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

"(3) If a person summoned as aforesaid, appears in answer to the summons but fails to produce any book or document which he was summoned to produce, or if any person who may be interrogated at a meeting of creditors in terms of subsection (1) of section sixty-five refuses to be sworn by the officer presiding at a meeting of creditors at which he is called upon to give evidence or refuses to answer any question lawfully put to him under the said section or does not answer the question fully and satisfactorily, the officer may issue a warrant committing the said person to prison, where he shall be detained until he has undertaken to do what is required of him, but subject to the provisions of subsection (5)."

[2] This declaration was made and referred to this Court for confirmation under section 172(2)(a) of the Constitution of the Republic of South Africa 1996 ("the 1996 Constitution").² At the request of the President, the Minister of Justice was represented at the hearing by counsel who addressed written and oral argument as to why the declaration ought not to be confirmed. The Association of Insolvency Practitioners of Southern Africa initially applied to be admitted as an amicus curiae in the proceedings but did not proceed with its application.

[3] The applicant was the only member of three close corporations ("the corporations") which were finally wound up on 15 December 1994. The second, third and fourth respondents are the liquidators, respectively, of the corporations. Various provisions of the Insolvency Act, including sections 64, 65 and 66 thereof, are, by section 416 of the Companies Act 61 of 1973 ("the Companies Act") made applicable, mutatis mutandis, in various ways to proceedings under section 414 and 415 of the latter Act, to the extent that they can be applied and are not inconsistent with its provisions.³

[4] By section 66(1) of the Close Corporations Act 69 of 1984 ("the Close Corporations Act") the provisions of the aforementioned section 416 (as well as sections 414, 415 and various other provisions) of the Companies Act are made similarly applicable to the liquidation of a corporation in respect of any matter not specifically provided for in any other provision of the Close Corporations Act.⁴ Likewise the provisions of section 39(2) of the Insolvency Act, to which reference will be made presently, are to be applied to the liquidation of a corporation.⁵ Save for the order made at the conclusion of this judgment, any reference hereinafter to a provision of the Insolvency Act must be understood, unless the contrary is stated, as a reference to such provision as incorporated into the Close Corporations Act in the above manner.

[5] The applicant was summoned under section 64(2) of the Insolvency Act to attend the adjourned second meeting of creditors of the corporations on 13 and 14 January 1997. He was also required under section 64(3) to produce, amongst other things, the books of account and other financial records of the corporations. The applicant’s interrogation under section 65 commenced on 14 January 1997. On that date application was made on behalf of the second, third and fourth respondents for the issue of a warrant committing the applicant to prison under section 66(3) on the grounds that he had, in breach of the injunctions of the subsection, failed to produce the books and documents he had been summoned to produce and that he had failed to answer questions lawfully put to him under section 65(1) fully and satisfactorily. The application was postponed for argument and thereafter the presiding officer (first respondent) issued a warrant on 22 February 1997 committing the applicant to prison. The warrant was therefore issued after the commencement of the 1996 Constitution on 4 February 1997 and accordingly this Constitution is the applicable one. Save to observe that the warrant was subsequently conditionally suspended and that the application which Conradie J ultimately heard was launched on 9 May 1997, it is unnecessary to deal with any of the intervening or other events.

[6] In the application before Conradie J various orders were sought but only two were relevant. The one was for an order reviewing and setting aside the first respondent’s decision to commit the applicant to prison. The grounds relied upon were not of a constitutional nature. The second was for an order declaring section 66(3) to be constitutionally invalid and on that ground to review and set aside the committal. The learned judge found that there was no merit in the applicant’s non-constitutional review attack and in those circumstances correctly held that the issue of the constitutional invalidity of section 66(3) would, one way or the other, be dispositive of the case.

[7] In the result the learned judge held that the subsection was invalid because of its inconsistency with section 12(1)(b) of the Constitution which guarantees the right "not to be detained without trial" and held further that the limitation of this right by the subsection could not be justified under section 36(1). Although he did not express himself explicitly on this issue, the general tenor of his judgment, and in particular his reliance on the judgments of this Court in Bernstein and Others v Bester NO and Others⁶ and Nel v Le Roux NO and Others,⁷ warrants the conclusion that Conradie J considered that, substantively, the "process in aid"⁸ which the subsection provides to compel examinees, who are under a legal duty to do so, to testify or produce documents, was constitutionally unobjectionable. The thrust of the judgment went to determining whether the applicant had, for purposes of section 12(1)(b) of the Constitution, received a "trial"; the learned judge evidently assumed, in favour of the applicant, that committal to prison under section 66(3) constituted "detention". Conradie J held, in effect, that the only "trial" envisaged by section 12(1)(b) of the Constitution was a trial by a court of law.

[8] Section 39(2) of the Insolvency Act provides that all meetings of creditors are to be presided over by the Master or by an officer in the public service, designated by the Master; or by a magistrate or by an officer in the public service designated by the magistrate. In a district wherein there is a Master’s office a magistrate does not preside.⁹ In the present case the presiding officer (first respondent) was a magistrate. Conradie J held that a meeting of creditors presided over by any of these persons did not constitute a court of law and that consequently such meeting was not a trial for purposes of section 12(1)(b) of the Constitution. He considered that even where the meeting is presided over by a magistrate this does not constitute a court of law because a magistrate, in so presiding, is merely fulfilling an administrative function.

[9] Mr Bryan Hack, on behalf of the applicant, sought confirmation of Conradie J’s order and advanced essentially two lines of argument in support thereof. The first was that the subsection unjustifiably infringes paragraph (a) of section 12(1) of the Constitution, which guarantees to everyone the right "not to be deprived of freedom arbitrarily or without just cause." It did so, the argument went, because the objectives sought to be achieved by obtaining the oral and documentary information with which the meeting and interrogation under sections 64 and 65 of the Insolvency Act are concerned do not constitute such "just cause" for depriving examinees of their physical freedom by imprisonment under the impugned provisions of section 66(3).

[10] It was submitted that the only "just cause" for which a person can be imprisoned is the prevention or punishment of crime or possibly "in the broader sense" where necessary for the maintenance of law and order, but not for any other non-punitive coercion. In developing this argument Mr Hack correctly pointed out that in South African criminal law, since the death penalty and certain forms of corporal punishment have been declared to be unconstitutional,¹⁰ imprisonment is the most severe punishment that the state can impose on a criminal and that both the legislature and the courts have sought to develop innovative alternative forms of punishment which are less harsh and invasive of a person’s physical freedom than imprisonment.¹¹

[11] He also correctly pointed out that our courts emphasise that imprisonment should only be resorted to after other appropriate forms of punishment have been considered and excluded.¹² It is also correct that in the past there has been much unwarranted deprivation of physical freedom in order to achieve particular social and political goals. This all emphasises the great importance to be attached to physical freedom, but does not by itself afford much assistance in considering the correctness of the submission that deprivation of physical freedom may only be used as punishment for a crime.

[12] The second line of argument was that the subsection infringes paragraph (b) of section 12(1) because committal of an examinee constitutes "detention" which has not been preceded by the "trial" envisaged by paragraph (b). Mr Hack contended that in all cases the requisite trial had to be a trial before a duly constituted court of law following due and proper trial procedures and that the presiding officer at a meeting of creditors is not presiding over a court regardless of whether such officer is a magistrate or not. I shall deal with these arguments presently.

[13] Before doing so it is necessary to analyse section 66(3) briefly in its context. The presiding officer at a meeting of creditors under section 64 of the Insolvency Act may, as previously indicated, be the Master, an officer in the public service or a magistrate. The presiding officer is under section 66(3) authorised to commit certain persons to prison under given circumstances. A person summoned to produce a book or document under section 64(3) who fails to do so may be committed; so may any person who is liable to be interrogated in terms of section 65(1) and who refuses to be sworn when called upon to give evidence or who refuses to answer any question lawfully put under section 65 or who does not answer the question fully and satisfactorily.

[14] Under section 66(5) persons so committed may apply to court for their discharge from custody and the court may order their discharge if it finds that they were wrongfully committed to prison or are being wrongfully detained. Subject hereto, persons are detained under section 66(3) until they have undertaken to do what is required of them. Under section 66(4), if persons who have been released from prison after having so undertaken fail to fulfil their undertaking, the presiding officer may commit them to prison as often as may be necessary to compel them to do what is required of them. In addition, any act or omission for which a person has been or might have been lawfully so committed is a punishable offence.¹³ As will be discussed more fully later, the section 66(3) committal provision is a mechanism to compel the furnishing of information so that the legitimate objectives of the insolvency law may be properly and efficiently realised. Its purpose is not in the first instance punitive. It is a form of process in aid or a form of statutory civil contempt power.

[15] The provisions of section 11 of the interim Constitution¹⁴ need to be compared with those of section 12(1) of the 1996 Constitution.¹⁵ Section 11 of the interim Constitution provides:

“(1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.

(2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.”

Section 12(1) of the 1996 Constitution provides:

“ Everyone has the right to freedom and security of the person, which includes the right -

(a) not to be deprived of freedom arbitrarily or without just cause;

(b) not to be detained without trial;

sources;

(d) not to be tortured in any way; and

(e) not to be treated or punished in a cruel, inhuman or degrading way.”

[16] Paragraphs (d) and (e) of section 12(1) of the 1996 Constitution embody a reformulation of section 11(2) of the interim Constitution and a subdivision of its contents into two parts. Paragraph (c) of section 12(1) either incorporates a new right or else makes explicit what was previously implicit; the true explanation is not relevant for present purposes. A comparison between section 11(1) of the interim Constitution with the first line of section 12 (1) of the 1996 Constitution and paragraphs (a) and (b) thereof, is of greater significance for the present enquiry because it indicates that the constitution makers wished to clarify something which had previously been implicit, namely, that a person’s right to freedom could not be encroached upon arbitrarily or without just cause.

[17] Before indicating what I believe the consequences of the above changes are I wish to refer to certain dicta of O'Regan J in relation to section 11(1) of the interim Constitution, with which I agree and fully endorse. In Bernstein's case¹⁶ O'Regan J observed in general terms:

"In my view, freedom has two inter-related constitutional aspects: the first is a procedural aspect which requires that no-one be deprived of physical freedom unless fair and lawful procedures have been followed. Requiring deprivation of freedom to be in accordance with procedural fairness is a substantive commitment in the Constitution. The other constitutional aspect of freedom lies in a recognition that, in certain circumstances, even when fair and lawful procedures have been followed, the deprivation of freedom will not be constitutional, because the grounds upon which freedom has been curtailed are unacceptable."¹⁷

In the same judgment my learned colleague stated the following:

"Section 25 is the principal provision in chapter 3 that requires procedural fairness when a person is deprived of physical freedom. It contains detailed rules which must be followed to protect the rights of persons who have been detained, arrested or charged. Section 11(1), which contains no detailed procedures or rules, other than the prohibition of detention without trial, is supplementary to section 25. In cases where people are deprived of physical freedom in circumstances not directly governed by section 25, section 11(1) will require that fair procedures be followed, as was held in Coetzee v Government of the Republic of South Africa 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC)."¹⁸

[18] In S v Coetzee & Others¹⁹ (a case decided under the provisions of the interim Constitution) O'Regan J, in that part of her judgment with which I concurred, stated the following:

"[These questions] raise two different aspects of freedom: the first is concerned particularly with the reasons for which the state may deprive someone of freedom; and the second is concerned with the manner whereby a person is deprived of freedom. As I stated [in Bernstein’s case at paragraphs 145-147] our Constitution recognises that both aspects are important in a democracy: the state may not deprive its citizens of liberty for reasons that are not acceptable, nor, when it deprives its citizens of freedom for acceptable reasons, may it do so in a manner which is procedurally unfair.”²⁰

[19] In Nel's case²¹ this Court dealt with a constitutional attack on section 205 (incorporating as it does section 189) of the Criminal Procedure Act (the CPA)²² based on an alleged infringement of a person’s right under section 11(1) of the interim Constitution “not to be detained without trial”. Section 205 of the CPA provides for the compulsory examination of “any person who is likely to give material or relevant evidence as to an alleged offence” before a judge of the supreme court, a regional court magistrate or magistrate. Section 189 of the CPA, which applies to section 205, provides, amongst other things, that if any sworn witness in criminal proceedings:

“. . . refuses to answer any question put to him or refuses or fails to produce any book, paper or document required to be produced by him, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a just excuse for his refusal or failure, sentence him to imprisonment [for varying periods of time]”.

[20] A unanimous Court held that fair procedure was implicit in the trial component of the section 11(1) right²³ and further held:

“The mischief at which this particular right is aimed is the deprivation of a person’s physical liberty without appropriate procedural safeguards . . . The nature of the fair procedure contemplated by this right will depend upon the circumstances in which it is invoked. The “trial” envisaged by this right does not . . . in all circumstances require a procedure which duplicates all the requirements and safeguards embodied in section 25(3) of the Constitution. In most cases it will require the interposition of an impartial entity, independent of the executive and the legislature to act as arbiter between the individual and the state.”²⁴

The Court did not explicitly address itself to the substantive aspect of the right to freedom referred to in paragraphs 15 and 16 above, namely, that the state may not deprive its citizens of liberty for reasons that are not acceptable, because the section 11(1) challenge was not brought on this basis. It is, however, implicit in the Court’s judgment that this was an essential component of the right to freedom and that the reasons or purposes for the imprisonment of an examinee under the circumstances provided for by section 205 read with section 189 of the CPA are constitutionally acceptable.

[21] Thus it was stated:

“The imprisonment provisions in section 189 constitute nothing more than process in aid of the essential objective of compelling witnesses who have a legal duty to testify to do so . . .”²⁵

and more particularly:²⁶

"Summary proceedings for imprisoning recalcitrant witnesses, where the normal strict criminal procedure rules are not applied, are not unknown in other open and democratic societies based on freedom and equality. In the United States of America the grand jury investigation, amongst its other objects, fulfills the same function as section 205 of the CPA of obtaining information under oath from persons unwilling to assist voluntarily in a criminal investigation; both civil and criminal contempt procedures are used to coerce the recalcitrant grand jury witness into testifying. 'Civil contempt is used to coerce the recalcitrant witness into complying with the subpoena. The witness is sentenced to imprisonment or to a fine (which may increase daily), but he may purge himself by complying with the subpoena.' In the case of such civil contempt proceedings in relation to grand jury proceedings, departures from criminal procedure applicable to ordinary criminal prosecutions are permissible and even in criminal contempt proceedings 'procedures may vary somewhat from procedures applicable to ordinary criminal prosecutions.' Rule 42(a) of the Federal Rules for Criminal Procedure authorises summary criminal contempt proceedings in matters other than grand jury investigations. In Germany section 70 of the Criminal Procedure Code provides for summary proceedings against a witness who refuses to testify without legal justification. The witness is fined and on failure to pay is imprisoned. The witness may also be imprisoned without being given the option of a fine. Such and similar summary proceedings leading to imprisonment have been upheld as constitutional by the German Federal Constitutional Court."

[22] It can therefore be concluded that section 12(1), in entrenching the right to freedom and security of the person, entrenches the two different aspects of the right to freedom referred to above. The one that O’Regan J has, in the above-cited passages, called the right not to be deprived of liberty "for reasons that are not acceptable" or what may also conveniently be described as the substantive aspect of the protection of freedom, is given express entrenchment in section 12(1)(a) which protects individuals against deprivation of freedom "arbitrarily or without just cause". The other, which may be described as the procedural aspect of the protection of freedom, is implicit in section 12(1) as it was in section 11(1) of the interim Constitution.

[23] The substantive and the procedural aspects of the protection of freedom are different, serve different purposes and have to be satisfied conjunctively. The substantive aspect ensures that a deprivation of liberty cannot take place without satisfactory or adequate reasons for doing so. In the first place it may not occur “arbitrarily”; there must in other words be a rational connection between the deprivation and some objectively determinable purpose. If such rational connection does not exist the substantive aspect of the protection of freedom has by that fact alone been denied. But even if such rational connection exists, it is by itself insufficient; the purpose, reason or “cause” for the deprivation must be a “just” one. What “just cause” more precisely means will be dealt with below.

[24] Although paragraph (b) of section 12(1) only refers to the right “not to be detained without trial” and no specific reference is made to the other procedural components of such trial it is implicit that the trial must be a “fair” trial, but not that such trial must necessarily comply with all the requirements of section 35(3). This was the Court’s unanimous holding in respect of section 11(1) of the interim Constitution in Nel’s case²⁷ and is equally applicable to section 12(1)(b) in the context of the entrenchment of the "right to freedom and security of the person" in section 12(1) of the 1996 Constitution, there being no material difference between the two provisions.

[25] In the interests of clarity it is necessary to point out that where the 1996 Constitution has, in relation to a specific subject matter, dealt with the procedural aspect of the right to liberty in a particular provision, it is to such provision that one must turn in order to determine the nature and extent of the procedural liberty right guaranteed in that particular context, and not to the general provision of section 12(1)(b). This would seem to follow from both a structural and purposive approach to the chapter 2 Bill of Rights. Thus, in order to determine, for example, what the procedural freedom rights are of persons arrested for allegedly committing an offence and of accused persons, one would have regard to the provisions of subsections (1) and (3) respectively of section 35 and of persons after their detention one would have regard to section 35(2). This will be dealt with more fully below. At the same time, however, sight must not be lost of the fact that, for example, accused persons are entitled to challenge the constitutional validity of a criminal offence with which they are charged on the substantive freedom right ground that such offence does not, for purposes of section 12(1)(a), constitute “just cause” for the deprivation of their freedom.

[26] When viewed against its historical background, the first and most egregious form of deprivation of physical liberty which springs to mind when considering the construction of the expression “detained without trial” in section 12(1)(b), is the notorious administrative detention without trial for purposes of political control. This took place during the previous constitutional dispensation under various statutory provisions which were effectively insulated against meaningful judicial control. Effective judicial control was excluded prior to the commencement of the detention and throughout its duration. During such detention, and facilitated by this exclusion of judicial control, the grossest violations of the life and the bodily, mental and spiritual integrity of detainees occurred. This manifestation of detention without trial was a virtual negation of the rule of law and had serious negative consequences for the credibility and status of the judiciary in this country.

[27] Even where a derogation from section 12(1)(b) right has validly taken place²⁸ in consequence of a state of emergency duly declared under the provisions of the 1996 Constitution,²⁹ and such derogation has excluded a trial prior to detention, detailed and stringent provisions are made for the protection of the detainee and in particular for subsequent judicial control by the courts over the detention.³⁰ It is difficult to imagine that any form of detention without trial which takes place for purposes of political control and is not constitutionally sanctioned under the state of emergency provisions of section 37, could properly be justified under section 36. It is however unnecessary to decide that issue in the present case. History nevertheless emphasises how important the right not to be detained without trial is and how important proper judicial control is in order to prevent the abuses which must almost inevitably flow from such judicially uncontrolled detention.

[28] Although administrative detention without trial for purposes of political control (or for that matter completely arbitrary detention without trial) might very well be the most serious infringement of section 12(1)(b), the protection afforded by the right guaranteed thereunder goes considerably further. In its ordinary grammatical sense “detention” is a word of wide meaning and relates to “keeping in custody or confinement; arrest. Used spec of the confinement of a political offender . . . bodily restraint.”³¹ In legal use its meaning is determined by the context and can relate to a variety of physical restraints.³² In fact section 66(3) of the Insolvency Act itself describes the committal to prison as being “detained”. The context in which it is used in section 12(1)(b) does not require it to be given a strained or limited meaning. It applies to the restriction of physical movement. For purposes of this judgment it is unnecessary to decide the nature or extent of the space to which the restriction must apply; for whatever limits might apply to either, the committal of a person to prison pursuant to the provisions of section 66(3) clearly falls within them and constitutes detention.³³ I can see no difference in principle between the nature and extent of the spatial confinement under section 66(3) and that under section 189 of the CPA where “imprisonment” is ordered and whose confinement this Court found in Nel’s case, albeit implicitly, to constitute detention for purposes of section 11(1) of the interim Constitution. I turn now to deal more specifically with the two grounds on which the constitutional validity of section 66(3) was attacked.

The Attack Based on the Substantive Aspect of the Right to Freedom.

[29] As foreshadowed above, committal to prison under section 66(3) clearly constitutes detention for purposes of section 12(1)(b) of the 1996 Constitution. It was not contended in argument, nor could it reasonably have been, that such committal constituted an arbitrary deprivation of freedom. Its clear and only purpose is to compel examinees to comply properly with their obligations to supply the information, books and documents required by the relevant provisions of the Insolvency Act.

[30] The only real issue on this part of the case is whether the objective of committal to prison under section 66(3) constitutes “just cause” for such committal. It is not possible to attempt, in advance, a comprehensive definition of what would constitute a “just cause” for the deprivation of freedom in all imaginable circumstances. The law in this regard must be developed incrementally and on a case by case basis. Suffice it to say that the concept of “just cause” must be grounded upon and consonant with the values expressed in section 1 of the 1996 Constitution³⁴ and gathered from the provisions of the Constitution as a whole. I wish to say no more about “just cause” than is necessary for the decision of the present case.

[31] It seems to me that, on first principles, and in the context of the Constitution and its underlying values, the objective of the detention under the subsection does constitute “just cause” for the committal and consequent deprivation of freedom. In a constitutional democratic state, which ours now certainly is, and under the rule of law (to the extent that this principle is not entirely subsumed under the concept of the constitutional state) “citizens as well as non-citizens are entitled to rely upon the state for the protection and enforcement of their rights.³⁵ The state therefore assumes the obligation of assisting such persons to enforce their rights, including the enforcement of their civil claims against debtors.”³⁶

[32] This it does through its courts and legal system generally and by its insolvency laws in particular. These laws constitute a last resort for creditors to enforce valid claims against their debtors and they also ensure a fair and just distribution of debtors’ assets among competing creditors in the event of such debtors’ liabilities exceeding their assets.³⁷

[33] The section 66(3) committal to prison is also a form of process in aid to ensure that the legitimate goals of the insolvency laws are achieved and creditors protected. This form of process is sometimes referred to as "civil contempt". The purpose of the provisions of sections 64, 65 and 66 of the Insolvency Act is, amongst others, to enable trustees of insolvent estates to establish what the assets of the estate are and what has happened to them; to recover such assets and all claims due to the estate; and to acquire all information that might be required by the trustees or the creditors.³⁸ Almost invariably the trustee comes to the administration of the insolvent estate with little or no knowledge thereof or of the dealings of the insolvent. Full knowledge of these matters is essential for the protection of creditors and the winding up of the estate. The insolvent is often the only or most important person who can furnish the necessary information.

[34] It is of compelling public interest that such information be obtained and the recalcitrant insolvent compelled to furnish it as well as to produce relevant books and documents to that same end or to furnish information as to where such books and documents are to be found. The public interest in this regard is no less compelling than in the case of the winding up of a company and the necessity of compelling the insolvent to furnish such information no less than in the case of the director of a company in the process of being wound up. The reasons therefore in the latter instance have been fully explained in the judgments of this Court in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others³⁹ and Bernstein’s case⁴⁰ and it is unnecessary to repeat them here. In the case of insolvency it is likewise in the interest of the general body of creditors that all the assets of the insolvent be established and recovered and collusive dealings and impeachable transactions with particular creditors exposed. To this end it is vital to ensure that insolvents and other persons who are in a position to give important information on such matters do not evade supplying it.

[35] Although insolvency proceedings are civil in nature, the public interest in compelling the insolvent to disclose all such information regarding the insolvent estate would in many instances be even greater than in the case of a witness at a criminal trial who is compelled to testify by the provisions of section 189 of the CPA, because the insolvent is very often the only source of particular information. Where the examinee under section 66(3) is not the insolvent, the public interest in coercing such person to testify would be at least as compelling.

[36] Just as in the case of sentencing a witness to imprisonment in proceedings under section 189 of the CPA⁴¹, a committal to prison under section 66(3) is no more than process in aid of the essential governmental objective of compelling persons who are under a legal duty to testify to do so. The examinees under section 66(3) also “carry the keys of their prison in their own pockets”⁴², for the effect of the concluding part of the subsection is that the detention of an examinee comes to an end when the examinee “has undertaken to do what is required of him.”

[37] Section 66(3) has, as far as I am aware, only been the referred to in one case,⁴³ which does not, for present purposes throw any light on the nature of the detention following committal. In principle, however, the underlying purpose and nature of the committal proceedings under section 66(3) are essentially the same as the imprisonment under section 189 of the CPA. Just as in the case of the committal proceedings under section 189 of the CPA,⁴⁴ the section 66(3) committal also cannot be regarded as a criminal proceeding, does not result in the examinee being convicted of any offence and the detention of an examinee cannot be regarded as a criminal sentence or be treated as such.

[38] This is really placed beyond doubt when regard is had to the special penal provision of section 139(1) of the Insolvency Act, already referred to, which makes an act or omission, for which a person has or might have been lawfully committed to prison under section 66(3), a punishable offence. Imprisonment under section 189 of the CPA and committal to prison under section 66(3) are for present purposes indistinguishable.

[39] It is significant that the use of committal to prison as a means to enforce the disclosure of information in insolvency proceedings is not considered constitutionally or otherwise objectionable in other open and democratic societies based on dignity, equality and freedom. This is the case, for example, in England,⁴⁵ Australia,⁴⁶ Canada,⁴⁷ the United States of America⁴⁸ and Germany.⁴⁹ No authority was cited to us, and we are unaware of any, where committal to prison under such circumstances has been regarded as infringing an insolvent’s constitutional rights.

[40] As indicated above, committal to prison under section 66(3) serves a compelling and indispensable public purpose. There is no less severe measure which would adequately guarantee that the required information would be forthcoming from the examinee. A mere fine would often be ineffectual, inasmuch as the examinee might well prefer to pay a fine rather than supply the necessary information. To make it effective the fine would have to be very substantial and in the case of the insolvent it would be counterproductive and undesirable to execute such fine against the insolvent estate. There is in addition the important feature that recalcitrant examinees who are committed

to prison can immediately obtain their own release by deciding to furnish the information they are obliged to give.

[41] A further significant safeguard to the examinee’s rights is provided by section 66(5) which stipulates the following:

“Any person committed to prison under this section may apply to the court for his discharge from custody and the court may order his discharge if it finds that he was wrongfully committed to prison or is being wrongfully detained.”

This postulates an unrestricted reconsideration of the grounds for the examinee’s committal and continued detention. In this sense the imprisonment mechanism is very closely tailored to the purpose it is intended to serve and goes no further than is absolutely necessary to achieve its objective. In the result I conclude that the important public objective sought to be achieved by the enforcement mechanism under consideration, when regard is had to its narrow formulation and in-built safeguards, constitutes “just cause” under section 12(1)(a) of the 1996 Constitution for depriving section 66(3) examinees of their freedom. The applicant’s substantive freedom attack on the subsection must accordingly fail.

The attack based on the Fair Procedure aspect of the Right to Freedom

[42] Having come to the conclusion that the concept of “fair” is implicit in the “trial” guarantee of section 12(1)(b) of the 1996 Constitution, this part of the attack requires addressing the crucial question of what is to be understood by “fair trial”. In particular it raises the question whether, as contended for by Mr Hack, this “fair trial” guarantee requires that the officer presiding at the meeting of creditors and issuing the warrant committing the examinee to prison under section 66(3) must be a member of the judicial arm of the state, acting as such at the time. This is a matter not covered by the judgment in Nels’s case.⁵⁰

[43] This question, though simple, raises profound issues concerning the nature of the constitutional state and the separation of powers which must ultimately be resolved within the context of the 1996 Constitution. It is essential, in my view, to consider our constitutional history prior to the introduction of the interim and 1996 Constitutions in the process of determining what the purpose of the 1996 Constitution is in regard to these and related matters and ultimately in determining the correct construction of the fair trial guarantee in section 12(1)(b).

[44] One of the values expressed in section 1(c) of the 1996 Constitution as being foundational to the South African democratic state is the “[s]upremacy of the constitution and the rule of law” and in section 2 it is enacted that the Constitution is the “supreme law of the Republic and that “law or conduct inconsistent with it is invalid”. In section 7(1) the Bill of Rights is stated to be the “cornerstone of democracy in South Africa”, section 7(2) obliges the state to “respect, protect, promote and fulfil the rights in the Bill of Rights” and chapters 4 to 8 provide for a clear separation of powers between the legislature, executive and judiciary. We are here concerned only with the separation of powers as between the judiciary and the executive, to the extent that it is relevant to the present enquiry, and not that between the legislature and the executive.⁵¹

[45] When formulating in section 12(1) the “right to freedom and security of the person” and including therein (in paragraphs (a) and (b) respectively) the right “not to be deprived of freedom arbitrarily or without just cause” and “not to be detained without trial” the Constitutional Assembly chose to do so in broad and unqualified terms. It did not, in the description or definition of these rights, exclude from the ambit of their protection specific cases of detention, as was done in article 5.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In this Convention, the following forms of detention are, amongst others, excluded from the “right to liberty and security of person”:

“the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law ”,⁵²

“the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants”,⁵³

“the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”.⁵⁴

Situations such as these will be adverted to later in this judgment. The broad protection in our Constitution must moreover be evaluated in the light of the foundational constitutional commitment to the rule of law.

[46] Dicey⁵⁵ in propounding his concept of the rule of law, explains that in the first instance it means:

“. . . that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.”

Wade’s interpretation⁵⁶ of this aspect of the rule of law is that:

“. . . disputes as to the legality of acts of government are to be decided by judges who are independent of the executive. In Britain, as in the principal countries of the Commonwealth and in the United States of America, such disputes are adjudicated by the ordinary courts of law. Although many disputes may be taken before special tribunals (‘administrative tribunals’), these tribunals are themselves subject to control by the ordinary courts and so the rule of law is preserved”.

Mathews⁵⁷ has reformulated Dicey’s first proposition as follows:

“Government according to the rule of law means that with a view to the protection of the basic rights enumerated in the second proposition below [the basic freedoms of person, conscience, speech, information, movement, meeting and association], the relevant laws shall take the form of pre-announced, general, durable and reasonable precise rules administered by regular courts or similar independent tribunals according to fair procedures.”

[47] It must be borne in mind that we are here dealing with the rule of law in relation to personal freedom. In the sphere of personal freedom, particularly, the 1996 Constitution must be seen as a decisive rejection of and reaction against the severe erosion of the rule of law in relation to personal freedom in the apartheid era by a government which fits very closely Dicey’s description, quoted in the preceding paragraph, namely one “based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of restraint.” The nature and extent of these inroads is detailed by Mathews⁵⁸ who reminds us that as recently as 1988 internal security law made provision for no less than six forms of what may be called administrative detention, three which fell into the category of preventative detention and three into that of pre-trial detention. The singular importance of the judiciary as the protector of constitutional guarantees, seen also as a manifestation of the separation of powers doctrine, is well illustrated by the judgment in Minister of the Interior and Another v Harris and Others.⁵⁹

[48] In attempting to give flesh to fundamental constitutional concepts and values such as the separation of powers and the rule of law, it is instructive to note how other democratic countries based on freedom and equality regulate detention or committal to prison in circumstances comparable to those of the present case, and to what extent the intervention of a judicial officer is considered essential. At the end of the day it is of course our Constitution which has to be construed and its values applied in the South African context.

[49] Under the bankruptcy legislation of the United States of America the power to commit to prison someone who refuses to answer questions⁶⁰ is reserved to a judicial tribunal; the debate is about which tribunal or court. Judges of the federal courts of general jurisdiction are appointed under Article III of the US Constitution.⁶¹ The jurisdiction of certain specialist courts such as the United States Bankruptcy Court has been established by Congress under Article I. In the case of bankruptcy courts Congress is empowered to “establish . . . Laws on the subject of Bankruptcies throughout the United States.”⁶² Unlike federal judges, judges of the bankruptcy courts lack life tenure (they are appointed for a term of 14 years) and complete salary protection (their salaries are set by statute but may be reduced during their term of office). Nevertheless Title 28 of the United States Code accords them a significant measure of judicial independence.⁶³

[50] Under Bankruptcy Rule 9020⁶⁴, bankruptcy court judges are permitted to make “determinations” of contempt which, in the absence of timely objection, become final. If objections are timeously filed, the matter is sent to the United States District Court for de novo review. The United States Courts of Appeal have divided over whether bankruptcy court judges may exercise civil contempt power although the weight of authority seems to support an affirmative answer.⁶⁵ What this debate does emphasise, however, is that civil contempt power is a judicial one and cannot be exercised by the executive.

[51] In Canada committal for contempt on refusing to answer questions at a bankruptcy examination is a matter for the court. The court reviews the matter and if it determines that the questions in issue are proper will order the witness to attend the examination and answer the questions. If the witness still refuses a motion can be made to commit the witness for contempt.⁶⁶

[52] Section 104 II 1 of the German GG provides that only a judge may decide on the permissibility and continuation of detention.⁶⁷ Section 104 II 2 GG provides that where such detention is not based on the order of a judge a judicial ruling shall be obtained without delay. This is, however, only permitted in exceptional cases where a constitutionally permissible objective can simply not be achieved if a judicial decision had to precede the deprivation of liberty.⁶⁸

[53] As indicated above⁶⁹ the refusal by a bankrupt to furnish information in given circumstances is dealt with in England by means of committal for contempt. Although the general rule, as stated in Halsbury’s Laws of England⁷⁰ is that “[a]nything to be done under or by virtue of the Insolvency Act 1986 or the Insolvency Rules 1986 by, to or before the court may be done by, to or before a judge or registrar”, paragraph 2(i) of the “Practice Direction” in [1988] 3 All ER 984, which direction applies to insolvency proceedings in relation to individuals, requires that applications for the committal of any person to prison for contempt “shall be made direct to the judge and unless otherwise ordered shall be made in open court.”

[54] The civil contempt provisions under the Australian Bankruptcy Act 1966⁷¹ are not exercised by the Registrar or Magistrate conducting the examination. If persons being examined refuse to disclose information or produce documents which they are obliged to do, the examination is adjourned to the court, which can then commit for contempt. This procedure “is constitutionally necessary because of the restrictions on the powers of the Registrar and Magistrate: R v Davison (1954) 90 CLR 353.”⁷²

[55] In Davison’s case the High Court of Australia found that section 24(1) of the Bankruptcy Act 1924-1950, which, when read together with certain other provisions of the Act, authorised the registrar or deputy registrar to make a sequestration order, was unconstitutional as it purported to authorize a person not constituting a court under section 71 and 72 of the Constitution to exercise part of the judicial power of the Commonwealth. In this regard the High Court held (per Nixon CJ and Mc Tiernan J):

“In the present case the thing done is the making of an order characteristic of the courts . . . When s. 24(1) is construed with the definition of ‘the court’ and applied to ss. 54 and 57, it becomes clear that the function of making an order of sequestration is treated as judicial and is confided to the registrar in the same character as it is confided to the court. In other words it is the intention of the legislature that the registrar should make an order operating as an order of court. That is exactly what he has done in the present case. For upon its face the order is one which could not be made except by a court constituted as it is in conformity with s. 71 and s. 72 of the Constitution.

It follows that what has been done is an attempt to authorize a person not constituting a court under ss. 71 and 72 of the Constitution to exercise part of the judicial power of the Commonwealth and is not authorized by the Constitution.”⁷³

[56] It is true that the foreign jurisprudence is mostly of a negative nature, in the sense that no example has been found where a statute, authorising an administrative official to issue a committal order in insolvency proceedings, has been found to be unconstitutional or contrary to the particular country’s core common law values. Nevertheless the fact that no such statutory provision has been cited to us, or is known to us, does strongly suggest that there are no such provisions because they would be inimical to the fundamental norms and values of such countries relating to the separation of powers and the rule of law.

[57] Viewed in the light of all these considerations I would conclude that the “(fair) trial” prescribed by section 12(1)(b) requires, apart from anything else, a hearing presided over or conducted by a judicial officer in the court structure established by the 1996 Constitution and in which section 165(1) has vested the judicial authority of the Republic.

[58] In coming to this latter conclusion I have not overlooked the argument which Mr Trengove, appearing for the respondents, pressed on us. He submitted that in the vast majority of cases creditors’ meetings under the Insolvency Act are presided over by officers in the public service, designated for that purpose under the provisions of section 39(2) of the Act. These officers, he submitted, are persons of integrity and suitably qualified by way of legal knowledge, skill and experience to discharge all the functions of presiding officers under the relevant provisions of the Insolvency Act with a high degree of competence.

[59] I will assume all that in favour of the respondents. Such officers do not, however, meet one fundamental and indispensable criterion. However admirable they may be in all the respects mentioned, and I do not for a moment question any of these high qualities, they are officers in the public service — in the executive branch of the state — and therefore do not enjoy the judicial independence which is foundational to and indispensable for the discharge of the judicial function in a constitutional democracy based on the rule of law. This independence, of which structural independence is an indispensable part, is expressly proclaimed, protected and promoted by subsections (2), (3) and (4) of section 165 of the Constitution in the following manner:

“(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

(4) Organs of state, through legislative and other measures, must assist and protect the

courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the

courts.”

[60] In our first certification judgment dealing with the 1996 Constitution, In re: Certification of the Constitution of the Republic of South Africa,⁷⁴ we stated that although it is clear that pursuant to Constitutional Principle VI the Constitution provides for a system of separation of powers among the three co-equal branches of government, "[t]here is . . . no universal model of separation of powers, and in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute."⁷⁵ I have no doubt that over time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa’s history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances, and, on the other, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest.

[61] This is a complex matter which will be developed more fully as cases involving separation of powers issues are decided. For the moment, however, it suffices to say that whatever the outer boundaries of separation of powers are eventually determined to be, the power in question here — i.e., the power to commit an uncooperative witness to prison — is within the very heartland of the judicial power and therefore cannot be exercised by non-judicial officers.

[62] This principle has long been established in other open and democratic societies. In the United States, for example, the sole authority of judicial officers to commit recalcitrant witnesses was established as far back as 1893.⁷⁶ The Supreme Court based its holding partly on separation of powers concerns:

"The inquiry whether a witness before the Commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment. Except in the particular instances enumerated in the Constitution . . . the power to impose fine or imprisonment in order to compel the performance of a legal duty imposed by the United States, can only be exerted, under the law of the land, by a competent judicial tribunal having jurisdiction in the premises."⁷⁷

[63] The principle articulated in Brimson and implicit in the jurisprudence of other democracies is clear: only judicial officers may, consistent with the proper separation of government powers, commit recalcitrant witnesses to prison. Judicial officers enjoy complete independence from the prosecutorial arm of the state, and are therefore well-placed to curb possible abuse of prosecutorial power. However, were executive branch officials to be invested with the power to compel, upon pain of imprisonment, cooperation with their investigative demands, this necessary check on the prosecutorial power would vanish, because it would allow the executive to pass judgment on the lawfulness of its own prosecutorial decisions.

[64] There is another line of reasoning which reaches the same conclusion or which supports such conclusion. The 1996 Constitution distinguishes between criminal trials, arrests and other legal proceedings. Section 35(3) entitles every accused person to a fair trial which, under paragraph (c) must be “a public trial before an ordinary court” and in respect of persons arrested for allegedly committing an offence, their detention is dealt with under section 35(1). Section 35(2) deals with “everyone who is detained” and paragraph (d) thereof confers the right on every detained person “to challenge the lawfulness of the detention in person before a court and if the detention is unlawful, to be released” without prescribing what constitutes a lawful detention, either substantively or procedurally.

[65] However obvious it might be to underscore this, I would emphasise that in this case we are also not dealing with, nor does this judgment touch upon, the constitutional or other criteria for the valid arrest of a person for allegedly committing an offence. In respect of other legal proceedings the governing section is section 34, which entrenches the right to have any dispute that can be resolved by the application of law decided “in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

[66] A recalcitrant examinee at an insolvency enquiry is not an accused person and does not, any more than the recalcitrant examinee at an examination under section 205 of the CPA,⁷⁸ have the right under section 35(3) to claim a trial before an ordinary court. The factual and legal enquiry necessary to determine whether a recalcitrant examinee at an insolvency enquiry ought to be committed to prison under subsection 66(3) is, for purposes of section 34, a dispute which can be resolved by the application of law and such examinee is entitled under section 34 to have that dispute resolved before “ . . . a court or, where appropriate, another independent and impartial tribunal or forum.”

[67] In Nel v Le Roux this Court held that the “trial” envisaged by the right not to be detained without trial did not “in all circumstances require a procedure which duplicates all the requirements and safeguards embodied in section 25(3) of the [interim] Constitution” but in most cases required “the interposition of an impartial entity, independent of the executive and the legislature to act as arbiter between the individual and the state.”⁷⁹ Although the Court did not refer specifically to section 22 of the interim Constitution⁸⁰ (the predecessor of the current section 34) the above finding does not diverge in substance from the provisions of either section 22 of the interim Constitution or section 34 of the 1996 Constitution. The Court left open the question whether the “impartial entity” referred to had in all cases to be “a judicial officer who ordinarily functions as such in the ordinary courts” because it held that as far as section 205 of the CPA was concerned “the entity is indeed a normal judicial officer who ordinarily functions in the ordinary courts” and that the “court” before which the section 205 enquiry takes place “is in every material respect, particularly insofar as its independence and impartiality is concerned, identical to the ‘ordinary court of law’ envisaged by section 25(3) of the [interim] Constitution.”⁸¹

[68] When regard is had to the provisions of section 34 of the Constitution in the context of the foregoing, the question which arises is whether it can be said:

(a) that the presiding officer at an insolvency inquiry who commits a recalcitrant examinee to prison under subsection 66(3) is, for purposes of section 34 of the Constitution, either-

(i) a “court”; or,

(ii) “another independent and impartial tribunal or forum” and if so, whether it is “appropriate” to have the issue of committal to prison decided by such tribunal or forum and,

(b) that the investigation of such committal and the committal itself by such presiding officer constitutes the “[fair] trial” required by section 12(1)(b), which is itself linked to the criterion of “appropriateness” referred to in (a)(ii) above.

[69] Section 11(d) of the Canadian Charter guarantees a person who is charged with an offence the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal . . . .” It is of course immediately apparent that this provision differs significantly from that of section 35(3)(c) of the 1996 Constitution which guarantees every accused a fair public trial before “an ordinary court.” For the limited purpose however of deciding what an “independent . . tribunal or forum” is for purposes of section 34 of the 1996 Constitution, the views of the Canadian Supreme Court on section 11(d) of the Charter are instructive.

[70] In Canada v Beauregard⁸² Dickson CJC summarised the essence of independence as follows:

“Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges to hear and decide the cases that come before them: no outsider — be it government, pressure group, individual or even another judge — should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision. This core continues to be central to the principle of judicial independence.

. . . .

The ability of individual judges to make decisions on concrete cases free from external interference or influence continues . . . to be an important and necessary component of the principle.”

In the leading case of R v Valente⁸³ three essential conditions of independence were identified, that could be applied independently and were capable of achievement by a variety of legislative schemes or formulas.⁸⁴ The first was security of tenure, which embodies as an essential element the requirement that the decision-maker be removable only for just cause, “secure against interference by the executive or other appointing authority.”⁸⁵ The second was a basic degree of financial security free from “arbitrary interference by the executive in a manner that could affect judicial independence.”⁸⁶ The third was “institutional independence with respect to matters that relate directly to the exercise of the tribunal’s judicial function . . . judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.”⁸⁷

[71] In Valente the fundamental distinction between the concepts of independence and impartiality, which is particularly relevant in the present case, was emphasised in the following two passages in the Court’s judgment:

“ Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word ‘impartial’ . . . connotes absence of bias, actual or perceived. The word ‘independent’ in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly the Executive Branch of government, that rests on objective conditions or guarantees.”⁸⁸

“Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence for purposes of s. 11(d) of the Charter should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.”⁸⁹

[72] At the same time it was pointed out in Valente that:

“. . . it would not be feasible, however, to apply the most rigorous and elaborate conditions of judicial independence to the constitutional requirement of independence in s. 11(d) of the Charter, which may have to be applied to a variety of tribunals. The legislative and constitutional provisions in Canada governing matters which bear on the judicial independence of tribunals trying persons charged with an offence exhibit a great range and variety. The essential conditions of judicial independence for purposes of s. 11(d) must bear some relationship to that variety.”⁹⁰

Nevertheless “the essence of the security afforded by the essential conditions of judicial independence” must be provided or guaranteed, although this need not be done by “any particular legislative or constitutional formula”.⁹¹ The above approach and the principles enunciated in Valente were more recently confirmed again by the Supreme Court in R v Genereux.⁹² In the latter case the requirement of independence was further elaborated by pointing out that the status of a tribunal must guarantee not only its freedom from interference by the executive and legislative branches of government but also by “any other external force, such as business or corporate interests or other pressure groups”.⁹³

[73] When the above principles are applied to the present case it illustrates even more clearly why officers in the public service do not enjoy the necessary independence, notwithstanding their actual competence and impartiality, for making the judicial decision to commit a recalcitrant examinee to prison. I am far from convinced that the first two essential requirements for independence referred to in the Canadian cases, namely those of security of tenure and a basic degree of financial security free from arbitrary interference by the executive in a manner that could affect judicial independence, are present in the case of officers in the public service. It is unnecessary, however, to pronounce definitively on these requirements, for such officers undoubtedly lack the required objective structural independence and are not reasonably perceived to possess it. As indicated above, Mr Trengove’s submissions only address the issue of impartiality, but not that of independence.

[74] There is a further consideration. Section 35(3)(c) of the 1996 Constitution unambiguously limits the adjudication of criminal offences to an “ordinary court.” This must be kept in mind in construing the phrase “when appropriate” which qualifies the permissibility in section 34 of the Constitution of allowing the resolution of a dispute in a hearing before “another independent and impartial tribunal.” These provisions and their interrelationship are not fortuitous, but rather, I am convinced, a deliberate constitutional reaction to the recent history in this country regarding detentions and deprivations of physical liberty and are aimed at affording the individual greater constitutional protection. Although committal to prison under section 66(3) is not incarceration following upon a criminal conviction it is, from the perspective of the persons deprived of their freedom, analogous. Accordingly, when considering whether it is “appropriate” under section 34 for “another independent and impartial tribunal” to commit a person to prison under section 66(3) it strengthens the conclusion that this would only be appropriate where such tribunal were constituted, or presided over, by a judicial officer of the court structure established by the 1996 Constitution and in which section 165(1) has vested the judicial authority of the republic.

[75] In sum, officers in the public service, who answer to higher officials in the executive br

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South Africa: Constitutional Court

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