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IN 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