the proper construction of the
Constitution as a whole, to interpret the section 11(1) right to freedom in
such a way as to include
a residual right not to be compelled to give evidence
against oneself in a section 417 enquiry, cannot be sustained.
[81]
In Reference re s.94(2) of Motor
Vehicle Act Wilson J observed:
"Indeed, all regulatory offences
impose some restrictions on liberty broadly construed. But I think it will
trivialize the Charter
to sweep all those offences into s. 7 as violations of
the right to life, liberty and security of the person even if they can be
sustained under s. 1."[105]
I cannot, with due respect to so
distinguished a Judge, comprehend why an extensive construction of freedom would
"trivialize"
the Charter, either in theory or in practice, or, more
relevantly for our purposes, our present Constitution. It might trivialise
a
constitution (it would indeed cause chaos) if it resulted in the regulating
measures being struck down. But that is not the consequence.
An extensive
construction merely requires the party relying thereon to justify it in terms
of a limitation clause. It does not trivialise
a constitution in theory; in
fact it has the reverse effect by emphasising the necessity for justifying
intrusion into freedom. It
does not trivialise a constitution in practice
because in the vast majority of cases dealing with regulatory matters, the
justification
is so obviously incontestable that it is taken for granted and
never becomes a live issue. In the borderline cases (and even in mundane
regulatory statutes such cases may arise) there is no pragmatic reason why the
person relying on the measure ought not to justify
it.
[82]
Section 11(1) of the transitional
Constitution contains no internal limitation such as is found in section 7 of
the Canadian Charter.
There seems to be no reason in principle why the
limitation of the right should not consistently be sought for and justified
under
section 33(1). The drafters of section 11(1) were undoubtedly well aware
of the provisions of section 7 of the Canadian Charter,
yet they decided not to
place any limitation in section 11(1). Instead a detailed limitation clause has
been crafted. It would seem
to further the norms of the rule of law and of
constitutionalism better for Courts, in applying the Constitution, to seek for
any
limitation to section 11(1) rights in section 33(1), where the Constitution
lays down criteria for limitation, than to seek limits
in section 11(1) by
means of an interpretative approach which must of necessity, having regard to
the nature of the right to freedom,
be more subjective, more uncertain and more
constitutionally undefined. In Zuma[106] this Court recognised the difference
between the "single stage" approach and the "two-stage"
approach to determining
whether there has been an unconstitutional infringement
of an entrenched right. It was further recognised that -
"The single stage approach (as in the United
States constitution or the Hong Kong Bill of Rights) may call for a more
flexible
approach to the construction of the fundamental right, whereas the
two-stage approach may call for a broader interpretation of the
fundamental
right, qualified only at the second stage."[107]
The fact that such a
"two-stage" approach is prescribed by the Constitution, and that
section 33(1) prescribes fully the
criteria that have to be met before an
entrenched right can be limited, in my view lends constitutional and policy
support to an
interpretative approach which requires that the broadest
interpretation be given to the entrenched right. If a limitation is sought
to
be made at the first stage of the enquiry, it requires, at best, an uncertain,
somewhat subjective and generally constitutionally
unguided normative judicial
judgment to be made. The temptation to, and danger of, judicial subjectivity is
great. This Court would,
in my view, be discharging its interpretative function
best, most securely and most constitutionally, if, as far as is judicially
possible, it seeks for any limitation of an entrenched right through section
33(1). It may well be that the Constitution itself,
either because of the
descriptive ambit of one or more of the many other rights entrenched in Chapter
3, or in some other way, expressly
or by clear implication, indicates a
limitation of an entrenched right at the first stage of the enquiry. Absent
such an indication,
the Court would be on safer constitutional ground if it
were to find any limitation on the basis of the prescribed criteria in section
33(1). This approach will afford a better guarantee against the Court, however
unwittingly, reading its own subjective views into
the Constitution.
[83]
Article 2 of the German Basic Law
deals with the right to freedom in two separate sub-paragraphs, namely:
"(1)
Everybody has the right to self-fulfilment in so far as they do not violate the
rights of
others or offend against the constitutional order or morality.
(2)
Everybody has the right to life and physical integrity. Personal freedom is
inviolable. These
rights may not be encroached upon save pursuant to a
law."
The formulation is patently different
from that in section 11(1) of the transitional Constitution. The purpose of
alluding to its
provisions is not to attempt a direct comparison, but to
illustrate that a Constitution can operate effectively where the widest
possible construction is given to a freedom right. Article 2(2) is, it is
generally agreed, given a very narrow construction which
limits "personal
freedom" to freedom from physical restraint.[108] Article 104 contains detailed rights
applying to detention and arrest. The legislative history of article 2(2), the
systematic structure
of the fundamental rights and the existence of article 104
are used to support a narrow construction of article 2(2).[109]
[84]
By contrast Article 2(1) of the Basic
Law has been interpreted so broadly by the Federal Constitutional Court that it
presently allows
the Court to subject any legislative norm (statutory
instrument) to constitutional scrutiny, the culmination of a process the basis
for which was laid in the late 1950's when the Court interpreted the right to
self-fulfilment as a protection of the general "freedom
to act".[110]
The freedom to act is guaranteed to the extent that it does not offend against
the constitutional order, which includes all statutory
instruments[111],
but, in order to pass constitutional scrutiny, all statutes must conform
formally and substantively with the Basic Law. Formally
the Court may, for
example, examine whether the legislative provision was passed by the
appropriate Legislature, but the substantive
content of all legislative
provisions are tested against the principle of proportionality.[112]
The Federal Constitutional Court requires the principle of proportionality to
be respected even if a special limitation to the right,
such as the
"constitutional order" is invoked by the Legislature.[113]
The consequences of the extremely wide interpretation given to Article 2(1) is
that, in effect, all legislative provisions must be
tested for compliance with
the principle of proportionality.[114]
[85]
The phrase “in so far as they do not
violate the rights of others or offend against the constitutional order or
morality” which
qualifies the “right to self-fulfilment” in article 2(1) of the
German Basic Law is not an internal qualification of this right
for, as
indicated above, the German Constitutional Court requires that all statutory
provisions which prima facie limit this right be tested for compliance
with the principle of proportionality. This is the equivalent of requiring all prima
facie infringements of the residual freedom rights in section 11(1) of our
Constitution to pass section 33(1) scrutiny. The German Constitutional
Court
has insisted on such justification according to the principles of
proportionality in many cases.
[86]
In Elfes[115], the decision which laid the basis for
the German Constitutional Court’s approach to section 2(1) as the general and
residual freedom
right (“Auffanggrundrecht”), the Court was concerned with the
denial of an application for thepassport renewal of a leading member
of a
political party which opposed the West German government’s re-armament policy
in the 1950s. Having rejected the petitioner’s
reliance on the right to freedom
of movement (section 11 of the Basic Law), on the basis that the right only guaranteed
the right
to move freely within the boundaries of the Federal Republic of
Germany, the Court proceeded to consider the state’s justification
for the
legislation with reference to section 2(1) and the principle of
proportionality. In casu the Court found that considerations of national
security justified the law limiting the issuing of passports. Similarly, in
1980
the Court held that a government prohibition on the feeding of doves in a
particular city passed constitutional muster.[116] The Court accepted that section 2(1) of
the Basic Law had been infringed, but held that the prohibition related to the
public’s
interest in keeping the city clean and protecting property from damage
caused by the doves. The public’s interest, the Court stated,
had to be
balanced against the relatively minor infringement of individuals’ section 2(1)
right to express their affection for
animals. In the same year, however, the
Constitutional Court invalidated a requirement in Federal hunting laws which
compelled those
who sought to hunt with falcons to demonstrate their competence
in the use of firearms[117].
Again none of the specific freedoms entrenched in the Basic Law applied to the
situation, but the applicants successfully relied
on the disproportionate
infringement of section 2(1). The Court held that the required skill had no
connection with the practice
of falconry; in fact, the Court stated, falconers
who discharged a firearm during the hunt would merely distract or even frighten
their falcons. Other examples which illustrate the effect of the residual
content found by the German Court in section 2(1) are those
decisions dealing
with the freedom not to be compelled to join public - as opposed to private
- associations. In a long line
of decisions[118] the Court has excluded the possibility
of relying on the freedom of association (section 9(1)) against this form of
compulsion. The
reasoning is that, since individuals may not invoke the right
of freedom of association to establish public associations (the
state
retains a discretion whether or not to confer public status on an association),
individuals may also not rely on the right
of freedom of association to refrain
from joining such public associations. While excluding reliance on the right to
freedom of association,
the Court has acknowledged that the individual is
protected from state compulsion to join public associations through the
residual
protection afforded by section 2(1) of the Basic Law.
[87]
One's sense is that the German Federal
Constitutional Court seldom strikes down laws on the basis of section 2(1) -
the general freedom
of action. The reason seems to be that the Court shows deference
to the legislature in many of the areas protected by the freedom
and not
because it is not prepared to test legislation against the principles of
proportionality or because it subjects the legislation
to a different type of
limitation test. The German Court is more inclined to exercise a stricter form
of scrutiny on the basis of
section 2(1) when the infringement is somehow
analogous to the infringement of another right or freedom, not dissimilar to
the heightened
scrutiny the US Supreme Court employs through the
"fundamental rights" strand of jurisprudence under that part of the
14th
Amendment that deals with due process.[119] In other words, when the other rights
or freedoms, for some reason or another, do not apply, section 2(1) is
activated. This is the
situation with which we are dealing here. It is
important to define section 11(1) broadly in the first stage of the enquiry
because
it cannot function as a residual freedom right if narrowly defined at
this stage. If a broad residual freedom right is not acknowledged
by the Court,
the Court will not be able to develop any form of due process jurisprudence -
procedural or substantive. There may
be concerns about substantive due process
and Lochner, but in the absence of a broad interpretation of section
11(1) we will not have a general procedural due process right either. In
the
present case we are concerned with process as much as with substance. We are
not creating a right, we are asking the state to
be consistent - procedurally -
when it denies individuals their rights.
[88]
Article 9(1) of the International
Covenant on Civil and Political Rights provides that-
“Everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary arrest or
detention. No
one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law.”
The other sub-articles ((2) to (5)) of
Article 9 deal with arrest and detention. In any event the last sentence in
article 9(1) does
not constitute an internal limitation of the right but
provides scope for statutory limitation and it is not any ground or any
procedure,
even though established by law, which will justify deprivation of
liberty.
[89]
Article 5(1) of the European
Convention of Human Rights provides that-
“Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law.”
The remaining provisions of article 5
(paragraphs 5(1)(a) - (f) and sub-articles 5(2) - 5(5)) deal exclusively with
arrest and detention.
The structure of the Convention is determinative of the
interpretation of article 5. The Convention contains no general limitation
provision, but special limitations are enumerated in relation to virtually all
the protected rights and freedoms. The specialized
order of limitation is of
particular importance for the interpretation of article 5 since the exceptions
enumerated in article 5(1)(a)
- (f) constitute the only form of limitation to
the right to freedom and security of the person. The exceptions merely
recognise
the legitimacy of arrest and detention in certain circumstances. The
Commission and the Court, responsible for the interpretation
of the Convention,
are therefore confronted with the problem that it is not possible to assign a
wide meaning to the terms “liberty”
and “security” of the person in article
5(1) since the special limitation provisions deal exclusively with arrest and
detention.
If forms of conduct, other than the activity of being arrested or
detained, were to be brought under the protection afforded by the
right to
liberty, those forms of conduct would in effect be insulated from state
regulation altogether. A narrow definition of “liberty”
also follows from the
fact that the rights mentioned in sub-articles 5(2) - 5(5) only accrue to
“arrested and detained” persons
and not to persons who are deprived of their
freedom in other respects. In this context it comes as no surprise that the
Commission
has held that:
“The term ‘liberty’ and ‘security’ must
be read as a whole and, in view of its context, as referring only to
physical liberty and security. ‘Liberty of person’ in Article 5(1) thus
means freedom from arrest
and detention and ‘security of person’ the protection
against arbitrary interference with this liberty.” [120] (emphasis added)
This narrow
definition also flows from the fact that the exceptions dealt with in
paragraphs (a)-(f) of sub-article 5(1) deal
only with deprivation of
liberty, and only in the context of arrest or detention. The context of section
11(1) in our Constitution
is quite different, inasmuch as arrest and detention
are dealt with in section 25(1) and (2) and the concluding phrase “which shall
include the right not to be detained without trial” in section 11(1) indicates
quite clearly that the preceding rights to freedom
and security of the person
do not constitute a numerus clausus.
[90]
In the end result there appears to me
to be no good reason for not giving section 11(1) the broad construction which
I have suggested
and requiring an infringement of its provisions to be
justified under 33(1). The examinee, facing compulsion under section 417(2)(b)
of the Companies Act to give self-incriminating testimony, is subjected
"to the cruel trilemma of self-accusation, perjury or
contempt".[121]
On the basis of the considerations mentioned by Wilson J in Thomson's
case, to which I have already referred, I have no doubt that the provisions of
section 417(2)(b) of the Companies Act, which require
an examinee summoned
under sub-section (1) to answer, under pain of fine or imprisonment, or both,
any question put to the examinee,
notwithstanding that the answer might tend to
incriminate the examinee and notwithstanding that any answer to any such
question may
thereafter be used in evidence against the examinee, infringe the
examinee's section 11(1) right to freedom, more particularly the
residual
section 11(1) right of an examinee at a section 417 enquiry not to be compelled
to incriminate himself or herself.
The right against self-incrimination.
[91]
Before dealing with the actual
application of the provisions of section 33(1) to the infringement of the
section 11(1) right in question,
it is necessary to examine our own common law
as well as the common law in other jurisdictions relating to provisions of the
kind
with which we are here dealing. This is necessary for general
jurisprudential and constitutional reasons[122], but particularly so because section
33(1)(a) (ii) requires any limitation of a right to be justified in the context
of an "open
and democratic society based on freedom and equality" and
section 35(1) mandates us, in interpreting Chapter 3, to "promote
the
values which underlie" precisely such a society.
[92]
In Zuma[123] Kentridge AJ briefly traced the history
of the privilege against self-incrimination in English law. I propose to say
nothing further
on that score, save to suggest that it may at some future occasion
become necessary in the light of recent research,[124] to reconsider the received wisdom (for
which Wigmore has generally been credited[125]) that the privilege developed in
response to the oppressive and often barbaric methods of the Star Chamber.
[93]
That the "privilege" or
"immunity" against self-incrimination applies generally in the
English common law in extra-judicial
settings is beyond doubt. In Regina v.
Director of Serious Fraud Office, Ex Parte Smith[126] Lord Mustill regarded it as a general
immunity in "a disparate group of immunities, which differ in nature,
origin, incidence
and importance" which he categorised collectively as
"the right of silence" and which he described as:
"A general immunity, possessed by
all persons and bodies, from being compelled on pain of punishment to answer
questions the
answers to which may incriminate them."[127]
[94]
This also emerges clearly from the
fact that, in a wide variety of situations, reliance on the immunity could only
be rejected on
the ground that it had been expressly or by implication abrogated
by statute. In In re London United Investments Plc[128] it was held that the privilege against
self-incrimination was not available to persons who were being examined by
inspectors appointed
by the Department of Trade and Industry under section 432
of the Companies Act 1985, because sections 434, 436 and 452(1) of the
Act
excluded the privilege by necessary implication. In Bank of England v. Riley
and Another[129]
it was held that it was not available to persons who were being examined by
inspectors of the Bank of England under the Banking Act
1987, because it had
been excluded by necessary implication. A relevant consideration in the latter
judgment, however, was the fact
that section 31(1) of the Theft Act 1968
provided that no information or documents produced in consequence of the order
in question
would be admissible in the prosecution pending against the
respondent or in any further prosecution under the Theft Act 1968. Bishopsgate
Investment Management Ltd. (In Provisional Liquidation) v. Maxwell and Others[130]
was concerned with sections 235 and 236 of the Insolvency Act 1986, the purpose
whereof was to bring together the law as to personal
and corporate insolvency
and, in the public interest, to provide a statutory framework in which the law
could deal adequately with
dishonesty and malpractice on the part of the
bankrupt individual or the officers of a company. It was held that it would be
contrary
to the purposes of the Act if company directors, unlike an individual
bankrupt, could rely on the privilege against self-incrimination
to defeat the
statutory right of the liquidator or other office-holder to obtain the
necessary information required to manage the
affairs of the company and that,
accordingly, sections 235 and 236 of the Act had abrogated the privilege.[131]
[95]
In England, therefore, Parliament may
abrogate the privilege against self-incrimination by statute. In doing so
Parliament sometimes
provides that a person may be compelled to answer
questions which tend to incriminate but limits the use that may be made of his
or her answers in any subsequent prosecution. There are other examples of
this approach. In Rank Film Distributors Ltd. and Others v. Video
Information Centre and Others[132] the House of Lords held that the
privilege against self-incrimination applied in the context of two respondents
against whom certain
"Anton Piller" orders[133] had been granted in connection with
alleged acts of piracy of video tapes of films and which orders inter alia
required them to furnish information concerning the video tapes.[134]
In consequence of this judgment[135], section 72(1) of the Supreme Court Act
1981 was enacted to abrogate the privilege in intellectual property
infringement or passing
off proceedings; but it also provided that a statement
or admission made by a person in answering questions put in such proceedings
could not be used in a prosecution against such person for any related offence,
or for the recovery of any related penalty, save
in proceedings for perjury or
contempt of court. The Criminal Justice Act 1987 established the Serious Fraud
Office. Section 2 of
the Act provides for the questioning of suspected
offenders but it is expressly provided in section 2(8) that a statement made by
a person in response to a demand for information under the section may only be
used in evidence against such person in proceedings
relating to the making of a
false or misleading statement or in proceedings of a similar nature.[136]
[96]
In South African law the privilege is
not limited to criminal or civil trial proceedings because
".... it is an established
principle of our law that no one can be compelled to give evidence
incriminating himself. He cannot
be forced to do that either before the trial,
or during the trial."[137]
The privilege has been described as one
of the personal rights to refuse to disclose admissible evidence the particular
right in terms
whereof "a witness may refuse to answer a question where
the answer may tend to expose him to a criminal charge"[138] and is also available, for example, to
a person called as a witness in inquest proceedings.[139] With reference to the above quoted
passage from R v. Camane, Thirion J observed in S v. Khumalo that
"[t]here is indeed even a greater
need for protection of the accused against forced self-incrimination before the
trial than
there is at the trial."[140]
Hoffmann and Zeffert[141] also point out that the privilege may
be claimed in administrative or quasi-judicial hearings. Lastly, mention should
be made of
section 65(2) of the Insolvency Act, No. 24 of 1936 which makes
provision for the interrogation of the insolvent and other witnesses
and
stipulates that a person interrogated -
"shall not be entitled at such
interrogation to refuse to answer any question upon the ground that the answer
would tend to incriminate
him or upon the ground that he is to be tried on a
criminal charge and may be prejudiced at such trial by his answer."
Sub-section (2A)(b) does, however,
confer use immunity on such incriminating answers given by the witness by
providing that they shall
not -
"be admissible in any criminal
proceedings, except in criminal proceedings where the person concerned stands
trial on a charge
relating to the administering or taking of an oath or the
administering or making of an affirmation or the giving of false evidence
or
the making of a false statement in connection with such questions and answers,
and in criminal proceedings contemplated in section
139(1) relating to a
failure to answer lawful questions fully and satisfactorily."
[97]
Two recent Australian decisions, Pyne
Board Pty. Ltd v. Trade Practises Commission[142] and Sorby and Another v. The
Commonwealth of Australia and Others[143], handed down on the same day by the
High Court of Australia, may cast further light on the scope of the privilege
against self-incrimination
at common law. In both cases the majority of the
High Court reached the conclusion that the privilege against self-incrimination
is not inherently incapable of application in non-judicial proceedings, but
that the availability of the privilege depends on a construction
of the statute
in question.[144]
In Pyne Board the Court held that the statute by implication excluded
reliance on the privilege and in Sorby the Court held that it did not.
The reasoning of the Court in the latter case is of importance. In
response to the argument
that the provision of a “use immunity” excludes
reliance on the privilege against self-incrimination the Court said, per
Gibbs,
CJ:
“In the absence of binding authority the matter
must be approached from the standpoint of principle. If a witness is compelled
to
answer questions which may show that he has committed a crime with which he
may be charged, his answers may place him in real and
appreciable danger of
conviction, notwithstanding that the answers themselves may not be given in evidence.
The traditional objection
that exists to allowing the executive to compel a man
to convict himself out of his own mouth applies even when the words of the
witness may not be used as an admission. It is a cardinal principle of our
system of justice that the Crown must prove the guilt
of an accused person, and
the protection which that principle affords to the liberty of the individual
will be weakened if power
exists to compel a suspected person to confess his
guilt. Moreover, the existence of such power tends to lead to abuse and to 'the
concomitant moral deterioration in methods of obtaining evidence and in the
general administration of justice’. Validity of Section 92(4) of the
Vehicles Act, 1957 [Sask.], [1958] S.C.R. 608, at p. 619. It is true
that in some cases the legislature may consider that it can only achieve the
intended purpose of the statute
by limiting or abrogating the privilege against
self-incrimination, but, as I have said, if the legislature intends to render
the
privilege unavailable it must manifest clearly its intention to do so. To
provide that the answers may not be used in evidence is
not to reveal clearly
an intention that the privilege should be unavailable, although, if the
legislature did intend to remove the
privilege, it might, in fairness, at the
same time prevent the use in criminal proceedings of statements which otherwise
would have
been privileged: cf. Rank Film Ltd. v. Video Information Centre,
at p. 448, per Lord Russel of Killowen.”[145]
The Court held that the privilege
"protects the witness not only
from incriminating himself directly under a compulsory process, but also from
making a disclosure
which may lead to incrimination or to the discovery of real
evidence of an incriminating character."[146]
Equally firm, however, was the
rejection by the Court of the argument that the privilege against
self-incrimination is constitutionally
entrenched:
“It was then submitted on behalf of the
plaintiffs that s. 6A was not validly enacted. This argument cannot be
accepted. The privilege
against self-incrimination is not protected by the
Constitution, and like other rights and privileges of equal importance it may
be taken away by legislative action. Counsel for the plaintiffs sought to find
some constitutional protection for the privilege in
Ch III of the Constitution,
and submitted that to remove the privilege would be to infringe the guarantee
given by s. 80 and to interfere
impermissibly with federal judicial power.
....[T]he argument that the compulsory examination of a suspected person is
inconsistent
with the right to trial by jury was rejected unanimously by the
members of this Court in Huddart Parker & Co Pty. Ltd. v. Moorehead
[1909] HCA 36; (1909), 8 C.L.R 330; see particularly at pp. 358, 375, 385-386, 418. With
all respect, I agree with the view that the privilege against
self-incrimination
is not a necessary part of a trial by jury.”[147]
[98]
In Canada, the courts have recognised
the different nature and the consequently wider ambit of the privilege even
before the adoption
of the Canadian Charter of Rights and Freedoms. In Solosky
v R the Supreme Court remarked:
"Recent case
law has taken the traditional doctrine of the privilege and placed it on a new
plane. Privilege is not longer regarded
merely as a rule of evidence which acts
as a shield to prevent privileged materials from being tendered in evidence in
a courtroom.
The Courts, unwilling to so restrict the concept, have extended
its application well beyond these limits".[148]
Moreover, the position in Canada never
quite corresponded to that in the English common law, because sections 4(1) and
5 of the Canada
Evidence Act[149]
effected a change in the Canadian common law from 1893 onwards. Wilson J,
dissenting in Thomson Newspapers, summarised the Canadian position
as follows:
"The effect of s. 4(1) was to maintain
the common-law rule of non-compellability at the investigatory stage, subject
to the modification
by the terms of a particular statute, and to make the
accused at his trial a competent witness for the defence but not a compellable
witness for the Crown. The effect of s. 5 was to abolish the common- law rule
of allowing a witness to refuse to answer a question
on the ground that it
would tend to incriminate him and replace it with the rule that the witness
must answer the question but the
answer could not be used against him in a
subsequent criminal case. This legislation reflects the state’s interest in
having all
available information before the tribunal so that a proper
determination in that case can be made. This state interest is achieved
in derogation of the common-law rule protecting a witness from answering a
question on the basis of the right against self-incrimination.”[150]
After stating that the right against
compellability and the right against self-incrimination are “fundamental
precepts of democratic
societies which respect individual rights and freedoms”,
Wilson J went on to describe the rationale for the right against
self-incrimination
as follows:
“Having reviewed the historical origins
of the rights against compellability and self-incrimination and the policy
justifications
advanced in favour of their retention in more modern times, I
conclude that their preservation is prompted by a concern that the
privacy and
personal autonomy and dignity of the individual be respected by the state. The
state must have some justification for
interfering with the individual and
cannot rely on the individual to produce the justification out of his own
mouth. Were it otherwise,
our justice system would be on a slippery slope
towards the creation of a police state.”[151]
[99]
The Fifth Amendment to the United
States Constitution, which provides, inter alia, that “[n]o person...
shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty,
or property, without due process of law...” was
initially interpreted as affording protection to individuals from federal authorities
only. It was the passing of the Fourteenth Amendment in 1868, especially its
prohibition - “nor shall any State deprive any person
of life, liberty, or
property, without due process of law...” - which brought about the decisive
change in the protection of individual
rights against the exercise of State
power in that country. At first hesitantly and selectively, but from the
beginning of the 1960's
with greater conviction, the Supreme Court began to
apply the Bill of Rights to the States via the Fourteenth Amendment.[152]
[100]
The freedom against self-incrimination
was effectively incorporated against the states in Malloy v. Hogan.[153]
The jurisprudence is important since it shows that the US Supreme Court is
prepared to utilise the Fourteenth Amendment to extend
procedural guarantees,
such as the protection against self-incrimination, to situations where it did
not seem to apply textually.
The question as to whether the right against
self-incrimination applies in extra-curial proceedings was not resolved, as one
would
have expected, in the context of the Fourteenth Amendment. Instead a
broad and purposive interpretation of the Fifth Amendment’s
right against
self-incrimination made a resort to the Fourteenth Amendment unnecessary. As
early as 1892 Justice Blackford remarked
in Counselman v. Hitchcock that
the “[privilege] is as broad as the mischief against which it seeks to guard”.[154]
By the 1920's Justice Brandeis, writing for the Court, declared that “[t]he
privilege [against self-incrimination] is not ordinarily
dependent on the
nature of the proceedings in which the testimony is sought or is to be used. It
applies alike to civil and criminal
proceedings, wherever the answer might tend
to subject to criminal responsibility him who gives it.”[155] Finally, in 1973 Justice White stated
that “[t]he [Fifth] Amendment not only protects the individual from being
involuntarily called
as witness against himself in a criminal prosecution but
also privileges him not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.”[156] US Bankruptcy laws nowadays explicitly
recognise the constitutional right against self-incrimination.[157]
There can be little doubt that proceedings similar to the ones envisaged by
section 417 of the Companies Act would have been interpreted
to constitute a
deprivation of liberty and that this would have triggered the due process
clause, and more specifically, the right
against self-incrimination which forms
part of it.
The approach in the USA and Canada to resolving the
tension between the privilege against self-incrimination and the interest of
the
State in investigative procedures of various kinds
[101]
In seeking guidance from the jurisprudence
of other countries it is well to heed the warning that
"[e]ach legal system, intertwined
with a particular legal tradition, is predicated on a number of integrated
elements, and to
look at each piece-meal through a magnifying glass cannot provide
an accurate picture of the whole nor can such an exercise take
into account
differences between the systems ... Fundamental justice may take different
forms in different societies, given their
own legal traditions."[158]
Nevertheless we are obliged, in
construing and applying section 33(1), to give content to the phrase
"justifiable in an open
and democratic society based on freedom and
equality". At the same time it is necessary to recognise (gratefully) that
the roots
of South African law draw sustenance from Western Europe, the United
Kingdom (and derivatively from the other so-called "common
law"
countries) and from indigenous sources. It is also a fact that since 1945
fundamental human rights are steadily becoming
internationalised (albeit not
always or everywhere at the same pace and not without set-backs) at the
international, regional and
domestic constitutional levels.
[102]
Both in the United States and Canada,
and also elsewhere, legislatures have sought a legislative solution to the
tension between the
privilege against self-incrimination and the interest of
the State in investigative procedures of various kinds. This has been achieved
by compelling examinees to answer questions even though the answers thereto
might tend to incriminate them and, at the same, protecting
the interests of
the examinees by granting them either an indemnity against prosecution or
conferring some form of use immunity in
respect of compelled testimony. What is
important to note is that the privilege has not, in most cases, simply been
abolished by
statute without providing some form of protection to the examinee.
The somewhat fragmentary treatment in England has been alluded
to above.
[103]
Initially in the United States, this
compromise was attempted by legislation which excluded use of the evidence
given by the examinee,
but which did not indemnify the examinee against
prosecution. The use immunity only applied to the evidence given by the
examinee;
it did not prevent the use of the examinee's testimony to search out
other evidence to be used against the examinee in a criminal
proceeding, which
other evidence had not been gained by the compulsion to testify and to give
self-incriminating evidence. In Counselman v. Hitchcock[159]
the Supreme Court considered the constitutional validity of such a use immunity
(a "direct use immunity") provided by section
860 of the Revised
Statutes in the context of Grand Jury testimony and held that it was
unconstitutional.[160]
Under Section 2486 (c) of the Immunity Act of 1954, 18 USC an indemnity against
prosecution was accorded to grand jury witnesses.[161] In Ullmann v. United States[162]
Justice Frankfurter delivered the judgment of the majority of the Court. While
emphasising that "the Fifth Amendment's privilege
against
self-incrimination ... registers an important advance in the development of our
liberty"[163]
and approaching the petitioner's claims "in this spirit of strict, not
lax, observance of the constitutional protection of the
individual",[164]
he reaffirmed[165]
the Court's earlier judgment in Brown v. Walker, decided some sixty
years earlier, that compulsion to testify under protection of a similar
immunity was constitutional:
"While the constitutional provision
in question is justly regarded as one of the most valuable prerogatives of the
citizen, its
object is fully accomplished by the statutory immunity, and we
are, therefore, of opinion that the witness was compellable to answer
..."[166]
[104]
In Kastigar v. United States[167]
the Supreme Court had to consider the constitutionality of the following use
immunity in 18 U.S.C. section 6002, which was afforded
to a witness in a District
Court when compelled to testify over a claim of Fifth Amendment privilege
against compulsory self-incrimination:
".... no testimony or other
information compelled under the order (or any information directly or
indirectly derived from such
testimony or other information) may be used
against the witness in any criminal case, except a prosecution for perjury,
giving a
false statement, or otherwise failing to comply with the order."
An exclusion of this nature will be
referred to as "a direct and derivative use immunity". The Court
upheld the constitutionality
of this provision on the basis that it left the
witness and the prosecutorial authorities in substantially the same position as
if
the witness had claimed the Fifth Amendment privilege; consequently the
immunity was "co-extensive with the privilege and suffices
to supplant
it".[168]
In the course of giving judgment for the majority, Justice Powell stated the
following:
"This total prohibition on use provides a
comprehensive safeguard, barring the use of compelled testimony as an
'investigatory
lead,' and also barring the use of any evidence obtained by
focusing investigation on a witness as a result of his compelled disclosures.
A person accorded this immunity under 18 U.S.C. §
6002, and subsequently prosecuted, is not dependent for the preservation of his
rights upon the integrity and good faith of the prosecuting authorities. As
stated in Murphy:
'Once a defendant demonstrates that he has
testified, under a state grant of immunity, to matters related to the federal
prosecution,
the federal authorities have the burden of showing that their
evidence is not tainted by establishing that they had an independent,
legitimate source for the disputed evidence. 378 US at 79 n. 18.'
This burden of proof, which we reaffirm as
appropriate, is not limited to a negation of taint; rather, it imposes on the
prosecution
the affirmative duty to prove that the evidence it proposes to use
is derived from a legitimate source wholly independent of the
compelled
testimony.
This is very substantial protection,
commensurate with that resulting from invoking the privilege itself. The
privilege assures that
a citizen is not compelled to incriminate himself by his
own testimony. It usually operates to allow a citizen to remain silent when
asked a question requiring an incriminatory answer. This statute, which
operates after a witness has given incriminatory testimony,
affords the same
protection by assuring that the compelled testimony can in no way lead to the
infliction of criminal penalties.
The statute, like the Fifth Amendment, grants
neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the
government
to prosecute using evidence from legitimate independent
sources."[169]
(Footnotes omitted)
[105]
The use immunity in section 20(2) of
the CI Act which qualified the compulsion to testify and was the subject of
enquiry in Thomson Newspapers read as follows:
"... but no oral evidence so
required shall be used or receivable against such person in any criminal
proceedings thereafter
instituted against him, other than a prosecution under
section 121 of the Criminal Code for perjury in giving such evidence or
a prosecution under section 124 of the Criminal Code in respect of such
evidence."[170]
It was a direct use immunity only and
did not include a derivative use immunity such as was considered by the US
Supreme Court in
Kastigar. We are concerned with the constitutionality
of a statutory compulsion to testify and an override of the privilege against
self-incrimination
with no indemnity against prosecution or use immunity of any
nature. It is important, for our purposes, to consider the way in which
policy
considerations relating to use immunity were dealt with in Thomson. This
will emerge more clearly later.
[106]
As indicated above,[171] it was only Wilson J and Sopinka J who
came to the conclusion that the direct use immunity was insufficient to prevent
section 17
of the CI Act from violating the "fundamental justice"
provision in section 7 of the Canadian Charter (which qualified
the right to
"liberty and security of the person"). The purpose of the CI Act has
authoritatively been stated to be the
following:
"From this overview of the Combines
Investigation Act I have no difficulty in concluding that the Act as a
whole embodies a complex scheme of economic regulation. The purpose of the Act
is to eliminate activities that reduce competition in the market-place. The
entire Act is geared to achieving this objective. The
Act identifies and
defines anti-competitive conduct. It establishes an investigatory mechanism for
revealing prohibited activities
and provides an extensive range of criminal and
administrative redress against companies engaging in behaviour that tends to
reduce
competition."[172]
Wilson J also pointed out that
"the Act contains numerous
provisions enabling the Director to collect information relating to
anti-competitive behaviour. Once
this information has been obtained a variety
of uses can be made of it, including the referral of the matter to the
Attorney-General
of Canada for possible prosecution."[173]
The Attorney-General is empowered, in
terms of section 15(2) of the CI Act, to exercise all the powers and functions
conferred by
the Criminal Code on the Attorney-General of a province in any
ensuing prosecution. Section 13 of the Canadian Charter which provides
that
"[a] witness who testifies in any
proceedings has the right not to have any incriminating evidence so given used
to incriminate
that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence"
only affords a limited protection
against self-incrimination (I pause to point out that the immunity in the
section is only a direct
use and not a derivative use immunity). Likewise
section 11(c) of the Charter, which enacts that -
"Any person charged with an offence has the
right .....
(c)
not to be compelled to be a witness in proceedings against that person in
respect of
the offence;"
only affords a limited right of
non-compellability.
[107]
Wilson J held that the examinees could
not avail themselves of either section 13 or 11(c) of the Charter. After
reviewing the historical
origins of the rights against compellability and
self-incrimination in a comparative perspective, Wilson J concluded that their
preservation
was
"prompted by a concern that the
privacy and personal autonomy and dignity of the individual be respected by the
state. The state
must have some justification for interfering with the
individual and cannot rely on the individual to produce the justification out
of his own mouth. Were it otherwise, our justice system would be on a slippery slope
towards the creation of a police state."[174]
Whilst appreciating
"the importance of getting at the
truth in any proceedings, criminal or otherwise ...[o]therwise our justice
system might grind
to a halt through important evidence not being brought
forward"[175]
the learned Judge nevertheless
considered that this goal had to be subservient to the protection of the
fundamental rights of the
accused.[176] Following the reasoning of the United
States Supreme Court in Kastigar[177], Wilson J concluded as follows:
"It seems to me that in order to
prevent a suspect from being conscripted against himself in a criminal or quasi-criminal
proceeding (which would clearly include a charge of predatory pricing under the
Combines Investigation Act), the suspect must be protected against the
use of evidence derived from testimony given at the earlier investigatory
proceeding
as well as against the use of the testimony itself. Otherwise the
suspect is convicted, metaphorically if not literally, out of his
own mouth. He
has, as the US Supreme Court put it, through the use of the derivative evidence
been 'forced to give testimony leading
to the infliction of penalties affixed
to criminal acts'."
and,
"The judge's discretion under S.
24(2)[178]
is no guarantee of protection against the use of derivative evidence obtained
as a result of a witness's compelled testimony. It
is merely a discretion and
one which is required to be exercised on a very specific basis, namely, whether
or not the admission of
the evidence would bring the administration of justice
into public disrepute."
and,
"That exclusion must be a matter of principle
and of right, not of discretion .....
I conclude, therefore, that s. 7
protects the witness in a subsequent criminal proceeding against the use of
evidence derived from
testimony given by him in an earlier proceeding, which protection
is not available under either s. 11(c) or s. 13. Where a person's
right to
life, liberty and security of the person is either violated or threatened, the
principles of fundamental justice require
that such evidence not be used in
order to conscript the person against himself."[179]
[108]
In dealing with the section 1
limitation provisions of the Canadian Charter, Wilson J held that both the
"effective investigation
of suspected criminal and quasi-criminal
activity" and the opportunity "to monitor economic activity in Canada
so as to ensure that the government's economic
objectives are met" were
each of sufficient importance to warrant infringement of individual rights and
freedoms because "[s]ociety
has a very real interest both in controlling
crime and in ensuring the stability of the marketplace."[180]
The learned Judge found, however, that, inasmuch as the legislation in question
did not impair the right in question as little as
possible, the limitation was
not justified under section 1 of the Charter.[181] In this regard Wilson J stated the
following:
"There is no evidence to suggest
that the government's objective in this case would be frustrated if individuals
compelled to
testify were afforded derivative use protection. Certainly,
the monitoring of the Canadian economy would not be injuriously affected by
such protection. Moreover, while there may
be instances when the investigation
of crime or the effective enforcement of legislation may be hampered if
suspects are not conscripted
against themselves, such a case has not been made
out here. No evidence has been presented to the Court to show that the
enforcement
of the Combines Investigation Act will be drastically
impaired if derivative use protection is given to persons testifying under s.
17"[182]
(emphasis added)
Sopinka J held that, for the reasons
given by Wilson J, section 17 of the CI Act "violates s. 7 of the Canadian
Charter of Rights and Freedoms, in particular, the principle of fundamental
justice in which the right to remain silent is embodied."[183]
In this context he also expressed himself as follows:
"Obtaining evidence from suspects
as a basis for commencing criminal proceedings is not a merely incidental
effect of s. 17 of
the Act. In this field of anti-competitive crime the police
work is carried out largely, if not exclusively, by the Director and
his
staff."[184]
Sopinka J also concluded, for the
reasons expressed by Wilson J, that the violation of section 7 could not be
justified under section
1 of the Charter.[185]
[109]
I have referred somewhat extensively
to the judgments of Wilson and Sopinka JJ, although their judgments were in
dissent, because
they represent the high-water mark in the judgment for
striking down a provision which compels self-incrimination and only affords
a
direct use immunity. The judgment of La Forest J is particularly instructive.
La Forest J points to the difference in discovering
and investigating ordinary
crimes on the one hand and violations of combines legislation on the other; in
the former there is usually
no question that an offence has been committed and
the concern is to establish who committed the offence, while in the latter the
position is quite different and the difficulty relates equally to establishing
whether an offence has been committed.[186] It has been emphasised that
"economic crimes are far more complex than
most other federal offences. The events in issue usually have occurred at a far
more
remote time and over a far more extensive period. The 'proof' consists not
merely of relatively few items of real evidence but of
a large roomful of often
obscure documents. In order to try the case effectively, the Assistant United
States Attorney must sometimes
master the intricacies of a sophisticated
business venture. Furthermore, in the course of doing so, he, or the agents
with whom he works, often must resolve a threshold question that has already
been determined in most other cases: Was there a crime in the first place? To
use the colloquial, it is not so much a matter of 'Whodunit'
as 'what-was-done'."[187]
(Emphasis in original)
I shall revert to this aspect of the
problem later. La Forest J also observed that,
"the community's interest is one of the
factors that must be taken into account in defining the content of the
principles of
fundamental justice."[188]
In this regard the learned Judge made
the following point, which is also relevant in the context of this case:
"I see a significant difference
between investigations that are truly adversarial, where the relationship
between the investigated
and investigator is akin to that between accused and
prosecution in a criminal trial, and the broader and more inquisitorial type
of
investigation that takes place under s. 17 of the Act. The lower probability of
prejudice the latter represents to any particular
individual who comes within
its reach, together with the important role such investigations play in the
effective enforcement of
anti-combines and possibly other regulatory
legislation, suggests that a more appropriate balance between the interests of
the individual
and the state can be achieved by retention of the power to
compel testimony and the recognition of the right to object to the subsequent
use of so much of the compelled testimony as is self-incriminatory."[189]
[110]
In dealing with the difference between
"use immunity" and "derivative use immunity", the learned
Judge observed
that
"Simply because Parliament has
provided for the inadmissibility of certain evidence does not mean that it
thereby intended that
other evidence should be admitted, even when either at
common law or under the Charter, such evidence would be rejected on the ground
that admitting it would be unfair. It is quite reasonable for Parliament to
have dealt with the obvious case of unfairness resulting from the use of
self-incriminating testimony, leaving more subtle situations to be dealt
with in the application of general principles."[190] (emphasis added).
and that
"The witness's oral testimony
cannot, of course, be used against him or her. Section 20(2) so provides and I
have no doubt that this would, in any event, be the case either under s. 7 or
s. 11(d) of the Charter.[191]
(emphasis added).
[111]
In the following significant passages
La Forest J points to a fundamental distinction between the direct use of
compelled testimony
and derivative use:
"The fact that derivative evidence exists
independently of the compelled testimony means, as I have explained, that it
could
also have been discovered independently of any reliance on the compelled
testimony. It also means that its quality as evidence does
not depend on its
past connection with the compelled testimony. Its relevance to the issues with
which the subsequent trial is concerned,
as well as the weight it is accorded
by the trier of fact, are matters that can be determined independently of any
consideration
of its connection with the testimony of the accused. If it were
otherwise, it would not, in fact, be derivative evidence at all,
but part of
the actual testimony itself. Taken together, these aspects of derivative
evidence indicate that it is self-sufficient,
in the sense that its status and
quality as evidence is not dependent on its relation to the testimony used to
find it. In this regard,
the very phrase "derivative evidence" is somewhat
misleading.
Seen from this light, it becomes apparent that
those parts of derivative evidence which are incriminatory are only self-incriminatory
by virtue of the circumstances of their discovery in a particular case. They
differ in this respect from incriminatory
portions of the compelled testimony
itself, which are by definition self-incriminatory, since testimony is a
form of evidence necessarily unique to the party who gives it.
I would think that this, without more, raises
doubts as to whether we should be as wary of prosecutorial use of derivative
evidence
as we undoubtedly must be of such use of pre-trial testimonial
evidence. What prejudice can an accused be said to suffer from being
forced to
confront evidence 'derived' from his or her compelled testimony, if that
accused would have had to confront it even if
the power to compel testimony had
not been used against him or her? I do not think it can be said that the use of
such evidence would
be equivalent to forcing the accused to speak against himself
or herself; once the derivative evidence is found or identified, its
relevance
and probative weight speak for themselves. The fact that such evidence was
found through the evidence of the accused in
no way strengthens the bearing
that it, taken by itself, can have upon the questions before the trier of fact.
In this respect, if
reference to its origins was not precluded by an immunity
such as that presently found in s. 5 of the Canada Evidence Act, it
would in most cases be precluded by simple irrelevance."[192]
and,
"This raises a question of crucial importance
in understanding the Collins line of cases and their relevance to a
determination of the scope of testimonial immunity required by the principles
of fundamental
justice; why is the prior existence of evidence regarded as
relevant to the fairness of the trial in which it is introduced?
There can be only one answer to this question. A
breach of the Charter that forces the eventual accused to created evidence
necessarily
has the effect of providing the Crown with evidence it would not
otherwise have had. It follows that the strength of its case against
the
accused is necessarily enhanced as a result of the breach. This is the very
kind of prejudice that the right against self-incrimination,
as well as rights
such as that to counsel, are intended to prevent. In contrast, where the effect
of a breach of the Charter is merely
to locate or identify already existing
evidence, the case of the ultimate strength of the Crown's case is not
necessarily strengthened
in this way. The fact that the evidence already
existed means that it could have been discovered anyway. Where this is the
case,
the accused is not forced to confront any evidence at trial that he would
not have been forced to confront if his Charter rights
had been respected. In
such circumstances, it would be the exclusion rather than the admission of
evidence that would bring the administration
of justice into disrepute."[193]
[112]
La Forest J, favouring a flexible
approach to the question of derivative use immunity, stated:
"In this country, where the question of
immunity falls to be determined under the principles of fundamental justice, I
think
we can achieve a more flexible balance between the interests of the
individual and that of the state. In a case like this, where
the statute does
not provide for the evidence to be admitted, there can really be no breach of
the Charter until unfair evidence
is admitted. Until that happens, there is no
violation of the principles of fundamental justice and no denial of a fair
trial. Since
the proper admission or rejection of derivative evidence does not
admit of a general rule, a flexible mechanism must be found to
deal with the
issue contextually. That can only be done by the trial judge."
and,
"I see no reason why an approach like that in
the now constitutionalized rule adopted in the case of prejudicial evidence
should
not be extended to derivative evidence which, like other prejudicial
evidence within the rule, can only be dealt with having due
regard to the need
to balance the right of the accused and that of the public in a specific
context. In my view, derivative evidence
that could not have been found or
appreciated except as a result of the compelled testimony under the Act should
in the exercise
of the trial judge's discretion be excluded since its admission
would violate the principles of fundamental justice. As will be evident
from
what I have stated earlier, I do not think such exclusion should take place if
the evidence would otherwise have been found
and its relevance understood.
There is nothing unfair in admitting relevant evidence of this kind, a
proposition consistent with
the cases under s. 24(2) of the Charter. The
touchstone for the exercise of the discretion is the fairness of the trial
process."[194]
The learned Judge concluded by stating:
"I conclude, then, that the use of
derivative evidence derived from the use of the s. 17 power in subsequent
trials for offences
under the Act does not automatically affect the fairness of
those trials. It follows that complete immunity against such use is not
required by the principles of fundamental justice. The immunity against use
of actual testimony provided by s. 20(2) of the Act together with the judge's
power to exclude derivative
evidence where appropriate is all that is necessary
to satisfy the requirements of the Charter."[195] (emphasis added)
[113]
L'Heureux-Dubé J, without commenting
on whether or how derivative use of compelled testimony should be controlled,
also came to the
conclusion that
"use immunity satisfies the
requirements of fundamental justice under s. 7 of the Charter. In the
present appeal, such
protection is afforded by s. 20(2) of the Act which was
referred to earlier."[196]
Can the limitation of the examinee's section 11(1)
constitutional residual right against self-incrimination by section 417(2)(b)
of
the Companies Act be justified under section 33(1) of the Constitution?
[114]
To meet the requirements of section
33(1) of the Constitution, any limitation of the section 11(1) right to freedom
must:
(a)
be "reasonable";
(b)
be "justifiable in an open and democratic society based on freedom and
equality";
(c)
"not negate the essential content of the right";
(d)
be "necessary".
(i)
The legislative history of
sections 417 and 418 of the Companies Act
[115]
In order to determine the nature,
extent and weight of the state's interest in the limitation in question, the
legislative history
and purpose of the investigation and examination procedures
embodied in sections 417 and 418 of the Companies Act need to be examined.
South African statutory company law has followed closely similar English
legislation and drawn heavily on it, all the pre-Union statutes
being based on
earlier English company legislation.[197] The adoption of the South African
Companies, Act 61 of 1973 has, however, "cut the umbilical cord between
English and South
African company law" which "though still based on
the general principles of English law ... goes in many respects its own
way."[198]
Nevertheless, South African courts have considered English decisions to be
authoritative (though of course not binding) in interpreting
statutory
provisions which are substantially the same, this being particularly the case
in interpreting section 417 of the Companies
Act and corresponding provisions.[199]
[116]
The concept of private examination was
first introduced in England in the Companies Act of 1862. Section 115 of the
English Companies
Act of 1862 empowered the Court, after a winding-up order had
been made, to summon before it any officer of the company or person
known or
suspected to have in his possession any of the estate or effects of the company
or supposed to be indebted to the company
or any person whom the Court might
deem capable of giving information concerning the trade, dealings, estate or
effects of the company.
The Court could require any such officer or person to
produce documents and, under section 117, the Court was empowered to examine
on
oath, either by word of mouth or upon written interrogatories, any person so
appearing concerning the affairs, dealings, estate
or effects of the company.
The provisions were continued in the English Companies (Consolidation) Act of
1908, the Companies Act
of 1929 and the Companies Act of 1948.[200]
These provisions were repeated, without significant amendment, by sections of
the 1985 Companies Act. The Insolvency Acts of 1985
and 1986 introduced major
reforms both to the law of personal bankruptcy and to winding-up, the aim of
these statutes being to promote
harmony between the systems of personal and
corporate insolvency. The result of the Insolvency Acts was to remove from the
1985 Companies
Act all provisions relating to winding-up and receiverships. The
English private examination provisions are now contained in sections
236 and
237 of the 1986 Insolvency Act.
[117]
The Joint Stock Companies Limited
Liability Act 23 of 1861 of the Cape contained no winding up or examination
provisions. These were
introduced by the Cape Winding-Up Act, 12 of 1868, based
on similar provisions in the English Companies Act of 1862. Section 33 of
the
Cape Act (which was taken over verbatim from section 115 of the English Act)
provided that the Court, after it had made an order
for winding up, could
summon before it -
"any officer of the company or
person known or suspected to have in his possession any of the estate or
effects of the company,
or supposed to be indebted to the company, or any
person whom the court may deem capable of giving information concerning the
trade,
dealings, estate, or effects of the company ..."
Section 34 of the Cape Act, following
closely the provisions of section 117 of the English Act, authorised the Court
to examine any
person appearing or brought before it "in manner aforesaid,
or whom it may be desired to examine,” concerning "the affairs,
dealings, estate, or effects of the company...". The passage emphasised
above was an addition
to the corresponding English provision.
[118]
The Transvaal Act, 31 of 1909, which
borrowed heavily from the English Companies (Consolidation) Act of 1908, served
as a model for
the first South African Companies Act (46 of 1926).[201]
Section 151(1) of the Transvaal Act, 31 of 1909, (which was in terms identical
to section 174(1) of the English Companies (Consolidation)
Act 1908 and closely
resembled section 33 of the Cape Winding-up Act, 12 of 1868, provided for the
private examination of -
"any officer of the company or
person known or suspected to have in his possession any property of the company
or supposed to
be indebted to the company, or any person whom the Court deems
capable of giving information concerning the trade, dealings, affairs,
or
property of the company."
Section 152(1) (which in terms closely
resembled section 175(1) of the aforementioned English Act) provided for the
public examination
of the promoter, director or officer of a company who, in
the opinion of the Master, had committed a fraud in relation to the company.
It
should be noted that section 151(2) of the Transvaal Act obliged the examinee
to answer any question put to him or her in the
private examination
"notwithstanding that the answer might tend to incriminate him", but
that a direct use immunity was
given in the following terms:
"Provided that any answer given to
any such question shall not be used against him in any prosecution other than
for perjury
or for the offence under this Act of giving false evidence."
Section 152(5) contained a similar
ouster of the examinee's privilege against self-incrimination in the public
examination, without
providing any indemnity against prosecution or use
immunity. This appears to be the first occasion in South Africa where the
privilege
against self-incrimination has been ousted completely without
provision for use immunity in the context of an examination following
on the
winding up of a company.
[119]
Section 155 of the Companies Act, 46
of 1926, made provision for private examinations in terms identical to those in
section 151(1)
of the Transvaal Act mentioned above and section 156 provided
for public examination before the Court in terms very similar to that
provided
in section 152(1) of the Transvaal Act, save that section 156(1) included any
creditor of the company in the list of persons
who could be examined. Both
sections 155 and 156 ousted the examinee's right against self-incrimination, but
provided no indemnity or use immunity to the examinee in either case.
Section 194 introduced, for the first time, a provision allowing the Court to
appoint a commissioner for the purpose of taking evidence
or holding an enquiry
under the Act, which provision was the forerunner of section 418 of the 1973
Companies Act. Sections 180 bis and 180 ter were introduced into
the 1926 Companies Act by section 105 of the Companies Amendment Act of 1952.[202]
In terms of section 180 bis, all the directors, the manager and the
secretary of a company in liquidation were to attend meetings of creditors. The
Master, or
other presiding officer at such a meeting, could also, in terms of
section 180 bis, subpoena to the meeting -
"any person who is known or on
reasonable grounds believed to be or to have been in possession of any property
which belongs
or belonged to the company or to be indebted to the company, or
any person who in the opinion of the Master or such other officer
may be able
to given any material information concerning the company or its affairs
..."[203]
Section 180 ter made provisions
for the examination, at a meeting of creditors of a company being wound up and
unable to pay its debts, of a director
or any other person present at the
meeting -
"concerning all matters relating
to the company or its business or affairs ... and concerning any property
belonging to the company
..."[204]
Section 180 quat inter alia
made the provisions of sections 64 to 68 of the Insolvency Act 1936 applicable
to 180 bis and 180 ter. In terms of the proviso to section 65(2)
of the Insolvency Act 1936, as it existed at the time, a person interrogated
under subsection
(1) was "not entitled at such interrogation to refuse to
answer any question upon the ground that the answer would tend to incriminate
him" and subsection (5) provided that any evidence given under section 65
"shall be admissible in any proceedings instituted
against the person who
gave that evidence."
[120]
Sections 180 bis and 180 ter
of the 1926 Companies Act have been repeated in the extant Companies Act, 1973,
in sections 414 and 415 respectively. The present
Companies Act makes no
provision for public examinations before the Court.[205] Section 417 of the present Act does,
however, make provision for private examinations in terms not dissimilar to
section 155 of the
1926 Companies Act. It is to be noted that section 416 (1)
of the Companies Act inter alia makes the provisions of section 65 of
the Insolvency Act applicable to the interrogation of any person under section
415, "in
so far as they can be applied and are not inconsistent with the
provisions of this Act," as if such person were being interrogated
under
section 65 of the Insolvency Act 1936. In 1989 subsection (2A) was inserted in
section 65 of the Insolvency Act.[206] It reads as follows:
"(2A) (a) Where any person gives
evidence in terms of the provisions of this section and is obliged to answer
questions
which may incriminate him or, where he is to be tried on a criminal
charge, may prejudice him at such trial, the presiding officer
shall,
notwithstanding the provisions of section 39(6), order that such part of the
proceedings be held in camera and that no information regarding such
questions and answers may be published in any manner whatsoever.
(b) No
evidence regarding any questions and answers contemplated in paragraph (a)
shall be admissible
in any criminal proceedings, except in criminal proceedings
where the person concerned stands trial on a charge relating to the
administering
or taking of an oath or the administering or making of an
affirmation or the giving of false evidence or the making of a false statement
in connection with such questions and answers, and in criminal proceedings
contemplated in section 139(1) relating to a failure to
answer lawful questions
fully and satisfactorily.
(c) Any person who contravenes any provision of an order contemplated in
paragraph (a), shall
be guilty of an offence and liable on conviction to the
penalty mentioned in subsection (5) of section 154 of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977)."
[121]
It has been suggested[207]
that the person interrogated in proceedings under section 415 of the Companies
Act enjoys the benefits of the direct use immunity
provided for in section
65(2A)(b) of the Insolvency Act, by virtue of the operation of the particular
provision in section 416(1)
of the Companies Act, referred to above; and it has
also been so held in Podlas v. Cohen and Bryden NNO and Others,[208]
where Spoelstra J stated the following:
"I am not persuaded that the
judgment of van Niekerk J[209]
is correct and that those of Goldblatt J[210] and De Villiers J[211] are clearly wrong. On the contrary, Van
Niekerk J's judgment is open to criticism that it overlooked important considerations
which,
had they been considered, might have resulted in a different conclusion.
First, s. 416 of the Companies Act provides that S. 65 of the Insolvency Act
shall be applied to interrogations under s. 415 of the
Companies Act. Section
65(2A) of the Insolvency Act provides that incriminating evidence shall be
ordered to be given in camera and that no information regarding such
questions and answers may be published in any manner whatsoever. No evidence
regarding incriminating questions and answers shall be admissible in any
criminal proceedings except in perjury proceedings. Had these provisions
been brought to Van Niekerk J's attention, it is very doubtful that he would
have found that there was any
real prejudice to the applicant." (emphasis
and footnotes added).
The inescapable inference from the
above is that Spoelstra J considered that the direct use immunity provided for
in section 65(2A)(b)
of the Insolvency Act applied to incriminating evidence
given by a person interrogated under section 415 of the Companies Act.
Spoelstra
J has, in my view, overlooked the important qualification in section
416(1) itself, namely that the provisions of section 65 of the
Insolvency Act
are only applicable to the interrogation of a person under section 415 of the
Companies Act "in so far as they
can be applied and are not inconsistent
with the provisions" of the Companies Act. Subsection (3) of section 415
provides expressly
that -
"No person interrogated under
subsection (1) shall be entitled at such interrogation to refuse to answer any
question upon the
ground that the answer would tend to incriminate him."
and subsection (5) further expressly
provides that -
"Any evidence given under this
section shall be admissible in any proceedings instituted against the person
who gave that evidence
or the body corporate of which he is or was an
officer."
When these two provisions are read in
conjunction with one another they leave open no possible construction other
than that the testimony
of persons interrogated under section 415, even though
it might tend to incriminate them, is admissible against such persons in
subsequent
proceedings against them, even in subsequent criminal prosecutions.
The expression "... admissible in any proceedings instituted
against the
person who gave that evidence" is too wide and unqualified to admit of any
other construction. The direct use immunity,
provided for in section 65(2A)(b)
of the Insolvency Act, is therefore clearly inconsistent with the combined
effect of these provisions
in section 415 and to that extent are inapplicable.
I accordingly disagree with Spoelstra J's conclusion that "[n]o evidence
regarding incriminating questions and answers shall be admissible in any
criminal proceedings except in perjury proceedings."
(ii)
The statutory purpose of the section 417 and 418 procedures
[122]
The way is now clear to determine the
statutory purpose of the interrogation and other procedures in the Companies
Act 1973 and, in
particular, those in section 417 and 418. Some of the major
statutory duties of the liquidator in any winding-up are:
(i)
to "proceed forthwith to recover and reduce into possession all the assets
and property of the company, movable and immovable ..."[212]
(ii)
to "give the Master such information ... and generally such aid as may be
requisite
for enabling that officer to perform his duties under this Act."[213]
(iii)
to "examine the affairs and transactions of the company before its
winding-up in order
to ascertain -
(a)
whether any of the directors and officers or past directors and officers of the
company have
contravened or appear to have contravened any provision of this
Act or have committed or appear to have committed any other offence;
and
(b)
in respect of any of the persons referred to in paragraph (a), whether there
are or appear
to be any grounds for an order by the Court under section 219 disqualifying
a director from office as such."[214]
(iv)
Except in the case of a members' voluntary winding-up, to report to the general
meeting of
creditors and contributories of the company, the causes of the company's
failure, if it has failed.[215]
If the liquidator's report contains
particulars of contraventions or offences committed or suspected to have been
committed or of
any of the grounds mentioned in (iii)(a) and (b) above, the
Master must transmit a copy of the report to the Attorney-General.
[123]
The purpose of the enquiry under
sections 417 and 418 is undoubtedly to assist liquidators in discharging these
duties
"so that they may determine the
most advantageous course to adopt in regard to the liquidation of the
company";[216]
and
"to achieve his primary object,
namely the ascertainment of the assets and liabilities of the company, the
recovery of the one
and the payment of the other, according to law and in a way
which will best serve the interests of the company's creditors".[217]
As was pointed out in Moolman v.
Builders and Developers (Pty) Ltd (In Provisional Liquidation): Jooste Intervening[218]:
"Appellant's counsel is plainly
correct in his submission that to enquire into the company's affairs forms part
of a liquidator's
functions just as much as reducing the assets of the company
into his possession and dealing with them in the prescribed manner does.
In
performing the former part of his functions he exercises an ancillary power
without which the second part cannot properly be performed.
It is only by
enquiring that he is able to determine what is and what is not the property of
the company, or who is and who is not
a creditor or contributory. It is,
moreover, obviously in the interest of creditors that doubtful claims which the
company may have
against outsiders be properly investigated before being
pursued and that claims against the company also be properly investigated
before they are admitted or rejected. It is for such reasons that both the
South African and the Transkeian Companies Act contain
elaborate provisions
relating to the interrogation of directors and other persons at meeting of
creditors or by a commissioner..."
The purpose of the interrogation may be
directed exclusively at the general credibility of an examinee, where the
testing of such
person's veracity is necessary in order to decide whether to
embark on a trial to obtain what is due to the company being wound up.[219]
[124]
It happens not infrequentlythat
the liquidation of a company is the result of mismanagement, indeed
mismanagement involving
fraud and theft, on the part of the directors and other
officers of the company. Such persons are the only eyes, ears and brains
of the
company and often the only persons who have knowledge of the workings of the
company prior to liquidation. They are often,
because of their part in the
mismanagement, fraud and theft, reluctant to assist the liquidators voluntarily
in the discharge of
their duties. This on occasion also applies to outsiders
who, for reasons of their own, are reluctant to assist the liquidator
voluntarily.
That it is necessary, in the interest of creditors and indeed the
wider public interest, to compel them to assist, is widely recognised.
In Lynn
NO and Another v. Kreuger and Others the following was said:
"In my view the procedure provided
by sections 417 and 418 of the Companies Act is not primarily concerned with
the prosecution
of offenders. The sections are aimed at assisting officers of
the court in the performance of their duty to the creditors of companies
in
liquidation, the Master and the Court. It is very often of fundamental
importance for the liquidator of a company to find out
what has been done with
the assets of that company and how the company's business has been run. Speed
is of the essence of effectiveness
in such an enquiry because, all too often
the liquidator must take early and urgent action in order to recover mismanaged
or misappropriated
assets for the benefit of creditors. The case under
consideration seems to be an excellent example of the importance of the need
for full information, at a comparatively early stage of the winding up. In this
case, on the evidence which is before me, the probabilities
indicate very
strongly, if not overwhelmingly that the only person who can give the
applicants the information which they require
is the first respondent. I think
that the first respondent's prospects of persuading the Constitutional Court
that the 'interrogation
procedure' in respect of people who have been involved
in the dealings of a company before its liquidation is unconstitutional are
remote indeed. I cannot conceive of any other procedure which would enable
liquidators, effectively and efficiently, to fulfil their
task."[220]
In Cloverbay Ltd v. Bank of
Credit and Commerce International SA[221] Browne-Wilkinson V-C, dealing with an
examination under section 236 of the English Insolvency Act 1986, stated the
following:
"[T]he reason for the inquisitorial
jurisdiction contained in s. 236 is that a liquidator or administrator comes
into the company
with no previous knowledge and frequently finds that the
company's records are missing or defective. The purpose of s. 236 is to
enable him to get sufficient information to reconstitute the state of knowledge
that the company should
possess." (emphasis added.)
As explained by Buckley J in Re
Rolls Razor, Ltd the position under section 236 of the Insolvency Act 1986
is broadly the same as that under section 268 of the Companies Act:
"The powers conferred by s. 268
are powers directed to enabling the court to help a liquidator to discover the
truth of the circumstances
connected with the affairs of the company,
information of trading, dealings, and so forth, in order that the liquidator
may be able,
as effectively as possible and, I think, with as little expense as
possible ... to complete his function as liquidator, to put the
affairs of the
company in order and to carry out the liquidation in all its various aspects,
including, of course, the getting in
of any assets of the company available in
the liquidation. It is, therefore, appropriate for the liquidator, when he
thinks that
he may be under a duty to try to recover something from some
officer or employee of a company, or some other person who is, in some
way,
concerned with the company's affairs, to be able to discover, with as little
expense as possible and with as much ease as possible,
the facts surrounding
any such possible claim."[222]
This passage was subsequently approved
by the Court of Appeal.[223]
In Re Rolls Razor Ltd (No. 2) Megarry J said the following:
"The process under s. 268 is
needed because of the difficultly in which the liquidator in an insolvent
company is necessarily
placed. He usually comes as a stranger to the affairs of
a company which has sunk to its financial doom. In that process, it may
well be
that some of those concerned in the management of the company, and others as
well, have been guilty of some misconduct or
impropriety which is of relevance
to the liquidation. Even those who are wholly innocent of any wrongdoing may
have motives for concealing
what was done. In any case, there are almost
certain to be many transactions which are difficult to discover or to
understand merely
from the books and papers of the company. Accordingly, the
legislature has provided this extraordinary process so as to enable the
requisite information to be obtained. The examinees are not in any ordinary
sense witnesses, and the ordinary standards of procedure
do not apply. There is
here an extraordinary and secret mode of obtaining information necessary for
the proper conduct of the winding-up.
The process, borrowed from the law of
bankruptcy, can only be described as being sui generis."[224]
In British and Commonwealth Holdings
plc v. Spicer and Oppenheim Lord Slynn, speaking for the House of Lords,
approved the passages from Rolls Razor and Rolls Razor (2) quoted
above and then said the following:
"I am therefore of the opinion
that the power of the Court to make an order under s. 236 is not limited to
documents which can
be said to be needed 'to reconstitute the state of the
company's knowledge' even if that may be one of the purposes most clearly
justifying the making of an order."[225]
(iii)
The application of section 33(1) of the Constitution
[125]
In applying section 33(1) I propose adopting
the approach followed in S v. Makwanyane and Another[226], where, as in the present case, the
justification had to be necessary as well as reasonable and in which Chaskalson
P formulated
the approach as follows:
"The limitation of constitutional
rights for a purpose that is reasonable and necessary in a democratic society
involves the
weighing up of competing values, and ultimately an assessment
based on proportionality. This is implicit in the provisions of section
33(1).
The fact that different rights have different implications for democracy, and
in the case of our Constitution, for 'an open
and democratic society based on
freedom and equality', means that there is no absolute standard which can be
laid down for determining
reasonableness and necessity. Principles can be
established, but the application of those principles to particular
circumstances
can only be done on a case by case basis. This is inherent in the
requirement of proportionality, which calls for the balancing of
different
interests. In the balancing process, the relevant considerations will include
the nature of the right that is limited,
and its importance to an open and
democratic society based on freedom and equality; the purpose for which the
right is limited and
the importance of that purpose to such a society; the
extent of the limitation, its efficacy, and particularly where the limitation
has to be necessary, whether the desired ends could reasonably be achieved
through other means less damaging to the right in question.
In the process
regard must be had to the provisions of section 33(1), and the underlying
values of the Constitution, bearing in mind
that, as a Canadian Judge has said,
'the role of the Court is not to second-guess the wisdom of policy choices made
by legislators'."[227]
(footnotes omitted)
[126]
Because of the statutory duties which
liquidators have to discharge in the winding-up of companies and the serious
difficulties they
face in recapturing the knowledge of the company prior to
liquidation, in determining the cause of the company's failure and in
establishing
what assets (including claims) the company has, it is clearly
reasonable (in the sense of there being a rational connection between
mischief
and remedy) to compel persons to be interrogated in relation to affairs of the
company which are relevant to the discharge
by liquidators of their duties,
even where the testimony given tends to incriminate the person giving it. It is
also necessary, in
the sense that there is a pressing or compelling state
interest to ensure that assets (including claims) of the company are recovered,
for the benefit of creditors, especially from directors and officers of the
company who may have been responsible, even criminally
so, for the failure of
the company. It is also necessary, in this sense, to compel persons to answer
all relevant questions put to
them even when the answers might incriminate
them, for without this compulsion there would be a great reluctance by such
persons
to make a full and frank disclosure of their knowledge of the affairs
of the company and their dealings with it.
[127]
The real question is whether it is
necessary in the sense that no other method exists which achieves the desired
objective, but which
is less intrusive of the examinee's section 11(1) rights.
Differently stated, is there an acceptable proportionality between the
legitimate objective sought to be achieved and the means chosen? The answer
must clearly be in the negative. The state interest in
achieving full
information must be just as compelling in the United States of America, Canada
and the United Kingdom. Yet these countries,
more consistently the United
States and Canada, have achieved this objective by means which are less
invasive of the examinee's rights,
namely by conferring on the examinee either
a direct or both a direct and a derivative use immunity in respect of
self-incriminating
evidence given at the enquiry. There is nothing to suggest
that in South Africa the objective cannot be fully achieved if some form
of use
immunity were to be appended to section 417(2)(b) of the Companies Act. Section
65(2A)(b) of the Insolvency Act provides for
direct use immunity in respect of
enquiries held under that Act and, while there may be legitimate reasons for
distinguishing between
enquiries held in respect of personal bankruptcies and
those relating to company liquidations, I can think of no proper justification
for providing direct use immunity in respect of the former but not the latter.
In the light of the aforegoing it is unnecessary to
consider whether the
essential content of the section 11(1) right has, within the meaning of section
33(1)(b), been negated by this
provision. The conclusion is therefore reached
that, as currently formulated, the provisions of section 417(2)(b) of the
Companies
Act, which infringe the examinee's section 11(1) rights, cannot be
justified under section 33(1) of the Constitution. These provisions
are
accordingly found to be inconsistent with the section 11(1) right to freedom.
The attacks based on sections 8, 10, 13, 15, 22 or
24 of the Constitution
[128]
In view of the above finding it is
unnecessary to consider whether the provisions of section 417(2)(b) of the
Companies Act are inconsistent
with any of the rights protected in sections 8,
10, 13, 15, 22 or 24 of the Constitution.
The extent of the inconsistency of the provisions
of section 417(2)(b) of the Companies Act with the section 11(1) right to
freedom
[129]
Section 98(5) of the Constitution
provides that:
"In the event of the
Constitutional Court finding that any law or any provision thereof is
inconsistent with this Constitution,
it shall declare such law or provision invalid
to the extent of its inconsistency: Provided that the Constitutional Court may,
in
the interests of justice and good government, require Parliament or any
other competent authority, within a period specified by the
Court, to correct
the defect in the law or provision, which shall then remain in force pending
correction or the expiry of the period
so specified."
The above subsection enjoins this
Court, on finding that any law or any provision thereof is inconsistent with
this Constitution,
to declare such law or provision invalid "to the extent
of its inconsistency." This raises two issues, one of severability
and the
other of judicial policy. We were urged on behalf of the applicants to strike
down section 417(2)(b) in its entirety, leaving
it to Parliament to decide
whether to re-instate the obligation to give self-incriminating evidence, but
coupled this time with a
suitable indemnity against prosecution or a suitable
use immunity (whether a direct or a direct and derivative use immunity). On
behalf
of the applicants we were urged not to express our own views as to what an
appropriate and constitutionally valid use immunity
would be, under the guise
of a section 98(5) declaration as to the extent of the inconsistency of section
417(2)(b) with the Constitution.
To do so would, it was submitted, be
trespassing on Parliament's legislative sphere. On behalf of the second
respondents in the Ferreira matter we were invited, in the alternative
and in the event of finding section 417(2)(b) to be inconsistent with the
Constitution,
to make a qualified order in the following terms:
"To the extent only that the words 'and any
answer given to any such question may thereafter be used in evidence against
him'
in section 417(of the Companies Act apply to the use of any such answer by
an accused against him or her in criminal proceedings
(other than proceedings
for common law or statutory perjury in giving evidence under this section), the
provisions are declared to
be invalid."
[130]
On the issue of severability it is
unnecessary on the issue before us to do more than apply the test which
Kriegler J formulated for
this Court in Coetzee v. Government of the
Republic of South Africa and Others; Matiso and Others v. Commanding Officer,
Port Elizabeth Prison and
Others as follows:
"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?"[228]
Both tests are satisfied in the present
case, whether the order takes the form suggested by the applicants, or by
second respondents
in the Ferreira matter. On the applicants' approach
the remainder of the legislative scheme in sections 417 and 418 is not
dependent on the bad in
section 417(2)(b). On the approach suggested by the
second respondent in the Ferreira matter a person examined would still
be obliged to answer all questions put, including those that might be
self-incriminating, but
the deletion of the words "and any answer given to
any such questions may thereafter be used in evidence against him" would
merely exclude the use of incriminating answers in all subsequent criminal proceedings
against the examinee. The exclusion would
be limited to criminal proceedings.
Such a deletion would not have any effect on the efficacy of the section 417
and 418 proceedings;
the removal of the bad would only affect subsequent use of
the answers. On the second leg of the test, that which will remain clearly
still gives effect to the purpose of the legislative scheme, which has been
analysed above.
[131]
The more difficult problem relates to
the way in which the Court should declare the extent of the inconsistency of
section 417(2)(b)
with the Constitution. There is great force in the warning
that this Court ought not to prescribe or even suggest to Parliament how
best
it should legislate in order to address any statutory vacuum or deficiency
caused by a declaration of invalidity. By doing this
we might be seen to be
trespassing on Parliament's legislative terrain. At the same time, however, the
injunction in section 98(5)
of the Constitution requires the Court to indicate
the "extent" of the inconsistency. This qualification was not
essential.
The injunction could merely have read "it shall declare such
law or provision invalid." The Constitution therefore reflects
a choice
for a narrow striking down. In certain cases such a narrow striking down is
technically and linguistically simple where
the constitutional inconsistency is
encapsulated in (and limited to) a discrete subsection or paragraph containing
nothing but the
inconsistent provision. However, the excision cannot always be
so surgically neat. The Constitution seems to have foreseen this by
using the
expression "to the extent of its inconsistency" as a qualification to
the bald declaration of invalidity of "any
law or any provision
thereof." It permits the Court greater latitude in formulating its
declaration of invalidity.
[132]
A not inconsiderable part of the
argument was directed to the nature of (a) an indemnity against prosecution, or
(b) a direct use
immunity or (c) a derivative use immunity which, if coupled
with the compulsion to give self-incriminating evidence, might render
such
compulsion constitutionally unobjectionable. This debate was an important
feature in the judgments in Thomson's case.[229] It is not inconceivable (in fact it
seems likely) that, if we were simply to strike down section 417(2)(b) in its
entirety, Parliament
would consider introducing more limited provisions along
the lines of the provisions of section 65(2A) of the Insolvency Act.
In
so doing, Parliament might decide to provide for a direct use immunity only,
which might very well give rise to another constitutional
challenge, resulting
in another suspension of the section 417 and 418 procedures, the halting of
liquidation enquiries and a hearing
in this Court simply duplicating the
arguments that have been addressed to us in the present case. Such a course of
events would
be both unnecessary and unfortunate, particularly if it could
legitimately be avoided. It can properly, in my view, be avoided. It
would be
permissible for us, in the process of determining the extent of the
inconsistency of section 417(2)(b) with the Constitution, to decide whether, in
the South African context, both a direct and
a derivative use immunity is
necessary to save such a provision from being unconstitutional, or whether a
direct use immunity would
suffice. Without doing so, it would be difficult, if
not impossible to indicate accurately the extent of the inconsistency. I
now proceed to address myself to this question.
[133]
It has been pointed out above that, in
the United States of America, both derivative and direct use immunity is
necessary in order
to escape constitutional challenge to a statute which limits
the right against self-incrimination. In Thomson Newspapers La Forest J
pointed out, however, that
"the absolutist position the courts in the
United States have adopted in this area is undoubtedly rooted in the explicit
and
seemingly absolute right against self-incrimination found in the country's
constitution"[230]
and that
"one should not automatically
accept that s. 7 comprises a broad right against self-incrimination on an
abstract level or, for
that matter, on the American model, complete with all
its residual doctrines. If that had been intended, it would have been very
easy
to say so."[231]
In embarking on this enquiry regarding
derivative use immunity, it is salutary to bear in mind that the problem cannot
be resolved
in the abstract but must be confronted in the context of South
African conditions and resources - political, social, economic and
human.[232]
The fact that a particular obligation may be placed on the criminal
investigative and prosecutorial authorities in one country with
vast resources,
does not necessarily justify placing an identical burden on a country with
significantly less resources. One appreciates
the danger of relativising
criminal justice, but it would also be dangerous not to contextualise it. The
aphorism proclaims that
it is better for ten guilty accused to go free than to
have one innocent accused wrongly convicted. Does the same hold true if the
proportion is stretched to a hundred to one or to a thousand to one? And must a
system, which only produces one in a hundred wrong
acquittals in one country,
be maintained in another if it would consistently give rise to three in five
wrong acquittals in the latter?
[134]
The distinction which La Forest J
draws between the direct use of compelled testimony and the use of evidence
derived from compelled
testimony is, in my view, important:
(a)
In the case of the direct use of compelled testimony,
"[i]t is only when the testimony
itself has to be relied on that the accused can be said to have been forced to
actually create self-incriminatory evidence in his or her own trial. The
compelled testimony is evidence that simply would not have existed
independently
of the exercise of the power to compel it; it is in this sense
evidence that could have been obtained only from the accused."[233]
(b)
By contrast,
"evidence derived from compelled
testimony is, by definition, evidence that existed independently of the
compelled testimony ... Although such evidence may have gone undetected or
unappreciated
in the absence of the compelled clues ... [this] is not the same
thing as non-existence ... [which in turn means] that it could have been
found by some other means, however low the probability of such discovery may
have been."[234]
[135]
This last mentioned feature means that
the relevance, quality and weight of derivative evidence can be determined
independently of
the testimony of the accused and is therefore self-sufficient.[235]
This distinguishing feature is significant. In Lam Chi-Ming v. R[236],
an appeal to the Privy Council from Hong Kong, Lord Griffiths, in a passage
quoted with approval by this Court in Zuma[237], identified three reasons for excluding
confessions obtained by improper methods: (a) possible unreliability, (b) the
privilege or
principle against self-incrimination and (c) the desire to ensure
proper behaviour by the police towards those in their custody and
then added:
"the more recent English cases
established that the rejection of an improperly obtained confession is not
dependent only upon
possible unreliability but also upon the principle that a
man cannot be compelled to incriminate himself and upon the importance
that
attaches in a civilised society to proper behaviour by the police towards those
in their custody."[238]
The policy considerations (a) and (c)
above do not apply at all to the admission of derivative evidence. For this
reason alone, it
is legitimate to approach the admissibility of derivative
evidence somewhat differently, the more so when regard is had to the
independent
existence of derivative evidence, quite apart form the testimony of
the person disclosing it. In Thomson Newspapers, La Forest J, in dealing
with the admissibility of derivative evidence, drew an analogy to section 24(2)
Charter jurisprudence.[239]
This subsection of the Charter has adopted an intermediate position with respect
to the exclusion of evidence obtained in violation
of the Charter. In R. v.
Collins the Canadian Supreme Court explained that -
"[S. 24(2)] rejected the American
rule excluding all evidence obtained in violation of the Bill of Rights
and the common law rule that all relevant evidence was admissible regardless of
the means by which it was obtained."[240]
Apart from the obvious statutory
exceptions relating to confessions and admissions, the English common law rule is
applied in South
Africa.[241]
No doubt this rule will have to be reconsidered at some stage in the light of
the provisions of Chapter 3 of the present Constitution.
[136]
In Collins, evidence had been
discovered on the accused in pursuance to a search which was in breach of the
accused's rights under section 8
of the Charter. Lamer J, in the course of
considering whether the admission of such evidence would bring the
administration of justice
into disrepute, stated the following:
"Real evidence that was obtained
in a manner that violated the Charter will rarely operate unfairly for that
reason alone. The
real evidence existed irrespective of the violation of the
Charter and its use does not render the trial unfair. However, the situation
is
very different with respect to cases where, after a violation of the Charter,
the accused is conscripted against himself through
a confession or other
evidence emanating from him. The use of such evidence would render the trial
unfair, for it did not exist prior
to the violation and it strikes at one of
the fundamental tenets of a fair trial, the right against
self-incrimination."[242]
In Thomson Newspapers, La Forest
J pointed out that Lamer J had not, in Collins:
"intended to draw a hard-and-fast
line between real evidence obtained in breach of the Charter and all other
types of evidence
that could be so obtained. ... what Lamer J had in mind was
the much broader distinction between evidence which the accused had been
forced
to create, and evidence which he or she has been forced to merely locate
or identify. In other words, he had in mind the kind of distinction which I
have attempted to draw between compelled testimony and evidence derived
from
compelled testimony."[243]
[137]
La Forest J also drew attention to the
fact that
"... the testimony of third
parties obtained as a result of the pursuit of such clue facts is clearly
evidence that exists regardless
of whether or not the person who provided the
clue facts was compelled to give testimony. As much as the murder weapon or the
stolen
car, it is evidence that could have been found in the absence of any
assistance, compelled or otherwise, from the person subsequently
charged. I do
not see why this factor should be relevant to the admissibility of the murder
weapon under s. 24(2), but irrelevant
to the admissibility of the third party's
testimony under the same section, or to the admissibility of either piece of
evidence under
s. 7 or s. 11(d)."[244]
The learned Judge considered it
"overly broad to say that there
must be an absolute prohibition against the use at trial of all evidence
derived from testimony
compelled before trial on the ground that the admission
of such evidence can in some cases affect the fairness of the trial. ...
[I]n defining the scope of the immunity required by the Charter, we are called
upon to
balance the individual's right against self-incrimination against the
state's legitimate need for information about the commission
of an
offence."[245]
[138]
In outlining the advantages to the
community as a whole (including the fact that investigation and detection is
speeded up and the
law's effectiveness as a deterrent enhanced) if there was
not a blanket exclusion of derivative evidence, La Forest J made, to my
mind,
the important point, particularly for our context, that
"[t]he limited resources that society
has to spend on law enforcement activity in general will be utilised in a more
cost-effective
manner ... [which will mean] the effective investigation of a
greater proportion of offences ... [enhancing in turn] the law's potency
as a
deterrent to potential wrongdoers."[246]
He concluded that
"[a]ll of these benefits of a
power to compel testimony would either be lost or severely limited if the
Constitution required
that the legislative grant of any such power must be
accompanied by a grant of full use and derivative use immunity."[247]
[139]
The learned Judge adopted a flexible
approach to balancing the interests of the individual and that of the state,
which in his view
could only be achieved by the trial judge exercising a
discretion.[248]
This discretion was, as La Forest formulated it in R. v. Corbett[249]
and confirmed it in Thomson Newspapers,
"to exclude
matters that may unduly prejudice, mislead or confuse the trier of fact,
take up too much time, or that should otherwise be excluded on clear grounds
of law or policy".[250]
This discretion "is ultimately
grounded in the trial judge's duty to ensure a fair trial."[251]
A similar flexible approach could, La Forest J argued, be adopted in regard to the
admissibility of derivative evidence, having due
regard to the need to balance
the right of the accused and that of the public in a specific context:
"... derivative evidence that
could not have been found or appreciated except as a result of the compelled
testimony under the
Act should in the exercise of the trial judge's discretion
be excluded since its admission would violate the principles of fundamental
justice ... such exclusion should [not] take place if the evidence would
otherwise have been found and its relevance understood ...
The touchstone for
the exercise of the discretion is the fairness of the trial process."[252]
La Forest J concluded by holding that:
"... complete immunity against
such use is not required by the principles of fundamental justice. The immunity
against use of
actual testimony provided by s. 20(2) of the Act together with
the judge's power to exclude derivative evidence where appropriate
is all that
is necessary to satisfy the requirement of the Charter."[253]
[140]
I respectfully favour the approach
adopted by La Forest J, for the reasons stated by him, rather than that
preferred by Wilson J.
Wilson J criticized La Forest J's approach on
basically two grounds. Firstly because,
"[t]he public repute of justice is
not the relevant consideration in determining whether derivative evidence
should be excluded
on the ground that it was obtained as a direct result of
testimonial compulsion in violation of the principles of fundamental
justice."[254]
I do not understand La Forest J to have
advanced such a proposition so rigidly. The learned judge was arguing by way of
analogy in
an attempt (perfectly permissible in my view) to find an acceptable
norm on the basis whereof the right of the individual could fairly
be balanced
against the interests of the state. This is encapsulated in the following
observation the learned judge made:
"I find it difficult to imagine
how the use of evidence which does not bring the administration of justice into
disrepute can
at the same time be contrary to the principles of fundamental
justice. The consequence of the former finding is, in effect, to declare
that
the Charter breach by which evidence was obtained was non-prejudicial, and in a
sense nominal. To argue that the same reasoning
cannot be used to determine
whether the use of derivative evidence constitutes a breach of the rights
guaranteed under s. 7 would
be to take an unduly formalistic approach to the
interpretation of the Charter. As I mentioned earlier, the discussion might
equally
be framed in terms of the right to a fair trial under s. 11(d) with
similar results, a matter to which I shall return."[255]
The second criticism was to the effect
that
"[the] exclusion [of derivative
evidence] must be a matter of principle and of right, not of discretion."[256]
If, as a result of the proper exercise
of a discretion, a fair trial is ensured, I fail to see how principle is
lacking, any more
than when such evidence is admitted in a way which is
"in accordance with the principles of fundamental justice", the
qualification
to section 7 of the Charter.
[141]
A recent decision in the Canadian
Supreme Court, R.J.S. v. The Queen; Attorney-General et al., Interveners[257]
(hereinafter "R.v.S. (R.J.)"), which bears on the issue of
derivative use immunity as a constitutional requirement, came to our attention
after argument.
It concerned two young offenders who were both charged with the
same offence of "break, enter, and theft" but, because
of their age
and by virtue of relevant Ontario legislation, were to be tried separately. At
the trial of the one young offender ("the
accused"), the other young
offender ("the witness") was subpoenaed by the Crown to testify
against the accused. On
an application brought by the witness's counsel, the
subpoena against him was quashed on the basis that to require the witness to
testify would violate section 7 of the Canadian Charter of Rights and Freedoms.
Because of the resultant lack of evidence the accused
was acquitted. On appeal
by the Crown, the quashing of the subpoena was set aside and a new trial
ordered, a decision confirmed by
the Supreme Court. It is necessary to point
out the obvious, namely, that this particular problem could not arise in our
law because
of the transactional indemnity which, in similar circumstances,
would be available to the witness by virtue of the provisions of
section 204 of
the Criminal Procedure Act.[258]
[142]
Nevertheless the decision is of
significance for a number of reasons. First, it clearly affirms the principle
that in all cases "a
statutory compulsion to testify engages the liberty
interest of s. 7" but that normally "the liberty interest is affected
in accordance with the principles of fundamental justice."[259]
Second, it confirms that a "deprivation of liberty may arise by virtue of
a compulsion to speak per se ..."[260] regardless of the character of the
compelled speech. The character of the speech which is compelled (for example,
self-incriminatory
speech) may, however, depending on the particular
construction of the Charter, be determinative of the issue as to whether such
deprivation
of liberty is in accordance with the principles of fundamental
justice or whether an infringement is justified under section 1 of
the Charter.[261]
Third, it makes clear that the liberty interest in section 7 of the Charter
"may be engaged although there is no coincident
deprivation in respect of
the other s. 7 interests, life or security of the person".[262]
Fourth, it holds, relying on earlier dicta, that not every restriction
of absolute freedom constitutes a deprivation of liberty. Fifth, the judgment also
confirms that, notwithstanding
the provisions of sections 11(c)[263]
and 13[264]
of the Canadian Charter, section 7 of the Charter contains residual protections
against self-incrimination extending beyond sections
11(c) and 13 and that this
is necessary, in part, to protect the section 11(c) right.[265] Iacobucci J, highlighting "the
vigour of section 7", held that there was "a functional, unifying
principle" against
self-incrimination and that pre-trial silence was no
longer merely "a particular manifestation of the general freedom to do
as
one pleases" but had "been elevated to the status of a constitutional
right."[266]
Lastly, it considers extensively the nature of derivative evidence and whether
and to what extent a derivative use immunity
is necessary in order to render
compelled testimony in accordance with the principles of fundamental justice. I
shall endeavour to
deal as briefly as possible with this last aspect.
[143]
The issue of derivative use evidence
was considered on the basis that the principle of fundamental justice which
operated in the case
was the "principle against self-incrimination".[267]
It was pointed out that the Canada Evidence Act had abolished the witness's (as
opposed to the accused's) privilege and replaced
it with a limited form of
immunity, applicable in respect of subsequent proceedings and not at the moment
of compelled testimony,
in as much as section 5(2) of the Canada Evidence Act
currently provides that a witness's self-incriminatory answers cannot "be
used or admissible in evidence against [the witness] in any criminal trial or
other criminal proceeding against him thereafter taking
place, other than a
prosecution for perjury".[268] Iacobucci J describes the policy
justification for the common law protections as resting "on the idea that
the Crown must establish
a 'case to meet'"[269] and reflecting "a basic distaste
for self-conscription".[270]
[144]
The learned Judge's approach was to
seek a compromise[271]
between, on the one hand, full transactional immunity if self-incriminating
testimony is compelled and, on the other, mere direct
use immunity where it is
only the witness's direct communication which is protected against subsequent
use. In the course of his
enquiry, Iacobucci J agreed[272] with the following statement by La
Forest J in Thomson Newspapers:
"A right to prevent the subsequent
use of compelled self-incriminating testimony protects the individual from
being 'conscripted
against himself' without simultaneously denying an
investigator's access to relevant information. It strikes a just and proper
balance
between the interests of the individual and the state."[273]
The conclusion reached by Iacobucci J
was that the Canadian Charter did not demand absolute derivative use immunity.[274]
The learned judge approved[275]
of the distinction drawn by La Forest J between compelled testimony and
derivative evidence and stated succinctly that
"compelled testimony is evidence
which has been created by the witness, whereas derivative evidence is evidence
which has independent
existence. It is only the class of created evidence which
is, by definition, self-incriminatory."[276]
[145]
Of importance is the fact that
Iacobucci J[277],
like La Forest J in Thomson Newspapers[278], drew heavily, by way of analogy, on
Canadian Charter section 24(2) jurisprudence in dealing with the question of
the exclusion of
derivative evidence. Nowhere in his judgment does Iacobucci J
express disagreement with La Forest J in Thomson Newspapers; in fact it
is written in terms of general approval with and further explication of La
Forest J's judgment. Iacobucci J accordingly
concludes that
"derivative evidence which could
not have been obtained, or the significance of which could not have been
appreciated, but for
the testimony of a witness, ought generally to be excluded
under s. 7 of the Charter in the interests of trial fairness."[279]
The qualification "ought
generally" was introduced because the learned judge advocated[280]
the same discretion on the part of the trial judge as is employed in the case
of section 24(2) Charter exclusion, namely, that the
exercise of the discretion
"will depend on the probative effect of the evidence balanced against the
prejudice caused to the
accused by its admission."[281] In other words, there is no automatic
rule of exclusion. Iacobucci J was, quite correctly in my view, hesitant to
elaborate any further
on the test and stated:
"Since this test for exclusion can
only arise in the context of proceedings subsequent to a witness' testimony ...
[i]ts form
will become known, as it should, in the context of concrete factual
situations."[282]
[146]
There is, in my judgment, no reason
why this approach cannot and ought not to be adopted in regard to the enquiry
concerning the admissibility
of derivative evidence in the context of section
417(2)(b) of the Companies Act. I have little doubt that two different but
related
areas concerning the law of evidence will, in due course, have to be
reconsidered fully in the light of Chapter 3 of the Constitution
and section
25(3) in particular. The one relates to the way in which evidence, particularly
in criminal proceedings, is obtained
and the second to the question of when and
to what extent a trial judge has a discretion to exclude otherwise admissible
evidence.
[147]
Prior to the coming into operation of
the Constitution, courts in South Africa were not particularly concerned with
the way in which
evidence was obtained. Notable exceptions of course related to
admissions, confessions and, more recently, to acts of pointing out.[283]
In other cases, however, the general approach was that, provided the evidence
was relevant, it was admissible.[284] It is unnecessary in the present case to
reconsider this issue beyond the very narrow area of the derivative use of
compelled self-incriminating
evidence. It can be noted, however, that since the
Constitution came into effect, a new approach is beginning to emerge in
decisions
of the Supreme Court.[285]
[148]
As far as the discretion to exclude
otherwise admissible evidence is concerned, there appears to be little doubt
that similar fact
evidence may be excluded if the probative value is outweighed
by the prejudice it would cause.[286] The existence of a general discretion
to exclude admissible evidence is, however, disputed. As Professor Zeffertt
points out:
"There can be no more
controversial an issue in the South African law of evidence than whether there
is a judicial discretion,
in criminal proceedings, to exclude admissible
evidence. Some authorities say it exists; others deny it".[287]
Those in favour[288] of the existence of the general
discretion to exclude admissible evidence usually rely on an obiter dictum of
Rumpff CJ in S v. Mushimba[289], who referred to the English case of R
v. Kuruma,[290]
where it was stated that there could be no doubt that "the judge always
has a discretion to disallow evidence if the strict
rules of admissibility
would operate unfairly against the accused"; but those opposed to
the discretion point to the fact
that the English rule referred to in Kuruma
has been narrowly construed in subsequent cases[291] and has in England been affected by
statute.[292]
In South Africa most decisions of the Provincial and Local Divisions of the
Supreme Court seem to confirm the existence of such a
discretion, but the
decisions are divided as to the basis for exercising the discretion.[293]
Some of the decisions merely recognise that the rule relating to similar fact
evidence applies in other situations as well, for example
in criminal
proceedings, where a judge has a general discretion to exclude evidence where
its probative value is outweighed by its
prejudicial effect.[294] Others appear to support the existence
of a discretion, along the lines suggested by Lord Goddard in Kuruma's
case, to exclude admissible evidence that would operate unfairly against the accused.[295]
The more recent decisions, before the commencement of the Constitution, suggest
that the discretion should be based on considerations
of public policy, rather
than fairness.[296]
[149]
In considering matters of evidential
admissibility or inadmissibility we ought not to limit the focus of our
attention exclusively
on the state of the law of evidence which existed prior
to the present Constitution coming into operation. Section 25(3) of the
Constitution
guarantees to every accused person the broad right to a fair
trial, which is not limited to the specific enumerated rights in paragraphs
(a)
- (j) of the subsection. In certain areas of criminal procedure, the specific
provisions of these paragraphs will settle debates
concerning criminal
procedure and criminal justice generally which previously were uncertain or
controversial. Thus, the application
of section 25(3)(e) of the Constitution in
S v. Vermaas; S v. du Plessis[297] settled the
"lively controversy in our law [as
to] whether persons standing trial on criminal charges who could not afford to
pay for their
legal representation were entitled to be provided with it at
public expense once its lack amounted to a handicap so great that to
try them
on their own lay beyond the pale of justice."[298]
The general discretion to exclude
evidence in a criminal trial is a principle accepted, for example, both in
England and in Canada.[299]
As La Forest J pointed out in Thomson Newspapers, the discretion to
exclude evidence which would otherwise have been admissible, has been applied
in various areas of criminal procedure
because this discretion is
"ultimately grounded in the trial judge's duty to ensure a fair
trial."[300]
La Forest J had no hesitation in concluding that this discretion ought also to
be exercised in the determination of when, and when
not, derivative evidence
relating to compelled self-incriminating testimony should be admitted against
an accused.[301]
This approach, subject to its passing the test of section 33(1) of the
Constitution, ought to apply in this country as well inasmuch
as, just as in
Canada, the right to a fair trial has been constitutionalised.[302]
[150]
In my view an approach whereby a
blanket exclusion of derivative evidence is not applied but where instead it is
dealt with on the
flexible basis of discretionary admissibility, as outlined
above, passes section 33(1) muster. We are not obliged to follow the absolutist
United States approach which, as pointed out in Thomson Newspapers in a
passage already referred to
"is undoubtedly rooted in the
explicit and seemingly absolute right against self-incrimination found in that
country's Constitution."[303]
The holding of a section 417 enquiry is
lawful and serves an important public purpose. Evidence obtained as a result of
such an enquiry
cannot be equated with evidence obtained as a result of
unlawful conduct. Where, for example, derivative evidence is obtained as
a
result of torture there might be compelling reasons of public policy for
holding such evidence to be inadmissible even if it can
be proved independently
of the accused. Otherwise, the ends might be allowed to justify the means. The
admission of evidence in such
circumstances could easily bring the
administration of justice into disrepute and undermine the sanctity of the
constitutional right
which has been trampled upon. The same considerations do
not apply to derivative evidence obtained as a result of the application
of
section 417(2)(b) at a section 417 enquiry.
[151] Companies are used to raise money from the public and to conduct business on the basis of limited liability. There are obvious advantages to doing so. But there are responsibilities which go with it. Part of the responsibility is to account to shareholders for the way in which the company conducts its affairs and, if the company goes insolvent, to account to shareholders and creditors for the failure of the business. These responsibilities are well known to all who participate in the running of public companies. Giving evidence at a section 417 enquiry is part of the responsibility to account. It cannot simply be said that the administration of justice would necessarily be brought into disrepute by the subsequent use, even in criminal proceedings against the examinee, of derivative evidence obtained as a result of the application of section 417(2)(b) of the Act. Indeed, the public, and especially the victims of the crime, might find a denial of the right to use such evidence inexplicable. Although it has been held that an auditor is not an officer of the company within the meaning of that expression in section 184(1) of the 1926 Act (corresponding to section 423(1) of the present Act)[304] and it has been suggested that there is no basis for regarding an auditor as being an officer of the company for any purpose of the Act,[305] in my view the same public policy considerations apply to the use of derivative evidence of an auditor of the company compelled to testify under section 417(2)(b) of the Act. The auditor has, inter alia, many statutory duties under the Companies Act[306] and the Public Accountants' and Auditors Act,[307] the