South Africa: Constitutional Court
You are here:
SAFLII >>
Databases >>
South Africa: Constitutional Court >>
1995 >>
[1995] ZACC 13
| Noteup
| LawCite
Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (CCT5/95) [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (6 December 1995)
Download original files |
PDF format
RTF formatIN THE CONSTITUTIONAL COURT
OF SOUTH AFRICA
CASE NUMBER: CCT
5/95
In the matter between:
FERREIRA, CLIVE
Applicant
and
LEVIN, ALLAN NO
1st
Respondent
WILKENS, ANDREW DAVID
2nd Respondents
COOPER, BRIAN ST CLAIR
VAN DER MERWE, SCHALK WILLEM NO
In their capacities as the
joint
provisional liquidators of
Prima
Bank Holdings Limited
THE MASTER OF THE SUPREME COURT
3rd
Respondent
and
VRYENHOEK, ANN
1st Applicant
VRYENHOEK, LUKE JOHN
2nd Applicant
VRYENHOEK, ANDREW
3rd Applicant
and
POWELL, OLIVER NO
1st Respondent
BRETT, JJ NO 2nd
Respondent
AVFIN INDUSTRIAL FINANCE (PTY) LTD
3rd Respondent
Heard
on: 9 May 1995
Delivered
on: 6 December 1995
_____________________________________________________________________
JUDGMENT
____________________________________________________________________
Ackermann J.
The issues
[1]
The two referrals before us (the
"Ferreira referral" and the "Vryenhoek referral") were
heard together for the
sake of convenience (as they were in the Witwatersrand
Local Division of the Supreme Court by Van Schalkwyk J) because identical
issues arise in both cases. These issues concern the alleged inconsistency of
certain provisions in section 417 of the Companies
Act, No. 61 of 1973, as
amended ("the Act") relating to the examination of persons in
winding-up proceedings, with the
Constitution of the Republic of South Africa,
1993 ("the Constitution" or "the transitional
Constitution"). Section
417 of the Act provides as follows -
"417. Summoning
and examination of persons as to affairs of company.
(1) In
any winding-up of a company unable to pay its debts, the Master or the Court
may,
at any time after a winding-up order has been made, summon before him or
it any director or officer of the company or person known
or suspected to have
in his possession any property of the company or believed to be indebted to the
company, or any person whom
the Master or the Court deems capable of giving
information concerning the trade, dealings, affairs or property of the
company.
(1A) Any person summoned under
subsection (1) may be represented at his attendance before the Master or the
Court
by an attorney with or without counsel.
(2)(a) The Master or
the Court may examine any person summoned under sub-section (1) on oath or
affirmation concerning any matter
referred to in that subsection, either orally
or on written interrogatories, and may reduce his answers to writing and
require him
to sign them.
(b) Any such
person may be required to answer any question put to him at the examination,
notwithstanding that
the answer might tend to incriminate him, and any answer
given to any such question may thereafter be used in evidence against him.
(3)
The Master or the Court may require any such person to produce any books or
papers in
his custody or under his control relating to the company but without
prejudice to any lien claimed with regard to any such books
or papers, and the
Court shall have power to determine all questions relating to any such lien.
(4)
If any person who has been duly summoned
under subsection (1) and to whom a reasonable sum
for his expenses has been
tendered, fails to attend before the Master or the Court at the time appointed
by the summons without lawful
excuse made known to the Master or the Court at
the time of the sitting and accepted by the Master or the Court, the Master or
the
Court may cause him to be apprehended and brought before him or it for
examination.
(5)
Any person summoned by the Master under subsection (1) shall be entitled to
such witness
fees as he would have been entitled to if he were a witness in
civil proceedings in a magistrate's court.
(6)
Any person who applies for an examination
or enquiry in terms of this section or section
418 shall be liable for the
payment of the costs and expenses incidental thereto, unless the Master or the
Court directs that the
whole or any part of such costs and expenses shall be
paid out of the assets of the company concerned.
(7)
Any examination or enquiry under this
section or section 418 and any application therefore
shall be private and
confidential, unless the Master or the Court, either generally or in respect of
any particular person, directs
otherwise."
Although the matters before us are
referrals, and not appeals or applications in the ordinary sense,
the parties will be referred to (and
described) as they were in the Court below.
[2]
In the winding-up of two companies
unable to pay their debts, the applicants were summoned for examination
("the section 417
examination" or "the section 417
enquiry") pursuant to the provisions of sub-sections (1) and (2) of
section 417 of
the Act. During the course of their examination, the applicants
in both the Ferreira and the Vryenhoek cases objected to being compelled,
by
virtue of the provisions of section 417(2)(b), to answer questions put to them
which might tend to incriminate them. They applied
to the Witwatersrand Local
Division of the Supreme Court for a temporary interdict against the
respondents, prohibiting the further
interrogation of the applicants pending
the determination of the constitutionality of section 417(2)(b) of the Act.
[3]
On 28 November 1994 Van Schalkwyk J
dismissed both the applications for interim relief, granted leave to appeal
against such dismissal
to the full bench of the Transvaal Provincial Division
or the Witwatersrand Local Division, if the Judge President so directed, and
referred the following matters to the
"1.
Whether section 417(2)(b) of the Companies Act 68 of 1973, as amended
("the Act"),
is unconstitutional in that it compels a person summoned
to an enquiry to testify and produce documents, even though such person
seeks
to invoke the privilege against self-incrimination.
2.
Whether evidence given by a person at an enquiry in terms of section 417 of the
Act falls to be excluded in any subsequent criminal proceedings brought against
such person where the evidence may be incriminating
and was extracted without
recognition of such person's privilege against self-incrimination.
3.
Whether a person appearing at an enquiry in terms of section 417 of the Act is
entitled to have prior access to:
3.1
a copy of the record of the examination of all other persons examined at the
inquiry;
3.2
all documents in the possession of the liquidator or those prosecuting
the inquiry relevant to the interrogation of such person.
4.
Whether a person is required to give testimony at an inquiry in terms of
section
417 which testimony may tend or have the effect of supporting a civil
claim against such person.
5.
Whether a person who has given testimony at an enquiry in terms of section 417,
which testimony tends to support a civil claim against such person, may have
such testimony excluded in any subsequent civil proceedings."
The referral took place before the
current rules of the
[4]
Of the respondents in the two matters,
only the second respondent in the Ferreira application and the third respondent
in the Vryenhoek
application opposed the relief sought and were represented at
the hearing in this Court. The third respondent in the Ferreira application
(the Master) lodged a memorandum in the form of an affidavit but did not oppose
the relief sought. Certain of the partners and employees
of Coopers and
Lybrand, the auditors of Prima Bank Holdings Ltd. (one of the companies in
liquidation) were granted leave to intervene
as amici curiae in terms of
[5]
All parties were in agreement
(expressly or tacitly) that the matter in paragraph 1 of the order of referral
had been properly referred
to this Court by Van Schalkwyk J in terms of the
provisions of section 102(1) of the Constitution. The correctness of this
agreement
(or assumption) was not questioned at the hearing of the matter
before us. On reflection, the assumption appears to be wrong in law
and the
correctness of it, inasmuch as it involves a matter of law (constitutional law
in fact), must be considered by this Court.
In so doing it is necessary to say
something about the meaning and use of section 102(1) in general.
[6]
For present purposes the relevant part
of section 102(1) provides that -
"If, in any matter before a provincial or
local division of the Supreme Court, there is an issue which may be decisive
for the
case, and which falls within the exclusive jurisdiction of the
Constitutional Court in terms of section 98(2) and (3), the provincial
or local
division concerned shall, if it considers it to be in the interest of justice
to do so, refer such matter to the Constitutional
Court for its decision:
.................................................................................................................".
Section 102(1) does not confer a
general discretion on the Court in question to refer matters to the
(a)
there is an issue in the matter before
the Court in question which may be decisive for the case;
(b)
such issue falls within the exclusive
jurisdiction of the
and,
(c)
the Court in question considers it to be
in the interests of justice to refer such issue
to the
(I use the word "issue" in
paragraph (c) above instead of the word "matter", which appears in
the text of section
102(1), because this is the construction which Didcott J,
writing for the Court in S v. Vermaas; S v. du Plessis[1] gave to the word "matter" where
it appears for the second time in section 102(1)).
These conditions are conjunctive and
all have to be fulfilled before the Court has the power to refer an issue to
the
[7]
Section 103(4) of the Constitution
deals inter alia with the referral by a Provincial or Local division of
the Supreme Court to this Court of issues originating in Courts other than
Provincial or Local divisions of the Supreme Court and, in particular, with the
referral to this Court of an issue regarding the
validity of a law falling
within the exclusive jurisdiction of this Court. In addition to stipulating
other conditions precedent
for such referral, the sub-section requires the
Povincial or Local Division of the Supreme Court to be of the opinion
"that
there is a reasonable prospect that the relevant law or provision
will be held to be invalid." Although there is no such express
requirement
in section 102(1), Kentridge AJ, in Mhlungu and Others v. The State[2], held that "it was implicit
therein".[3]
He further explained that
"[t]he reasonable prospect of success is, of
course, to be understood as a sine qua non of a referral, not as in
itself sufficient ground. It is not always in the interests of justice to make
a reference as soon as the
relevant issue has been raised".[4]
(It is clear from the context of the
above passage, that Kentridge AJ was dealing only with condition (c) of my
above analysis.) He
explained why it was not always in the interests of justice
to make a referral immediately (an exposition which I need not repeat
here) and
laid down "as a general principle" that "where it is possible to
decide any case, civil or criminal, without
reaching a constitutional issue,
that is the course which should be followed".[5] Although the Court was divided in Mhlungu
as to the construction and application of section 241(8), there was unanimous
agreement with Kentridge AJ's construction and application
of section 102(1).
[8]
I round off this general discussion of
section 102(1) by pointing out that
"formulate in writing .... the reason why he
or she or they consider it to be in the interest of justice that the matter be
referred."
On the construction which this Court in
Mhlungu placed on the third pre-condition for referral (i.e. that it
must be in the interest of justice to do so), it therefore follows that
the
judge or judges referring to the Constitutional Court the issue of the
constitutionality of an Act of Parliament are obliged
to furnish written
reasons why it is considered that
(a)
there is a reasonable prospect that the Act of
Parliament in question will be held to be invalid;
and
(b)
the interest of justice requires this issue to
be referred at this particular stage.
(I hasten to add that when Van
Schalkwyk J referred the matter to this Court the judgment in Mhlungu
had not been delivered and rule 22(2) had not been promulgated).
[9]
These principles have to be applied to
the referral in the present case. The only matters before Van Schalkwyk J were
the applications
for interim interdicts against the relevant respondents to
prohibit further interrogation of the applicants. In dismissing both
applications
for interdicts Van Schalkwyk J in fact disposed of all (and the
only) matters properly before him. At this stage the issue of the
validity of
section 417(2)(b) had become irrelevant. He had decided, on the view he took of
the law, that the issue of the validity
of section 417(2)(b) was not relevant
to the matter before him. He could not, on his view of the law, even consider
the validity
issue as part of the interdict enquiry. In adopting this approach
he in fact decided (albeit implicitly) that the matter before him
could and
should be decided without reference to the validity issue, in other words, that
the validity issue could not be decisive
for the case. The implication of this
is that the first condition for a section 102(1) referral, mentioned in
paragraph [6](a) above,
has not been fulfilled. Accordingly the learned judge
was precluded from referring the constitutional validity of section 417(2)(b)
of the Act to this Court. He in fact precluded the operation of section 102(1)
by deciding the "case" or the "matter"
before him.
[10]
The possibility that the referral of
the paragraph (1) issue might be incompetent was not alluded to during argument
nor raised by
the Court with counsel. When, however, the question of the
competence of the referrals of the issues in paragraphs (2) - (5) of the
referral order was raised with Mr. Levine, he requested the Court to grant the
applicants direct access on these issues in terms
of section 100(2) of the
Constitution. I have no doubt that, if the incompetence of the referral of the
paragraph (1) issue had been
raised with him, Mr. Levine would likewise have
urged the Court to grant direct access on this issue as well. The matter has
been
fully argued before us and all the parties are clamant for a decision from
the Court. We were informed that many section 417 enquiries
were being held up
because the issue of the constitutionality of section 417(2)(b) had been raised
in such enquiries. This is substantially
hampering the proper liquidation of
companies and is therefore a matter of such urgency and public importance that
a ruling should
be given thereon. Under the exceptional circumstances of this
case it would be surrendering to the merest formalism if we did not
deal with
the paragraph (1) issue as one which was before us by way of direct access in
terms of section 100(2) of the Constitution.
It should therefore be treated as
such. The interested parties are amenable to the issue being dealt with on this
basis.
[11]
It was contended on behalf of the
respondents that the referral to this Court of the issues in paragraphs (2) -
(5) of the referral
order were not competent in terms of section 102(1) of the
Constitution because none of these issues falls within the exclusive
jurisdiction
of the Constitutional Court and, consequently, a condition
precedent to referral has not been fulfilled.
[12]
It is not immediately apparent whether
the issue referred in paragraph (2) of the referral order is premised on the
finding that section
417(2)(b) of the Companies Act is inconsistent with the
Constitution by this Court or premised on the finding that it is consistent.
On
either premise it is difficult to see how it can be contended that this issue
was properly referred. The only issue before van
Schalkwyk J was the interdict
sought by the applicants "to prohibit their further interrogation pending
the determination of
the constitutionality of section 417(2)(b) of the
Companies Act, by the
[13]
Even if the question of admissibility
had been an issue before Van Schalkwyk J, for example by way of an application
for a declaratory
order, it ought not to have been be referred to us, because
it does not fall within our exclusive jurisdiction. Although section
101(3)
nowhere expressly confers power on the Provincial or Local Divisions of the
Supreme Court to construe the Constitution, this
is an implied power, as found
by Kentridge AJ in S v. Mhlungu and Four Others.[7] These Courts are obliged to decide
constitutional questions within their jurisdiction, together with discharging
their customary
duties of construing statutes and applying them, as well as the
common law, under the ever present influence of the Constitution.
These are the
Courts which must, in the first instance, construe the Constitution and
statutory law, even (or perhaps especially)
when portions of a statute have
been declared to be invalid. In this context the following remarks of Kentridge
AJ, in S v. Zuma and Others bear repeating:
"The jurisdiction conferred on judges of the
Provincial and Local Divisions of the Supreme Court under section 101(3) is not
an optional jurisdiction. The jurisdiction was conferred in order to be
exercised."[8]
[14]
The issue in paragraph (2) relates
exclusively to the admissibility of evidence in subsequent criminal proceedings
against persons
who have testified pursuant to the provisions of section 417
and given evidence which tends to incriminate them. The question of
the
admissibility of evidence is, in the first instance, a matter for the Court
dealing with the criminal proceedings in question.
Should evidence be admitted
incorrectly, and this raises a constitutional issue, the
[15]
We were pressed in argument to deal
with such other issues because they are ancillary to the issue of the
invalidity of section 417(2)(b)
of the Act. Neither the context, wording nor
purpose of the sections in the Constitution dealing with this Court's
jurisdiction gives
this Court jurisdiction to deal with matters of evidential
admissibility on the basis that they are ancillary to a section 98(5)
declaration of invalidity. It was certainly not the purpose of the institution
of the
[16]
The matters referred to in paragraph 3
of the referral order relate to the construction of section 417 of the Act and
the conduct
of proceedings pursuant to it. These were not, for the reasons
previously mentioned, issues before van Schalkwyk, J. If examinees
feel
aggrieved by the way a section 417 enquiry is being conducted, they have their
ordinary remedies (including review remedies)
in the Supreme Court.[10] Had these issues been properly before
van Schalkwyk J he would have had the jurisdiction to deal with them. They do
not fall within
the exclusive jurisdiction of the
[17]
The issue in paragraph (4) of the
referral order is formulated as follows:
"Whether a person is required to give
testimony at an enquiry in terms of section 417 which testimony may tend or
have the effect
of supporting a civil claim against such person."
This issue does not raise the
constitutional validity of section 417(2)(b) or any other statutory provision.
In essence it seeks a
ruling from this Court as to whether the examinee has a
privilege to refuse to answer a question which might tend to support or have
the effect of supporting a civil claim against such person. This was not an
issue before van Schalkwyk J and could not therefore
have been referred to this
Court. If it had been an issue, it would have been one within his jurisdiction
and with which he was competent
to deal. For both these reasons, it ought not to
have been referred to this Court.
[18]
The issue referred in terms of
paragraph 5 of the referral order relates to the admissibility in subsequent
civil proceedings of testimony
given pursuant to the provisions of section 417
of the Act. For the reasons set forth, above this too is an issue which could
not
competently be referred to this Court.
[19]
The applicants, in their written
argument handed in at the hearing (as distinct from their heads of argument
lodged pursuant to Constitutional
Court rule 19), sought to counter the
problems relating to the competence of paragraph 3 of the referral order by
submitting that:
"The proper exercise of this court's
jurisdiction under section 98(5) would ... be to declare under such section as
follows:
.............
Section 417(2) of the Companies Act is declared to
be inconsistent with the Constitution of the Republic of South Africa Act, no.
200 of 1993, to the extent that it provides that a person summoned to give
evidence under section 417(1) of the Companies Act is
not entitled, as of
right, to prior access to -
(a)
all documents in the possession of the liquidator for an examination or inquiry
under section 417
or 418 of the Companies Act, in so far as it relates to such
person and the reason or purpose of requiring him to give evidence at,
and to
produce any books or papers in his custody or under his control relating to the
company under winding-up;
(b)
A copy of the record of the examination of all other persons examined at the
enquiry, in so
far as it relates to such person and the reason or purpose of
requiring him to give evidence at, and to produce any books or papers
in his
custody or under his control relating to the company under winding-up."[11]
This contention cannot prevail. The
invalidity of section 417 of the Act on this ground was not an issue before Van
Schalkwyk J and
was not referred to this Court in the order of referral. In any
event, section 417(2) simply does not contain the provision imputed
to it in
the above quoted passage. What applicants are seeking to obtain from this
Court, under the guise of an attack on the validity
of section 417(2), is a
declaration of rights concerning the proper conduct of a section 417 hearing.
This they cannot expect to
achieve and will not be permitted to achieve under a
referral pursuant to section 102(1) of the Constitution, because it was not
an
issue before Van Schalkwyk J and is not an issue within the exclusive
jurisdiction of the
The Constitutional validity of section 417(2)(b) of
the Companies Act
[20]
The way is now open to consider the
only issue properly before this Court, namely, the constitutional validity of
section 417(2)(b)
of the Companies Act. The grounds of constitutional
inconsistency were formulated as follows in the referral order:
".... it compels a person summoned to an
enquiry to testify and produce documents even though such person seeks to
invoke the
privilege against self-incrimination."
Section 417(2)(b) does not compel the
production of documents; section 417(3) does. The constitutionality of section
417(3) was not
referred to this Court and no amendment of the referral order
was sought to incorporate an attack on section 417(3). This ground
for the
invalidation of section 417(2)(b) is unfounded. Appreciating this difficulty,
the applicants limited their attack to seeking
an invalidation of section
417(2)(b)
".... to the extent that it requires a person
examined under section 417(2) of the Act to answer questions which might tend
to
incriminate him and provides that any answers given to any such question may
thereafter be used in evidence against him."
The issue properly before this Court is
therefore a relatively narrow one. In the case of Bernstein and Others v.
L.V.W. Bester NO and Others, CCT 23/95, heard subsequent to this case on 19
September 1995, a broader attack was launched against sections 417 and 418 of
the
Companies Act. Nothing contained in the present judgment is to be
interpreted as a prejudgment in any way of this broader attack.
The attack based on section 25(3) of the
Constitution
[21]
The main attack which Mr. Levine, on
behalf of the applicants, launched on the constitutionality of section
417(2)(b) of the Act was
that its provisions were inconsistent with an
accused's rights "to a fair trial" as provided in section 25(3) of
the Constitution.
For the sake of brevity these rights will be referred to as
"the section 25(3) rights" or "an accused's section 25(3)
rights." It was submitted that the right against self-incrimination is not
limited to detained, arrested or accused persons
(which are the classes of
persons to which the section 25 rights apply) but that "the right against
self-incrimination is a
right recognised under the Constitution in extra-curial
proceedings including proceedings at an enquiry constituted in terms of section
417 of the Companies Act."
[22]
Mr. Levine submitted that, properly
construed, the issue before this Court relating to the constitutionality of
section 417(2)(b)
of the Companies Act, was whether:
(a)
the statutory duty to give answers which might tend to incriminate the person
examined; and
(b)
the statutory provision that such answers may thereafter be used in evidence
against the examinee,
limit any right entrenched in Chapter 3
of the Constitution. Mr. Cilliers, on behalf of second respondents in the
Ferreira referral,
submitted that the attack based on section 25 of the
Constitution was, on the clear and unambiguous wording of the Constitution,
fundamentally flawed. As to (a), Mr. Cilliers submitted that there was no
general right against self-incrimination expressly enumerated
in Chapter 3. Mr.
Cilliers rightly conceded that some protection against self-incrimination was
extended by section 25(2) of the
Constitution to "[e]very person arrested
for the alleged commission of an offence" and in terms of section 25(3)(c)
and
(d) to "[e]very accused person" as part of such person's right to
a fair trial. However, the rights enumerated in section
25(2)(a) to (d) only
apply to arrested persons and the rights enumerated in section 25(3)(c) and (d)
only to an accused person while
such person is on trial.
[23]
As to (b), Mr. Cilliers submitted that
"the right to a fair trial" enacted in section 25(3) would, unless
the context otherwise
indicates, require self-incriminating evidence,
involuntarily given, to be excluded in the criminal trial of an accused. That
is
the rule of our common law. In R v. Camana,[12] Innes CJ observed as follows:
"Now, it is an established principle of our
law that no one can be compelled to give evidence incriminating himself. He
cannot
be forced to do that either before the trial, or during the trial."[13]
Mr. Cilliers also submitted that, unless
the context of section 25(3) otherwise indicated, the provisions of section
417(2)(b) of the Act, which enable the State to use self-incriminating evidence
obtained under the legal
compulsion of the latter section during a criminal
trial, limit the accused's section 25(3) right to a fair trial. On this
approach it is no answer to contend that, at the time of the examination
under
section 417 of the Act, the examinee is not yet an accused person. The
concluding words of section 417(2)(b) of the Act "and
any answer given to
such question may thereafter be used in evidence against him" do refer to
and find application, inter alia, during a subsequent criminal trial. On
the other hand, the mere statutory obligation to answer self-incriminating
questions in extra-curial
proceedings is not inconsistent with the "right
to a fair trial" (for the examinee is not an accused and therefore not
entitled to invoke the section 25(3) rights); only the subsequent use of such
answers at any criminal trial against the examinee
would fall within the
purview of section 25(3). The applicants are not accused nor is there any
suggestion that they will be accused.
Accordingly they cannot, at the time of
their examination under section 417(2)(b) of the Act, rely on the section 25(3)
rights.
[24]
The correctness of this attack by Mr.
Cilliers on the applicants' argument from section 25(3) of the Constitution
needs to be considered
first, before dealing with his other submissions. It
seems to me that the only line of reasoning which might counter Mr. Cilliers'
objection would be along the following lines. There is authority in Australia
and Canada for the proposition that the common law
privilege against
extra-curial self-incrimination is a substantive right and not merely a rule of
evidence;[14]
that, without being able to invoke such a right at trial, an accused cannot
obtain a fair trial, and therefore reliance upon such
right must be regarded as
an unenumerated section 25(3) right.[15]
When the examinee at a section 417 of the Act enquiry is asked a question which
might tend to incriminate the examinee, he or she
objects and raises the common
law right against self-incrimination. In so doing, the examinee is not invoking
a section 25(3) right,
but a substantive common law right. The examiner
counters this objection by pointing to the repeal of this common law right, in
the
context of section 417 enquiries, by section 417(2)(b) of the Act. The
rejoinder of the examinee is that such purported repeal is
invalid on the
grounds that section 417(2)(b) is unconstitutional by virtue of the fact that
it is inconsistent with the section
25(3) rights of an accused. The objection
that the examinee is not an accused in a criminal trial, and cannot therefore
rely on a
section 25(3) right which only accrues to an accused, is met by
appealing to section 4(1) and 7(4)(b) of the Constitution. Section
4(1)
provides in part that -
"This Constitution shall be
the supreme law of the Republic and any law inconsistent with [the
Constitution's] provisions shall,
unless otherwise provided expressly or by
necessary implication in this Constitution, be of no force and effect to the
extent of
this
inconsistency."
This provision came into operation on
27 April 1994. Section 7(4)(b) provides, inter alia, that the relief
referred to in section 7(4)(a) (which includes a declaration of rights) may be
sought by -
"(i)
a person acting in his or her own interest;
(ii)
...........
(iii)
...........
(iv)
...........
(v)
a person acting in the public interest."
[25]
There are four parts to the above line
of reasoning. The first relates to the question whether the invalidity (being
of "no force
and effect") of a statute (as a species of
"law") is determined by an objective or a subjective enquiry. The
second
relates to the question of the time at which such invalidity occurs. The
third relates to the circumstances under which an appeal
to invalidity may be
made (the question of justiciability) and the fourth to the question as to who may
invoke the invalidity (locus standi in the narrower sense).
[26]
The answer to the first question is
that the enquiry is an objective one. A statute is either valid or “of no force
and effect to
the extent of its inconsistency”. The subjective positions in
which parties to a dispute may find themselves cannot have a bearing
on the
status of the provisions of a statute under attack. The
"... the declaration of invalidity of a law or
a provision thereof -
(a)
Existing at the commencement of this Constitution, shall not invalidate
anything done or permitted
in terms thereof before the coming into effect of
such declaration of invalidity;"
[27]
The Court's order does not invalidate
the law; it merely declares it to be invalid. It is very seldom patent, and in
most cases is
disputed, that pre-constitutional laws are inconsistent with the
provisions of the Constitution. It is one of this Court's functions
to
determine and pronounce on the invalidity of laws, including Acts of
Parliament. This does not detract from the reality that pre-existing
laws
either remained valid or became invalid upon the provisions of the Constitution
coming into operation. In this sense laws are
objectively valid or invalid
depending on whether they are or are not inconsistent with the Constitution.
The fact that a dispute
concerning inconsistency may only be decided years
afterwards, does not affect the objective nature of the invalidity. The issue
of whether a law is invalid or not does not in theory therefore depend on
whether, at the moment when the issue is being considered,
a particular
person's rights are threatened or infringed by the offending law or not.
[28]
A pre-existing law which was
inconsistent with the provisions of the Constitution became invalid the moment
the relevant provisions
of the Constitution came into effect. The fact that
this Court has the power in terms of section 98(5) of the Constitution to
postpone
the operation of invalidity and, in terms of section 98(6), to
regulate the consequences of the invalidity, does not detract from
the
conclusion that the test for invalidity is an objective one and that the
inception of invalidity of a pre-existing law occurs
when the relevant
provision of the Constitution came into operation. The provisions of sections
98(5) and (6), which permit the Court
to control the result of a declaration of
invalidity, may give temporary validity to the law and require it to be obeyed
and persons
who ignore statutes that are inconsistent with the Constitution may
not always be able to do so with impunity.
[29]
There is also Canadian authority for
such an objective approach.[16]
Peter Hogg describes the position in that country as
follows:
"This practice of ‘prospective overruling' is
difficult to justify in theory, however attractive it may be in practice, and
it has never been accepted by Canadian Courts. For a
The
"Das verfassungswidrige Gesetz ist, wie das BverfG
formuliert, 'mit dem Grundgesetz unvereinbar und daher nichtig'. Das
verfassungswidrige
Gesetz ist von Anfang an (ex tunc) und dies ohne weiteren
gestaltenden Akt (ipso iure) unwirksam....Nach deutscher Auffassung hebt
das
BverfG verfassungswidrige Gesetze nicht auf, es vernichtet sie nicht: Es stellt
die Nichtigkeit nur (deklaratorisch) fest....”
(An unconstitutional law is, as
the
[30]
The second question has really been
resolved in the course of answering the first. The pre-constitutional law
becomes invalid when
the relevant provision of the Constitution came into
operation (i.e. 27 April 1994), notwithstanding the fact that this Court declares
it to be invalid at a later date and has, in terms of section 98(5) and 98(6)
of the Constitution, the power to postpone and regulate
the operation of invalidity.
[31]
For the sake of convenience, the
fourth question (locus standi in the narrower sense) will be addressed
next. The question in the present case is whether the applicants, as examinees,
are acting
in their own interest. Few, if any, countries have at all times
allowed all persons to invoke the jurisdiction of Courts to solve
all legal
problems. Some restrictions have always been placed on the locus standi
of a complainant. Section 7(4)(b) of the Constitution determines which persons
are entitled to apply to a competent Court of law
for appropriate relief. They
are:
"(i)
a person acting in his or her own interest;
(ii)
an association acting in the interest of its members;
(iii)
a person acting on behalf of another person who is not in a position to seek
such relief
in his or her own name;
(iv)
a person acting as a member of or in the interest of a group or class of
persons; or
(v)
a person acting in the public interest."
[32]
When an examinee at a section 417
enquiry attacks the validity of section 417(2)(b) on the grounds that it
conflicts with the implied
residual rights of an accused in terms of section
25(3) of the Constitution, the examinee's contention (properly understood) is
not
that the examinee is entitled, as an accused, to invoke the implied right
against extra-judicial self-incrimination in section 25(3)
of the Constitution,
but rather that section 417(2)(b) of the Companies Act is, as an abstract and
objective proposition, inconsistent
with the aforementioned constitutional
right and the examinee is entitled to a ruling thereon. The real question which
must therefore
be posed is whether an examinee who has previously been compelled
under section 417(2)(b) to give answers which incriminate him or
her may, at a
subsequent criminal trial of the examinee, successfully attack the introduction
of such incriminating answers on the
basis that section 417(2)(b) conflicts
with the unenumerated right against self-incrimination in section 25(3). If the
answer is
in the affirmative, the only remaining question is whether the
examinee may raise the issue of the unconstitutionality of section
417(2)(b) of
the Act at the stage when a question, the answer to which might tend to
incriminate him or her, is put to the examinee
in the section 417 examination.
[33]
In terms of section 418(5)(b)(iii) of
the Companies Act, any person who has been duly summoned under section 417(1)
of the Companies
Act and who
"fails, without sufficient cause - ... to
answer fully and satisfactorily any question lawfully put to him in terms of
section
417(2) ..."
is guilty of an offence and, in terms
of section 441(1)(f), liable upon conviction to a fine not exceeding R2000 or
to imprisonment
for a period not exceeding six months or to both such fine and
such imprisonment. The witness is surely entitled to know whether
a question,
the answer to which might tend to incriminate him or her, is a "question
lawfully put" and whether the witness
has "sufficient cause" to
refuse to answer it. This is dependant on whether section 417(2)(b) is
constitutionally valid.
If it is not, the witness can with equanimity refuse to
answer. If it is valid, the choice arises between refusing to answer and
being
punished, possibly with a prison sentence, or answering and possibly
prejudicing the witness's defence in a subsequent criminal
trial. This dilemma,
with the possible adverse consequences on either choice the witness makes,
gives the witness sufficient interest
of "his or her own" to entitle
the witness "to apply to a competent court of law for appropriate relief,
which may
include a declaration of rights" in terms of section 7(4)(a) of
the Constitution.
[34]
It seems to me, however, that the
suggested line of reasoning fails to meet the third requirement, namely that of
justiciability.
Section 7(4)(a) of the Constitution is introduced by the phrase
-
"When an infringement of or threat to any
right entrenched in this Chapter [Chapter 3] is alleged ..."
It is only when this condition is
fulfilled that the persons referred to in paragraph (b) "shall be entitled
to apply to a competent
court of law for appropriate relief." The crucial
question is whether, when an examinee is compelled by section 417(2)(b) to
answer a question which might tend to incriminate him or her and the section
further provides that "any answer given to such
question may thereafter be
used in evidence against him", a section 25(3) right to a fair criminal
trial is being infringed
or threatened with infringement.
[35]
Textually, the relevant wording of
section 7(4)(a) is clear. It is only when a Chapter 3 right is actually
infringed or threatened
with infringement that the prescribed persons are
entitled to seek relief from a competent Court of law. The purpose seems clear.
However widely the framers extended locus standi in section
7(4)(b), they did not wish abstract questions of constitutionality to be
pursued in the Courts; the only exceptions being
those specifically enacted in
the Constitution, such as sections 98(2)(d) and 101(3)(e) of the Constitution,
which, respectively,
confer jurisdiction on the Constitutional Court over any
dispute over the constitutionality of any Bill before Parliament or a
provincial
legislature and, in the case of a Provincial or Local Division of
the Supreme Court, over any dispute as to the constitutionality
of a Bill
before a provincial legislature.
[36]
The locus standi of all
persons referred to in subparagraphs (i) - (v) of subsection (4)(b) is governed
by the introductory phrase:
“ (b) The relief referred to in paragraph (a) may be sought by - ...”.
In my view the whole of subsection
(4)(b) of section 7 must be read as being subject to the qualification in
subsection (4)(a).
Subsection 4(a) expressly renders the right “to apply
to a competent court” conditional upon “when an infringement of or threat
to
any right entrenched in this Chapter is alleged.” The purpose of the
introductory phrase in subsection (4)(b), “[t]he relief
referred to in
paragraph (a) may be sought by”, is to indicate by whom such relief may
be sought. It neither textually, contextually nor teleologically alters the
condition stipulated in subsection (4)(a);
in particular it does not in any way
affect the impact of the words “when an infringement of or threat to any rights
entrenched
in this Chapter is alleged”.
[37]
Against this background, the
provisions of subparagraph (4)(b)(iii) become clear and lend further weight to
the above construction.
This subparagraph refers to “a person acting on behalf
of another person who is not in a position to seek such relief in his or
her
own name.” The words “such relief” can only refer to the “relief referred to in
paragraph (a)” mentioned in the introductory
words of paragraph (b), i.e. the
relief which may be sought “when an infringement of or threat to any right
entrenched in this
Chapter is alleged." Subparagraph (4)(b)(iii) means
that when it is alleged that a Chapter 3 right of A has been infringed or
threatened and A is not in a position to seek relief, B may do so on behalf of
A.
[38]
Under these circumstances the
provisions of subparagraph (4)(b)(i), namely -
“The relief referred to in paragraph (a) may be sought by -
(i) a person acting in his or her own interest”
can only mean that there must be an
“infringement of or threat to” a Chapter 3 right of the “person acting in his
or her own
interest”, for the “relief referred to in paragraph (a)” only
becomes available when there is “an infringement of or threat
to” a Chapter 3
right. In terms of subparagraph (4)(b)(iii) B acts for A when A’s Chapter
3 right is infringed or threatened
with infringement and A is not in a position
to seek such relief in his or her own name. In terms of subparagraph (4)(b)(i)
A acts
for himself or herself when A’s Chapter 3 right is infringed or
threatened with infringement and A is in a position to seek such relief
in his or her own name. Paragraph (4)(a) determines when the right to
invoke the aid of a Court arises; subsection (4)(b) determines by whom
that right (when it accrues) may be exercised. The locus standi of all
categories of persons in paragraph (4)(b) is qualified by paragraph (4)(a).
[39]
It was not suggested that such
limitation of justiciability was contrary to the values mentioned in section
35(1). The contrary was
not argued. Neither was it suggested that such
limitation of justiciability was contrary to the values mentioned in section
35(1),
namely, "the values which underlie an open and democratic society
based on freedom and equality"; nor that public international
law or
foreign law would lead one to a different answer. The jurisdictions of the
[40]
To my mind the inescapable
construction of subsection 7(4) leads to the conclusion that, if section 25(3)
of the Constitution is to
be relied upon, there must be an “infringement of or
threat to” a section 25(3) right, whether the right accrues to the
person seeking the relief (subparagraph (4)(b)(i)), or a person on whose behalf
someone else seeks
relief (subparagraph (4)(b)(iii)) or for whom a person acts
in the public interest (subparagraph (4)(b)(v)). This all follows from
the
express qualification in paragraph (4)(a) which is incorporated by reference in
paragraph (4)(b) in the manner referred to above.
[41]
The section 25(3) rights accrue,
textually, only to "every accused person". They are rights which
accrue, in the subjective
sense, when a person becomes an "accused
person" in a criminal prosecution. The examinee is not such an
"accused person".
It is a matter of pure speculation whether the
applicants will ever become accused persons. Even should they become accused
persons,
their rights against extra-curial self-incrimination (assuming for the
moment that such a right is an implied right in the larger
category "right
to a fair trial") are not automatically infringed when they become accused
persons. It will depend upon
whether self-incriminating evidence given by the
applicants at the section 417 enquiry is tendered in evidence against them. At
that
moment, for the first time, there is a threat to any section 25(3) right
against extra-curial self-incrimination. The inescapable
conclusion, therefore,
is that section 417(2)(b) does not constitute an infringement or threat of
infringement of any section 25(3)
rights of the applicants and that their
attack on section 417(2)(b) on this basis can accordingly not succeed. This was
in fact the
prima facie conclusion reached in Lynn NO and Another v.
Kreuger and Others.[23]
[42]
In the alternative, the applicants,
for their constitutional challenge to section 417(2)(b) of the Act, relied with
differing degrees
of enthusiasm and persistence on the rights protected in
sections 8, 10, 11, 13, 15, 22 and 24 of the Constitution. The main alternative
argument was, however, based on the rights to "freedom and security of the
person" and "personal privacy", respectively
entrenched in
sections 11(1) and 13.
[43]
Section 7(4)(a) of the Constitution
does not present any difficulty to the applicants in so far as they seek to
rely on such rights,
since these rights are not limited to any category of
persons nor restricted to any particular factual context. Such reliance does
not raise mere "academic" questions of law, but ones which become
justiciable the moment the applicants invoke these rights.
[44]
The task of determining whether the
provisions of section 417(2)(b) of the Act are invalid because they are
inconsistent with the
guaranteed rights here under discussion involves two
stages[24]
first, an enquiry as to whether there has been an infringement of the section
11(1) or 13 guaranteed right; if so, a further enquiry
as to whether such
infringement is justified under section 33(1), the limitation clause. The task
of interpreting the Chapter 3 fundamental
rights rests, of course, with the
Courts, but it is for the applicants to prove the facts upon which they rely
for their claim of
infringement of the particular right in question. Concerning
the second stage, "[it] is for the legislature, or the party relying
on
the legislation, to establish this justification (in terms of section 33(1) of
the Constitution), and not for the party challenging
it, to show that it was
not justified."[25]
The infringement of the section 11(1) right to
freedom and security of the person
[45]
In order to determine, at the first
stage of the enquiry, whether the provisions of section 417(2)(b) of the Act
are inconsistent
with the section 11(1) right to freedom and security of the
person, it is necessary, as a matter of construction, to define or circumscribe
the section 11(1) right to the extent necessary for purposes of this decision.
It is obviously unwise and undesirable (if not impossible)
even to attempt an
exhaustive or comprehensive definition or circumscription of the right designed
to hold good indefinitely and
for all further cases. Yet, even if the exact
nature and boundaries of the right are to be defined on a case to case basis,
some
attempt must be made at this stage to determine the meaning, nature and
extent of the right. As part of this enquiry it is also necessary
to determine
more precisely what it is about the nature and operation of the provisions of
section 417(2)(b) of the Act, and their
impact upon the examinee, which can be
said to be inconsistent with the right to freedom.
[46]
This Court has given its approval to
an interpretive approach
"which, whilst paying due regard to the
language that has been used, is 'generous' and 'purposive' and gives expression
to the
underlying values of the Constitution"[26]
as well as to that expressed in the
following passage in the Canadian case of R v. Big M Drug Mart Ltd.:
"The meaning of a right or freedom guaranteed
by the Charter was to be ascertained by an analysis of the purpose of
such a guarantee; it was to be understood, in other words, in the light of the
interests it was meant to protect.
In my view this analysis is to be undertaken, and
the purpose of the right or freedom in question is to be sought by reference to
the character and larger objects of the Charter itself, to the language chosen
to articulate the specific right or freedom, to the
historical origins of the
concepts enshrined, and where applicable, to the meaning and purpose of the
other specific rights and freedoms
with which it is associated within the text
of the Charter. The interpretation should be ... a generous rather than
legalistic one,
aimed at fulfilling the purpose of the guarantee and securing
for individuals the full benefit of the Charter's protection."[27]
In the words of Chaskalson P, the
provisions of Chapter 3
"must not be construed in
isolation, but in its context, which includes the history and background to the
adoption of the Constitution,
other provisions of the Constitution itself and,
in particular, the provisions of Chapter 3 of which it is part. It must also be
construed in a way which secures for 'individuals the full measure' of its
protection."[28]
I would, in the first place, read
"freedom" disjunctively from "security of the person" in
section 11(1). The
legislative history of the section would seem to confirm
this. It was only in the Sixth Report of the Technical Committee on Fundamental
Rights During the Transition that the right to "personal liberty" was
combined with the right to "security of the
person".[29] The right "to freedom" must be
construed as a separate and independent right, albeit related to the right to
"security
of the person."
[47]
Conceptually, individual freedom is a
core right in the panoply of human rights. The right to human dignity
("menswaardigheid")
is specifically entrenched in section 10 and has
been categorised by this Court, together with the right to life, as
"the most important of all human
rights ... ."[30]
[48]
In Makwanyane O'Regan J pointed
out that "without dignity, human life is substantially diminished"[31] and pronounced the prime value of
dignity in the following terms:
"The
importance of dignity as a founding value of the new Constitution cannot be
overemphasised. Recognising a right to dignity
is an acknowledgement of the
intrinsic worth of human beings: human beings are entitled to be treated as
worthy of respect and concern.
This right therefore is the foundation of many
of the other rights that are specifically entrenched in Chapter 3."[32]
I agree with these views. O'Regan J
also pointed out, rightly in my view, that
"[the] recognition and protection of human
dignity is the touchstone of the new political order and is fundamental to the
new
Constitution."[33]
[49]
Human dignity cannot be fully valued
or respected unless individuals are able to develop their humanity, their
"humanness"
to the full extent of its potential. Each human being is
uniquely talented. Part of the dignity of every human being is the fact
and
awareness of this uniqueness. An individual's human dignity cannot be fully
respected or valued unless the individual is permitted
to develop his or her
unique talents optimally. Human dignity has little value without freedom; for
without freedom personal development
and fulfilment are not possible. Without
freedom, human dignity is little more than an abstraction. Freedom and dignity
are inseparably
linked. To deny people their freedom is to deny them their
dignity. Although freedom is indispensable for the protection of dignity,
it
has an intrinsic constitutional value of its own.[34] It is likewise the foundation of many of
the other rights that are specifically entrenched.[35] Viewed from this perspective, the
starting point must be that an individual's right to freedom must be defined as
widely as
possible, consonant with a similar breadth of freedom for others.
[50]
There are other and more specific
indications in the Constitution that the right to freedom is to be extensively
interpreted. Section
35(1) embodies an injunction that, generally, in
interpreting the Chapter 3 provisions, a Court of law must promote the values
which
underlie an "open" and democratic society "based on
freedom and equality". An "open society" most certainly
enhances
the argument that individual freedom must be generously defined. It is a
society in which persons are free to develop their
personalities and skills, to
seek out their own ultimate fulfilment, to fulfill their own humanness and to
question all received
wisdom without limitations placed on them by the State.
The "open society" suggests that individuals are free, individually
and in association with others, to pursue broadly their own personal
development and fulfilment and their own conception of the "good
life".[36]
[51]
A teleological approach also requires
that the right to freedom be construed generously and extensively. In Makwanyane
O'Regan J, adopting such a teleological approach, correctly observed as
follows:
"Respect for the dignity of all
human beings is particularly important in
In my view exactly the same approach
needs to be adopted in the case of the right to freedom. This is not the place
to enumerate or
elaborate on the vast number of limitations which, in the
recent past and prior to the Constitution, had been placed on personal
freedom,
nor on the extent or variety of such limitations.[38] No right minded person in any society
which claimed to be democratic and based on freedom and equality would today
even try to justify
these limitations. They started at birth and continued
relentlessly until death. For the purposes of illustration, the most selective
outline of such restrictions must suffice. The Population Registration Act and
associated legislation eliminated or severely restricted
the freedom to
identify one's child[39]
and hospitalise[40]
or educate[41]
one's child. As an adult the curtailments of freedom related, amongst other things,
to where one could reside[42],
work[43]
or own property[44];
what work one could do[45];
who one could marry[46];
how one could express[47]
or organise oneself politically[48]
or where one could be buried.[49]
A feature common to all or many of these denials of freedom was a denial of the
freedom to choose or develop one's own identity,
a denial of the freedom to be
fully human. One of the main objects of the Constitution is to eradicate such
denial or restriction
of freedom, not in a casuistic way but as a profound
constitutional commitment. In Makwanyane I had occasion to
emphasise "the importance, in our new constitutional state, of reason and
justification when rights are sought
to be curtailed"[50] and to refer to the fact that the
Constitution is, in the words of Prof E Mureinik, "... a bridge to ... a
culture of justification".[51]
This further supports an extensive definition of freedom at the first stage of
the enquiry. It may, in the State's interest, be necessary
to limit the right
to freedom, but then it is for the body or person relying upon such limitation
to establish in terms of section
33(1) inter alia, in the case of the
limitation of a section 11(1) right, that such limitation is reasonable,
justifiable in an open and democratic
society based on freedom and equality,
and necessary.
[52]
I do not think that, in the context of
the Constitution as a whole, there is any difference between freedom and
liberty.[52]
In the negative sense freedom is, as pointed out by Isaiah
"involved in the answer to the question 'What
is the area within which the subject - a person or a group of persons - is or
should
be left to do or be what he is able to do or be, without interference by
other persons?'"[53]
In the positive sense freedom, so
contends
"is involved in the answer to the question
'What, or who, is the source of control or interference that can determine
someone
to do, or be, this rather than that?'"[54]
Section 11(1) is concerned with freedom
in the negative sense and that is the sense in which I shall hereafter use it.
It is essential
to distinguish between freedom (liberty) and the conditions of
its exercise. It could be dangerous to conflate the two concepts.
"If a man is too poor or too ignorant or too
feeble to make use of his legal rights, the liberty that these rights confer
upon
him is nothing to him, but it is not thereby annihilated. The obligation
to promote education, health, justice, to raise standards
of living, to provide
opportunity for the growth of the arts and the sciences, to prevent reactionary
political or social or legal
policies or arbitrary inequalities, is not made
less stringent because it is not necessarily directed to the promotion of
liberty
itself, but to conditions in which alone its possession is of value, or
to values which may be independent of it. And still, liberty
is one thing, and
the conditions for it another .... . Useless freedoms should be made usable,
but they are not identical with the
conditions indispensable for their utility.
This is not a merely pedantic distinction, for if it is ignored, the meaning
and value
of freedom of choice is apt to be downgraded. In their zeal to create
social and economic conditions in which alone freedom is of
genuine value, men
tend to forget freedom itself; and if it is remembered, it is liable to be
pushed aside to make room for these
other values with which the reformers or
revolutionaries have become pre-occupied ..... . To provide for material needs,
for education,
for such equality and security as, say, children have at school
or laymen in a theocracy, is not to expand liberty. We live in a
world
characterized by régimes (both right- and left-wing) which have done, or are
seeking to do, precisely this; and when they
call it freedom, this can be as
great a fraud as the freedom of the pauper who has a legal right to purchase
luxuries. Indeed, one
of the things that Dostoevsky's celebrated fable of the
Grand Inquisitor in The Brothers Karamazov is designed to show is
precisely that paternalism can provide the conditions of freedom, yet withhold
freedom itself."[55]
The fact that the right to freedom
must, in my view, be given a broad and generous interpretation at the first
stage of the enquiry,
must therefore not be thought to be premised on a concept
of the individual as being in heroic and atomistic isolation from the rest
of
humanity, or the environment, for that matter. I wish to emphasise quite
explicitly that a broad and generous interpretation of
freedom does not
deny or preclude the constitutionally valid, and indeed essential, role of
state intervention in the economic as well as the civil
and political spheres.
On the contrary, state intervention is essential to resolve the paradox of
unlimited freedom (where freedom
ultimately destroys itself) in all
these spheres.[56]
But legitimate limitations on freedom must occur through and be justified under
the principles formulated in section 33(1), not by
giving a restricted
definition of the right to freedom in section 11(1). Kant luminously
conceptualises freedom as the "only
one innate right" in the
following terms:
"Freedom (independence from the
constraint of another's will), insofar as it is compatible with the freedom of
everyone else
in accordance with a universal law, is the one sole and original
right that belongs to every human being by virtue of his humanity."[57]
[53]
I also accept that it is not possible
in all circumstances to fully harmonise all the Chapter 3 rights with one
another and that,
in a given case, one right will have to be limited in favour
of another. As Berlin points out:
"... since some values may conflict
intrinsically, the very notion that a pattern must in principle be discoverable
in which
they are all rendered harmonious is founded on a false a priori
view of what the world is like. If ... the human condition is such that men
cannot always avoid choices ... [this is] for one central
reason ... namely,
that ends collide; that one cannot have everything ... The need to choose, to
sacrifice some ultimate values to
others, turns out to be a permanent
characteristic of the human predicament";[58]
and further comments:
"If we wish to live in the light of reason, we
must follow rules and principles; for that is what being rational is. When
these
rules or principles conflict in concrete cases, to be rational is to
follow the course of conduct which least obstructs the general
pattern of life
in which we believe. ... [E]ven those who are aware of the complex texture of
experience, of what is not reducible
to generalisation or capable of
computation, can, in the end, justify their decisions only by their coherence
with some over-all
pattern of a desirable form of personal or social life, of
which they may become fully conscious only, it may be, when faced with
the need
to resolve conflicts of this kind. If this seems vague, it is so of
necessity."[59]
Although Berlin's views pertain to the
field of political and moral philosophy, they are in my view equally
applicable, mutatis mutandis, to constitutional interpretation and
adjudication, where for the touchstone of "some over-all pattern of a
desirable form of
personal or social life" one could substitute "some
over-all pattern of the norms and values of the Constitution."
Section
35(1) of our Constitution points to the norms and values "which underlie
an open and democratic society based on freedom
and equality." As a
prerequisite for the limitation of rights entrenched in Chapter 3 of the
Constitution, section 33(1)(a)(ii)
provides that such limitation shall be
permissible only to the extent that it is "justifiable in an open and
democratic society
based on freedom and equality". However, rights of
freedom and equality are not always reconcilable and in concrete situations
difficult choices may have to be made, because section 33(1)(a)(ii) does not
provide an obvious answer to the choice between freedom
and equality. Nor does
section 35(1). It is, however, neither necessary nor desirable, for purposes of
this case, to pursue this
aspect of the matter any further.[60]
[54]
In the light of all the aforegoing I
would, at this stage, define the right to freedom negatively as the right of
individuals not
to have "obstacles to possible choices and
activities"[61]
placed in their way by (for present purposes we need go no further) the State.
I am indeed mindful of the fact that, as alluded to
in paragraph [44] above,
specific “freedom rights” are separately protected in Chapter 3. So, for
example, the freedom to choose
one’s place of residence is specifically protected
in section 19, as is the right to enter, remain in and leave the Republic in
section 20. The meaning and ambit of these specifically and separately
protected freedom rights must of course, in my view, be construed
in the
context of their specific entrenchment with due regard to the rules of
constitutional construction and, in particular, the
purpose they were intended
to serve. It is also important to bear in mind that, when considering possible
limitations on these section
19 and 20 rights in terms of the provisions of
section 33(1) of the Constitution, such limitations do not, in addition to
being reasonable,
also have to be “necessary” for purposes of the provisos in
subparagraphs (aa) or (bb) of subsection 33(1).
[55]
Similarly the freedoms of expression,
assembly, demonstration and petition, association, and movement, are dealt with
separately and
specifically in sections 15 to 18 respectively. These rights,
too, have to be construed and defined separately, as indicated above.
Legitimate
limitations on these rights are not subject to the additional requirement of
being “necessary” in terms of proviso
(bb) to section 33(1) unless and insofar
as any such right “relates to free and fair political activity”.
[56]
There are also specifically enumerated
freedom rights where any limitation, in addition to being reasonable, must
under all circumstances
also be necessary in order to pass section 33(1)
scrutiny. Such rights include the section 14(1) rights to freedom of
conscience,
religion, thought, belief and opinion and the section 21 political
rights.
[57]
The implication of this separate
enumeration and independent protection of specific freedom rights is of course
that the freedom rights
protected by section 11(1) should more properly be
designated “residual freedom rights”. Consequently, when it is alleged that
any
freedom right has been infringed, the proper methodology would be first to
determine whether the right infringed is a specifically
enumerated freedom right.
This will be done by analysis and construction of the specific section
entrenching the right in question
and applying it to the case at hand. If any
limitation of such right is relied upon, regard will then be had to the
specific provision
in section 33(1) relating to such enumerated freedom right.
If the alleged infringement is not of an enumerated freedom right, then
the
enquiry will be directed to determining whether a residual freedom right
protected by section 11(1) has been infringed.
If so, any limitation of
such residual freedom right must, in addition to being reasonable, also be
necessary because section 11
is included in proviso (aa) to section 33(1). I
have had the benefit of reading the President's judgment in draft. I fully
agree
with his view that the ambit of the section 11(1) freedom right
"does not depend on the construction of the section in isolation
but on
its construction in the context of Chapter 3 of the Constitution." It is,
in fact, such an approach which has led me
to the conclusion that it is a
residual freedom right. I also agree, and have indeed adopted this approach,
that in considering a
constitutional challenge based on an alleged denial or
limitation of freedom the first step is to enquire whether the impugned act
falls within the freedoms elsewhere protected in Chapter 3.
[58]
It might be suggested that, because
the legislature has sought fit to subject any limitation of a residual freedom
right to stricter
scrutiny, that such residual freedom rights ought to be more
narrowly construed. In my view there is no warrant for such an approach,
for at
least two reasons. First, it would constitute an unjustified “second-guessing”
of the framers’ intention. They must
have been only too well aware that at
least some of the section 11(1) rights were residual freedom rights in view of
the fact that
so many freedom rights were specifically enumerated in other
sections of the Constitution. Despite this awareness, they chose to
confer the
higher level of protection on these rights in proviso (aa) to section 33(1). In
my view, this decision, which is quite
unambiguous, must be respected by this
Court. It is not our function to cut down artificially the patent protection
afforded by section
11(1) to residual freedom rights by giving a limited
construction, and a strained one at that, to these residual freedom rights.
Second, such a construction would be in conflict with the “generous” and “full
benefit” interpretative approach unanimously
approved by this Court in S v
Zuma and Others[62]
and in particular the following quotation approved of by Kentridge
AJ:
“Constitutional rights conferred
without express limitation should not be cut down by reading implicit
restrictions into them, so
as to bring them into line with the common law.”[63]
I respectfully disagree with the
President's view that those freedoms (and by implication other rights) whose
limitation is made subject
to the "necessary" test by section 33 of
the Constitution are necessarily of a "higher order" than those
freedoms
which are not subjected to such an onerous test. A limitation of the
section 8 equality right, for example, is not made subject to
the more
stringent "necessary" test, yet in my view it could scarcely be said
that this right is of a "lower"
order. I therefore consider it
unhelpful to focus, as the President does, on the fact that a limitation of the
section 13 right to
privacy is only subject to the "reasonable" test.
I certainly disagree, with respect, that this is anomalous. Even if it
were
anomalous, I do not believe that the anomaly assists this Court in construing
the section 11(1) right to freedom. It certainly
does not call for what I would
consider a strained and limited construction. There may well be good reason why
the limitation of
a section 13 right is only subject to the
"reasonable" test. It may be because of the natural tension between
this right
and the right to freedom, or for some other reason, about which it
is unprofitable to speculate. The fact that the guarantee against
"torture" in section 11(2) is made subject to any limitation at all
(particularly when regard is had to the fact that both
the International
Covenant on Civil and Political Rights and the European Convention on Human
Rights outlaw any derogation from this
right even in times of war[64] or public emergency threatening the life
of the nation[65])
I find far more anomalous, but I do not consider such anomaly useful in
construing other provisions of Chapter 3.
[59]
It needs to be emphasised that what is
being contended for in this judgment is not an unlimited right to
freedom or that the section 11(1) residual freedom rights are unlimited.
What is being postulated is a broad and generous construction of these rights,
which is quite different from contending that they
are unlimited. These rights
are indeed subject to limitation, but limitation justified in terms of section
33(1) of the Constitution.
[60]
It might be contended that, by giving
a broad and generous construction to the section 11(1) residual freedom rights,
the Court will,
in the fields of criminal law and general regulatory provisions
for example, be dragged into what are essentially legislative functions,
because the state will be called upon to show in all these cases that the
limitations imposed are necessary. I cannot, however, see that this
differs in any principled way from the task which the Court has to discharge
when it tests any
legislative or regulatory provision against the provisions of
the Constitution in order to determine the validity of the former.
Provisos
(aa) and (bb) to section 33(1) embody an extensive array of Constitutional
rights which, if infringed by any criminal statute
or regulatory provision,
would require the state (when rights enumerated in proviso (aa) are infringed
and, in certain circumstances,
when rights enumerated in proviso (bb) are
infringed) to establish that limitations are, in addition to any other
requirement, also
necessary.
[61]
It might also be contended that, by
giving such a broad and generous construction to the section 11(1) residual
freedom rights, the
Court will be inviting an intolerable workload because it
will be obliged to test a multitude of criminal and other statutory provisions
which are challenged on the grounds, inter alia, that the limitations
thus placed on residual freedom rights are not necessary. Such an argument
could proceed on the following basis:
(a) that the majority of
these statutory
provisions will only be attacked if the right to freedom in
section 11(1) is not narrowly construed;
(b) that the court will be flooded with
frivolous complaints; and
(c) that the court is powerless to prevent
this.
In my view none of these premises can
be assumed and all are unfounded.
[62]
Depending on the nature of the
criminal or other regulatory statutes involved, there are likely to be many
other Chapter 3 rights
which are facially involved. It cannot simply be
postulated that an internally unlimited residual freedom right will open the
floodgates.
[63]
It is patent that the overwhelming
substance of criminal and other regulatory legislative provisions constitute
constitutionally justified
limitations on rights, a fact which I believe is
well recognised even by the lay public. It is unduly pessimistic to expect a
deluge
of frivolous challenges to legislation based simply on a broad reading
of the section 11(1) right to freedom. In any event it is
reasonable to suppose
that most challenges will arise either in the Provincial and Local Divisions of
the Supreme Court or in other
Courts. In both cases the Supreme Courts (either
through section 102(1) of the Constitution or section 103(4), in the case of
matters
originating in other Courts) are well able, by a proper application of
these provisions in the Constitution, to dispose of challenges
where there is
not a reasonable prospect that the law or provision is
invalid.
[64]
This Court itself controls direct
access through the provisions of section 100(2) of the Constitution and the
Constitutional Court
rules, in particular rule 17. The United States and German
courts of equivalent jurisdiction have devised effective means of preventing
docket overload and there is no reason to believe that this Court is not able
to do likewise. If a frivolous or vexatious matter
does succeed in
slipping through the net there are appropriate ways (including an appropriate
punitive order as to costs) by which
this Court could discourage such matters
from being brought before it.
[65]
There may also be the anxiety that,
unless freedom is given a more restricted meaning, this Court will inevitably
be drawn into matters
which are the concern of the Legislature rather than the
Courts and could stand accused of what Tribe has described as being the
error
in decisions such as Lochner v New York[66] which was “a misguided understanding of
what liberty actually required in the industrial age.”[67] I believe this fear to be
unfounded. Lochner, a case in which the United States Supreme
Court invalidated maximum hour work laws as violative of contractual liberties
protected
by the Constitution, was decided in 1905 at a time and in a socio-economic
context completely different from ours in 1995. I do not
believe that we ought
to allow ourselves to be haunted by the Lochner ghost. It is to me
inconceivable that the broad sweep of labour legislation in this country[68] could be struck down because of an
argument that it infringed rights of contractual freedom protected by the
Constitution. This is
so for a number of reasons.
[66]
First, the interventionist role of the
state is no longer seen, in broad terms, as being limited to protecting its
citizens against
brute physical force and intimidation from others only, but is
seen as extending to the economic and social realm as well.[69] Second, there are specific provisions in
the Constitution itself which will ensure that appropriate labour and other
social legislation
will not be invalidated because of a “misguided
understanding” of what liberty requires.[70] Third, statutory limitations on
contractual freedom will (quite apart from the importance in this field of the
provisions of section
26(2) of the Constitution)[71] be justified under section 33(1),
assuming the other requirements for limitation to have been fulfilled, if they
are, in terms of
section 33(1)(a)(ii), “justifiable in an open and democratic
society based on freedom and equality”. As a general proposition
it is
difficult to see how labour and other social legislation would be struck down
where such legislation easily passes constitutional
scrutiny in countries such
as the United States of America, Canada and Germany.
[67]
It has been suggested that the “due
process” provisions of section 25, the prohibition against cruel, inhuman or
degrading punishment
in section 11(2) and the fact that substantive criminal
law must not be inconsistent with the provisions of Chapter 3, provide
accused persons with all the protection that one expects in an “open and
democratic society based on freedom and equality” and
that this is a strong
reason for holding that “freedom and security of the person" in section
11(1) should not be construed
as including freedom from criminal prosecution
and imprisonment in accordance with the laws of the land. This is a very broad
proposition
which would, in my view, require for its justification a very
detailed examination of our criminal law and the possible abuses to
which it
could be put. It is a proposition with which I am in any event unable to
agree. One can think offhand of many prohibitions
(such as an unqualified
prohibition against the possession of any fire-arm, the possession of liquor in
any form, the playing of
sport on Sunday, and the proscription of various activities
or where or when they may be carried out) which might be difficult to
challenge
under provisions of Chapter 3 other than the section 11(1) residual freedom
rights, but would be unacceptable in an “open
and democratic society based on
freedom and equality”.
[68]
A major difficulty with reading a
limitation into section 11(1) where the framers have not seen fit to do so is
the absence of any
neutral principle or norm for doing so. Neither the text,
context nor purpose of Chapter 3 requires it. To read a limitation into
the
subsection in these circumstances is to run the risk of injecting subjective
values into the text at the expense of a proper
interpretation of the
Constitution.
[69]
Even though the freedom rights
in section 11(1) are residual freedom rights, there is no justification for not
giving these
residual freedom rights the broad and generous interpretation I
have suggested. They constitute the residual rights of individuals
(where such
or similar rights are not protected elsewhere in Chapter 3) not to have
“obstacles to possible choices and activities”
placed in their way by (for
present purposes we need not, as already indicated, go any further) the State.[72]
[70]
What is it about the nature and
operation of the provisions of section 417(2)(b) of the Act, and their impact
upon the examinee, which
can be said to be inconsistent with the right in
question? Although it is section 417(2)(b) of the Act which is under attack, it
must be analysed in the full context of its operation with other relevant
provisions of the Act. In the first place, the examinees,
if they fall within
the classes of persons referred to in sub-section (1) of section 417 of the Act
(which all the applicants do)
appear at the examination under compulsion, for
if they are duly summoned and fail to attend voluntarily, the Master or the
Court
may, by virtue of the provisions of sub-section (4) cause them to be
apprehended and brought before the Master or Court for examination.
The
examinee has no choice but to attend. The examinee is, in terms of sub-section
(2) obliged to submit to examination. Moreover,
any examinee who fails, without
sufficient cause, to answer fully any question lawfully put to the examinee in
terms of sub-section
(2) is, in terms of the provisions of section
418(5)(b)(iii) of the Act, guilty of an offence and, in terms of section
441(1)(f),
liable upon conviction to a fine not exceeding R2000 or to
imprisonment for a period not exceeding six months or to both such fine
and
such imprisonment. Section 417 obliges the examinee to answer all questions
even though the answer given to any such question
may tend to incriminate him
or her. Examinees thus have a very restricted choice if they have in the past
acted in a way which might
make them liable to criminal prosecution in
connection with the trade, dealings, affairs or property of the company and
they are
examined in connection with such acts. If they refuse to answer, they
face conviction and sentence to a fine or imprisonment (or
both). If they
answer, they run the risk of prosecution and conviction under circumstances
where they might not have been prosecuted
or convicted but for their answers at
the examination, because section 417(2)(b) explicitly provides that even an
answer which tends
to incriminate the examinee may thereafter be used in
evidence against him or her.
[71]
It must be remembered that this stage
of the enquiry is not concerned with whether any infringement of an examinee's
section 11(1)
right is justified in terms of section 33(1) but merely whether
the right has been infringed. On the basis of the general principles
set forth
above, I would conclude that, prima facie, the restrictions placed by
section 417(2)(b) on an examinee's choices and activities constitute an
infringement of section 11(1).
[72]
It is appropriate to consider whether
comparable foreign case law would lead to a different conclusion. Direct
comparison is of course
difficult and needs to be done with circumspection
because the right to personal freedom is formulated differently in the
constitutions
of other countries and in the international and regional
instruments. Nevertheless, section 33(1) of our Constitution enjoins us
to consider,
inter alia, what would be “justifiable in an open and democratic society
based on freedom and equality” and section 35(1) obliges us to
promote the
values underlying such a society when we interpret Chapter 3 and encourages us
to have regard to comparable case law.
In construing and applying our
Constitution, we are dealing with fundamental legal norms which are steadily
becoming more universal
in character. When, for example, the United
States Supreme Court finds that a statutory provision is or is not in
accordance
with the “due process of law” or when the Canadian Supreme Court
decides that a deprivation of liberty is not “in accordance
with the principles
of fundamental justice” (concepts which will be dealt with later) we have
regard to these findings, not in
order to draw direct analogies, but to
identify the underlying reasoning with a view to establishing the norms that
apply in other
open and democratic societies based on freedom and equality.
[73]
Section 7 of the Canadian Charter entrenches
the right to liberty and security of the person in terms narrower than section
11(1)
of our Constitution. It provides:
"7.
Everyone has the right to life, liberty and security
of the person and the right not to be
deprived thereof except in accordance
with the principles of fundamental justice." (Emphasis added).
Section 8 of the Charter is to the
following effect:
"8.
Everyone has the right to be secure against
unreasonable search and seizure."
In Canada the general approach of the
Courts is that there is a deprivation of liberty within the meaning of section
7 of the Charter
where conduct is prescribed or proscribed by law, and
imprisonment is a possible consequence of disobeying the law in question.[73] In Reference Re ss 193 and 195.1(C)
of the Criminal Code Dickson CJC, writing for three of the six Justices,
held that
"... there is a clear infringement
of liberty in this case given the possibility of imprisonment contemplated by
the impugned
provisions."[74]
[74]
The decision of the Supreme Court of
Canada in Thomson Newspapers Ltd. et al. v. Director of Investigation and
Research et al[75]
is particularly instructive. The Canadian Combines Investigation Act[76] (the "CI Act") provided for a
system of investigation and research which allowed the Director to determine
facts relevant
to particular issues of market behaviour, including breaches of
prescribed guidelines set forth in the Act. Section 17 of the Act
allowed the
Director of Investigation and Research, in the course of carrying out an
investigation under the Act, to apply for an
order requiring any person to be
examined under oath and to produce business records. Section 20(2) of the Act
protected examinees
who were compelled to testify against subsequent use of
their oral testimony in criminal proceedings against them, but not against
the
subsequent use of evidence derived from that testimony. Officers of Thomson
Newspapers were served with orders to appear before
the Restrictive Trade
Practices Commission to be examined under oath and to make production of
certain documents. They attacked section
17 of the CI Act on the grounds of its
violation of sections 7 and 8 of the Canadian Charter. The Supreme Court of
Canada ultimately
held, Lamer and Sopinka JJ dissenting in part, and Wilson J
dissenting, that section 17 of the CI Act violated neither section 7
or section
8 of the Charter.
[75]
Each member of the Supreme Court
(Lamer, Wilson, La Forest, L'Heureux-Dubé and Sopinka JJ) gave a separate
judgment. The reasons
for all the judgments are not readily amenable to brief,
accurate summary. They are, however, instructive both on the issue of the
ambit
of the right to liberty in section 7 of the Charter (the right to freedom in
section 11(1) of our Constitution) and the possible
limitation of such right in
terms of section 1 of the Charter (section 33(1) of our Constitution). For the
present part of this judgment
I refer only to the former.
[76]
Section 17(1) of the CI Act makes
provision, inter alia, for the examination on oath of persons before a
member of the Commission who may make orders for securing the attendance of
witnesses
and their examination and "may otherwise exercise, for the
enforcement of such orders or punishment for disobedience thereof,
all the
powers that are exercised by any superior Court in Canada for the enforcement
of subpoenas to witnesses or punishment of
disobedience thereof." Lamer J,
without pronouncing on the section 7 issue, dismissed the section 7 challenge
on the basis that
the wrong section of the CI Act had been challenged, section
20(2) thereof and section 5(1) of the Canadian Evidence Act being the
relevant
statutory provisions which had to be challenged in order for the applicants to
succeed.[77]
Wilson J held that section 17 of the CI Act violated a person's right to
liberty and security of the person within the meaning of
section 7 of the
Charter[78],
stating that:
"There is, however, in my view a
vast difference between a general regulatory scheme (such as the rules of the
road for motorists)
designed to give some order to human behaviour and a
state-imposed compulsion on an individual to appear at proceedings against his
will and testify on pain of punishment if he refuses. The difference is even
greater, in my view, where the compelled testimony given
by the individual may
be used to build a case against him in what is, in effect, a subsequent
criminal prosecution. It is my opinion
that this compulsion, linked as it is to
the criminal process, touches upon the physical integrity of the individual as
well as that
individual's reasonable expectation of privacy. The fact that the
s. 17 procedure is in itself 'investigatory' as opposed to 'prosecutorial'
seems to me to be irrelevant when a criminal prosecution is a potential
consequence of the s. 17 enquiry."[79]
The learned Judge also found that the
infringement by section 17 of the appellants' section 7 rights was not "in
accordance with
the principles of fundamental justice"[80] (the phrase qualifying the section 7
right to "liberty and security of the person"), stating that:
"Although s. 20(2) of the Act
protects a witness who testifies under s. 17 from use of the testimonial
evidence in a subsequent
prosecution if one takes place, it does not protect
the witness against use of the derivative evidence. Accordingly, s.17 violates
the residual s.7 right of an individual not to be compelled to testify in an
investigatory proceeding with a view to possible subsequent
prosecution absent
legislative assurance that any derivative evidence obtained as a result of his
testimony cannot be used against
him in such prosecution."[81]
Section 11(1) of the South African
Constitution of course contains no such limitation to the "right to
freedom and security of
the person"; but the possible significance of this
aspect of the Thomson judgment for the present enquiry will be dealt
with later. La Forest J also found that section 17 of the CI Act constituted a
deprivation
of liberty within the meaning of section 7,[82] but concluded that it did so in
accordance with the principles of fundamental justice, holding that
".... complete immunity against such use [of
derivative evidence] is not required by the principles of fundamental justice.
The
immunity against use of actual testimony provided by s. 20(2) of the Act
together with the judge's power to exclude derivative evidence
where
appropriate is all that is necessary to satisfy the requirements of the
Charter."[83]
L'Heureux-Dubé J came to a similar
conclusion.[84]
Sopinka J, concurring with Wilson J in this respect, held that section 17 of
the CI Act violated section 7 of the Canadian Charter,
"in particular, the
principle of fundamental justice in which the right to remain silent is
embodied" to the extent that
the provisions of section 17 compelled
testimony.[85]
The learned Judge's reasons for concluding that section 17 violated this
principle of fundamental justice will be considered in due
course, but it is
clear that he considered that "the right of a suspect to remain silent
during the investigative stage"
had the "status of a principle of
fundamental justice" and that it was included in section 7, "the
repository of many
of our basic rights which are not otherwise specifically
enumerated."[86]
[77]
The Fifth Amendment to the United
States Constitution provides in part that -
"[No person] ... shall be
compelled in any criminal case to be witness against himself, nor be deprived
of life, liberty, or
property, without due process of law".
In dealing with the Fifth Amendment it
must of course be borne in mind, as pointed out by Wilson J in Thomson
Newspapers[87],
that the United States Constitution has no limitation clause (such as section 1
in the Canadian Charter or section 33(1) of our
Constitution) and that,
accordingly, any limitation on a constitutional right has to be read into the
right itself. Nevertheless
it is significant that the United States Fifth Amendment
right not to be so compelled "has consistently been accorded a liberal
construction"[88]
and "is available outside of criminal court proceedings and serves to
protect persons in all settings in which their freedom
of action is curtailed
in any significant way from being compelled to incriminate themselves."[89] It is regarded as a right in the broad
panoply of freedom rights which were added to the original Constitution
"in the conviction
that too high a price may be paid even for the
unhampered enforcement of the criminal law and that, in its attainment, other
social
objects of a free society should not be sacrificed."[90] It is viewed as one of the fruits of
"[t]he battle for personal liberty".[91] In defining explicitly the spirit in
which this privilege against self-incrimination should be approached,
Frankfurter J stated that
"[t]his command of the Fifth Amendment
... registers an important advance in the development of our liberty - 'one of
the great
landmarks in man's struggle to make himself civilized.'"[92]
[78]
As far as the breadth of our present
Constitution's section 11(1) right to freedom and security of the person is
concerned, Thomson's case[93]
provides some useful guidance. Reference has already been made[94] to the fact that the right to freedom is
the foundation of many of the other rights that are specifically entrenched in
the present
Constitution. The existence of these other freedom-based or
freedom-inspired rights does not warrant a restrictive interpretation
being
given to the section 11(1) rights. Section 13 of the Canadian Charter provides
an individual with a limited protection against
self-incrimination in the
following terms:
"13.
A witness who testifies in any proceedings has the right not to have any
incriminating evidence
so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of
contradictory
evidence."
Section 11(c) embodies a limited right
of non-compellability:
"11. Any
person charged with an offence has the right
........
(c) not to be compelled to be a witness
in proceedings against that person in respect of the offence."
In Thomson's case the appellants
could not take advantage of either section 13 or section 11(c) but contended
that section 7 protects similar
rights in contexts other than those to which
section 13, and section 11(c) relate. This contention was upheld by Wilson J
who stated
the following:
"The principle of statutory construction, expressio
unius, is ill-suited to meet the needs of Charter interpretation. It is
inconsistent with the purposive approach to Charter interpretation
which has
been endorsed by this court and which focuses on the broad purposes for which
rights were designed and not on mechanical
rules which have traditionally been
employed in interpreting detailed provisions of ordinary statutes in order to
discern legislative
intent",
and,
"Sections 8 to 14 of the Charter
are illustrative, but not exhaustive, of deprivations of life, liberty and
security of the person
which are not in accord with the principles of
fundamental justice. Otherwise, s. 7 would have no role to play. I conclude
therefore
that the specific enumerations in ss.11(c) and 13 do not prevent
residual content being given to s.7."[95]
This part of Wilson J's judgment was
concurred in by Lamer J,[96]
La Forest J,[97]
L'Heureux-Dubé J[98]
and Sopinka J (but only in regard to the section 11(c) right to remain silent).[99] For the reasons advanced by Wilson
J, I would hold that the fact that many other freedom rights are
entrenched in our present
Constitution does not for that reason mean that the
section 11(1) right to freedom does not protect similar rights in contexts
other
than those to which the more particular freedom rights in the
Constitution relate; the Court is not thereby precluded from giving
"residual content" to section 11(1). The same considerations also do
not warrant giving this residual freedom right a narrow
construction. In Thomson,
Wilson J construed the words "life, liberty and security of the person"
disjunctively, holding that:
"it is not necessary for the
citizen to show that his right to life, his right to liberty and his right to
security of the person
have all been violated in order to constitute a breach
of the section. It is sufficient that one of them has been violated: see Singh
v. Can. (Minister of Employment & Immigration) (1985), 17 D.L.R. (4th)
422, [1985] 1 S.C.R. 177, 14 C.R.R. 13."[100]
This is further support for the
disjunctive reading of "freedom and security of the person" which I
have favoured in para
[41] above.
[79]
I would, more specifically and in the
context of this case, apply the above interpretative approach to the rights
enumerated in section
25(3)(c) and (d) respectively of the Constitution, namely
the right of an accused person "to be presumed innocent and to remain
silent during plea proceedings or trial and not to testify during trial"
and "not to be a compellable witness against himself
or herself". In Zuma[101]
Kentridge AJ, writing for the Constitutional Court, pointed out that South
African courts have over the years recognised the origins
and the importance of
the common law rule placing the onus of proving the voluntariness of a
confession on the prosecution.[102] In this context he quoted with approval
the following passage from R v. Camane 1925 AD 570 at 575:
"Now, it is an established
principle of our law that no one can be compelled to give evidence
incriminating himself. He cannot
be forced to do that either before the trial,
or during the trial. The principle comes to us through the English law, and its
roots
go far back in history. Wigmore, in his book on Evidence (Volume
4, section 2250) traces very accurately the genesis, and indicates the limits
of the privilege. And he shows that however
important the doctrine may be, it
is necessary to confine it within its proper limits. What the rule forbids
is compelling a man to give evidence which incriminates himself"[103]
(Emphasis added).
After tracing the history of the
embodiment of this rule in South African legislation, Kentridge AJ concluded
that:
"the common law rule in regard to
the burden of proving that a confession was voluntary has not been a fortuitous
but an integral
and essential part of the right to remain silent after arrest,
the right not to be compelled to make a confession and the right not
to be a
compellable witness against oneself. These rights, in turn, are the necessary
reinforcement of Viscount Sankey's 'golden
thread' - that it is for the
prosecution to prove the guilt of the accused beyond reasonable doubt (Woolmington's
case (supra)). Reverse the burden of proof and all these rights are
seriously compromised and undermined. I therefore consider that the common
law
rule on the burden of proof is inherent in the rights specifically mentioned in
section 25(2) and 3(c) and (d), and forms part
of the right to a fair
trial."[104]
Even if it were not otherwise
sufficiently clear from the wording of section 25(3)(c) or (d) that these
rights include the right of
accused not to be compelled to give evidence which
incriminates themselves, the aforementioned approach unquestionably does. I
conclude
that the right of a person not to be compelled to give evidence which
incriminates such person is inherent in the rights mentioned
in section 25(2)
and (3)(c) and (d). The fact that such rights are, in respect of an accused
person, included (implicitly or otherwise)
in section 25(3) of the
Constitution, does not for that reason preclude the Court from giving residual
content to section 11(1) and
holding that section 11(1) protects rights similar
to those in section 25(3)(c) or (d) in contexts and in respect of persons other
than those there mentioned.
[80]
For this reason, the contention
advanced by Mr. Cilliers that, because the section 25(3) rights were enumerated
in such detail, it
was not possible, on the proper construction of the
Constitution as a whole, to interpret the section 11(1) right to freedom in
such a way as to include
a residual right not to be compelled to give evidence
against oneself in a section 417 enquiry, cannot be sustained.
[81]
In Reference re s.94(2) of Motor
Vehicle Act Wilson J observed:
"Indeed, all regulatory offences
impose some restrictions on liberty broadly construed. But I think it will
trivialize the Charter
to sweep all those offences into s. 7 as violations of
the right to life, liberty and security of the person even if they can be
sustained under s. 1."[105]
I cannot, with due respect to so
distinguished a Judge, comprehend why an extensive construction of freedom would
"trivialize"
the Charter, either in theory or in practice, or, more
relevantly for our purposes, our present Constitution. It might trivialise
a
constitution (it would indeed cause chaos) if it resulted in the regulating
measures being struck down. But that is not the consequence.
An extensive
construction merely requires the party relying thereon to justify it in terms
of a limitation clause. It does not trivialise
a constitution in theory; in
fact it has the reverse effect by emphasising the necessity for justifying
intrusion into freedom. It
does not trivialise a constitution in practice
because in the vast majority of cases dealing with regulatory matters, the
justification
is so obviously incontestable that it is taken for granted and
never becomes a live issue. In the borderline cases (and even in mundane
regulatory statutes such cases may arise) there is no pragmatic reason why the
person relying on the measure ought not to justify
it.
[82]
Section 11(1) of the transitional
Constitution contains no internal limitation such as is found in section 7 of
the Canadian Charter.
There seems to be no reason in principle why the
limitation of the right should not consistently be sought for and justified
under
section 33(1). The drafters of section 11(1) were undoubtedly well aware
of the provisions of section 7 of the Canadian Charter,
yet they decided not to
place any limitation in section 11(1). Instead a detailed limitation clause has
been crafted. It would seem
to further the norms of the rule of law and of
constitutionalism better for Courts, in applying the Constitution, to seek for
any
limitation to section 11(1) rights in section 33(1), where the Constitution
lays down criteria for limitation, than to seek limits
in section 11(1) by
means of an interpretative approach which must of necessity, having regard to
the nature of the right to freedom,
be more subjective, more uncertain and more
constitutionally undefined. In Zuma[106] this Court recognised the difference
between the "single stage" approach and the "two-stage"
approach to determining
whether there has been an unconstitutional infringement
of an entrenched right. It was further recognised that -
"The single stage approach (as in the United
States constitution or the Hong Kong Bill of Rights) may call for a more
flexible
approach to the construction of the fundamental right, whereas the
two-stage approach may call for a broader interpretation of the
fundamental
right, qualified only at the second stage."[107]
The fact that such a
"two-stage" approach is prescribed by the Constitution, and that
section 33(1) prescribes fully the
criteria that have to be met before an
entrenched right can be limited, in my view lends constitutional and policy
support to an
interpretative approach which requires that the broadest
interpretation be given to the entrenched right. If a limitation is sought
to
be made at the first stage of the enquiry, it requires, at best, an uncertain,
somewhat subjective and generally constitutionally
unguided normative judicial
judgment to be made. The temptation to, and danger of, judicial subjectivity is
great. This Court would,
in my view, be discharging its interpretative function
best, most securely and most constitutionally, if, as far as is judicially
possible, it seeks for any limitation of an entrenched right through section
33(1). It may well be that the Constitution itself,
either because of the
descriptive ambit of one or more of the many other rights entrenched in Chapter
3, or in some other way, expressly
or by clear implication, indicates a
limitation of an entrenched right at the first stage of the enquiry. Absent
such an indication,
the Court would be on safer constitutional ground if it
were to find any limitation on the basis of the prescribed criteria in section
33(1). This approach will afford a better guarantee against the Court, however
unwittingly, reading its own subjective views into
the Constitution.
[83]
Article 2 of the German Basic Law
deals with the right to freedom in two separate sub-paragraphs, namely:
"(1)
Everybody has the right to self-fulfilment in so far as they do not violate the
rights of
others or offend against the constitutional order or morality.
(2)
Everybody has the right to life and physical integrity. Personal freedom is
inviolable. These
rights may not be encroached upon save pursuant to a
law."
The formulation is patently different
from that in section 11(1) of the transitional Constitution. The purpose of
alluding to its
provisions is not to attempt a direct comparison, but to
illustrate that a Constitution can operate effectively where the widest
possible construction is given to a freedom right. Article 2(2) is, it is
generally agreed, given a very narrow construction which
limits "personal
freedom" to freedom from physical restraint.[108] Article 104 contains detailed rights
applying to detention and arrest. The legislative history of article 2(2), the
systematic structure
of the fundamental rights and the existence of article 104
are used to support a narrow construction of article 2(2).[109]
[84]
By contrast Article 2(1) of the Basic
Law has been interpreted so broadly by the Federal Constitutional Court that it
presently allows
the Court to subject any legislative norm (statutory
instrument) to constitutional scrutiny, the culmination of a process the basis
for which was laid in the late 1950's when the Court interpreted the right to
self-fulfilment as a protection of the general "freedom
to act".[110]
The freedom to act is guaranteed to the extent that it does not offend against
the constitutional order, which includes all statutory
instruments[111],
but, in order to pass constitutional scrutiny, all statutes must conform
formally and substantively with the Basic Law. Formally
the Court may, for
example, examine whether the legislative provision was passed by the
appropriate Legislature, but the substantive
content of all legislative
provisions are tested against the principle of proportionality.[112]
The Federal Constitutional Court requires the principle of proportionality to
be respected even if a special limitation to the right,
such as the
"constitutional order" is invoked by the Legislature.[113]
The consequences of the extremely wide interpretation given to Article 2(1) is
that, in effect, all legislative provisions must be
tested for compliance with
the principle of proportionality.[114]
[85]
The phrase “in so far as they do not
violate the rights of others or offend against the constitutional order or
morality” which
qualifies the “right to self-fulfilment” in article 2(1) of the
German Basic Law is not an internal qualification of this right
for, as
indicated above, the German Constitutional Court requires that all statutory
provisions which prima facie limit this right be tested for compliance
with the principle of proportionality. This is the equivalent of requiring all prima
facie infringements of the residual freedom rights in section 11(1) of our
Constitution to pass section 33(1) scrutiny. The German Constitutional
Court
has insisted on such justification according to the principles of
proportionality in many cases.
[86]
In Elfes[115], the decision which laid the basis for
the German Constitutional Court’s approach to section 2(1) as the general and
residual freedom
right (“Auffanggrundrecht”), the Court was concerned with the
denial of an application for thepassport renewal of a leading member
of a
political party which opposed the West German government’s re-armament policy
in the 1950s. Having rejected the petitioner’s
reliance on the right to freedom
of movement (section 11 of the Basic Law), on the basis that the right only guaranteed
the right
to move freely within the boundaries of the Federal Republic of
Germany, the Court proceeded to consider the state’s justification
for the
legislation with reference to section 2(1) and the principle of
proportionality. In casu the Court found that considerations of national
security justified the law limiting the issuing of passports. Similarly, in
1980
the Court held that a government prohibition on the feeding of doves in a
particular city passed constitutional muster.[116] The Court accepted that section 2(1) of
the Basic Law had been infringed, but held that the prohibition related to the
public’s
interest in keeping the city clean and protecting property from damage
caused by the doves. The public’s interest, the Court stated,
had to be
balanced against the relatively minor infringement of individuals’ section 2(1)
right to express their affection for
animals. In the same year, however, the
Constitutional Court invalidated a requirement in Federal hunting laws which
compelled those
who sought to hunt with falcons to demonstrate their competence
in the use of firearms[117].
Again none of the specific freedoms entrenched in the Basic Law applied to the
situation, but the applicants successfully relied
on the disproportionate
infringement of section 2(1). The Court held that the required skill had no
connection with the practice
of falconry; in fact, the Court stated, falconers
who discharged a firearm during the hunt would merely distract or even frighten
their falcons. Other examples which illustrate the effect of the residual
content found by the German Court in section 2(1) are those
decisions dealing
with the freedom not to be compelled to join public - as opposed to private
- associations. In a long line
of decisions[118] the Court has excluded the possibility
of relying on the freedom of association (section 9(1)) against this form of
compulsion. The
reasoning is that, since individuals may not invoke the right
of freedom of association to establish public associations (the
state
retains a discretion whether or not to confer public status on an association),
individuals may also not rely on the right
of freedom of association to refrain
from joining such public associations. While excluding reliance on the right to
freedom of association,
the Court has acknowledged that the individual is
protected from state compulsion to join public associations through the
residual
protection afforded by section 2(1) of the Basic Law.
[87]
One's sense is that the German Federal
Constitutional Court seldom strikes down laws on the basis of section 2(1) -
the general freedom
of action. The reason seems to be that the Court shows deference
to the legislature in many of the areas protected by the freedom
and not
because it is not prepared to test legislation against the principles of
proportionality or because it subjects the legislation
to a different type of
limitation test. The German Court is more inclined to exercise a stricter form
of scrutiny on the basis of
section 2(1) when the infringement is somehow
analogous to the infringement of another right or freedom, not dissimilar to
the heightened
scrutiny the US Supreme Court employs through the
"fundamental rights" strand of jurisprudence under that part of the
14th
Amendment that deals with due process.[119] In other words, when the other rights
or freedoms, for some reason or another, do not apply, section 2(1) is
activated. This is the
situation with which we are dealing here. It is
important to define section 11(1) broadly in the first stage of the enquiry
because
it cannot function as a residual freedom right if narrowly defined at
this stage. If a broad residual freedom right is not acknowledged
by the Court,
the Court will not be able to develop any form of due process jurisprudence -
procedural or substantive. There may
be concerns about substantive due process
and Lochner, but in the absence of a broad interpretation of section
11(1) we will not have a general procedural due process right either. In
the
present case we are concerned with process as much as with substance. We are
not creating a right, we are asking the state to
be consistent - procedurally -
when it denies individuals their rights.
[88]
Article 9(1) of the International
Covenant on Civil and Political Rights provides that-
“Everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary arrest or
detention. No
one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law.”
The other sub-articles ((2) to (5)) of
Article 9 deal with arrest and detention. In any event the last sentence in
article 9(1) does
not constitute an internal limitation of the right but
provides scope for statutory limitation and it is not any ground or any
procedure,
even though established by law, which will justify deprivation of
liberty.
[89]
Article 5(1) of the European
Convention of Human Rights provides that-
“Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law.”
The remaining provisions of article 5
(paragraphs 5(1)(a) - (f) and sub-articles 5(2) - 5(5)) deal exclusively with
arrest and detention.
The structure of the Convention is determinative of the
interpretation of article 5. The Convention contains no general limitation
provision, but special limitations are enumerated in relation to virtually all
the protected rights and freedoms. The specialized
order of limitation is of
particular importance for the interpretation of article 5 since the exceptions
enumerated in article 5(1)(a)
- (f) constitute the only form of limitation to
the right to freedom and security of the person. The exceptions merely
recognise
the legitimacy of arrest and detention in certain circumstances. The
Commission and the Court, responsible for the interpretation
of the Convention,
are therefore confronted with the problem that it is not possible to assign a
wide meaning to the terms “liberty”
and “security” of the person in article
5(1) since the special limitation provisions deal exclusively with arrest and
detention.
If forms of conduct, other than the activity of being arrested or
detained, were to be brought under the protection afforded by the
right to
liberty, those forms of conduct would in effect be insulated from state
regulation altogether. A narrow definition of “liberty”
also follows from the
fact that the rights mentioned in sub-articles 5(2) - 5(5) only accrue to
“arrested and detained” persons
and not to persons who are deprived of their
freedom in other respects. In this context it comes as no surprise that the
Commission
has held that:
“The term ‘liberty’ and ‘security’ must
be read as a whole and, in view of its context, as referring only to
physical liberty and security. ‘Liberty of person’ in Article 5(1) thus
means freedom from arrest
and detention and ‘security of person’ the protection
against arbitrary interference with this liberty.” [120] (emphasis added)
This narrow
definition also flows from the fact that the exceptions dealt with in
paragraphs (a)-(f) of sub-article 5(1) deal
only with deprivation of
liberty, and only in the context of arrest or detention. The context of section
11(1) in our Constitution
is quite different, inasmuch as arrest and detention
are dealt with in section 25(1) and (2) and the concluding phrase “which shall
include the right not to be detained without trial” in section 11(1) indicates
quite clearly that the preceding rights to freedom
and security of the person
do not constitute a numerus clausus.
[90]
In the end result there appears to me
to be no good reason for not giving section 11(1) the broad construction which
I have suggested
and requiring an infringement of its provisions to be
justified under 33(1). The examinee, facing compulsion under section 417(2)(b)
of the Companies Act to give self-incriminating testimony, is subjected
"to the cruel trilemma of self-accusation, perjury or
contempt".[121]
On the basis of the considerations mentioned by Wilson J in Thomson's
case, to which I have already referred, I have no doubt that the provisions of
section 417(2)(b) of the Companies Act, which require
an examinee summoned
under sub-section (1) to answer, under pain of fine or imprisonment, or both,
any question put to the examinee,
notwithstanding that the answer might tend to
incriminate the examinee and notwithstanding that any answer to any such
question may
thereafter be used in evidence against the examinee, infringe the
examinee's section 11(1) right to freedom, more particularly the
residual
section 11(1) right of an examinee at a section 417 enquiry not to be compelled
to incriminate himself or herself.
The right against self-incrimination.
[91]
Before dealing with the actual
application of the provisions of section 33(1) to the infringement of the
section 11(1) right in question,
it is necessary to examine our own common law
as well as the common law in other jurisdictions relating to provisions of the
kind
with which we are here dealing. This is necessary for general
jurisprudential and constitutional reasons[122], but particularly so because section
33(1)(a) (ii) requires any limitation of a right to be justified in the context
of an "open
and democratic society based on freedom and equality" and
section 35(1) mandates us, in interpreting Chapter 3, to "promote
the
values which underlie" precisely such a society.
[92]
In Zuma[123] Kentridge AJ briefly traced the history
of the privilege against self-incrimination in English law. I propose to say
nothing further
on that score, save to suggest that it may at some future occasion
become necessary in the light of recent research,[124] to reconsider the received wisdom (for
which Wigmore has generally been credited[125]) that the privilege developed in
response to the oppressive and often barbaric methods of the Star Chamber.
[93]
That the "privilege" or
"immunity" against self-incrimination applies generally in the
English common law in extra-judicial
settings is beyond doubt. In Regina v.
Director of Serious Fraud Office, Ex Parte Smith[126] Lord Mustill regarded it as a general
immunity in "a disparate group of immunities, which differ in nature,
origin, incidence
and importance" which he categorised collectively as
"the right of silence" and which he described as:
"A general immunity, possessed by
all persons and bodies, from being compelled on pain of punishment to answer
questions the
answers to which may incriminate them."[127]
[94]
This also emerges clearly from the
fact that, in a wide variety of situations, reliance on the immunity could only
be rejected on
the ground that it had been expressly or by implication abrogated
by statute. In In re London United Investments Plc[128] it was held that the privilege against
self-incrimination was not available to persons who were being examined by
inspectors appointed
by the Department of Trade and Industry under section 432
of the Companies Act 1985, because sections 434, 436 and 452(1) of the
Act
excluded the privilege by necessary implication. In Bank of England v. Riley
and Another[129]
it was held that it was not available to persons who were being examined by
inspectors of the Bank of England under the Banking Act
1987, because it had
been excluded by necessary implication. A relevant consideration in the latter
judgment, however, was the fact
that section 31(1) of the Theft Act 1968
provided that no information or documents produced in consequence of the order
in question
would be admissible in the prosecution pending against the
respondent or in any further prosecution under the Theft Act 1968. Bishopsgate
Investment Management Ltd. (In Provisional Liquidation) v. Maxwell and Others[130]
was concerned with sections 235 and 236 of the Insolvency Act 1986, the purpose
whereof was to bring together the law as to personal
and corporate insolvency
and, in the public interest, to provide a statutory framework in which the law
could deal adequately with
dishonesty and malpractice on the part of the
bankrupt individual or the officers of a company. It was held that it would be
contrary
to the purposes of the Act if company directors, unlike an individual
bankrupt, could rely on the privilege against self-incrimination
to defeat the
statutory right of the liquidator or other office-holder to obtain the
necessary information required to manage the
affairs of the company and that,
accordingly, sections 235 and 236 of the Act had abrogated the privilege.[131]
[95]
In England, therefore, Parliament may
abrogate the privilege against self-incrimination by statute. In doing so
Parliament sometimes
provides that a person may be compelled to answer
questions which tend to incriminate but limits the use that may be made of his
or her answers in any subsequent prosecution. There are other examples of
this approach. In Rank Film Distributors Ltd. and Others v. Video
Information Centre and Others[132] the House of Lords held that the
privilege against self-incrimination applied in the context of two respondents
against whom certain
"Anton Piller" orders[133] had been granted in connection with
alleged acts of piracy of video tapes of films and which orders inter alia
required them to furnish information concerning the video tapes.[134]
In consequence of this judgment[135], section 72(1) of the Supreme Court Act
1981 was enacted to abrogate the privilege in intellectual property
infringement or passing
off proceedings; but it also provided that a statement
or admission made by a person in answering questions put in such proceedings
could not be used in a prosecution against such person for any related offence,
or for the recovery of any related penalty, save
in proceedings for perjury or
contempt of court. The Criminal Justice Act 1987 established the Serious Fraud
Office. Section 2 of
the Act provides for the questioning of suspected
offenders but it is expressly provided in section 2(8) that a statement made by
a person in response to a demand for information under the section may only be
used in evidence against such person in proceedings
relating to the making of a
false or misleading statement or in proceedings of a similar nature.[136]
[96]
In South African law the privilege is
not limited to criminal or civil trial proceedings because
".... it is an established
principle of our law that no one can be compelled to give evidence
incriminating himself. He cannot
be forced to do that either before the trial,
or during the trial."[137]
The privilege has been described as one
of the personal rights to refuse to disclose admissible evidence the particular
right in terms
whereof "a witness may refuse to answer a question where
the answer may tend to expose him to a criminal charge"[138] and is also available, for example, to
a person called as a witness in inquest proceedings.[139] With reference to the above quoted
passage from R v. Camane, Thirion J observed in S v. Khumalo that
"[t]here is indeed even a greater
need for protection of the accused against forced self-incrimination before the
trial than
there is at the trial."[140]
Hoffmann and Zeffert[141] also point out that the privilege may
be claimed in administrative or quasi-judicial hearings. Lastly, mention should
be made of
section 65(2) of the Insolvency Act, No. 24 of 1936 which makes
provision for the interrogation of the insolvent and other witnesses and
stipulates that a person interrogated -
"shall not be entitled at such
interrogation to refuse to answer any question upon the ground that the answer
would tend to incriminate
him or upon the ground that he is to be tried on a
criminal charge and may be prejudiced at such trial by his answer."
Sub-section (2A)(b) does, however,
confer use immunity on such incriminating answers given by the witness by
providing that they shall
not -
"be admissible in any criminal
proceedings, except in criminal proceedings where the person concerned stands
trial on a charge
relating to the administering or taking of an oath or the
administering or making of an affirmation or the giving of false evidence
or
the making of a false statement in connection with such questions and answers,
and in criminal proceedings contemplated in section 139(1) relating to a
failure to answer lawful questions fully and satisfactorily."
[97]
Two recent Australian decisions, Pyne
Board Pty. Ltd v. Trade Practises Commission[142] and Sorby and Another v. The
Commonwealth of Australia and Others[143], handed down on the same day by the
High Court of Australia, may cast further light on the scope of the privilege
against self-incrimination
at common law. In both cases the majority of the
High Court reached the conclusion that the privilege against self-incrimination
is not inherently incapable of application in non-judicial proceedings, but
that the availability of the privilege depends on a construction
of the statute
in question.[144]
In Pyne Board the Court held that the statute by implication excluded
reliance on the privilege and in Sorby the Court held that it did not.
The reasoning of the Court in the latter case is of importance. In
response to the argument
that the provision of a “use immunity” excludes
reliance on the privilege against self-incrimination the Court said, per
Gibbs,
CJ:
“In the absence of binding authority the matter
must be approached from the standpoint of principle. If a witness is compelled
to
answer questions which may show that he has committed a crime with which he
may be charged, his answers may place him in real and
appreciable danger of
conviction, notwithstanding that the answers themselves may not be given in evidence.
The traditional objection
that exists to allowing the executive to compel a man
to convict himself out of his own mouth applies even when the words of the
witness may not be used as an admission. It is a cardinal principle of our
system of justice that the Crown must prove the guilt
of an accused person, and
the protection which that principle affords to the liberty of the individual
will be weakened if power
exists to compel a suspected person to confess his
guilt. Moreover, the existence of such power tends to lead to abuse and to 'the
concomitant moral deterioration in methods of obtaining evidence and in the
general administration of justice’. Validity of Section 92(4) of the
Vehicles Act, 1957 [Sask.], [1958] S.C.R. 608, at p. 619. It is true
that in some cases the legislature may consider that it can only achieve the
intended purpose of the statute
by limiting or abrogating the privilege against
self-incrimination, but, as I have said, if the legislature intends to render
the
privilege unavailable it must manifest clearly its intention to do so. To
provide that the answers may not be used in evidence is
not to reveal clearly
an intention that the privilege should be unavailable, although, if the
legislature did intend to remove the
privilege, it might, in fairness, at the
same time prevent the use in criminal proceedings of statements which otherwise
would have
been privileged: cf. Rank Film Ltd. v. Video Information Centre,
at p. 448, per Lord Russel of Killowen.”[145]
The Court held that the privilege
"protects the witness not only
from incriminating himself directly under a compulsory process, but also from
making a disclosure
which may lead to incrimination or to the discovery of real
evidence of an incriminating character."[146]
Equally firm, however, was the
rejection by the Court of the argument that the privilege against
self-incrimination is constitutionally
entrenched:
“It was then submitted on behalf of the
plaintiffs that s. 6A was not validly enacted. This argument cannot be
accepted. The privilege
against self-incrimination is not protected by the
Constitution, and like other rights and privileges of equal importance it may
be taken away by legislative action. Counsel for the plaintiffs sought to find
some constitutional protection for the privilege in
Ch III of the Constitution,
and submitted that to remove the privilege would be to infringe the guarantee
given by s. 80 and to interfere
impermissibly with federal judicial power.
....[T]he argument that the compulsory examination of a suspected person is
inconsistent
with the right to trial by jury was rejected unanimously by the
members of this Court in Huddart Parker & Co Pty. Ltd. v. Moorehead
[1909] HCA 36; (1909), 8 C.L.R 330; see particularly at pp. 358, 375, 385-386, 418. With
all respect, I agree with the view that the privilege against
self-incrimination
is not a necessary part of a trial by jury.”[147]
[98]
In Canada, the courts have recognised
the different nature and the consequently wider ambit of the privilege even
before the adoption
of the Canadian Charter of Rights and Freedoms. In Solosky
v R the Supreme Court remarked:
"Recent case
law has taken the traditional doctrine of the privilege and placed it on a new
plane. Privilege is not longer regarded
merely as a rule of evidence which acts
as a shield to prevent privileged materials from being tendered in evidence in
a courtroom.
The Courts, unwilling to so restrict the concept, have extended
its application well beyond these limits".[148]
Moreover, the position in Canada never
quite corresponded to that in the English common law, because sections 4(1) and
5 of the Canada
Evidence Act[149]
effected a change in the Canadian common law from 1893 onwards. Wilson J,
dissenting in Thomson Newspapers, summarised the Canadian position
as follows:
"The effect of s. 4(1) was to maintain
the common-law rule of non-compellability at the investigatory stage, subject
to the modification
by the terms of a particular statute, and to make the
accused at his trial a competent witness for the defence but not a compellable
witness for the Crown. The effect of s. 5 was to abolish the common- law rule
of allowing a witness to refuse to answer a question
on the ground that it
would tend to incriminate him and replace it with the rule that the witness
must answer the question but the
answer could not be used against him in a
subsequent criminal case. This legislation reflects the state’s interest in
having all
available information before the tribunal so that a proper
determination in that case can be made. This state interest is achieved
in derogation of the common-law rule protecting a witness from answering a
question on the basis of the right against self-incrimination.”[150]
After stating that the right against
compellability and the right against self-incrimination are “fundamental
precepts of democratic
societies which respect individual rights and freedoms”,
Wilson J went on to describe the rationale for the right against
self-incrimination
as follows:
“Having reviewed the historical origins
of the rights against compellability and self-incrimination and the policy
justifications
advanced in favour of their retention in more modern times, I
conclude that their preservation is prompted by a concern that the
privacy and
personal autonomy and dignity of the individual be respected by the state. The
state must have some justification for
interfering with the individual and
cannot rely on the individual to produce the justification out of his own
mouth. Were it otherwise,
our justice system would be on a slippery slope
towards the creation of a police state.”[151]
[99]
The Fifth Amendment to the United
States Constitution, which provides, inter alia, that “[n]o person...
shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty,
or property, without due process of law...” was
initially interpreted as affording protection to individuals from federal authorities
only. It was the passing of the Fourteenth Amendment in 1868, especially its
prohibition - “nor shall any State deprive any person
of life, liberty, or
property, without due process of law...” - which brought about the decisive
change in the protection of individual
rights against the exercise of State
power in that country. At first hesitantly and selectively, but from the
beginning of the 1960's
with greater conviction, the Supreme Court began to
apply the Bill of Rights to the States via the Fourteenth Amendment.[152]
[100]
The freedom against self-incrimination
was effectively incorporated against the states in Malloy v. Hogan.[153]
The jurisprudence is important since it shows that the US Supreme Court is
prepared to utilise the Fourteenth Amendment to extend
procedural guarantees,
such as the protection against self-incrimination, to situations where it did
not seem to apply textually.
The question as to whether the right against
self-incrimination applies in extra-curial proceedings was not resolved, as one
would
have expected, in the context of the Fourteenth Amendment. Instead a
broad and purposive interpretation of the Fifth Amendment’s
right against
self-incrimination made a resort to the Fourteenth Amendment unnecessary. As
early as 1892 Justice Blackford remarked
in Counselman v. Hitchcock that
the “[privilege] is as broad as the mischief against which it seeks to guard”.[154]
By the 1920's Justice Brandeis, writing for the Court, declared that “[t]he
privilege [against self-incrimination] is not ordinarily
dependent on the
nature of the proceedings in which the testimony is sought or is to be used. It
applies alike to civil and criminal
proceedings, wherever the answer might tend
to subject to criminal responsibility him who gives it.”[155] Finally, in 1973 Justice White stated
that “[t]he [Fifth] Amendment not only protects the individual from being
involuntarily called
as witness against himself in a criminal prosecution but
also privileges him not to answer official questions put to him in any other
proceeding, civil or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings.”[156] US Bankruptcy laws nowadays explicitly
recognise the constitutional right against self-incrimination.[157]
There can be little doubt that proceedings similar to the ones envisaged by
section 417 of the Companies Act would have been interpreted
to constitute a
deprivation of liberty and that this would have triggered the due process
clause, and more specifically, the right
against self-incrimination which forms
part of it.
The approach in the USA and Canada to resolving the
tension between the privilege against self-incrimination and the interest of
the
State in investigative procedures of various kinds
[101]
In seeking guidance from the jurisprudence
of other countries it is well to heed the warning that
"[e]ach legal system, intertwined
with a particular legal tradition, is predicated on a number of integrated
elements, and to
look at each piece-meal through a magnifying glass cannot provide
an accurate picture of the whole nor can such an exercise take
into account
differences between the systems ... Fundamental justice may take different
forms in different societies, given their
own legal traditions."[158]
Nevertheless we are obliged, in
construing and applying section 33(1), to give content to the phrase
"justifiable in an open
and democratic society based on freedom and
equality". At the same time it is necessary to recognise (gratefully) that
the roots
of South African law draw sustenance from Western Europe, the United
Kingdom (and derivatively from the other so-called "common
law"
countries) and from indigenous sources. It is also a fact that since 1945
fundamental human rights are steadily becoming
internationalised (albeit not
always or everywhere at the same pace and not without set-backs) at the
international, regional and
domestic constitutional levels.
[102]
Both in the United States and Canada,
and also elsewhere, legislatures have sought a legislative solution to the
tension between the
privilege against self-incrimination and the interest of
the State in investigative procedures of various kinds. This has been achieved
by compelling examinees to answer questions even though the answers thereto
might tend to incriminate them and, at the same, protecting
the interests of
the examinees by granting them either an indemnity against prosecution or
conferring some form of use immunity in
respect of compelled testimony. What is
important to note is that the privilege has not, in most cases, simply been
abolished by
statute without providing some form of protection to the examinee.
The somewhat fragmentary treatment in England has been alluded
to above.
[103]
Initially in the United States, this
compromise was attempted by legislation which excluded use of the evidence
given by the examinee,
but which did not indemnify the examinee against
prosecution. The use immunity only applied to the evidence given by the
examinee;
it did not prevent the use of the examinee's testimony to search out
other evidence to be used against the examinee in a criminal
proceeding, which
other evidence had not been gained by the compulsion to testify and to give
self-incriminating evidence. In Counselman v. Hitchcock[159]
the Supreme Court considered the constitutional validity of such a use immunity
(a "direct use immunity") provided by section
860 of the Revised
Statutes in the context of Grand Jury testimony and held that it was
unconstitutional.[160]
Under Section 2486 (c) of the Immunity Act of 1954, 18 USC an indemnity against
prosecution was accorded to grand jury witnesses.[161] In Ullmann v. United States[162]
Justice Frankfurter delivered the judgment of the majority of the Court. While
emphasising that "the Fifth Amendment's privilege
against
self-incrimination ... registers an important advance in the development of our
liberty"[163]
and approaching the petitioner's claims "in this spirit of strict, not
lax, observance of the constitutional protection of the
individual",[164]
he reaffirmed[165]
the Court's earlier judgment in Brown v. Walker, decided some sixty
years earlier, that compulsion to testify under protection of a similar
immunity was constitutional:
"While the constitutional provision
in question is justly regarded as one of the most valuable prerogatives of the
citizen, its
object is fully accomplished by the statutory immunity, and we
are, therefore, of opinion that the witness was compellable to answer
..."[166]
[104]
In Kastigar v. United States[167]
the Supreme Court had to consider the constitutionality of the following use
immunity in 18 U.S.C. section 6002, which was afforded
to a witness in a District
Court when compelled to testify over a claim of Fifth Amendment privilege
against compulsory self-incrimination:
".... no testimony or other
information compelled under the order (or any information directly or
indirectly derived from such
testimony or other information) may be used
against the witness in any criminal case, except a prosecution for perjury,
giving a
false statement, or otherwise failing to comply with the order."
An exclusion of this nature will be
referred to as "a direct and derivative use immunity". The Court
upheld the constitutionality
of this provision on the basis that it left the
witness and the prosecutorial authorities in substantially the same position as
if
the witness had claimed the Fifth Amendment privilege; consequently the
immunity was "co-extensive with the privilege and suffices
to supplant
it".[168]
In the course of giving judgment for the majority, Justice Powell stated the
following:
"This total prohibition on use provides a
comprehensive safeguard, barring the use of compelled testimony as an
'investigatory
lead,' and also barring the use of any evidence obtained by
focusing investigation on a witness as a result of his compelled disclosures.
A person accorded this immunity under 18 U.S.C. §
6002, and subsequently prosecuted, is not dependent for the preservation of his
rights upon the integrity and good faith of the prosecuting authorities. As
stated in Murphy:
'Once a defendant demonstrates that he has
testified, under a state grant of immunity, to matters related to the federal
prosecution,
the federal authorities have the burden of showing that their
evidence is not tainted by establishing that they had an independent,
legitimate source for the disputed evidence. 378 US at 79 n. 18.'
This burden of proof, which we reaffirm as
appropriate, is not limited to a negation of taint; rather, it imposes on the
prosecution
the affirmative duty to prove that the evidence it proposes to use
is derived from a legitimate source wholly independent of the
compelled
testimony.
This is very substantial protection,
commensurate with that resulting from invoking the privilege itself. The
privilege assures that
a citizen is not compelled to incriminate himself by his
own testimony. It usually operates to allow a citizen to remain silent when
asked a question requiring an incriminatory answer. This statute, which
operates after a witness has given incriminatory testimony,
affords the same
protection by assuring that the compelled testimony can in no way lead to the
infliction of criminal penalties.
The statute, like the Fifth Amendment, grants
neither pardon nor amnesty. Both the statute and the Fifth Amendment allow the
government
to prosecute using evidence from legitimate independent
sources."[169]
(Footnotes omitted)
[105]
The use immunity in section 20(2) of
the CI Act which qualified the compulsion to testify and was the subject of
enquiry in Thomson Newspapers read as follows:
"... but no oral evidence so
required shall be used or receivable against such person in any criminal
proceedings thereafter
instituted against him, other than a prosecution under
section 121 of the Criminal Code for perjury in giving such evidence or
a prosecution under section 124 of the Criminal Code in respect of such
evidence."[170]
It was a direct use immunity only and
did not include a derivative use immunity such as was considered by the US
Supreme Court in
Kastigar. We are concerned with the constitutionality
of a statutory compulsion to testify and an override of the privilege against
self-incrimination
with no indemnity against prosecution or use immunity of any
nature. It is important, for our purposes, to consider the way in which
policy
considerations relating to use immunity were dealt with in Thomson. This
will emerge more clearly later.
[106]
As indicated above,[171] it was only Wilson J and Sopinka J who
came to the conclusion that the direct use immunity was insufficient to prevent
section 17
of the CI Act from violating the "fundamental justice"
provision in section 7 of the Canadian Charter (which qualified
the right to
"liberty and security of the person"). The purpose of the CI Act has
authoritatively been stated to be the
following:
"From this overview of the Combines
Investigation Act I have no difficulty in concluding that the Act as a
whole embodies a complex scheme of economic regulation. The purpose of the Act
is to eliminate activities that reduce competition in the market-place. The
entire Act is geared to achieving this objective. The
Act identifies and
defines anti-competitive conduct. It establishes an investigatory mechanism for
revealing prohibited activities
and provides an extensive range of criminal and
administrative redress against companies engaging in behaviour that tends to
reduce
competition."[172]
Wilson J also pointed out that
"the Act contains numerous
provisions enabling the Director to collect information relating to
anti-competitive behaviour. Once
this information has been obtained a variety
of uses can be made of it, including the referral of the matter to the
Attorney-General
of Canada for possible prosecution."[173]
The Attorney-General is empowered, in
terms of section 15(2) of the CI Act, to exercise all the powers and functions
conferred by
the Criminal Code on the Attorney-General of a province in any
ensuing prosecution. Section 13 of the Canadian Charter which provides
that
"[a] witness who testifies in any
proceedings has the right not to have any incriminating evidence so given used
to incriminate
that witness in any other proceedings, except in a prosecution
for perjury or for the giving of contradictory evidence"
only affords a limited protection
against self-incrimination (I pause to point out that the immunity in the
section is only a direct
use and not a derivative use immunity). Likewise
section 11(c) of the Charter, which enacts that -
"Any person charged with an offence has the
right .....
(c)
not to be compelled to be a witness in proceedings against that person in
respect of
the offence;"
only affords a limited right of
non-compellability.
[107]
Wilson J held that the examinees could
not avail themselves of either section 13 or 11(c) of the Charter. After
reviewing the historical
origins of the rights against compellability and
self-incrimination in a comparative perspective, Wilson J concluded that their
preservation
was
"prompted by a concern that the
privacy and personal autonomy and dignity of the individual be respected by the
state. The state
must have some justification for interfering with the
individual and cannot rely on the individual to produce the justification out
of his own mouth. Were it otherwise, our justice system would be on a slippery slope
towards the creation of a police state."[174]
Whilst appreciating
"the importance of getting at the
truth in any proceedings, criminal or otherwise ...[o]therwise our justice
system might grind
to a halt through important evidence not being brought
forward"[175]
the learned Judge nevertheless
considered that this goal had to be subservient to the protection of the
fundamental rights of the
accused.[176] Following the reasoning of the United
States Supreme Court in Kastigar[177], Wilson J concluded as follows:
"It seems to me that in order to
prevent a suspect from being conscripted against himself in a criminal or quasi-criminal
proceeding (which would clearly include a charge of predatory pricing under the
Combines Investigation Act), the suspect must be protected against the
use of evidence derived from testimony given at the earlier investigatory
proceeding
as well as against the use of the testimony itself. Otherwise the
suspect is convicted, metaphorically if not literally, out of his
own mouth. He
has, as the US Supreme Court put it, through the use of the derivative evidence
been 'forced to give testimony leading
to the infliction of penalties affixed
to criminal acts'."
and,
"The judge's discretion under S.
24(2)[178]
is no guarantee of protection against the use of derivative evidence obtained
as a result of a witness's compelled testimony. It
is merely a discretion and
one which is required to be exercised on a very specific basis, namely, whether
or not the admission of
the evidence would bring the administration of justice
into public disrepute."
and,
"That exclusion must be a matter of principle
and of right, not of discretion .....
I conclude, therefore, that s. 7
protects the witness in a subsequent criminal proceeding against the use of
evidence derived from
testimony given by him in an earlier proceeding, which protection
is not available under either s. 11(c) or s. 13. Where a person's
right to
life, liberty and security of the person is either violated or threatened, the
principles of fundamental justice require
that such evidence not be used in
order to conscript the person against himself."[179]
[108]
In dealing with the section 1
limitation provisions of the Canadian Charter, Wilson J held that both the
"effective investigation
of suspected criminal and quasi-criminal
activity" and the opportunity "to monitor economic activity in Canada
so as to ensure that the government's economic
objectives are met" were
each of sufficient importance to warrant infringement of individual rights and
freedoms because "[s]ociety
has a very real interest both in controlling
crime and in ensuring the stability of the marketplace."[180]
The learned Judge found, however, that, inasmuch as the legislation in question
did not impair the right in question as little as
possible, the limitation was
not justified under section 1 of the Charter.[181] In this regard Wilson J stated the
following:
"There is no evidence to suggest
that the government's objective in this case would be frustrated if individuals
compelled to
testify were afforded derivative use protection. Certainly,
the monitoring of the Canadian economy would not be injuriously affected by
such protection. Moreover, while there may
be instances when the investigation
of crime or the effective enforcement of legislation may be hampered if
suspects are not conscripted
against themselves, such a case has not been made
out here. No evidence has been presented to the Court to show that the
enforcement
of the Combines Investigation Act will be drastically
impaired if derivative use protection is given to persons testifying under s.
17"[182]
(emphasis added)
Sopinka J held that, for the reasons
given by Wilson J, section 17 of the CI Act "violates s. 7 of the Canadian
Charter of Rights and Freedoms, in particular, the principle of fundamental
justice in which the right to remain silent is embodied."[183]
In this context he also expressed himself as follows:
"Obtaining evidence from suspects
as a basis for commencing criminal proceedings is not a merely incidental
effect of s. 17 of
the Act. In this field of anti-competitive crime the police
work is carried out largely, if not exclusively, by the Director and
his
staff."[184]
Sopinka J also concluded, for the
reasons expressed by Wilson J, that the violation of section 7 could not be
justified under section
1 of the Charter.[185]
[109]
I have referred somewhat extensively
to the judgments of Wilson and Sopinka JJ, although their judgments were in
dissent, because
they represent the high-water mark in the judgment for
striking down a provision which compels self-incrimination and only affords
a
direct use immunity. The judgment of La Forest J is particularly instructive.
La Forest J points to the difference in discovering
and investigating ordinary
crimes on the one hand and violations of combines legislation on the other; in
the former there is usually
no question that an offence has been committed and
the concern is to establish who committed the offence, while in the latter the
position is quite different and the difficulty relates equally to establishing
whether an offence has been committed.[186] It has been emphasised that
"economic crimes are far more complex than
most other federal offences. The events in issue usually have occurred at a far
more
remote time and over a far more extensive period. The 'proof' consists not
merely of relatively few items of real evidence but of
a large roomful of often
obscure documents. In order to try the case effectively, the Assistant United
States Attorney must sometimes
master the intricacies of a sophisticated
business venture. Furthermore, in the course of doing so, he, or the agents
with whom he works, often must resolve a threshold question that has already
been determined in most other cases: Was there a crime in the first place? To
use the colloquial, it is not so much a matter of 'Whodunit'
as 'what-was-done'."[187]
(Emphasis in original)
I shall revert to this aspect of the
problem later. La Forest J also observed that,
"the community's interest is one of the
factors that must be taken into account in defining the content of the
principles of
fundamental justice."[188]
In this regard the learned Judge made
the following point, which is also relevant in the context of this case:
"I see a significant difference
between investigations that are truly adversarial, where the relationship
between the investigated
and investigator is akin to that between accused and
prosecution in a criminal trial, and the broader and more inquisitorial type
of
investigation that takes place under s. 17 of the Act. The lower probability of
prejudice the latter represents to any particular
individual who comes within
its reach, together with the important role such investigations play in the
effective enforcement of
anti-combines and possibly other regulatory
legislation, suggests that a more appropriate balance between the interests of
the individual
and the state can be achieved by retention of the power to
compel testimony and the recognition of the right to object to the subsequent
use of so much of the compelled testimony as is self-incriminatory."[189]
[110]
In dealing with the difference between
"use immunity" and "derivative use immunity", the learned
Judge observed
that
"Simply because Parliament has
provided for the inadmissibility of certain evidence does not mean that it
thereby intended that
other evidence should be admitted, even when either at
common law or under the Charter, such evidence would be rejected on the ground
that admitting it would be unfair. It is quite reasonable for Parliament to
have dealt with the obvious case of unfairness resulting from the use of
self-incriminating testimony, leaving more subtle situations to be dealt
with in the application of general principles."[190] (emphasis added).
and that
"The witness's oral testimony
cannot, of course, be used against him or her. Section 20(2) so provides and I
have no doubt that this would, in any event, be the case either under s. 7 or
s. 11(d) of the Charter.[191]
(emphasis added).
[111]
In the following significant passages
La Forest J points to a fundamental distinction between the direct use of
compelled testimony
and derivative use:
"The fact that derivative evidence exists
independently of the compelled testimony means, as I have explained, that it
could
also have been discovered independently of any reliance on the compelled
testimony. It also means that its quality as evidence does
not depend on its
past connection with the compelled testimony. Its relevance to the issues with
which the subsequent trial is concerned,
as well as the weight it is accorded
by the trier of fact, are matters that can be determined independently of any
consideration
of its connection with the testimony of the accused. If it were
otherwise, it would not, in fact, be derivative evidence at all,
but part of
the actual testimony itself. Taken together, these aspects of derivative
evidence indicate that it is self-sufficient,
in the sense that its status and
quality as evidence is not dependent on its relation to the testimony used to
find it. In this regard,
the very phrase "derivative evidence" is somewhat
misleading.
Seen from this light, it becomes apparent that
those parts of derivative evidence which are incriminatory are only self-incriminatory
by virtue of the circumstances of their discovery in a particular case. They
differ in this respect from incriminatory
portions of the compelled testimony
itself, which are by definition self-incriminatory, since testimony is a
form of evidence necessarily unique to the party who gives it.
I would think that this, without more, raises
doubts as to whether we should be as wary of prosecutorial use of derivative
evidence
as we undoubtedly must be of such use of pre-trial testimonial
evidence. What prejudice can an accused be said to suffer from being
forced to
confront evidence 'derived' from his or her compelled testimony, if that
accused would have had to confront it even if
the power to compel testimony had
not been used against him or her? I do not think it can be said that the use of
such evidence would
be equivalent to forcing the accused to speak against himself
or herself; once the derivative evidence is found or identified, its
relevance
and probative weight speak for themselves. The fact that such evidence was
found through the evidence of the accused in
no way strengthens the bearing
that it, taken by itself, can have upon the questions before the trier of fact.
In this respect, if
reference to its origins was not precluded by an immunity
such as that presently found in s. 5 of the Canada Evidence Act, it
would in most cases be precluded by simple irrelevance."[192]
and,
"This raises a question of crucial importance
in understanding the Collins line of cases and their relevance to a
determination of the scope of testimonial immunity required by the principles
of fundamental
justice; why is the prior existence of evidence regarded as
relevant to the fairness of the trial in which it is introduced?
There can be only one answer to this question. A
breach of the Charter that forces the eventual accused to created evidence
necessarily
has the effect of providing the Crown with evidence it would not
otherwise have had. It follows that the strength of its case against
the
accused is necessarily enhanced as a result of the breach. This is the very
kind of prejudice that the right against self-incrimination,
as well as rights
such as that to counsel, are intended to prevent. In contrast, where the effect
of a breach of the Charter is merely
to locate or identify already existing
evidence, the case of the ultimate strength of the Crown's case is not
necessarily strengthened
in this way. The fact that the evidence already
existed means that it could have been discovered anyway. Where this is the
case,
the accused is not forced to confront any evidence at trial that he would
not have been forced to confront if his Charter rights
had been respected. In
such circumstances, it would be the exclusion rather than the admission of
evidence that would bring the administration
of justice into disrepute."[193]
[112]
La Forest J, favouring a flexible
approach to the question of derivative use immunity, stated:
"In this country, where the question of
immunity falls to be determined under the principles of fundamental justice, I
think
we can achieve a more flexible balance between the interests of the
individual and that of the state. In a case like this, where
the statute does
not provide for the evidence to be admitted, there can really be no breach of
the Charter until unfair evidence
is admitted. Until that happens, there is no
violation of the principles of fundamental justice and no denial of a fair
trial. Since
the proper admission or rejection of derivative evidence does not
admit of a general rule, a flexible mechanism must be found to
deal with the
issue contextually. That can only be done by the trial judge."
and,
"I see no reason why an approach like that in
the now constitutionalized rule adopted in the case of prejudicial evidence
should
not be extended to derivative evidence which, like other prejudicial
evidence within the rule, can only be dealt with having due
regard to the need
to balance the right of the accused and that of the public in a specific
context. In my view, derivative evidence
that could not have been found or
appreciated except as a result of the compelled testimony under the Act should
in the exercise
of the trial judge's discretion be excluded since its admission
would violate the principles of fundamental justice. As will be evident
from
what I have stated earlier, I do not think such exclusion should take place if
the evidence would otherwise have been found
and its relevance understood.
There is nothing unfair in admitting relevant evidence of this kind, a
proposition consistent with
the cases under s. 24(2) of the Charter. The
touchstone for the exercise of the discretion is the fairness of the trial
process."[194]
The learned Judge concluded by stating:
"I conclude, then, that the use of
derivative evidence derived from the use of the s. 17 power in subsequent
trials for offences
under the Act does not automatically affect the fairness of
those trials. It follows that complete immunity against such use is not
required by the principles of fundamental justice. The immunity against use
of actual testimony provided by s. 20(2) of the Act together with the judge's
power to exclude derivative
evidence where appropriate is all that is necessary
to satisfy the requirements of the Charter."[195] (emphasis added)
[113]
L'Heureux-Dubé J, without commenting
on whether or how derivative use of compelled testimony should be controlled,
also came to the
conclusion that
"use immunity satisfies the
requirements of fundamental justice under s. 7 of the Charter. In the
present appeal, such
protection is afforded by s. 20(2) of the Act which was
referred to earlier."[196]
Can the limitation of the examinee's section 11(1)
constitutional residual right against self-incrimination by section 417(2)(b)
of
the Companies Act be justified under section 33(1) of the Constitution?
[114]
To meet the requirements of section
33(1) of the Constitution, any limitation of the section 11(1) right to freedom
must:
(a)
be "reasonable";
(b)
be "justifiable in an open and democratic society based on freedom and
equality";
(c)
"not negate the essential content of the right";
(d)
be "necessary".
(i)
The legislative history of
sections 417 and 418 of the Companies Act
[115]
In order to determine the nature,
extent and weight of the state's interest in the limitation in question, the
legislative history
and purpose of the investigation and examination procedures
embodied in sections 417 and 418 of the Companies Act need to be examined.
South African statutory company law has followed closely similar English
legislation and drawn heavily on it, all the pre-Union statutes
being based on
earlier English company legislation.[197] The adoption of the South African
Companies, Act 61 of 1973 has, however, "cut the umbilical cord between
English and South
African company law" which "though still based on
the general principles of English law ... goes in many respects its own
way."[198]
Nevertheless, South African courts have considered English decisions to be
authoritative (though of course not binding) in interpreting
statutory
provisions which are substantially the same, this being particularly the case
in interpreting section 417 of the Companies
Act and corresponding provisions.[199]
[116]
The concept of private examination was
first introduced in England in the Companies Act of 1862. Section 115 of the
English Companies
Act of 1862 empowered the Court, after a winding-up order had
been made, to summon before it any officer of the company or person
known or
suspected to have in his possession any of the estate or effects of the company
or supposed to be indebted to the company
or any person whom the Court might
deem capable of giving information concerning the trade, dealings, estate or
effects of the company.
The Court could require any such officer or person to
produce documents and, under section 117, the Court was empowered to examine
on
oath, either by word of mouth or upon written interrogatories, any person so
appearing concerning the affairs, dealings, estate
or effects of the company.
The provisions were continued in the English Companies (Consolidation) Act of
1908, the Companies Act
of 1929 and the Companies Act of 1948.[200]
These provisions were repeated, without significant amendment, by sections of
the 1985 Companies Act. The Insolvency Acts of 1985
and 1986 introduced major
reforms both to the law of personal bankruptcy and to winding-up, the aim of
these statutes being to promote
harmony between the systems of personal and
corporate insolvency. The result of the Insolvency Acts was to remove from the
1985 Companies
Act all provisions relating to winding-up and receiverships. The
English private examination provisions are now contained in sections
236 and
237 of the 1986 Insolvency Act.
[117]
The Joint Stock Companies Limited
Liability Act 23 of 1861 of the Cape contained no winding up or examination
provisions. These were
introduced by the Cape Winding-Up Act, 12 of 1868, based
on similar provisions in the English Companies Act of 1862. Section 33 of
the
Cape Act (which was taken over verbatim from section 115 of the English Act)
provided that the Court, after it had made an order
for winding up, could
summon before it -
"any officer of the company or
person known or suspected to have in his possession any of the estate or
effects of the company,
or supposed to be indebted to the company, or any
person whom the court may deem capable of giving information concerning the
trade,
dealings, estate, or effects of the company ..."
Section 34 of the Cape Act, following
closely the provisions of section 117 of the English Act, authorised the Court
to examine any
person appearing or brought before it "in manner aforesaid,
or whom it may be desired to examine,” concerning "the affairs,
dealings, estate, or effects of the company...". The passage emphasised
above was an addition
to the corresponding English provision.
[118]
The Transvaal Act, 31 of 1909, which
borrowed heavily from the English Companies (Consolidation) Act of 1908, served
as a model for
the first South African Companies Act (46 of 1926).[201]
Section 151(1) of the Transvaal Act, 31 of 1909, (which was in terms identical
to section 174(1) of the English Companies (Consolidation)
Act 1908 and closely
resembled section 33 of the Cape Winding-up Act, 12 of 1868, provided for the
private examination of -
"any officer of the company or
person known or suspected to have in his possession any property of the company
or supposed to
be indebted to the company, or any person whom the Court deems
capable of giving information concerning the trade, dealings, affairs,
or
property of the company."
Section 152(1) (which in terms closely
resembled section 175(1) of the aforementioned English Act) provided for the
public examination
of the promoter, director or officer of a company who, in
the opinion of the Master, had committed a fraud in relation to the company.
It
should be noted that section 151(2) of the Transvaal Act obliged the examinee
to answer any question put to him or her in the
private examination
"notwithstanding that the answer might tend to incriminate him", but
that a direct use immunity was
given in the following terms:
"Provided that any answer given to
any such question shall not be used against him in any prosecution other than
for perjury
or for the offence under this Act of giving false evidence."
Section 152(5) contained a similar
ouster of the examinee's privilege against self-incrimination in the public
examination, without
providing any indemnity against prosecution or use
immunity. This appears to be the first occasion in South Africa where the
privilege
against self-incrimination has been ousted completely without
provision for use immunity in the context of an examination following
on the
winding up of a company.
[119]
Section 155 of the Companies Act, 46
of 1926, made provision for private examinations in terms identical to those in
section 151(1)
of the Transvaal Act mentioned above and section 156 provided
for public examination before the Court in terms very similar to that
provided
in section 152(1) of the Transvaal Act, save that section 156(1) included any
creditor of the company in the list of persons
who could be examined. Both
sections 155 and 156 ousted the examinee's right against self-incrimination, but
provided no indemnity or use immunity to the examinee in either case.
Section 194 introduced, for the first time, a provision allowing the Court to
appoint a commissioner for the purpose of taking evidence
or holding an enquiry
under the Act, which provision was the forerunner of section 418 of the 1973
Companies Act. Sections 180 bis and 180 ter were introduced into
the 1926 Companies Act by section 105 of the Companies Amendment Act of 1952.[202]
In terms of section 180 bis, all the directors, the manager and the
secretary of a company in liquidation were to attend meetings of creditors. The
Master, or
other presiding officer at such a meeting, could also, in terms of
section 180 bis, subpoena to the meeting -
"any person who is known or on
reasonable grounds believed to be or to have been in possession of any property
which belongs
or belonged to the company or to be indebted to the company, or
any person who in the opinion of the Master or such other officer
may be able
to given any material information concerning the company or its affairs
..."[203]
Section 180 ter made provisions
for the examination, at a meeting of creditors of a company being wound up and
unable to pay its debts, of a director
or any other person present at the
meeting -
"concerning all matters relating
to the company or its business or affairs ... and concerning any property
belonging to the company
..."[204]
Section 180 quat inter alia
made the provisions of sections 64 to 68 of the Insolvency Act 1936 applicable
to 180 bis and 180 ter. In terms of the proviso to section 65(2)
of the Insolvency Act 1936, as it existed at the time, a person interrogated
under subsection (1) was "not entitled at such interrogation to refuse to
answer any question upon the ground that the answer would tend to incriminate
him" and subsection (5) provided that any evidence
given under section 65
"shall be admissible in any proceedings instituted against the person who
gave that evidence."
[120]
Sections 180 bis and 180 ter
of the 1926 Companies Act have been repeated in the extant Companies Act, 1973,
in sections 414 and 415 respectively. The present
Companies Act makes no
provision for public examinations before the Court.[205] Section 417 of the present Act does,
however, make provision for private examinations in terms not dissimilar to
section 155 of the
1926 Companies Act. It is to be noted that section 416 (1)
of the Companies Act inter alia makes the provisions of section 65 of
the Insolvency Act applicable to the interrogation of any person under section
415, "in so far as they can be applied and are not inconsistent with the
provisions of this Act," as if such person were being
interrogated under
section 65 of the Insolvency Act 1936. In 1989 subsection (2A) was inserted in
section 65 of the Insolvency Act.
title="">
"(2A) (a) Where any person gives
evidence in terms of the provisions of this section and is obliged to answer
questions
which may incriminate him or, where he is to be tried on a criminal
charge, may prejudice him at such trial, the presiding officer
shall,
notwithstanding the provisions of section 39(6), order that such part of the
proceedings be held in camera and that no information regarding such
questions and answers may be published in any manner whatsoever.
(b) No
evidence regarding any questions and answers contemplated in paragraph (a)
shall be admissible
in any criminal proceedings, except in criminal proceedings
where the person concerned stands trial on a charge relating to the
administering
or taking of an oath or the administering or making of an
affirmation or the giving of false evidence or the making of a false statement
in connection with such questions and answers, and in criminal proceedings
contemplated in section 139(1) relating to a failure to answer lawful questions
fully and satisfactorily.
(c) Any person who contravenes any provision of an order contemplated in
paragraph (a), shall
be guilty of an offence and liable on conviction to the
penalty mentioned in subsection (5) of section 154 of the Criminal Procedure
Act, 1977 (Act No. 51 of 1977)."
[121]
It has been suggested[207]
that the person interrogated in proceedings under section 415 of the Companies
Act enjoys the benefits of the direct use immunity
provided for in section
65(2A)(b) of the Insolvency Act, by virtue of the operation of the particular
provision in section 416(1) of the Companies Act, referred to above; and it has
also been
so held in Podlas v. Cohen and Bryden NNO and Others,[208]
where Spoelstra J stated the following:
"I am not persuaded that the
judgment of van Niekerk J[209]
is correct and that those of Goldblatt J[210] and De Villiers J[211] are clearly wrong. On the contrary, Van
Niekerk J's judgment is open to criticism that it overlooked important considerations
which,
had they been considered, might have resulted in a different conclusion.
First, s. 416 of the Companies Act provides that S. 65 of the Insolvency Act
shall be applied to interrogations under s. 415 of the Companies Act. Section
65(2A) of the Insolvency Act provides that incriminating evidence shall be
ordered to be given in camera and that no information regarding such
questions and answers may be published in any manner whatsoever. No evidence
regarding incriminating questions and answers shall be admissible in any
criminal proceedings except in perjury proceedings. Had these provisions
been brought to Van Niekerk J's attention, it is very doubtful that he would
have found that there was any
real prejudice to the applicant." (emphasis
and footnotes added).
The inescapable inference from the
above is that Spoelstra J considered that the direct use immunity provided for
in section 65(2A)(b) of the Insolvency Act applied to incriminating evidence
given by a person interrogated under section 415 of the Companies Act.
Spoelstra J has, in my view, overlooked
the important qualification in section
416(1) itself, namely that the provisions of section 65 of the Insolvency Act
are only applicable to the interrogation of a person under section 415 of the
Companies Act "in so far as they can be applied and
are not inconsistent
with the provisions" of the Companies Act. Subsection (3) of section 415
provides expressly that -
"No person interrogated under
subsection (1) shall be entitled at such interrogation to refuse to answer any
question upon the
ground that the answer would tend to incriminate him."
and subsection (5) further expressly
provides that -
"Any evidence given under this
section shall be admissible in any proceedings instituted against the person
who gave that evidence
or the body corporate of which he is or was an
officer."
When these two provisions are read in
conjunction with one another they leave open no possible construction other
than that the testimony
of persons interrogated under section 415, even though
it might tend to incriminate them, is admissible against such persons in
subsequent
proceedings against them, even in subsequent criminal prosecutions.
The expression "... admissible in any proceedings instituted
against the
person who gave that evidence" is too wide and unqualified to admit of any
other construction. The direct use immunity,
provided for in section 65(2A)(b)
of the Insolvency Act, is therefore clearly inconsistent with the combined
effect of these provisions in section 415 and to that extent are inapplicable.
I accordingly disagree with Spoelstra J's conclusion that "[n]o evidence
regarding incriminating
questions and answers shall be admissible in any
criminal proceedings except in perjury proceedings."
(ii)
The statutory purpose of the section 417 and 418 procedures
[122]
The way is now clear to determine the
statutory purpose of the interrogation and other procedures in the Companies
Act 1973 and, in
particular, those in section 417 and 418. Some of the major
statutory duties of the liquidator in any winding-up are:
(i)
to "proceed forthwith to recover and reduce into possession all the assets
and property of the company, movable and immovable ..."[212]
(ii)
to "give the Master such information ... and generally such aid as may be
requisite
for enabling that officer to perform his duties under this Act."[213]
(iii)
to "examine the affairs and transactions of the company before its
winding-up in order
to ascertain -
(a)
whether any of the directors and officers or past directors and officers of the
company have
contravened or appear to have contravened any provision of this
Act or have committed or appear to have committed any other offence;
and
(b)
in respect of any of the persons referred to in paragraph (a), whether there
are or appear
to be any grounds for an order by the Court under section 219 disqualifying
a director from office as such."[214]
(iv)
Except in the case of a members' voluntary winding-up, to report to the general
meeting of
creditors and contributories of the company, the causes of the company's
failure, if it has failed.[215]
If the liquidator's report contains
particulars of contraventions or offences committed or suspected to have been
committed or of
any of the grounds mentioned in (iii)(a) and (b) above, the
Master must transmit a copy of the report to the Attorney-General.
[123]
The purpose of the enquiry under
sections 417 and 418 is undoubtedly to assist liquidators in discharging these
duties
"so that they may determine the
most advantageous course to adopt in regard to the liquidation of the
company";[216]
and
"to achieve his primary object,
namely the ascertainment of the assets and liabilities of the company, the
recovery of the one
and the payment of the other, according to law and in a way
which will best serve the interests of the company's creditors".[217]
As was pointed out in Moolman v.
Builders and Developers (Pty) Ltd (In Provisional Liquidation): Jooste Intervening[218]:
"Appellant's counsel is plainly
correct in his submission that to enquire into the company's affairs forms part
of a liquidator's
functions just as much as reducing the assets of the company
into his possession and dealing with them in the prescribed manner does.
In
performing the former part of his functions he exercises an ancillary power
without which the second part cannot properly be performed.
It is only by
enquiring that he is able to determine what is and what is not the property of
the company, or who is and who is not
a creditor or contributory. It is,
moreover, obviously in the interest of creditors that doubtful claims which the
company may have
against outsiders be properly investigated before being
pursued and that claims against the company also be properly investigated
before they are admitted or rejected. It is for such reasons that both the
South African and the Transkeian Companies Act contain
elaborate provisions
relating to the interrogation of directors and other persons at meeting of
creditors or by a commissioner..."
The purpose of the interrogation may be
directed exclusively at the general credibility of an examinee, where the
testing of such
person's veracity is necessary in order to decide whether to
embark on a trial to obtain what is due to the company being wound up.[219]
[124]
It happens not infrequentlythat
the liquidation of a company is the result of mismanagement, indeed
mismanagement involving
fraud and theft, on the part of the directors and other
officers of the company. Such persons are the only eyes, ears and brains
of the
company and often the only persons who have knowledge of the workings of the
company prior to liquidation. They are often,
because of their part in the
mismanagement, fraud and theft, reluctant to assist the liquidators voluntarily
in the discharge of
their duties. This on occasion also applies to outsiders
who, for reasons of their own, are reluctant to assist the liquidator
voluntarily.
That it is necessary, in the interest of creditors and indeed the
wider public interest, to compel them to assist, is widely recognised.
In Lynn
NO and Another v. Kreuger and Others the following was said:
"In my view the procedure provided
by sections 417 and 418 of the Companies Act is not primarily concerned with
the prosecution
of offenders. The sections are aimed at assisting officers of
the court in the performance of their duty to the creditors of companies
in
liquidation, the Master and the Court. It is very often of fundamental
importance for the liquidator of a company to find out
what has been done with
the assets of that company and how the company's business has been run. Speed
is of the essence of effectiveness
in such an enquiry because, all too often
the liquidator must take early and urgent action in order to recover mismanaged
or misappropriated
assets for the benefit of creditors. The case under
consideration seems to be an excellent example of the importance of the need
for full information, at a comparatively early stage of the winding up. In this
case, on the evidence which is before me, the probabilities
indicate very
strongly, if not overwhelmingly that the only person who can give the
applicants the information which they require
is the first respondent. I think
that the first respondent's prospects of persuading the Constitutional Court
that the 'interrogation
procedure' in respect of people who have been involved
in the dealings of a company before its liquidation is unconstitutional are
remote indeed. I cannot conceive of any other procedure which would enable
liquidators, effectively and efficiently, to fulfil their
task."[220]
In Cloverbay Ltd v. Bank of
Credit and Commerce International SA[221] Browne-Wilkinson V-C, dealing with an
examination under section 236 of the English Insolvency Act 1986, stated the
following:
"[T]he reason for the inquisitorial
jurisdiction contained in s. 236 is that a liquidator or administrator comes
into the company
with no previous knowledge and frequently finds that the
company's records are missing or defective. The purpose of s. 236 is to
enable him to get sufficient information to reconstitute the state of knowledge
that the company should
possess." (emphasis added.)
As explained by Buckley J in Re
Rolls Razor, Ltd the position under section 236 of the Insolvency Act 1986
is broadly the same as that under section 268 of the Companies Act:
"The powers conferred by s. 268
are powers directed to enabling the court to help a liquidator to discover the
truth of the circumstances
connected with the affairs of the company,
information of trading, dealings, and so forth, in order that the liquidator
may be able,
as effectively as possible and, I think, with as little expense as
possible ... to complete his function as liquidator, to put the
affairs of the
company in order and to carry out the liquidation in all its various aspects,
including, of course, the getting in
of any assets of the company available in
the liquidation. It is, therefore, appropriate for the liquidator, when he
thinks that
he may be under a duty to try to recover something from some
officer or employee of a company, or some other person who is, in some
way,
concerned with the company's affairs, to be able to discover, with as little
expense as possible and with as much ease as possible,
the facts surrounding
any such possible claim."[222]
This passage was subsequently approved
by the Court of Appeal.[223]
In Re Rolls Razor Ltd (No. 2) Megarry J said the following:
"The process under s. 268 is
needed because of the difficultly in which the liquidator in an insolvent
company is necessarily
placed. He usually comes as a stranger to the affairs of
a company which has sunk to its financial doom. In that process, it may
well be
that some of those concerned in the management of the company, and others as
well, have been guilty of some misconduct or
impropriety which is of relevance
to the liquidation. Even those who are wholly innocent of any wrongdoing may
have motives for concealing
what was done. In any case, there are almost
certain to be many transactions which are difficult to discover or to
understand merely
from the books and papers of the company. Accordingly, the
legislature has provided this extraordinary process so as to enable the
requisite information to be obtained. The examinees are not in any ordinary
sense witnesses, and the ordinary standards of procedure
do not apply. There is
here an extraordinary and secret mode of obtaining information necessary for
the proper conduct of the winding-up.
The process, borrowed from the law of
bankruptcy, can only be described as being sui generis."[224]
In British and Commonwealth Holdings
plc v. Spicer and Oppenheim Lord Slynn, speaking for the House of Lords,
approved the passages from Rolls Razor and Rolls Razor (2) quoted
above and then said the following:
"I am therefore of the opinion
that the power of the Court to make an order under s. 236 is not limited to
documents which can
be said to be needed 'to reconstitute the state of the
company's knowledge' even if that may be one of the purposes most clearly
justifying the making of an order."[225]
(iii)
The application of section 33(1) of the Constitution
[125]
In applying section 33(1) I propose adopting
the approach followed in S v. Makwanyane and Another[226], where, as in the present case, the
justification had to be necessary as well as reasonable and in which Chaskalson
P formulated
the approach as follows:
"The limitation of constitutional
rights for a purpose that is reasonable and necessary in a democratic society
involves the
weighing up of competing values, and ultimately an assessment
based on proportionality. This is implicit in the provisions of section
33(1).
The fact that different rights have different implications for democracy, and
in the case of our Constitution, for 'an open
and democratic society based on
freedom and equality', means that there is no absolute standard which can be
laid down for determining
reasonableness and necessity. Principles can be
established, but the application of those principles to particular
circumstances
can only be done on a case by case basis. This is inherent in the
requirement of proportionality, which calls for the balancing of
different
interests. In the balancing process, the relevant considerations will include
the nature of the right that is limited,
and its importance to an open and
democratic society based on freedom and equality; the purpose for which the
right is limited and
the importance of that purpose to such a society; the
extent of the limitation, its efficacy, and particularly where the limitation
has to be necessary, whether the desired ends could reasonably be achieved
through other means less damaging to the right in question.
In the process
regard must be had to the provisions of section 33(1), and the underlying
values of the Constitution, bearing in mind
that, as a Canadian Judge has said,
'the role of the Court is not to second-guess the wisdom of policy choices made
by legislators'."[227]
(footnotes omitted)
[126]
Because of the statutory duties which
liquidators have to discharge in the winding-up of companies and the serious
difficulties they
face in recapturing the knowledge of the company prior to
liquidation, in determining the cause of the company's failure and in
establishing
what assets (including claims) the company has, it is clearly
reasonable (in the sense of there being a rational connection between
mischief
and remedy) to compel persons to be interrogated in relation to affairs of the
company which are relevant to the discharge
by liquidators of their duties,
even where the testimony given tends to incriminate the person giving it. It is
also necessary, in
the sense that there is a pressing or compelling state
interest to ensure that assets (including claims) of the company are recovered,
for the benefit of creditors, especially from directors and officers of the
company who may have been responsible, even criminally
so, for the failure of
the company. It is also necessary, in this sense, to compel persons to answer
all relevant questions put to
them even when the answers might incriminate
them, for without this compulsion there would be a great reluctance by such
persons
to make a full and frank disclosure of their knowledge of the affairs
of the company and their dealings with it.
[127]
The real question is whether it is
necessary in the sense that no other method exists which achieves the desired
objective, but which
is less intrusive of the examinee's section 11(1) rights.
Differently stated, is there an acceptable proportionality between the
legitimate objective sought to be achieved and the means chosen? The answer
must clearly be in the negative. The state interest in
achieving full
information must be just as compelling in the United States of America, Canada
and the United Kingdom. Yet these countries,
more consistently the United
States and Canada, have achieved this objective by means which are less
invasive of the examinee's rights,
namely by conferring on the examinee either
a direct or both a direct and a derivative use immunity in respect of
self-incriminating
evidence given at the enquiry. There is nothing to suggest
that in South Africa the objective cannot be fully achieved if some form
of use
immunity were to be appended to section 417(2)(b) of the Companies Act. Section
65(2A)(b) of the Insolvency Act provides for
direct use immunity in respect of
enquiries held under that Act and, while there may be legitimate reasons for
distinguishing between
enquiries held in respect of personal bankruptcies and
those relating to company liquidations, I can think of no proper justification
for providing direct use immunity in respect of the former but not the latter.
In the light of the aforegoing it is unnecessary to
consider whether the
essential content of the section 11(1) right has, within the meaning of section
33(1)(b), been negated by this
provision. The conclusion is therefore reached
that, as currently formulated, the provisions of section 417(2)(b) of the
Companies
Act, which infringe the examinee's section 11(1) rights, cannot be
justified under section 33(1) of the Constitution. These provisions
are
accordingly found to be inconsistent with the section 11(1) right to freedom.
The attacks based on sections 8, 10, 13, 15, 22 or
24 of the Constitution
[128]
In view of the above finding it is
unnecessary to consider whether the provisions of section 417(2)(b) of the
Companies Act are inconsistent
with any of the rights protected in sections 8,
10, 13, 15, 22 or 24 of the Constitution.
The extent of the inconsistency of the provisions
of section 417(2)(b) of the Companies Act with the section 11(1) right to
freedom
[129]
Section 98(5) of the Constitution
provides that:
"In the event of the
Constitutional Court finding that any law or any provision thereof is
inconsistent with this Constitution,
it shall declare such law or provision invalid
to the extent of its inconsistency: Provided that the Constitutional Court may,
in
the interests of justice and good government, require Parliament or any
other competent authority, within a period specified by the
Court, to correct
the defect in the law or provision, which shall then remain in force pending
correction or the expiry of the period
so specified."
The above subsection enjoins this
Court, on finding that any law or any provision thereof is inconsistent with
this Constitution,
to declare such law or provision invalid "to the extent
of its inconsistency." This raises two issues, one of severability
and the
other of judicial policy. We were urged on behalf of the applicants to strike
down section 417(2)(b) in its entirety, leaving
it to Parliament to decide
whether to re-instate the obligation to give self-incriminating evidence, but
coupled this time with a
suitable indemnity against prosecution or a suitable
use immunity (whether a direct or a direct and derivative use immunity). On
behalf
of the applicants we were urged not to express our own views as to what an
appropriate and constitutionally valid use immunity
would be, under the guise
of a section 98(5) declaration as to the extent of the inconsistency of section
417(2)(b) with the Constitution.
To do so would, it was submitted, be
trespassing on Parliament's legislative sphere. On behalf of the second
respondents in the Ferreira matter we were invited, in the alternative
and in the event of finding section 417(2)(b) to be inconsistent with the
Constitution,
to make a qualified order in the following terms:
"To the extent only that the words 'and any
answer given to any such question may thereafter be used in evidence against
him'
in section 417(of the Companies Act apply to the use of any such answer by
an accused against him or her in criminal proceedings
(other than proceedings
for common law or statutory perjury in giving evidence under this section), the
provisions are declared to
be invalid."
[130]
On the issue of severability it is
unnecessary on the issue before us to do more than apply the test which
Kriegler J formulated for
this Court in Coetzee v. Government of the
Republic of South Africa and Others; Matiso and Others v. Commanding Officer,
Port Elizabeth Prison and
Others as follows:
"Although severability in the
context of constitutional law may often require special treatment, in the
present case the trite
test can properly be applied: if the good is not
dependent on the bad and can be separated from it, one gives effect to the good
that remains after the separation if it still gives effect to the main
objective of the statute. The test has two parts: first, is
it possible to
sever the invalid provisions and second, if so, is what remains giving effect
to the purpose of the legislative scheme?"[228]
Both tests are satisfied in the present
case, whether the order takes the form suggested by the applicants, or by
second respondents
in the Ferreira matter. On the applicants' approach
the remainder of the legislative scheme in sections 417 and 418 is not
dependent on the bad in
section 417(2)(b). On the approach suggested by the
second respondent in the Ferreira matter a person examined would still
be obliged to answer all questions put, including those that might be
self-incriminating, but
the deletion of the words "and any answer given to
any such questions may thereafter be used in evidence against him" would
merely exclude the use of incriminating answers in all subsequent criminal proceedings
against the examinee. The exclusion would
be limited to criminal proceedings.
Such a deletion would not have any effect on the efficacy of the section 417
and 418 proceedings;
the removal of the bad would only affect subsequent use of
the answers. On the second leg of the test, that which will remain clearly
still gives effect to the purpose of the legislative scheme, which has been
analysed above.
[131]
The more difficult problem relates to
the way in which the Court should declare the extent of the inconsistency of
section 417(2)(b)
with the Constitution. There is great force in the warning
that this Court ought not to prescribe or even suggest to Parliament how
best
it should legislate in order to address any statutory vacuum or deficiency
caused by a declaration of invalidity. By doing this
we might be seen to be
trespassing on Parliament's legislative terrain. At the same time, however, the
injunction in section 98(5)
of the Constitution requires the Court to indicate
the "extent" of the inconsistency. This qualification was not
essential.
The injunction could merely have read "it shall declare such
law or provision invalid." The Constitution therefore reflects
a choice
for a narrow striking down. In certain cases such a narrow striking down is
technically and linguistically simple where
the constitutional inconsistency is
encapsulated in (and limited to) a discrete subsection or paragraph containing
nothing but the
inconsistent provision. However, the excision cannot always be
so surgically neat. The Constitution seems to have foreseen this by
using the
expression "to the extent of its inconsistency" as a qualification to
the bald declaration of invalidity of "any
law or any provision
thereof." It permits the Court greater latitude in formulating its
declaration of invalidity.
[132]
A not inconsiderable part of the
argument was directed to the nature of (a) an indemnity against prosecution, or
(b) a direct use
immunity or (c) a derivative use immunity which, if coupled
with the compulsion to give self-incriminating evidence, might render
such
compulsion constitutionally unobjectionable. This debate was an important
feature in the judgments in Thomson's case.[229] It is not inconceivable (in fact it
seems likely) that, if we were simply to strike down section 417(2)(b) in its
entirety, Parliament
would consider introducing more limited provisions along
the lines of the provisions of section 65(2A) of the Insolvency Act.
In
so doing, Parliament might decide to provide for a direct use immunity only,
which might very well give rise to another constitutional
challenge, resulting
in another suspension of the section 417 and 418 procedures, the halting of
liquidation enquiries and a hearing
in this Court simply duplicating the
arguments that have been addressed to us in the present case. Such a course of
events would
be both unnecessary and unfortunate, particularly if it could
legitimately be avoided. It can properly, in my view, be avoided. It
would be
permissible for us, in the process of determining the extent of the
inconsistency of section 417(2)(b) with the Constitution, to decide whether, in
the South African context, both a direct and
a derivative use immunity is
necessary to save such a provision from being unconstitutional, or whether a
direct use immunity would
suffice. Without doing so, it would be difficult, if
not impossible to indicate accurately the extent of the inconsistency. I
now proceed to address myself to this question.
[133]
It has been pointed out above that, in
the United States of America, both derivative and direct use immunity is
necessary in order
to escape constitutional challenge to a statute which limits
the right against self-incrimination. In Thomson Newspapers La Forest J
pointed out, however, that
"the absolutist position the courts in the
United States have adopted in this area is undoubtedly rooted in the explicit
and
seemingly absolute right against self-incrimination found in the country's
constitution"[230]
and that
"one should not automatically
accept that s. 7 comprises a broad right against self-incrimination on an
abstract level or, for
that matter, on the American model, complete with all
its residual doctrines. If that had been intended, it would have been very
easy
to say so."[231]
In embarking on this enquiry regarding
derivative use immunity, it is salutary to bear in mind that the problem cannot
be resolved
in the abstract but must be confronted in the context of South
African conditions and resources - political, social, economic and
human.[232]
The fact that a particular obligation may be placed on the criminal
investigative and prosecutorial authorities in one country with
vast resources,
does not necessarily justify placing an identical burden on a country with
significantly less resources. One appreciates
the danger of relativising
criminal justice, but it would also be dangerous not to contextualise it. The
aphorism proclaims that
it is better for ten guilty accused to go free than to
have one innocent accused wrongly convicted. Does the same hold true if the
proportion is stretched to a hundred to one or to a thousand to one? And must a
system, which only produces one in a hundred wrong
acquittals in one country,
be maintained in another if it would consistently give rise to three in five
wrong acquittals in the latter?
[134]
The distinction which La Forest J
draws between the direct use of compelled testimony and the use of evidence
derived from compelled
testimony is, in my view, important:
(a)
In the case of the direct use of compelled testimony,
"[i]t is only when the testimony
itself has to be relied on that the accused can be said to have been forced to
actually create self-incriminatory evidence in his or her own trial. The
compelled testimony is evidence that simply would not have existed
independently
of the exercise of the power to compel it; it is in this sense
evidence that could have been obtained only from the accused."[233]
(b)
By contrast,
"evidence derived from compelled
testimony is, by definition, evidence that existed independently of the
compelled testimony ... Although such evidence may have gone undetected or
unappreciated
in the absence of the compelled clues ... [this] is not the same
thing as non-existence ... [which in turn means] that it could have been
found by some other means, however low the probability of such discovery may
have been."[234]
[135]
This last mentioned feature means that
the relevance, quality and weight of derivative evidence can be determined
independently of
the testimony of the accused and is therefore self-sufficient.[235]
This distinguishing feature is significant. In Lam Chi-Ming v. R[236],
an appeal to the Privy Council from Hong Kong, Lord Griffiths, in a passage
quoted with approval by this Court in Zuma[237], identified three reasons for excluding
confessions obtained by improper methods: (a) possible unreliability, (b) the
privilege or
principle against self-incrimination and (c) the desire to ensure
proper behaviour by the police towards those in their custody and
then added:
"the more recent English cases
established that the rejection of an improperly obtained confession is not
dependent only upon
possible unreliability but also upon the principle that a
man cannot be compelled to incriminate himself and upon the importance
that
attaches in a civilised society to proper behaviour by the police towards those
in their custody."[238]
The policy considerations (a) and (c)
above do not apply at all to the admission of derivative evidence. For this
reason alone, it
is legitimate to approach the admissibility of derivative
evidence somewhat differently, the more so when regard is had to the
independent
existence of derivative evidence, quite apart form the testimony of
the person disclosing it. In Thomson Newspapers, La Forest J, in dealing
with the admissibility of derivative evidence, drew an analogy to section 24(2)
Charter jurisprudence.[239]
This subsection of the Charter has adopted an intermediate position with respect
to the exclusion of evidence obtained in violation
of the Charter. In R. v.
Collins the Canadian Supreme Court explained that -
"[S. 24(2)] rejected the American
rule excluding all evidence obtained in violation of the Bill of Rights
and the common law rule that all relevant evidence was admissible regardless of
the means by which it was obtained."[240]
Apart from the obvious statutory
exceptions relating to confessions and admissions, the English common law rule is
applied in South
Africa.[241]
No doubt this rule will have to be reconsidered at some stage in the light of
the provisions of Chapter 3 of the present Constitution.
[136]
In Collins, evidence had been
discovered on the accused in pursuance to a search which was in breach of the
accused's rights under section 8
of the Charter. Lamer J, in the course of
considering whether the admission of such evidence would bring the
administration of justice
into disrepute, stated the following:
"Real evidence that was obtained
in a manner that violated the Charter will rarely operate unfairly for that
reason alone. The
real evidence existed irrespective of the violation of the
Charter and its use does not render the trial unfair. However, the situation
is
very different with respect to cases where, after a violation of the Charter,
the accused is conscripted against himself through
a confession or other
evidence emanating from him. The use of such evidence would render the trial
unfair, for it did not exist prior
to the violation and it strikes at one of
the fundamental tenets of a fair trial, the right against
self-incrimination."[242]
In Thomson Newspapers, La Forest
J pointed out that Lamer J had not, in Collins:
"intended to draw a hard-and-fast
line between real evidence obtained in breach of the Charter and all other
types of evidence
that could be so obtained. ... what Lamer J had in mind was
the much broader distinction between evidence which the accused had been
forced
to create, and evidence which he or she has been forced to merely locate
or identify. In other words, he had in mind the kind of distinction which I
have attempted to draw between compelled testimony and evidence derived
from
compelled testimony."[243]
[137]
La Forest J also drew attention to the
fact that
"... the testimony of third
parties obtained as a result of the pursuit of such clue facts is clearly
evidence that exists regardless
of whether or not the person who provided the
clue facts was compelled to give testimony. As much as the murder weapon or the
stolen
car, it is evidence that could have been found in the absence of any
assistance, compelled or otherwise, from the person subsequently
charged. I do
not see why this factor should be relevant to the admissibility of the murder
weapon under s. 24(2), but irrelevant
to the admissibility of the third party's
testimony under the same section, or to the admissibility of either piece of
evidence under
s. 7 or s. 11(d)."[244]
The learned Judge considered it
"overly broad to say that there
must be an absolute prohibition against the use at trial of all evidence
derived from testimony
compelled before trial on the ground that the admission
of such evidence can in some cases affect the fairness of the trial. ...
[I]n defining the scope of the immunity required by the Charter, we are called
upon to
balance the individual's right against self-incrimination against the
state's legitimate need for information about the commission
of an
offence."[245]
[138]
In outlining the advantages to the
community as a whole (including the fact that investigation and detection is
speeded up and the
law's effectiveness as a deterrent enhanced) if there was
not a blanket exclusion of derivative evidence, La Forest J made, to my
mind,
the important point, particularly for our context, that
"[t]he limited resources that society
has to spend on law enforcement activity in general will be utilised in a more
cost-effective
manner ... [which will mean] the effective investigation of a
greater proportion of offences ... [enhancing in turn] the law's potency
as a
deterrent to potential wrongdoers."[246]
He concluded that
"[a]ll of these benefits of a
power to compel testimony would either be lost or severely limited if the
Constitution required
that the legislative grant of any such power must be
accompanied by a grant of full use and derivative use immunity."[247]
[139]
The learned Judge adopted a flexible
approach to balancing the interests of the individual and that of the state,
which in his view
could only be achieved by the trial judge exercising a
discretion.[248]
This discretion was, as La Forest formulated it in R. v. Corbett[249]
and confirmed it in Thomson Newspapers,
"to exclude
matters that may unduly prejudice, mislead or confuse the trier of fact,
take up too much time, or that should otherwise be excluded on clear grounds
of law or policy".[250]
This discretion "is ultimately
grounded in the trial judge's duty to ensure a fair trial."[251]
A similar flexible approach could, La Forest J argued, be adopted in regard to the
admissibility of derivative evidence, having due
regard to the need to balance
the right of the accused and that of the public in a specific context:
"... derivative evidence that
could not have been found or appreciated except as a result of the compelled
testimony under the
Act should in the exercise of the trial judge's discretion
be excluded since its admission would violate the principles of fundamental
justice ... such exclusion should [not] take place if the evidence would
otherwise have been found and its relevance understood ...
The touchstone for
the exercise of the discretion is the fairness of the trial process."[252]
La Forest J concluded by holding that:
"... complete immunity against
such use is not required by the principles of fundamental justice. The immunity
against use of
actual testimony provided by s. 20(2) of the Act together with
the judge's power to exclude derivative evidence where appropriate
is all that
is necessary to satisfy the requirement of the Charter."[253]
[140]
I respectfully favour the approach
adopted by La Forest J, for the reasons stated by him, rather than that
preferred by Wilson J.
Wilson J criticized La Forest J's approach on
basically two grounds. Firstly because,
"[t]he public repute of justice is
not the relevant consideration in determining whether derivative evidence
should be excluded
on the ground that it was obtained as a direct result of
testimonial compulsion in violation of the principles of fundamental
justice."[254]
I do not understand La Forest J to have
advanced such a proposition so rigidly. The learned judge was arguing by way of
analogy in
an attempt (perfectly permissible in my view) to find an acceptable
norm on the basis whereof the right of the individual could fairly
be balanced
against the interests of the state. This is encapsulated in the following
observation the learned judge made:
"I find it difficult to imagine
how the use of evidence which does not bring the administration of justice into
disrepute can
at the same time be contrary to the principles of fundamental
justice. The consequence of the former finding is, in effect, to declare
that
the Charter breach by which evidence was obtained was non-prejudicial, and in a
sense nominal. To argue that the same reasoning
cannot be used to determine
whether the use of derivative evidence constitutes a breach of the rights
guaranteed under s. 7 would
be to take an unduly formalistic approach to the
interpretation of the Charter. As I mentioned earlier, the discussion might
equally
be framed in terms of the right to a fair trial under s. 11(d) with
similar results, a matter to which I shall return."[255]
The second criticism was to the effect
that
"[the] exclusion [of derivative
evidence] must be a matter of principle and of right, not of discretion."[256]
If, as a result of the proper exercise
of a discretion, a fair trial is ensured, I fail to see how principle is
lacking, any more
than when such evidence is admitted in a way which is
"in accordance with the principles of fundamental justice", the
qualification
to section 7 of the Charter.
[141]
A recent decision in the Canadian
Supreme Court, R.J.S. v. The Queen; Attorney-General et al., Interveners[257]
(hereinafter "R.v.S. (R.J.)"), which bears on the issue of
derivative use immunity as a constitutional requirement, came to our attention
after argument.
It concerned two young offenders who were both charged with the
same offence of "break, enter, and theft" but, because
of their age
and by virtue of relevant Ontario legislation, were to be tried separately. At
the trial of the one young offender ("the
accused"), the other young
offender ("the witness") was subpoenaed by the Crown to testify
against the accused. On
an application brought by the witness's counsel, the
subpoena against him was quashed on the basis that to require the witness to
testify would violate section 7 of the Canadian Charter of Rights and Freedoms.
Because of the resultant lack of evidence the accused
was acquitted. On appeal
by the Crown, the quashing of the subpoena was set aside and a new trial
ordered, a decision confirmed by
the Supreme Court. It is necessary to point
out the obvious, namely, that this particular problem could not arise in our
law because
of the transactional indemnity which, in similar circumstances,
would be available to the witness by virtue of the provisions of
section 204 of
the Criminal Procedure Act.
[142]
Nevertheless the decision is of
significance for a number of reasons. First, it clearly affirms the principle
that in all cases "a
statutory compulsion to testify engages the liberty
interest of s. 7" but that normally "the liberty interest is affected
in accordance with the principles of fundamental justice."[259]
Second, it confirms that a "deprivation of liberty may arise by virtue of
a compulsion to speak per se ..."[260] regardless of the character of the
compelled speech. The character of the speech which is compelled (for example,
self-incriminatory
speech) may, however, depending on the particular
construction of the Charter, be determinative of the issue as to whether such
deprivation
of liberty is in accordance with the principles of fundamental
justice or whether an infringement is justified under section 1 of the Charter.[261]
Third, it makes clear that the liberty interest in section 7 of the Charter
"may be engaged although there is no coincident deprivation in respect of
the other s. 7 interests, life or security of the person".[262]
Fourth, it holds, relying on earlier dicta, that not every restriction
of absolute freedom constitutes a deprivation of liberty. Fifth, the judgment also
confirms that, notwithstanding
the provisions of sections 11(c)[263]
and 13[264]
of the Canadian Charter, section 7 of the Charter contains residual protections
against self-incrimination extending beyond sections 11(c) and 13 and that this
is necessary, in part, to protect the section 11(c) right.[265] Iacobucci J, highlighting "the
vigour of section 7", held that there was "a functional, unifying
principle" against self-incrimination and that pre-trial silence was
no
longer merely "a particular manifestation of the general freedom to do as
one pleases" but had "been elevated to
the status of a constitutional
right."[266]
Lastly, it considers extensively the nature of derivative evidence and whether
and to what extent a derivative use immunity
is necessary in order to render
compelled testimony in accordance with the principles of fundamental justice. I
shall endeavour to
deal as briefly as possible with this last aspect.
[143]
The issue of derivative use evidence
was considered on the basis that the principle of fundamental justice which
operated in the case
was the "principle against self-incrimination".[267]
It was pointed out that the Canada Evidence Act had abolished the witness's (as
opposed to the accused's) privilege and replaced
it with a limited form of
immunity, applicable in respect of subsequent proceedings and not at the moment
of compelled testimony,
in as much as section 5(2) of the Canada Evidence Act
currently provides that a witness's self-incriminatory answers cannot "be
used or admissible in evidence against [the witness] in any criminal trial or
other criminal proceeding against him thereafter taking
place, other than a
prosecution for perjury".[268] Iacobucci J describes the policy
justification for the common law protections as resting "on the idea that
the Crown must establish
a 'case to meet'"[269] and reflecting "a basic distaste
for self-conscription".[270]
[144]
The learned Judge's approach was to
seek a compromise[271]
between, on the one hand, full transactional immunity if self-incriminating
testimony is compelled and, on the other, mere direct
use immunity where it is
only the witness's direct communication which is protected against subsequent
use. In the course of his
enquiry, Iacobucci J agreed[272] with the following statement by La
Forest J in Thomson Newspapers:
"A right to prevent the subsequent
use of compelled self-incriminating testimony protects the individual from
being 'conscripted
against himself' without simultaneously denying an
investigator's access to relevant information. It strikes a just and proper
balance
between the interests of the individual and the state."[273]
The conclusion reached by Iacobucci J
was that the Canadian Charter did not demand absolute derivative use immunity.[274]
The learned judge approved[275]
of the distinction drawn by La Forest J between compelled testimony and
derivative evidence and stated succinctly that
"compelled testimony is evidence
which has been created by the witness, whereas derivative evidence is evidence
which has independent
existence. It is only the class of created evidence which
is, by definition, self-incriminatory."[276]
[145]
Of importance is the fact that
Iacobucci J[277],
like La Forest J in Thomson Newspapers[278], drew heavily, by way of analogy, on
Canadian Charter section 24(2) jurisprudence in dealing with the question of
the exclusion of
derivative evidence. Nowhere in his judgment does Iacobucci J
express disagreement with La Forest J in Thomson Newspapers; in fact it
is written in terms of general approval with and further explication of La
Forest J's judgment. Iacobucci J accordingly
concludes that
"derivative evidence which could
not have been obtained, or the significance of which could not have been
appreciated, but for
the testimony of a witness, ought generally to be excluded
under s. 7 of the Charter in the interests of trial fairness."[279]
The qualification "ought
generally" was introduced because the learned judge advocated[280]
the same discretion on the part of the trial judge as is employed in the case
of section 24(2) Charter exclusion, namely, that the
exercise of the discretion
"will depend on the probative effect of the evidence balanced against the
prejudice caused to the
accused by its admission."[281] In other words, there is no automatic
rule of exclusion. Iacobucci J was, quite correctly in my view, hesitant to
elaborate any further
on the test and stated:
"Since this test for exclusion can
only arise in the context of proceedings subsequent to a witness' testimony ...
[i]ts form
will become known, as it should, in the context of concrete factual
situations."[282]
[146]
There is, in my judgment, no reason
why this approach cannot and ought not to be adopted in regard to the enquiry
concerning the admissibility
of derivative evidence in the context of section
417(2)(b) of the Companies Act. I have little doubt that two different but
related
areas concerning the law of evidence will, in due course, have to be
reconsidered fully in the light of Chapter 3 of the Constitution
and section
25(3) in particular. The one relates to the way in which evidence, particularly
in criminal proceedings, is obtained
and the second to the question of when and
to what extent a trial judge has a discretion to exclude otherwise admissible
evidence.
[147]
Prior to the coming into operation of
the Constitution, courts in South Africa were not particularly concerned with
the way in which
evidence was obtained. Notable exceptions of course related to
admissions, confessions and, more recently, to acts of pointing out.[283]
In other cases, however, the general approach was that, provided the evidence
was relevant, it was admissible.[284] It is unnecessary in the present case to
reconsider this issue beyond the very narrow area of the derivative use of
compelled self-incriminating
evidence. It can be noted, however, that since the
Constitution came into effect, a new approach is beginning to emerge in
decisions
of the Supreme Court.[285]
[148]
As far as the discretion to exclude
otherwise admissible evidence is concerned, there appears to be little doubt
that similar fact
evidence may be excluded if the probative value is outweighed
by the prejudice it would cause.[286] The existence of a general discretion
to exclude admissible evidence is, however, disputed. As Professor Zeffertt
points out:
"There can be no more
controversial an issue in the South African law of evidence than whether there
is a judicial discretion,
in criminal proceedings, to exclude admissible
evidence. Some authorities say it exists; others deny it".[287]
Those in favour[288] of the existence of the general
discretion to exclude admissible evidence usually rely on an obiter dictum of
Rumpff CJ in S v. Mushimba[289], who referred to the English case of R
v. Kuruma,[290]
where it was stated that there could be no doubt that "the judge always
has a discretion to disallow evidence if the strict
rules of admissibility
would operate unfairly against the accused"; but those opposed to
the discretion point to the fact
that the English rule referred to in Kuruma
has been narrowly construed in subsequent cases[291] and has in England been affected by
statute.[292]
In South Africa most decisions of the Provincial and Local Divisions of the
Supreme Court seem to confirm the existence of such a
discretion, but the
decisions are divided as to the basis for exercising the discretion.[293]
Some of the decisions merely recognise that the rule relating to similar fact
evidence applies in other situations as well, for example
in criminal
proceedings, where a judge has a general discretion to exclude evidence where
its probative value is outweighed by its
prejudicial effect.[294] Others appear to support the existence
of a discretion, along the lines suggested by Lord Goddard in Kuruma's
case, to exclude admissible evidence that would operate unfairly against the accused.[295]
The more recent decisions, before the commencement of the Constitution, suggest
that the discretion should be based on considerations
of public policy, rather
than fairness.[296]
[149]
In considering matters of evidential
admissibility or inadmissibility we ought not to limit the focus of our
attention exclusively
on the state of the law of evidence which existed prior
to the present Constitution coming into operation. Section 25(3) of the
Constitution
guarantees to every accused person the broad right to a fair
trial, which is not limited to the specific enumerated rights in paragraphs
(a)
- (j) of the subsection. In certain areas of criminal procedure, the specific
provisions of these paragraphs will settle debates
concerning criminal
procedure and criminal justice generally which previously were uncertain or
controversial. Thus, the application
of section 25(3)(e) of the Constitution in
S v. Vermaas; S v. du Plessis[297] settled the
"lively controversy in our law [as
to] whether persons standing trial on criminal charges who could not afford to
pay for their
legal representation were entitled to be provided with it at
public expense once its lack amounted to a handicap so great that to
try them
on their own lay beyond the pale of justice."[298]
The general discretion to exclude
evidence in a criminal trial is a principle accepted, for example, both in
England and in Canada.[299]
As La Forest J pointed out in Thomson Newspapers, the discretion to
exclude evidence which would otherwise have been admissible, has been applied
in various areas of criminal procedure
because this discretion is
"ultimately grounded in the trial judge's duty to ensure a fair
trial."[300]
La Forest J had no hesitation in concluding that this discretion ought also to
be exercised in the determination of when, and when
not, derivative evidence
relating to compelled self-incriminating testimony should be admitted against
an accused.[301]
This approach, subject to its passing the test of section 33(1) of the
Constitution, ought to apply in this country as well inasmuch
as, just as in
Canada, the right to a fair trial has been constitutionalised.[302]
[150]
In my view an approach whereby a
blanket exclusion of derivative evidence is not applied but where instead it is
dealt with on the
flexible basis of discretionary admissibility, as outlined
above, passes section 33(1) muster. We are not obliged to follow the absolutist
United States approach which, as pointed out in Thomson Newspapers in a
passage already referred to
"is undoubtedly rooted in the
explicit and seemingly absolute right against self-incrimination found in that
country's Constitution."[303]
The holding of a section 417 enquiry is
lawful and serves an important public purpose. Evidence obtained as a result of
such an enquiry
cannot be equated with evidence obtained as a result of
unlawful conduct. Where, for example, derivative evidence is obtained as
a
result of torture there might be compelling reasons of public policy for
holding such evidence to be inadmissible even if it can
be proved independently
of the accused. Otherwise, the ends might be allowed to justify the means. The
admission of evidence in such
circumstances could easily bring the
administration of justice into disrepute and undermine the sanctity of the
constitutional right
which has been trampled upon. The same considerations do
not apply to derivative evidence obtained as a result of the application
of
section 417(2)(b) at a section 417 enquiry.
[151]
Companies are used to raise money from
the public and to conduct business on the basis of limited liability. There are
obvious advantages
to doing so. But there are responsibilities which go with
it. Part of the responsibility is to account to shareholders for the way
in
which the company conducts its affairs and, if the company goes insolvent, to
account to shareholders and creditors for the failure
of the business. These
responsibilities are well known to all who participate in the running of public
companies. Giving evidence
at a section 417 enquiry is part of the
responsibility to account. It cannot simply be said that the administration of
justice would
necessarily be brought into disrepute by the subsequent use, even
in criminal proceedings against the examinee, of derivative evidence
obtained as a result of the application of section 417(2)(b) of the Act.
Indeed, the public, and especially the victims of the crime,
might find a
denial of the right to use such evidence inexplicable. Although it has been
held that an auditor is not an officer of
the company within the meaning of
that expression in section 184(1) of the 1926 Act (corresponding to section
423(1) of the present
Act)[304]
and it has been suggested that there is no basis for regarding an auditor as
being an officer of the company for any purpose of the
Act,[305] in my view the same public policy
considerations apply to the use of derivative evidence of an auditor of the
company compelled to
testify under section 417(2)(b) of the Act. The auditor
has, inter alia, many statutory duties under the Companies Act[306]
and the Public Accountants' and Auditors Act,[307] the purpose of which duties is, inter
alia, to protect shareholders and creditors. The knowledge and expertise of
the auditor is of particular importance in reconstructing
the affairs of the
company in liquidation and in achieving the other aims of the section 417
enquiry. An auditor is not obliged to
become the auditor of a particular
company nor to discharge the attendant duties without remuneration. In accepting
appointment as
an auditor of any particular company the auditor is aware of
these duties.
[152]
Although no statistical or other
material was placed before us, it is quite apparent that the United States has
vastly greater resources,
in all respects and at all levels, than this country
when it comes to the investigation and prosecution of crime, more particularly
when regard is had to the particularly high crime rate, which one can take
judicial notice of, currently prevalent in South Africa.
This in my view gives
added weight to the considerations of efficiency, economy of time and the most
prudent use of scare resources,
highlighted by La Forest J in Thomson
Newspapers and to which I have already referred, and supporting the
adoption of a flexible approach in dealing with the admissibility of derivative
evidence. The flexible approach is narrowly tailored to meet important state
objectives flowing from the collapse and liquidation
of companies and the
resulting duties of liquidators to protect the interests of creditors and the
public at large, while at the
same time interfering as little as possible with
the examinee's right against self-incrimination. It is balanced and proportional
and, in my view, fully justifiable in an open and democratic society based on
freedom and equality. To the extent that this conclusion
is in conflict with
any of the general views expressed in Park-Ross and Another v. The Director,
Office of Serious Economic Offences,[308] I disagree with those views.
[153]
A compulsion to give
self-incriminating evidence, coupled with only a direct use immunity along the
lines indicated above, and subject
to a judicial discretion to exclude
derivative evidence at the criminal trial, would not negate the essential
content of the section
11(1) right to freedom or the section 25(3) right to a
fair trial. Only a discrete and narrowly defined part of the broad right to
freedom is involved which could not conceivably be described as a
"negation" of its essential content. As far as section
25(3) is
concerned, the trial judge is obliged to ensure a "fair trial", if
necessary by his or her discretion to exclude,
in the appropriate case, derivative
evidence. Ultimately this is a question of fairness to the accused and is an
issue which has
to be decided on the facts of each case. The trial judge is the
person best placed to take that decision. The development of the
law of
evidence in this regard is a matter for the Supreme Court. The essential
content of the right is therefore not even touched.
[154]
There is one further matter on the
merits which needs to be mentioned. In the applicants' written argument and in
the oral argument
on their behalf in this Court, fleeting reference was made to
the fact that section 417(2)(b) was also inconsistent with the Constitution
to
the extent that it permitted incriminating testimony to be used in a subsequent
civil trial against the examinee. The argument
was not pressed or developed and
no authority, academic, judicial or otherwise, from any jurisdiction, was cited
in support of the
contention. Nor was any specific provision in the
Constitution relied upon in this regard. I am unaware of any authority which
would
support such a submission. It is therefore unnecessary to express any
view on it at this stage, particularly since the issue was
raised and more
fully argued in the Bernstein case supra. If there is any merit in the
argument it will be dealt with in the Bernstein judgment.
Costs
[155]
Apart from a formal request for costs
in the respective written arguments delivered on their behalf, none of the
parties developed
further argument on this question in such written arguments.
Nor was there any specific argument addressed to the Court relating
to the
principles which ought to apply to the question of costs in constitutional
litigation before this Court. It does not obviously
or necessarily follow that
the rules as to costs which have been developed in pre-constitutional
litigation must apply to constitutional
litigation. One of the general rules is
that, although an award of costs is in the discretion of the Court, successful
parties should
usually be awarded their costs and that this rule should be
departed from only where good grounds for doing so exist.[309] One can think off-hand of at least one
reason why this general rule might not apply to constitutional litigation,
namely, that it
could have a chilling effect on litigants, other than the
wealthiest, desirous of enforcing their constitutional rights. It might
also
not apply where the constitutionality of a statute is challenged, a matter
which would usually be one of public interest. I
think it inadvisable that we
should express ourselves on this issue, without the benefit of comprehensive
argument. Until such time
the issue should remain completely open. It therefore
seems to me that the best course is to make no order as to costs. Should any
of
the applicants or respondents wish to pursue the matter of costs further, such
party is at liberty to notify the Registrar in
writing, within fourteen days of
the order in this matter and upon notice to all other parties, of an intention
so to do, whereupon
further directions will be given.
The Order
[156]
I conclude that section 417(2)(b) of
the Companies Act is inconsistent with the right to freedom protected in
section 11(1) of the
Constitution to the extent indicated above. It must
therefore, pursuant to section 98(5) of the Constitution, be declared invalid
to the extent of such inconsistency. This is not a case where an order in terms
of the proviso to section 98(5) ought to be made.
The declaration of invalidity
is very narrow. Its only effect will be to render inadmissible, in criminal
proceedings against a person
previously examined pursuant to the provisions of
section 417(2)(b), incriminating evidence given by such person under compulsion
of the provisions of section 417(2)(b). Neither the interests of justice nor
good government require that these provisions should
be kept in force any
longer. A declaration of invalidity will not affect any of the other provisions
of sections 417 or 418 of the
Companies Act and will have insignificant, if
any, impact on the purpose or efficacy of enquiries under these proceedings.
[157]
The following order is accordingly
made:
1.
The provisions of section 417(2)(b) of the Companies Act 1973 are, with
immediate
effect declared invalid, to the extent only that the words
"and any answer given to any such
question may thereafter be used in evidence against him"
in section 417(2)(b) apply to the use
of any such answer against the person who gave such answer, in criminal
proceedings against
such person, other than proceedings where that person
stands trial on a charge relating to the administering or taking of an oath
or
the administering or making of an affirmation or the giving of false evidence
or the making of a false statement in connection
with such questions and
answers or a failure to answer lawful questions fully and satisfactorily.
2.
As from the date of this order, no incriminating answer given pursuant to the
provisions
of section 417(2)(b) of the Companies Act on or after 27 April 1994
shall be used against the person who gave such answer, in criminal
proceedings
against such person, other than proceedings excepted in 1. above.
3.
No order is now made as to costs, but should any of the applicants or
respondents
in either matter wish to pursue the matter of costs further, such
party is required to notify the Registrar in writing, within fourteen
days of
this order and upon notice to all other parties, of an intention so to do,
whereupon further directions will be given.
[158]
CHASKALSON P.
I have read the meticulous judgment of
Ackermann J. I agree with paragraphs [1] to [33] of his
judgment. I also
agree with his conclusion that section 417(2)(b)
of the Companies Act, 1973 is inconsistent with the Constitution and with the
order
that he proposes as the remedy for that situation. I am, however,
unable to agree with his analysis of the issue of standing
and with his
interpretation of section 11(1) of the Constitution on which he ultimately
relies for his decision. In my view
the matter is one in which the
Applicants have standing and which can and should be dealt with under section
25(3) of the Constitution.
[159]
The finding that section 417(2)(b) of
the Companies Act is inconsistent with the Constitution is in essence based on
a finding that
the section infringes the rule against self
incrimination. This is apparent from the reasons given by Ackermann
J for
holding the section to be inconsistent with the Constitution. The
rule against self incrimination is not simply a rule of
evidence.
It is a right which by virtue of the provisions of section 25(3) is, as far as
an accused person is concerned,
entitled to the status of a
constitutional right.1
It is inextricably linked to the right of an accused person to a fair
trial. The rule exists to protect that right.
If that right is not
threatened the rule has no application. Thus a person who has been
indemnified against prosecution, or
a person convicted of a crime who is
subsequently called to give evidence against a co-conspirator, would not be
entitled to claim
the privilege in respect of evidence covered by the indemnity
or the conviction.2
This connection between the unconstitutionality of section 417(2)(b) and the
privilege is recognised in the order made by Ackermann
J which is designed to
eliminate the conflict by ensuring that evidence given by a witness at a
section 417(2)(b) enquiry cannot
be used against that witness if he or
she is subsequently prosecuted.
[160]
A challenge to the constitutionality
of section 417(2)(b) should therefore, in my view, be characterised and dealt
with as a challenge
founded on the right to a fair criminal trial. It is
precisely because section 417(2)(b) is inconsistent with that right, that
its
validity can be impugned. It is also the basis upon which the Applicants
launched their constitutional challenge in the
present case. Although
they relied on various provisions of Chapter 3 to support their argument, at
the core of their complaint
was the concern that they were required to answer
questions at the enquiry which might incriminate them, and which might
thereafter
be used in evidence against them. That they had such a fear
was not disputed in argument. Although the matter was initially
dealt
with as directed by this Court on the basis of a referral of what was then an
abstract question of law, the Applicant in the
Ferreira matter had
previously lodged with the Court extracts from the record of the enquiry which
showed that he was indeed being called
upon to answer incriminating
questions. Heher J pointed out in his judgment in this case in the
Witwatersrand Local Division3
that both Applicants had reasonable grounds for such an apprehension. As
this was never disputed I see no need to delay the
proceedings further by
calling for the record in the Supreme Court case to be lodged with us.
The Applicants’ desire to secure
a ruling on the constitutionality of the
section cannot be characterised as being hypothetical or academic. It
raises a real
and substantial issue as far as the Applicants are concerned, and
I have no doubt that they have an interest in having that issue
resolved. Whether that interest is sufficient to give them standing
to challenge the constitutionality of section 417(2)(b)
is the matter to which
I now turn.
[161]
Section 4 of the Constitution provides
that any law inconsistent with the provisions of the Constitution shall
"be of no force
and effect to the extent of the inconsistency".
Section 98(2)(c) of the Constitution gives this Court jurisdiction to
enquire
into "the constitutionality of any law, including an Act of Parliament,
irrespective of whether such law was passed
or made before or after the
commencement of this Constitution." Under section 98(5) the Court is
directed to declare such
law or a provision thereof to be invalid if it is
found to be inconsistent with the Constitution. Other provisions of
sections
98(5) and 98(6) enable the Court to control the consequences of such a
declaration of invalidity. What is clear, however, is
that the Court has
a general jurisdiction to enquire into and declare an Act of Parliament or any
provision thereof to be invalid.
[162]
In the present case the Applicants
allege that section 417(2)(b) is inconsistent with section 25(3) of the
Constitution. This
is a matter which this Court has jurisdiction to
enquire into, and it can do so in the present case if the Applicants have
standing
to seek such an order from it. Ordinarily a person whose rights
are directly affected by an invalid law in a manner adverse
to such person, has
standing to challenge the validity of that law in the courts.4
There can be no question that the Applicants have such an interest in the
present case. Their right to refuse to answer
questions that incriminate
them is in issue and they seek to vindicate that right by challenging the only
obstacle to their assertion
of it. It was argued, however, that
this does not apply to the present Applicants because section 7(4) of the
Constitution
limits constitutional challenges to persons whose constitutional
rights have been impaired or threatened. And, so the argument
went, this
could occur only if they are charged with a criminal offence and the evidence
given by them at the enquiry is tendered
against them at the criminal trial.
[163]
If there is a conflict between section
25(3) of the Constitution and section 417(2)(b) which, viewed objectively,
renders section
417(2)(b) invalid to the extent of that inconsistency, it
seems to me to be highly technical to say that a witness called to
a section
417(2)(b) enquiry lacks standing to challenge the constitutionality of the
section. A witness who genuinely
fears prosecution if he or she is
called upon to give incriminating answers cannot be said to lack an interest in
the decision on
the constitutionality of the section. To deny the witness the
right to challenge the constitutionality of the section in such circumstances
is in effect to say to the witness: the only obstacle to your right to refuse
to answer incriminating questions is an unconstitutional
provision, but you
cannot ask this Court to declare the provision unconstitutional because you
have not yet been charged.
What if the witness refuses to answer
and is threatened with imprisonment? Surely the witness would then be
entitled to challenge
the constitutionality of the section on which the
prosecution is based. The fact that the witness might be entitled to turn
to section 11(1) of the Constitution to found a constitutional challenge is not
in my view an adequate answer to that dilemma.
The right to challenge the
constitutionality of a statute which affects you directly cannot be made
dependent on the finding of some
other constitutional right on which to base
the challenge. What if there is no such right?
[164]
The objection to constitutional
challenges brought by persons who have only a hypothetical or academic interest
in the outcome of
the litigation is referred to in Zantsi v Council of
State, Ciskei and Others.5 The principal reasons for
this objection are that in an adversarial system decisions are best made when
there is a genuine
dispute in which each party has an interest to
protect. There is moreover the need to conserve scarce judicial
resources
and to apply them to real and not hypothetical disputes. The
United States courts also have regard to "the proper role
of the Courts in
a democratic society" which is to settle concrete disputes, and to the need
to prevent courts from being drawn
into unnecessary conflict with coordinate
branches of government.6
These objections do not apply to the present case. The Applicants have a
real and not a hypothetical interest in the
decision. The decision will
not be academic; on the contrary it is a decision which will have an
effect on all section
417 enquiries and there is a pressing public interest
that the decision be given as soon as possible. All the requirements
ordinarily set by a court for the exercise of its jurisdiction to issue a
declaration of rights are therefore present.7 The question is whether different
considerations apply in constitutional cases.
[165]
Whilst it is important that this Court
should not be required to deal with abstract or hypothetical issues, and should
devote its
scarce resources to issues that are properly before it, I can see no
good reason for adopting a narrow approach to the issue of standing
in
constitutional cases. On the contrary, it is my view that we should
rather adopt a broad approach to standing. This
would be consistent with
the mandate given to this Court to uphold the Constitution and would serve to
ensure that constitutional
rights enjoy the full measure of the protection to
which they are entitled.8
Such an approach would also be consistent in my view with the provisions of
section 7(4) of the Constitution on which counsel
for the Respondents based his
argument. I will deal later with the terms of this section and the
purpose that it serves.
[166]
The Canadian courts accept that
persons
have a standing to challenge
unconstitutional law if they are liable to conviction for an offence under the
law even though the unconstitutional
effects are not directed against [them]
per se.9
It is sufficient for the accused to
show that he or she is directly affected by the unconstitutional
legislation. If this is
shown "...it matters not whether he is the
victim".10 Thus in the Morgentaler
case (cited above) a male doctor was entitled to challenge the
constitutionality of legislation dealing with abortion under which
he was
liable to be prosecuted, although the rights upon which the constitutional
challenge were based were the rights of pregnant
women, which did not and could
not vest in the male doctor. Although corporations do not have rights
under the Canadian Charter
and cannot institute Charter challenges in their own
behalf, they can challenge the constitutionality of a statutory provision at
a
criminal trial on the grounds that it infringes the rights of human beings and
is accordingly invalid.11 Where, as in the present
case, the impugned section of the Companies Act has a direct bearing on the
Applicants’ common
law rights, and noncompliance with the section has possible
criminal consequences, they have sufficient standing in my view to secure
a
declaration from this Court as to the constitutionality of the section.
[167]
I do not read section 7(4) as denying
the Applicants this right. The section deals with the situation where
“...an infringement
of or threat to any right entrenched in this Chapter is
alleged...” It therefore applies specifically to the jurisdiction
vested
in the courts by section 98(2)(a) and 101(3)(a) of the Constitution to deal
with "any alleged violation or threatened
violation of any fundamental
right entrenched in Chapter 3". But section 98(2) vests a general
jurisdiction in this Court
to interpret, protect and enforce the provisions of
the Constitution. Section 7(4) in dealing with the section 98(2)(a)
jurisdiction provides that where an infringement or threat to the infringement
of a constitutional right is alleged, any of the persons
referred to in section
7(4)(b) will have standing to bring the matter to “a competent court of
law”. The category of persons
empowered to do so is broader than the
category of persons who have hitherto been allowed standing in cases where it
is alleged that
a right has been infringed or threatened, and to that extent
the section demonstrates a broad and not a narrow approach to standing.12 Section 7(4) does not, however,
deal specifically with the jurisdiction vested in this Court by the other
subsections of section
98(2). Section 98(2)(c) vests in this Court the
jurisdiction to enquire into "the constitutionality of any law, including
an Act of Parliament, irrespective of whether such law was passed before or
after the commencement of this Constitution."
The constitutionality
of a law may be challenged on the basis that it is inconsistent with provisions
of the Constitution other than
those contained in Chapter 3. Neither
section 7(4) nor any other provision of the Constitution denies to the
Applicants the
right that a litigant has to seek a declaration of rights in
respect of the validity of a law which directly affects his or her interests
adversely.
[168]
Once it is accepted, as Ackermann J
has, that the issue of constitutionality has to be tested objectively and not
subjectively, there
is no valid reason for denying persons in the position of
the Applicants standing to secure a ruling on the validity of a law that
directly affects their interests. Even if section 7(4) were to be
read extensively as applying by inference to all the
subsections of section
98(2), I would not see it as an obstacle to the Applicants’ case. In that event
it would have to be read
as meaning "where an infringement of or threat to
any right entrenched in this Chapter [or any dispute over the constitutionality
of any executive or administrative act or conduct or threatened administrative
act or conduct of any organ of the state, or any enquiry
into the
constitutionality of any law, including an Act of Parliament, irrespective of
whether such law was passed or made before
or after the commencement of this
Constitution...] is alleged" the persons referred to in paragraph
(b) shall have standing.
There would be no need on this extensive
interpretation of the section to construe section 7(4)(b)(i) as meaning that
the person
acting in his or her own interest must be a person whose constitutional
right has been infringed or threatened. This is not what the section
says. What the section requires is that the person concerned
should make
the challenge in his or her own interest. It is for this Court to decide
what is a sufficient interest in such
circumstances. In my view, on the
facts of the present case, the Applicants have a sufficient interest to seek
such a ruling.
If that is so they can rely on the argument that viewed
objectively section 417(2)(b) is inconsistent with the Constitution because
it
infringes the right to a fair trial guaranteed by section 25(3).
[169]
Because of his analysis of the issue
of standing Ackermann J was driven to base his judgment on section 11(1) of the
Constitution
and not on section 25(3). In giving the judgment of the
majority of this Court in Coetzee v Government of the Republic of South
Africa,13
Kriegler J declined to examine "...the philosophical foundation or the
precise content of the right"14 to freedom under section 11(1) or to
attempt to “...determine the outer boundaries of the right."15 Wilson J adopted a similar
approach in her dissent in Thomson Newspapers v Canada,16 saying that she did not consider
it necessary in that case "to attempt to determine the perimeters of
"liberty"
and "security of the person".”17 This is a complex and difficult
undertaking which has previously been alluded to in the judgment of Sachs J in Coetzee's
case. The approach of the majority in Coetzee's case is in
accordance with the principle laid down by this Court in Zantsi’s case.18 If the same approach had
been followed in the present case I would not have entered the debate on the
meaning of "freedom"
in section 11(1). In dealing with section
11(1), however, Ackermann J proceeded on the basis that
"freedom"
should be "defined as widely as possible" and as
embracing the right of individuals "not to have obstacles to possible
choices and activities placed in their way by...the State". I
disagree with this approach and feel constrained in the
circumstances to
express my disagreement and my reasons therefor.
[170]
The primary, though not necessarily
the only, purpose of section 11(1) of the Constitution is to ensure that the
physical integrity
of every person is protected. This is how a guarantee
of "freedom (liberty) and security of the person" would ordinarily
be
understood. It is also the primary sense in which the phrase,
"freedom and security of the person" is used in
public international
law. The American Declaration of the Rights and Duties of Man, the
International Covenant on Civil and
Political Rights, the European Convention
for the Protection of Human Rights and Fundamental Freedoms, and the African
Charter on
Human and People's Rights, all use the phrase
"liberty and security of the person" in a context which shows
that it
relates to detention or other physical constraints.19 Sieghart,20 notes that although "...all the
instruments protect these two rights jointly in virtually identical terms, they
have been interpreted
as being separate and independent rights", and that
the European Commission of Human Rights and The European Court of Human
Rights
have found that what is protected is "physical liberty" and
"physical security". There is
nothing to suggest that the
primary purpose of section 11(1) of our Constitution is different. It
finds its place alongside
prohibitions of "detention without trial",
and of "torture" and "cruel, inhuman or degrading treatment or
punishment" - all matters concerned primarily with physical
integrity. This does not mean that we must construe section
11(1) as
dealing only with physical integrity. Whether "freedom"
has a broader meaning in section 11(1), and
if so, how broad it should be, does
not depend on the construction of the section in isolation but on its
construction in the context
of Chapter 3 of the Constitution.
[171]
Chapter 3 is an extensive charter of
freedoms. It guarantees and gives protection in specific terms to
equality, life,
human dignity, privacy, religion, belief, opinion
(including academic freedom in institutes of higher learning), freedom of
expression, freedom of assembly, freedom of demonstration and petition, freedom
of association, freedom of movement, freedom of residence,
freedom to enter,
remain in and leave the Republic of South Africa, political rights, access to
court, access to information, and
administrative justice. Chapter 3 also
provides guarantees and protection in respect of fair arrest, detention and
trial procedures,
economic activity, labour relations, property, the
environment, language and culture, education and the rights of children.
[172]
This Court has adopted a purposive
interpretation of the Constitution,21 and as Ackermann J points out, it has
also held that section 11:
must not be construed in
isolation, but in its context, which includes the history and background to the
adoption of the Constitution,
other provisions of the Constitution itself and,
in particular, the provisions of Chapter 3 of which it is part. It must
also
be construed in a way which secures for "individuals the full
measure" of its protection.22
These considerations must be borne in
mind in construing section 11(1). I agree with Ackermann J that the
mechanical application
of the expressio unius principle is not
appropriate to an interpretation of Chapter 3. This does not mean,
however, that the structure of Chapter
3, the detailed formulation of the
different rights, and the language of section 11 can be ignored.23
[173]
Chapter 3 of the Constitution
enumerates the wide range of fundamental freedoms to which I have
referred. All are subject to
section 33, the limitations clause. The
criteria according to which Chapter 3 rights may be limited are referred to in
paragraph
125 of Ackermann J's judgment. Some grounds are common to all
rights, but a distinction is drawn between those rights in respect
of which a
limitation must also be shown to be "reasonable" and those which
require the limitation to be both "reasonable"
and
"necessary". The differentiation pointedly made in section 33 of the
Constitution between different categories of freedom
has a bearing on the
meaning to be given to section 11(1). Limitations of section 11(1) are
subject to the "necessary"
test, which is an indication that the
section is concerned with a freedom of a "higher order" than those enumerated
freedoms
which are not subjected to such an onerous test. A
guarantee of the physical integrity of all persons is a freedom of
the highest
order which calls for the more onerous test of limitation. I am not
persuaded, however, that this could be said
of section 11(1) generally if it is
given as wide a meaning as Ackermann J gives it in paragraph 54 of his
judgment.
I have found nothing in the legislative history to suggest that
the framers of the Constitution intended section 11(1) to have such
a meaning;
nor do I consider it necessary, as Ackerman J has suggested that it may be, to
adopt such a construction in order to give
substance to the right to human
dignity. In the context of the multiplicity of rights with which it is
associated in Chapter
3, human dignity can and will flourish without such an
extensive interpretation being given to section 11(1).
[174]
It would in my view be highly
anomalous to give to unenumerated rights forming a "residue" in
section 11(1) a higher status,
subject to closer scrutiny, than a right so
important to freedom as privacy, which is subject only to the "reasonable'
test.
If there are residual freedom rights within section 11(1), that
residue should be confined to freedoms which, though not enumerated
elsewhere
in Chapter 3, are entitled to be characterised as fundamental freedoms and thus
properly claimable under section 11(1).
If freedom were to be given the
wide meaning suggested by Ackermann J.24 all regulatory laws, which are a
feature of any modern society, would have to be justified as being necessary.
In my view this is not what is contemplated by the provisions of section 11(1),
nor is it a conclusion to which we need be
driven. It would require courts to
sit in judgment on what are essentially political decisions, and in doing so to
require the legislature
to justify such decisions as being necessary.
This is not something that is required either by the words or the context of
the section. If the intention had been to vest the
control of freedom in that
sense in the courts, I would have expected this to have been clearly stated and
not left to be inferred
from an extensive interpretation of the section.
[175]
Reference is made in the judgment of Ackermann
J to the manner in which the courts have construed the Constitutions of the
United
States of America, Canada and Germany. It is important to
appreciate - as Ackermann J is at pains to point out - that these
Constitutions
are formulated in different terms, and the rights protected under them are not
dealt with in the same way as the rights
protected in Chapter 3 of our
Constitution are.
[176]
In the United States of America the
courts have given a wide meaning to the provisions of the Fifth and Fourteenth
amendments which
contain prohibitions against the deprivation of "life or
personal liberty or property without due process of law".
The
jurisprudence on the Fourteenth amendment has been of particular importance in
this regard; it has also been extremely contentious.
The Fourteenth
Amendment is the means through which the courts have extended the Bill of
Rights to provide protection against State
action. In doing so they have
held explicitly that "...that term [liberty] is not confined to mere
freedom from bodily
restraint...".25 The United States Constitution,
however, contains none of the detail found in Chapter 3 of our
Constitution. The Fourteenth
amendment is the only provision of the
Constitution that protects individuals against the legislative power of
the States.
This protection has had to be spelt out of the terse
injunction of section 1 of the Fourteenth amendment that: "No State
shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall
any State deprive any person
of life, liberty, or property without due process of law; nor deny to any
person within its jurisdiction
the equal protection of the laws."
[177]
The Fourteenth Amendment guarantees of
"privileges" and "immunities" of " life, liberty, or
property"
and the "equal protection of the laws" have been the
basis of the jurisprudence of freedom in the United States.
They are the
source of unenumerated rights of personal freedom which have been identified
and enforced by the courts in judgments,
some of which have been the subject of
great controversy.
[178]
The jurisprudence of the United States
is influenced by the fact that the Constitution is 200 years old. To give
effect to the
aspiration set out in the preamble to the Constitution to
"secure the Blessings of Liberty to ourselves and to our Posterity"
the courts have construed the notion of liberty in the Fifth and Fourteenth amendments
in the light of the needs of a changing society.
They have given a
broad meaning to "liberty" to enable them to do so. At the same
time they have adopted different
levels of scrutiny as a means of addressing
institutional conflict which might otherwise have existed between the courts
and the
Federal and State legislatures. In some instances, particularly
in the field of economic regulation, all that is required is
that there should
be a rational basis for the legislation that infringes the right.
At the other extreme, infringements
of certain unenumerated rights such as
privacy - characterised as fundamental - are subjected to strict
scrutiny, whilst in
between, infringements of other rights are subjected to
"intermediate" scrutiny.
[179]
The passages from the judgment of
Wilson J in the Canadian Supreme Court referred to by Ackermann J in para
76 of his judgment,
describe the situation confronting a witness at an enquiry
such as that conducted under section 417(2)(b) and characterise it as
being one
touching "upon the physical integrity of the individual as well as the
individual's reasonable expectation of privacy."
The decision
in this case cannot be relied upon for the proposition that freedom should be
"defined as widely as possible"
and as far as I am aware the Canadian
Supreme Court has not suggested that this is how liberty should be construed in
section 7 of
the Charter.26 Wilson J, a vigorous upholder of
liberty, found it necessary to say in the Thomson case that
"liberty" and "personal security" as used in section 7 of
the Canadian Charter must "[c]learly
be subject to some limits; otherwise
any tenuous restriction placed on an individual would constitute a violation of
liberty and
security of the person."27 She declined, however, to attempt
to determine those limits. It is also important to bear in mind that the
guarantee
of "liberty" and "security of the person " in
section 7 of the Canadian Charter is subject to the qualification
that it may
be encroached upon in accordance with the principles of fundamental
justice". Liberty is implicated by laws
which impose imprisonment as
a penalty for their non-observance, but under Canadian law a person objecting
to the constitutionality
of the law on these grounds has the onus of showing
that it is not in accordance with the fundamental principle of justice Reference
Re Criminal Code,28 and to discharge this onus it must be
established that the legislative scheme is so unfair as to violate that
principle Reference Re Criminal Code.29 Even if this is done it is still
open to the prosecution to justify the law under section 1 of the Charter.30 Section 7 of the Charter is
therefore both in substance and form materially different to section 11(1) of
our Constitution.
[180]
Liberty is dealt with in article 2 of
the German Constitution The wording of this article is also different to
the wording of
section 11 of our Constitution. The provision
closest to section 11(1) is article 2(2) which provides:
Everyone shall have the right to
life and to the inviolability of his person. The liberty of the
individual shall be inviolable.
These rights may be encroached upon
pursuant to law.31
As Ackermann J points out in paragraph
83 of his judgment "liberty" in the context of article 2(2) is
construed as referring
to freedom from physical constraint. The fact that
it is found alongside a provision which explicitly lays down that
"everyone
shall have the right to the free development of his
personality" which in turn has been construed by the German Federal Constitutional
Court as protection of a general freedom to act,32 is no reason for us to give that
meaning to "freedom" in section 11(1) of our
Constitution. Currie indicates
that the extensive interpretation of
the right to free development of the personality by the German Federal
Constitutional Court
was influenced by the legislative history of the
provision.33
He also points out that in Elfe's case,34 referred to in paragraph 86 of
Ackermann J's judgment, the court held that the general right to freedom of
action is limited “...both
by the Basic Law itself and ‘by every legal norm
that conforms procedurally and substantively with the Constitution.’"35 That apparently requires laws to
conform with "the principles of the rule of law and the social welfare
state."36 Implicit in the social
welfare state is the acceptance of regulation and redistribution in the public
interest.
If in the context of our Constitution freedom is given the wide
meaning that Ackermann J suggest it should have, the result might
be to impede
such policies. Whether or not there should be regulation and redistribution
is essentially a political question
which falls within the domain of the
legislature and not the court. It is not for the courts to approve or
disapprove
of such policies. What the courts must ensure is that the
implementation of any political decision to undertake such policies
conforms
with the Constitution. It should not, however, require the legislature to
show that they are necessary if the Constitution
does not specifically require
that this be done.
[181]
In terms of our Constitution we are
enjoined to protect the freedom guaranteed by section 11(1) against all
governmental action that
cannot be justified as being necessary. If
we define freedom in the context of section 11(1) in sweeping terms we will
be
called upon to scrutinise every infringement of freedom in this broad sense as
being "necessary". We cannot
regulate this power by
mechanisms of different levels of scrutiny as the courts of the United States
do, nor can we control it through
the application of the principle that freedom
is subject to laws that are consistent with the principles of "fundamental
justice",
as the Canadian courts do.
[182]
We should be careful to avoid
the pitfall of Lochner v New York37 which has been described by Professor
Tribe in his seminal work on American Constitutional Law, as being "not in
judicial intervention
to protect "liberty" but in a misguided
understanding of what liberty actually required in the industrial age."38 The Lochner era gave rise
to serious questions about judicial review and the relationship between the
court and the legislature, and as Professor
Tribe points out, the collapse of Lochner
gave "credence to the notion that the legislative process should be
completely wilful and self-controlled, with absolutely
no judicial interference
except where constitutional provisions much more explicit than due process were
in jeopardy".39
[183]
The protection of fundamental freedoms
is pre-eminently a function of the court. We should not, however,
construe section 11
so broadly that we overshoot the mark and trespass upon
terrain that is not rightly ours. In a famous dissent in Lochner's
case, Holmes J said:
I think that the word liberty in
the Fourteenth Amendment is perverted when it is held to prevent the natural
outcome of a dominant
opinion, unless it can be said that a rational and fair
man necessarily would admit that the statute proposed would infringe
fundamental
principles as they have been understood by the traditions of our
people and our law.40
The fundamental principles to which we
must look for guidance in this regard are those laid down by our Constitution.
They are
the principles of an open and democratic society based on freedom and
equality. In a democratic society the role of the legislature
as a body
reflecting the dominant opinion should be acknowledged. It is important
that we bear in mind that there are functions
that are properly the concern of
the courts and others that are properly the concern of the legislature.
At times these functions
may overlap. But the terrains are in the main
separate, and should be kept separate.
[184]
This does not mean that we must
necessarily confine the application of section 11(1) to the protection of
physical integrity.
Freedom involves much more than that, and we
should not hesitate to say so if the occasion demands it. But, because of
the
detailed provisions of Chapter 3, such occasions are likely to be
rare. If despite the detailed provisions of Chapter 3 a freedom
of a
fundamental nature which calls for protection is identified, and if it cannot
find adequate protection under any of the other
provisions in Chapter 3, there
may be a reason to look to section 11(1) to protect such a right. But to
secure such protection,
the otherwise unprotected freedom should at least be
fundamental and of a character appropriate to the strict scrutiny to which all
limitations of section 11 are subjected.
[185]
Against this background I can see no
objection to accepting provisionally that section 11(1) is not confined to the
protection of
physical integrity and that in a proper case it may be relied
upon to support a fundamental freedom that is not otherwise protected
adequately under Chapter 3. This, however, is not such a case. The
reason why the Canadian Courts have dealt with this
issue under section 7 of
the Charter is that the requirement of “fundamental justice” which is part of
that section has been
construed as “...obviously requir[ing] that a person
accused of a crime receive a fair trial.”41 Section 11(1) of our Constitution
contains no comparable provision. In the context of our Constitution, and
having regard
to the specific wording of the section itself, and the fact that
the right to a fair trial is dealt with specifically and in detail
under
section 25(3), I cannot read section 11(1) as including a residual fair trial
right.
In paragraph 3 of this judgment I
indicated that “a challenge to the constitutionality of section 417(2)(b)
should...be characterised
and dealt with as a challenge founded on the right to
a fair criminal trial.” It is precisely because section 417(2)(b) is
inconsistent with this right that its validity can be impugned. As long
as incriminating evidence is not admissible at the
criminal trial and the use
of “derivative evidence” at such trial is made dependant on such use being subject
to “fair criminal
trial” standards, the rule against self incrimination is
adequately protected. If this is so, the first of the two requirements
which would have to be established in order to invoke section 11(1) to protect
a residual right of freedom, i.e., that the right
is not otherwise protected
adequately by Chapter 3, has not been met, and it is not necessary to consider
the second requirement,
i.e., whether the “residual right” claimed is of a
character appropriate for protection under section 11(1).
[186]
Ackermann J has demonstrated that the
rule against being compelled to answer incriminating questions is inherent in
the right to a
fair trial guaranteed by section 25(3).42 Because he held that the
Applicants could not rely on section 25(3) he analysed the issues in the
present case in terms of
section 11(1). The reasoning that led him to
conclude that section 417(2)(b) is inconsistent with section 11(1) would also
have led him to conclude that it is inconsistent with section 25(3). It seems
to me to be clear that this is so. To some extent
his reasons are shaped
by the fact that the issue is treated as one implicating freedom and not the
right to a fair trial.
In substance, however, they can be applied to a
section 25(3) analysis and I have nothing to add to them, nor to his reasons
for
the conclusion that the issue of derivative evidence is one that ought
properly to be decided by a trial court. I agree, therefore,
with the
order proposed by him.
Mahomed DP, Didcott J, Langa J, Madala J and
Trengove AJ concur in the judgment of Chaskalson P.
[187]
KRIEGLER J:
Regretfully I cannot agree with the
conclusions of any one of my four colleagues (Chaskalson P and Ackermann,
O'Regan and Sachs JJ)
whose draft judgments I have had the privilege of
considering. Notwithstanding the erudition and persuasive force of their
two distinct lines of reasoning, I cannot subscribe to their joint
conclusion. I also dissent from the order they unanimously
propose.
[188]
In essence Ackermann and Sachs JJ
conclude that the applicants do not have standing to seek relief under the fair
trial protection
of the Constitution,1 against a provision in the Companies
Act2
relating to the admissibility of evidence.3 They do not non-suit the
applicants, however, holding that they qualify for assistance under section
11(1) of the Constitution,
which guards personal liberty. Chaskalson P
and O'Regan J do not see the applicants' complaint as falling under section
11(1)
of the Constitution. They nevertheless agree that the applicants
are entitled to an order invalidating the qualification in
section 417(2)(b) of
the Companies Act on the basis of its irredeemable conflict with rights
protected in the Constitution.
They analyse the standing provisions of
the Constitution4
and hold that witnesses at a section 417 enquiry have locus standi to
raise the alleged unconstitutionality of the qualification under the fair trial
rubric.
[189]
I both agree and disagree with those
views - up to point. I agree with Ackermann and Sachs JJ that witnesses
at a section 417
enquiry cannot be brought within the ambit of the fair trial
procedures of section 25(3). At the same time however I agree
with
Chaskalson P and O'Regan J that section 11(1) is inapposite in these cases.
[190]
In my view, therefore, no invalidation
of section 417(2)(b) of the Companies Act, or any part of that subsection, is
warranted in
either of these cases. This Court is neither called upon nor
empowered to consider the constitutionality of section 417(2)(b)
now. And
if and when that issue does arise, I would urge a much closer consideration of
its possible saving under section 33(1)
of the Constitution than that conducted
by my colleagues in the present cases. In particular I would require to
be persuaded
that the differences between South Africa on the one hand, and the
foreign jurisdictions used as lodestars, on the other, are not
so great that a
local departure is not warranted. That will entail, inter alia, a
comparison of the safeguards against corporate fraud in the countries concerned
and the relative competence of the supervisory,
investigatory and prosecuting
authorities in the particular countries compared with what is available in this
country. I would
also want to be persuaded that it is apt to equate the
admissibility provisions of the Insolvency Act5 with those under scrutiny here.
That debate would embrace the question whether the materially greater scope of
activities conducted
under the shield of corporate anonymity and limited
liability does not justify a distinction. Because of my view that a
cost/benefit
analysis of that kind can not arise in the present circumstances,
no more need be said on the topic.
[191]
My line of thinking is relatively
straightforward and I hope to make it plain in a few pages. That is
possible, primarily because
the issues have been so crisply identified by
Ackermann J.
[192]
The cases do not belong here, neither
as referrals under section 102(1) of the Constitution, nor as instances of
direct access under
section 100, read with Constitutional Court Rule 17.
Ackermann J's discussion of section 102(1)6 omits any reference to the proviso to
the subsection, namely:
Provided
that, if it is necessary for evidence to be heard for the purposes of deciding
such issue, the provincial or local division
concerned shall hear such evidence
and make a finding thereon, before referring the matter to the Constitutional
Court.
The words are quite unequivocal - cases
dependent upon particular evidence cannot be referred to this Court unless and
until such
evidence has been heard and a finding thereon has been made.
[193]
Therefore, although I am in respectful
agreement with the view of Ackermann J,7 concurred in by Chaskalson P and
O'Regan and Sachs JJ, that the dismissal of the applications in the Court a
quo rendered referrals under section 102(1) legally incompetent, there was,
however, in my view, an even more fundamental ground for
this Court rejecting
them. As I will try to show, the question whether any constitutionally
protected right of the applicants
had been infringed (or could be said to have
been threatened) merely by a subpoena to attend an inquiry in terms of
section 417 of the Companies Act for the purposes of interrogation concerning
the trade, dealing,
affairs or property of the company,8 cannot conceivably be answered on any
tenable allegation that could be made at this stage by the applicants in the
instant cases.
[194]
In terms of the proviso to section
102(1) that would be an insurmountable obstacle to a referral of the kind - and
at the time - in
issue here. One simply cannot be heard to say: "I
do not know what they want to ask me; I do not know what my answers
will be;
because of my guilty knowledge, however, I am afraid that such answers may turn
out to evidence some offence on my part;
I do not know whether it is so, but I
may be prosecuted for such offence; I do not know whether such evidence will be
used against
me by the prosecution; nor do I know what its cogency will be; I
do not know whether the trial court will uphold or reject an objection
on my
behalf to such evidence; I do not know what the weight of the other evidence
will be; I do not know if I will be convicted.
But this I do know - I may
be convicted on the strength of what I am obliged to disclose at an enquiry
instituted at the instance
of the Supreme Court or the Master concerning an
insolvent company's affairs. Therefore, please declare, at this juncture
already,
that I need not answer questions that may reveal my deeds."9
[195]
But the substantive point to be made
is not directed at the formal obstacle constituted by the proviso to section
102(1). The
crucial point is that no witness subpoenaed to testify at a
section 417 enquiry can at that stage possibly formulate allegations
essential for relief based on fair trial provisions. And if the witness
cannot bring the
case within those provisions, I see nothing in the
Constitution that avails. There simply is no general prohibition against
self-incrimination to be found anywhere in the Constitution, nothing express
and nothing implicit. It is only if and when the
production of evidence
obtained pursuant to a section 417 enquiry jeopardizes the fairness of the
trial that the Constitution can
be invoked.
[196]
I do not wish to be
misunderstood. I am not distinguishing between evidence of what the
accused said qua section 417 witness (i.e. direct evidence) and evidence
based on such disclosures (i.e. derivative evidence). That is a thicket
that we may have to penetrate at some stage; but not now. Nor am I
referring to any possible proceeding against the witness
for non-compliance
with the duty to testify at the section 417 enquiry. It is the production
at a subsequent criminal trial
of evidence (directly or derivatively) elicited
at such an enquiry that may render the trial unfair, and then a breach of the
provisions
of Chapter 3 of the Constitution may arise. It is only then
that a court would have to decide whether the unfairness of producing
the
involuntarily extracted evidence in question can be saved under section
33(1). It will be a value judgment based on all
the data then
available. Previously an accused had no general right to demand a fair
trial. Now such a right exists under
section 25(3) and may be invoked
where section 417(2)(b) works an injustice.
[197]
I am also satisfied that a prayer for
direct access under section 100(2) of the Constitution and Rule 17, founded on
such allegations
as the applicants can possibly make, should receive short
shrift from this Court. The subsection postulates that such access
must
be "in the interest of justice" and the Rule explains that an
applicant must ordinarily establish exceptional circumstances
prejudicing the
ends of justice and good government. I cannot accept that the case of an
applicant who, on his own showing,
has done things for which he fears
prosecution if the truth be revealed, can ordinarily be brought within those
strict criteria.
[198]
I wish to emphasize that I am saying
nothing about the propriety of using involuntarily elicited evidence to
convict the person from whom it was obtained. That aspect does not arise
here. All
we are discussing now is whether, at the stage when the
evidence is being elicited, the witness can be heard to complain about its
possible use later. If the applicants were accused persons against whom
the prosecution had adduced or had indicated that it
intended adducing such
evidence, other considerations would be in issue. Those issues do not
arise here. The current
discussion focuses exclusively on the right of
audience of a probable criminal at the stage of the enquiry contemplated by
section
417(2)(b) of the Companies Act.
[199]
The essential flaw in the applicants'
cases is one of timing or, as the Americans and, occasionally, the Canadians
call it, "ripeness".
That term has a particular connotation in
the constitutional jurisprudence of those countries which need not be analysed
now.
Suffice it to say that the doctrine of ripeness serves the useful
purpose of highlighting that the business of a court is generally
retrospective; it deals with situations or problems that have already ripened
or crystallized, and not with prospective or hypothetical
ones.10 Although, as Professor Sharpe
points out11
and our Constitution acknowledges,12 the criteria for hearing a
constitutional case are more generous than for ordinary suits, even cases for
relief on constitutional
grounds are not decided in the air. And the
present cases seem to me, as I have tried to show in the parody above, to be
pre-eminent
examples of speculative cases. The time of this Court is too
valuable to be frittered away on hypothetical fears of corporate
skeletons
being discovered.
[200]
The challenge to the relevant
provision of section 417(2)(b) of the Companies Act arises from the conflict it
engenders between two
interests. On the one hand society at large has a
material interest in ascertaining as fully and reliably as possible why a
defunct company went under. A company is not a live human being from whom
one can enquire what went wrong in the business,
or where its books of account,
records and assets are. It is a legal fiction. Over time human
ingenuity devised and developed
the limited liability company as a vehicle for
amassing venture capital, while limiting the risk involved. It worked
wonderfully
and served as the blueprint for the growth of commerce and industry
around the world.
[201]
But there were risks, one of which was
that the size and anonymity of corporations rendered it more difficult to
conduct post-mortems
when they collapsed. Obviously those characteristics
could also serve as a shield for dishonesty. Consequently special
safeguards were evolved to protect the interests of outsiders (i.e. creditors
and ordinary investors) against those involved in the
running of a
company. Section 417 of the Companies Act is an example. Without a
mechanism of this kind the danger to
creditors would be materially increased,
their protection attenuated.
[202]
The other interest involved lies at a
more atavistic level. In open and democratic societies based on freedom
and equality,13 it is regarded as impermissible for the
state to use incriminating evidence extorted from an accused person in order to
procure his
or her conviction. This so-called privilege against
self-incrimination has proved a powerful bulwark against governmental excesses,
as Ackermann J so lucidly illustrates in his extensive and instructive survey
of comparable foreign jurisprudence.14 The survey demonstrates that
different societies have at different times devised a variety of subsidiary
rules to ensure that
the prosecution must make out its case without any claim
to assistance by an accused person.
[203]
To that end South African common law
honours the principle that one should not be compelled to produce evidence
against oneself.15 Conformably rules of evidence and
of criminal procedure were evolved to give practical effect to the
principle. Those
rules and the various statutory endorsements thereof
fall outside the scope of this discussion. We are not being asked to
intervene
because any rule of the common law or of statute law is being, or is
about to be, breached to the irreparable detriment of the applicants.
Had
that been the prayer before us, we would have been obliged to dismiss it for
lack of jurisdiction, because that is not a constitutional
issue. What we
are concerned with here is an invocation of, specifically, the
Constitution. Chapter 3 thereof, as Chaskalson
P points out,16 is an extensive and detailed charter of
freedoms. Yet nowhere is there any mention of a general - or independent
- right against
self-incrimination. What one does find, is the right
referred to in section 25(3)(c) and (d), i.e. as a subsidiary part of
the right
to a fair trial, to maintain silence and not to be a compellable witness
against oneself. Those provisions, on the
clear wording and self-evident
context thereof, relate to the proceedings during a criminal trial - and to
nothing else. To
my mind it is not possible to read those provisions as
embodying the general privilege against self-incrimination. Nor can
I
read them as referring to any process so far removed from, and antecedent to, a
trial as an enquiry under section 417 of the Companies
Act.
[204]
Indeed, where the Constitution wants
to refer to proceedings related to but preceding a criminal trial, it does so
quite explicitly
and clearly in section 25(2). In that subsection,
dealing with arrested persons, paragraph (a) lays down that one is to be
warned
of the right to silence. That right of course is one of the main
supporting struts of the privilege against self-incrimination.
[205]
I do not believe that these cases can
be entertained on any reading of section 7(4) of the Constitution.
However widely one
may read the provisions of that subsection, and I agree that
they should be read generously and purposively, they cannot extend to
persons
in the position of the applicants. Paragraph (a) of section 7(4) speaks
of both an alleged infringement of a right
and a "threat to any
right." That is not surprising. The concept of an anticipated
invasion of rights is well
known in our law and forms the cornerstone of our
system of interdictory relief. But a threat to a right, or a tenable
allegation
of such a threat, does not include and can never include someone as
remote from a possible consequence as the applicants are removed
from the use
of their involuntary evidence against them here. Put differently, it is
only when there is an actual criminal
trial at which evidence, tainted by
compulsion under section 417, and harmful to the accused and quondam
witness is produced (or at least sought to be produced) that any threat
arises. That is a threat to the right of the accused
to be tried fairly.
[206]
In the circumstances it is of no
consequence to seek to slot the applicants into one or other of the categories
of standing enumerated
in subparagraph (i) to (v) of subsection 7(4)(b).
At present they cannot be fitted into any of those categories. If it
should transpire that the one or other of them is confronted at a criminal
trial with evidence he or she had to give at a section
417 enquiry, that might
be the time to consider a resort to section 25(3)(c) or (d) of the
Constitution. Unless and until that
comes to pass this Court should adopt
the attitude that their case is not ripe.
[207]
I would therefore dismiss both
applications.
[208]
MOKGORO J.
I have had the opportunity of reading
the judgments of Chaskalson P. And Ackermann J. I agree with
Ackermann J. that section
417(2)(b) is unconstitutional and the order that he
proposes. I however, agree with Chaskalson P. that the Applicants do have
standing
to secure a ruling on the validity of section 417(2) (b) of the said
Act. I therefore concur in his judgment for the reasons that
he gives. Although
I am in agreement with him regarding the meaning of “freedom” in section 11(1)
of the Constitution,
this brief concurring note reflects the difference I
have with him regarding his interpretation of “freedom” in section 11(1)
of the
Constitution.
[209]
Section 11(1) is entitled
“Freedom and security of the person”. Textually, this section, in my
view, protects the
two related rights of “freedom of the person”
and “security of the person”, as opposed to “freedom” on the one
hand and
“security of the person” on the other. The conjunctive “and” in this section
serves to connect
“freedom” to “of the person”. Once
“freedom” in section 11(1) is textually separated from “security of the
person”,
we run the risk of giving it a construction of an all-embracing
“right to freedom”, which it certainly is not. Attributing
so broad
a meaning to “freedom” in this section, has the effect of extending it
too far beyond the perimeters of physical
integrity. That “freedom” in
section 11(1) means freedom in the sense of physical integrity emerges
from the plain
meaning of the text and not from the narrowing of an
all-embracing freedom right. This, however, does not mean that section 11(1)
cannot be given a broad meaning sufficient to provide protection to an
unenumerated right akin to freedom of the person, within the
context of the
rest of Chapter 3.
[210]
Section 11(1) provides for the
“right to freedom and security of the person” and section 11(2)
protects persons
against “torture” and “cruel, inhuman and degrading treatment
and punishment”. Therefore, viewed within the context
of the whole
of section 11, “freedom” in section 11(1) undoubtedly points toward physical
integrity and not a broad, all-embracing
right to freedom. This
perspective is confirmed in various international human rights instruments, as
has already been pointed out
by Chaskalson P. in his judgment.1
[211]
For the aforesaid reasons, I have no
doubt in my mind that section 11(1) is not a resort for unenumerated residual
freedom rights,
which do not find adequate protection under any other provision
of Chapter 3 of the Constitution.
[212]
Chapter 3 makes detailed provision for
the protection of a variety of enumerated freedom rights2 . As the President of this Court
so correctly points out, there is therefore a rare likelihood that we may
find occasion
to protect an unenumerated freedom which calls for protection.3
While it is his view that we may have to look to section 11(1) to protect
such rights, I respectfully do
not share this view with
him. As pointed out earlier4, section 11(1) does not provide
protection for unenumerated freedom rights. If occasion for the
protection of such
an unenumerated right arises, that right may
have to be classified under a Chapter 3 right to which it is most akin and
or
give that Chapter 3 right a generous and full benefit construction to embrace
that unenumerated right.
[213]
The generous, full benefit and
purposive approach to constitutional interpretation has already been adopted in
previous decisions
of this Court (S v Zuma 1995(4) BCLR 410 (CC), para.
15; S v Makwanyane 1995 (6) BCLR 655 (CC), para 9; and S v Mhlungu 1995(7) BCLR
793 (CC), para. 8). Although section 11(1) should also be generously
construed,
there would be no need to give it such a strained construction5
to accommodate an outcome which we may nevertheless reach by
invoking a generous, full-benefit and purposive construction
of one
or other enumerated right in Chapter 3. In this way, the limitations
tests in section 33 would apply appropriately,
without any undue
elevation or downgrading of an enumerated freedom right vis a vis any
unenumerated freedom right, in Chapter 3 of the Constitution.
[214]
O'REGAN J:
I have had the opportunity of reading
the judgments of Chaskalson P, Ackermann J and Sachs J. I concur in
the order proposed
by Ackermann J for the reasons given in this judgment.
[215]
The following five issues were
referred to this court by the Transvaal Provincial Division of the
Supreme Court in terms of
section 102(1) of the Republic of South Africa
Constitution Act, 200 of 1993 (' the Constitution'):
1. Whether section 417(2)(b) of the
Companies Act, 61 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 enquiry ;
3.2 all documents in the
possession of the liquidator or those prosecuting the enquiry relevant to the
interrogation of such
person.
4. 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.
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.
[216]
As Ackermann J has stated (at para 6),
section 102(1) contemplates only the referral of issues which fall within this
court's exclusive
jurisdiction. Of the five issues referred, only the
first falls within that exclusive jurisdiction and the referral of the
four
other issues was therefore not competent in terms of section 102(1). At the
hearing of this case, Mr Levin, for the applicants,
requested that direct
access be granted in respect of those four issues. The propriety of the
referral of the first issue was not
questioned at the hearing and no direct
access application was made in that regard. However I agree with Ackermann J
that the referral
was also incompetent in relation to that issue (at paragraphs
5 - 10 of his judgment). Because the application had been disposed
of by the
provincial division, the constitutionality of section 417(2)(b) of the
Companies Act, 61 of 1973 ('the Act') could not
be decisive of any matter
before that court and could not be referred to this court in terms of section
102(1) of the Constitution.
[217]
In terms of section 100(2) of the
Constitution, it is provided that:
'The rules of the Constitutional Court
may make provision for direct access to the Court where it is in the interest
of justice to
do so in respect of any matter over which it has jurisdiction.'
Rule 17 of the Rules of the
Constitutional Court provide that:
'(1) The Court shall allow direct
access in terms of section 100(2) of the Constitution in exceptional
circumstances only, which will
ordinarily exist only where the matter is of
such urgency, or otherwise of such public importance, that the delay
necessitated by
the use of the ordinary procedures would prejudice the public
interest or prejudice the ends of justice and good government.'
[218] In S v Zuma [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4)
BCLR 401 (CC), the question of the constitutionality of section 217(1)(b)(ii)
of the Criminal Procedure Act, 51 of 1977, was referred to this court by the
Natal Provincial Division of the Supreme Court. It became clear at the hearing
of the matter that
the referral was incompetent and accordingly, the
Attorney-General made application for direct access to the court in terms of
Rule 17. In his judgment, Kentridge AJ, speaking for the court
held:
'The Attorney-General of Natal submits
in his supporting affidavit that if the matter is sent back to the trial court
without our
deciding the issue it would have to be referred again to this Court
at the end of the trial. More importantly, he informs us that
prevailing
uncertainty as to the constitutionality of section 217(1)(b)(ii) has resulted
in inconsistency in practice in Natal and elsewhere in the Republic. That
uncertainty would remain unresolved until
a suitable case came properly before
this Court. We agree with the Attorney-General of Natal and with Mr d'Oliveira
SC, the Attorney-General
of the Transvaal, who appeared for the State, that
this state of affairs must seriously prejudice the general administration of
justice
as well as the interests of the numerous accused persons affected. The
admissibility of confessions is a question which arises daily
in our criminal
courts and prolonged uncertainty would be quite unacceptable. As appears from
the terms of Rule 17, direct access is contemplated in only the most
exceptional cases, and it is certainly not intended to be used to legitimate an
incompetent
reference. But in the special circumstances set out in the
affidavit the application under Rule 17 was fully justified.' (At para 11.)
The application for direct access was
granted. Similarly, in Executive Council of the Western Cape Legislature and
others v The President of the Republic of South Africa CCT 27/1995, an
unreported judgment of the Constitutional Court handed down on 22 September
1995, direct access was granted
to the Applicants to challenge the
validity of certain proclamations relevant to impending local government
elections. In the light
of the imminence of those elections, Chaskalson P held
that 'urgent and direct access to this Court is warranted' (at para 17).
[219]
I agree with Ackermann J that, had the
propriety of the referral on the first issue been disputed at the hearing, Mr
Levin would have
made application for direct access in terms of Rule 17 in
regard to that issue as well. Subsequently, in response to a written enquiry by
this court, all the parties in this case have
indicated that they have no
objection to the grant of an application for direct access in relation to the
first issue, should
the referral of that issue be held to be incompetent.
[220]
There are two considerations relevant
to the grant of direct access: exceptional circumstances must be shown as
contemplated
by the terms of rule 17; and the applicant must demonstrate
that he or she has standing to seek the relevant relief from this court. There
are overlapping
considerations relevant to these enquiries, but it appears to
me that reliance on rule 17 will not relieve an applicant of the need to
establish standing sufficient to seek the relief sought and that, therefore,
standing
and the requirements of rule 17 must both be considered. The relief
sought in this case is a declaration of the invalidity of section 417(2)(b) of
the Act on the
grounds 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.'
[221]
The uncertainty caused by doubts
concerning the constitutionality of section 417 must seriously hamper the
procedures in terms of
that section, which in turn will materially disrupt the
administration of insolvent companies. In many cases, inquiries will have
been
suspended pending a determination by this court and creditors and other
interested parties will be awaiting anxiously a determination
on the constitutionality
of the section, so that proceedings may be finalised. Prolonging this
situation is highly undesirable.
It is clearly in the public interest
that certainty be reached. Often this court will be reluctant to grant direct
access in cases
where the referral is shown to be incompetent. However, in this
case, the uncertainty that surrounds section 417 procedures, and
the need to
clarify the constitutional status of section 417(2)(b) in particular, are
sufficiently cogent grounds for the grant of
direct access.
[222]
The urgent need to obtain clarity on
the constitutionality of a statutory provision was also the reason for the
grant of direct access
in Zuma's case. In the circumstances of the
political transition in South Africa, it is not surprising that a considerable
number of statutory
provisions have come under constitutional challenge and
that this process is leading to uncertainty and dislocation in the broader
community.
The transition that has occurred in South Africa is from a political system not
based on the democratic values of openness,
freedom and equality, to a
constitutional state premised upon them. (See S v Makwanyane [1995] ZACC 3; 1995 (3) SA
391 (CC); 1995 (6) BCLR 665 (CC) at paragraphs 262, 310 and 322.) Legislation
adopted under the old constitutional order was drafted without consideration of
those values and may, accordingly, be in conflict with the provisions of
chapter 3 of the Constitution. Uncertainty surrounding the
constitutionality of
such legislation may cause considerable disruption in our society. As a result,
it may well be that resort to
Rule 17 and direct access applications will be
considerably more common in the early years of our constitutional democracy.
New legislation
will be drafted and adopted by Parliament in full knowledge of
the values upon which the Constitution is based and will be less likely
therefore to require urgent constitutional scrutiny.
[223]
The second question then is whether
these applicants have sufficient standing to seek relief by way of direct
access. The grounds
on which the constitutionality of section 417(2)(b) is
challenged are that it constitutes an infringement of rights enshrined in
chapter 3 of the Constitution. As such, the question of standing is governed by
section 7(4). I respectfully disagree with
Chaskalson P (at para
168) when he states that, because the issue before the court concerns the
constitutionality of an Act
of Parliament, the rules for standing contained in
section 7(4) do not apply in this case. In my view, section 7(4) governs any
constitutional
challenge where the grounds for the challenge arise out of an
infringement or threatened infringement of a right contained
in chapter
3, whether it be a matter which falls within the court's jurisdiction under
section 98(2)(a), 98(2)(b) or 98(2)(c). Constitutional
challenges based on
grounds other than alleged violations of chapter 3 are, on a straightforward
reading of section 7(4), not governed
by its terms. In this case, the
constitutional attack is based on the provisions of chapter 3 and section 7(4)
is accordingly applicable.
[224]
The applicants allege that section
417(2)(b) constitutes a breach of the rights of accused persons, in that it
permits the admission
of evidence in a criminal trial which has been compelled
from those accused persons in a section 417 enquiry. The difficulty the
applicants face is that they have not yet been charged, nor is there any
allegation on the record to suggest that they consider that
there is a threat
that a prosecution may be launched against them, after they have given evidence
at the section 417 enquiry, in
which that evidence will be used against them.
[225]
Section 7(4) of the Constitution
provides that:
'(a) When an infringement of or threat
to any right entrenched in this Chapter is alleged, any person referred to in
paragraph (b)
shall be entitled to apply to a competent court of law for
appropriate relief, which may include a declaration of rights.
(b) The relief referred to in paragraph
(a) may be sought by -
(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.
[226]
Ackermann J (at para 38) finds that
persons acting in their own interest (as contemplated by section 7(4)(b)(i))
may only seek relief
from the court where their rights, and not the rights of
others, are infringed. I respectfully disagree with this approach. It seems
clear to me from the text of section 7(4) that a person may have an interest in
the infringement or threatened infringement of the
right of another which would
afford such a person the standing to seek constitutional relief. In addition,
such an interpretation
fits best contextually with the overall approach adopted
in section 7(4).
[227]
There are many circumstances where it
may be alleged that an individual has an interest in the infringement or
threatened infringement
of the right of another. Several such cases have come
before the Canadian courts. In R v Big M Drug Mart Ltd [1985] 13 CRR
64, a corporation was charged in terms of a statute which
prohibited trading on Sundays. The corporation did not have a
right to
religious freedom, but nevertheless it was permitted to raise the
constitutionality of the statute which was held to be
in breach of the Charter.
A similar issue arose in Morgentaler, Smoling and Scott v R [1988] 31
CRR 1 in which male doctors, prosecuted under anti-abortion provisions,
successfully challenged the constitutionality of the legislation
in terms of
which they were prosecuted. In both of these cases, the prosecution was
based on a provision which itself directly
infringed the rights of people other
than the accused. The Canadian jurisprudence on standing is not directly
comparable to ours,
however, for their constitutional provisions governing
standing are different, but the fact that situations of this nature arise
is
instructive of the need for a broad approach to standing.
[228]
In this case, however, although the
challenge is section 417(2)(b) in its entirety, the constitutional objection
lies in the condition
that evidence given under compulsion in an enquiry,
whether incriminating or not, may be used in a subsequent prosecution.
There is
no allegation on the record of any actual or threatened prosecution in which
such evidence is to be led.
[229]
There can be little doubt that section
7(4) provides for a generous and expanded approach to standing in the
constitutional context.
The categories of persons who are granted standing to
seek relief are far broader than our common law has ever permitted. (See, for
a
discussion, Erasmus Superior Court Practice (1994) A2-17 to
A2-33.) In this respect, I agree with Chaskalson P (at paras 165 - 166). This
expanded approach to standing
is quite appropriate for constitutional
litigation. Existing common law rules of standing have often developed in
the context
of private litigation. As a general rule, private litigation
is concerned with the determination of a dispute between two individuals,
in which relief will be specific and, often, retrospective, in that it applies
to a set of past events. Such litigation will generally
not directly affect
people who are not parties to the litigation. In such cases, the plaintiff is
both the victim of the harm and
the beneficiary of the relief. In litigation of
a public character, however, that nexus is rarely so intimate. The relief
sought
is generally forward-looking and general in its application, so that it
may directly affect a wide range of people. In addition,
the harm alleged may
often be quite diffuse or amorphous. Of course, these categories are ideal
types: no bright line can be drawn
between private litigation and litigation of
a public or constitutional nature. Not all non-constitutional litigation
is private
in nature. Nor can it be said that all constitutional challenges
involve litigation of a purely public character: a challenge to
a particular administrative
act or decision may be of a private rather than a public character. But it is
clear that in litigation
of a public character, different considerations may be
appropriate to determine who should have standing to launch litigation. In
recognition of this, section 7(4) casts a wider net for standing than has
traditionally been cast by the common law.
[230]
Section 7(4) is a recognition too of
the particular role played by the courts in a constitutional democracy.
As the arm of government
which is entrusted primarily with the interpretation
and enforcement of constitutional rights, it carries a particular democratic
responsibility to ensure that those rights are honoured in our society. This
role requires that access to the courts in constitutional
matters should not be
precluded by rules of standing developed in a different constitutional
environment in which a different model
of adjudication predominated. In
particular, it is important that it is not only those with vested interests who
should be afforded
standing in constitutional challenges, where remedies may
have a wide impact.
[231]
However, standing remains a factual
question. In each case, applicants must demonstrate that they have the
necessary interest in an
infringement or threatened infringement of a right.
The facts necessary to establish standing should appear from the record before
the court. As I have said, there is no evidence on the record in this case
which would meet the requirements of section 7(4)(b)(i).
The applicants have
alleged neither a threat of a prosecution in which compelled evidence may be
led against them, nor an interest
in the infringement or threatened
infringement of the rights of other persons. This situation, may have arisen
because the case was
referred by Van Schalkwyk J in terms of section 102(1); it
did not arise originally as an application for direct access. Accordingly,
there are no affidavits before the court in support of a direct access
application. The only document on the record in this
court was the
decision of Van Schalkwyk J.
[232]
In his judgment, Chaskalson P has
noted that, in the appeal from the judgment of Van Schalkwyk J to the Full
Bench of the Transvaal
Provincial Division of the Supreme Court, a majority of
the court found that the applicants had demonstrated on the affidavits before
that court a reasonable apprehension of harm sufficient to warrant the issue of
an interim interdict. These affidavits upon which
those findings were made were
not before this court as part of the record, nor was the judgment of that
court. It may well be that,
if we had called for the record from the court a
quo, it would have been sufficient to establish standing for the
applicants on the basis of section 7(4)(b)(i). In my respectful
view, however,
this court cannot make factual findings required by section 7(4)(a) by relying
on that judgment. In any event,
I do not think it is necessary.
[233]
In the special circumstances of
this case, it appears to me that the applicants may rely upon section
7(4)(b)(v), as applicants
acting in the public interest. The possibility that
applicants may be granted standing on the grounds that they are acting in the
public interest is a new departure in our law. Even the old actiones populares
of Roman Law afforded a right to act in the public interest only in narrowly
circumscribed causes of action. Section 7(4)(b)(v) is
the provision in
which the expansion of the ordinary rules of standing is most obvious and it
needs to be interpreted in the light
of the special role that the courts now
play in our constitutional democracy.
[234]
This court will be circumspect in
affording applicants standing by way of section 7(4)(b)(v) and will require an
applicant to show
that he or she is genuinely acting in the public
interest. Factors relevant to determining whether a person is genuinely
acting
in the public interest will include considerations such as: whether
there is another reasonable and effective manner in which the
challenge can be brought;
the nature of the relief sought, and the extent to which it is of general and
prospective application;
and the range of persons or groups who may be directly
or indirectly affected by any order made by the court and the opportunity
that those persons or groups have had to present evidence and argument to the
court. These factors will need to be considered in
the light of the facts and
circumstances of each case.
[235]
Although in this case too, section
7(4)(a) requires applicants to allege an infringement of or threat to a right
contained in chapter
3, applicants under section 7(4)(b)(v) need
not point to an infringement of or threat to the right of a particular person.
They need to allege that, objectively speaking, the challenged rule or conduct
is in breach of a right enshrined in chapter 3. This
flows from the notion of
acting in the public interest. The public will ordinarily have an interest in
the infringement of rights
generally, not particularly.
[236]
In this case, it is clear from the
referral that the applicants consider that section 417(2)(b) is,
objectively speaking, in
breach of chapter 3. Although the challenge could be
brought by other persons, a considerable delay may result if this court were
to
wait for such a challenge. It is also clear that the challenge is to the
constitutionality of a provision contained in an Act
of Parliament and that the
relief sought is a declaration of invalidity. It is relief which falls
exclusively within the jurisdiction
of this court and it is of a general, not
particular, nature. In addition, adequate notice of the constitutional
challenge has been
given and a wide range of different individuals and
organisations have lodged memoranda and amicus curiae briefs in the matter. At
the hearing also, the matter of the constitutionality of section 417 was
thoroughly argued. There can be little doubt that those
directly interested in
the constitutionality of section 417 have had an opportunity to place their
views before the court.
[237]
In these special circumstances, it
seems to me that the applicants have established standing to act in the public
interest to challenge
the constitutionality of section 417(2)(b). It is also
clear that the exceptional circumstances necessary to warrant a grant of direct
access exist. Accordingly, I agree with Ackermann J that the applicants should
be granted direct access in respect of the first issue
referred to this court
by the Transvaal Provincial Division of the Supreme Court. In my view, however,
the application for direct
access on the other issues referred to this court
should fail. None of these issues fall within the exclusive jurisdiction of
this
court. They are best dealt with by the Supreme Court, as they arise in
litigation before it.
[238]
Once the court has considered and
granted direct access, it must then decide the issue upon which it has granted
direct access. No
further considerations of standing arise. To that extent, I
respectfully disagree with Ackermann J who, after granting direct access
to the
applicants, finds that they have no standing to challenge section 417(2)(b) on
the grounds that it is in breach of section
25 (at paras 34 - 41). He
does of course find that they have standing to challenge the section on
the grounds that it
is in breach of section 11(1).
[239]
It is now necessary to consider
whether section 417(2)(b) of the Act is unconstitutional. Section 417(2)(b)
provides that, where a
person has been summoned to an enquiry in connection
with an investigation into the insolvency of a company,
'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.'
[240]
Section 25(3) of the Constitution
provides that:
'Every accused person shall have the
right to a fair trial, which shall include the right -
...
(d) to adduce and challenge evidence,
and not to be a compellable witness against himself or herself;'
The clear consequence of section
417(2)(b) is that incriminating evidence given in a section 417 enquiry is
admissible in the subsequent
criminal trial of such person. In effect,
that person has been compelled to give evidence against himself or herself. In S
v Zuma, supra, Kentridge AJ noted that the rule that accused persons should
not be compelled to give evidence in a criminal trial is a long-standing
rule
of the common law. He cited R v Camane and Others 1925 AD 570 at 575
where Innes CJ held that:
'Now, it is an established principle of
our law that no one can be compelled to give evidence incriminating himself. He
cannot be
forced to do that either before the trial, or during the trial. The
principle comes to us through the English law, and its roots
go far back in
history.'
[241]
It seems clear to me that the purpose
of section 25(3)(d) is to give this common law principle constitutional force.
Any departure
from it will constitute a breach of section 25(3) which will have
to be justified in terms of section 33. Section 33(1) requires
that any
limitation of a right entrenched in section 25 must be shown to be reasonable,
necessary and justifiable in an open
and democratic society based on freedom
and equality. If the limitation passes this test, it must also be shown not to
be a negation
of the essential content of the right. In S v Makwanyane,
supra, Chaskalson P held that section 33 requires that the purpose
and importance of the infringing rule be measured against the nature
and effect
of the infringement (at para 104).
[242]
There can be little doubt that the
provisions of section 417(2)(b) constitute a grave inroad on an accused
person's right to
a fair trial. As such the infringement caused by the
subsection is a substantial one which would require substantial justification.
[243]
I agree with Ackermann J (at paras 123
- 124) that the primary purpose of section 417 is to assist a liquidator in
identifying the
assets and liabilities of the company in the best interests of
creditors. This task is greatly facilitated by the obligation imposed
upon
persons who have knowledge of the company to answer questions in connection
with the company's affairs. However, it does not
seem central to this purpose
to require that any such answers be admissible in subsequent criminal
proceedings. Even if the legislation
had as a secondary purpose the
facilitation of the prosecution of white collar offenders, I am not persuaded
that this purpose could
not be achieved by less invasive means as outlined by
Ackermann J at para 127.
[244]
It is my view, after weighing these
considerations, that section 417(2)(b) constitutes an unjustifiable breach of
section 25.
In the light of this finding, it is unnecessary for me to
consider whether section 417(2)(b) constitutes a breach of any of the other
rights entrenched in chapter 3. In particular, I do not find it necessary to
consider whether it constitutes a breach of section
11 and I decline to express
any view at all on that question. For the above reasons, I concur in the order
proposed by Ackermann
J.
[245]
SACHS J:
I have had the advantage, and, I might
say, the pleasure of reading the judgments of Ackermann J and Chaskalson P
respectively.
I concur in their conclusions, but since I agree with
the critique each makes or implies of the other, I will advance my own
reasons.
In essence, I accept Ackermann J’s contention that the issue
engaged is a freedom one and not a fair trial one, and Chaskalson
P’s argument
that the concept of constitutionally protected freedom as advanced by Ackermann
J is too broad.
[246]
It is not difficult to establish that
in our system of criminal justice, the introduction of enforced confessions
into criminal trials
is as a general rule1 not reasonable, justifiable or
necessary; the right to silence, the right not to be a compellable witness
against oneself, the right
to be presumed innocent until proven guilty and the
refusal to permit evidence of admissions that were not made freely and
voluntarily,
are all composite and mutually re-enforcing parts of the
adversarial system of criminal justice that is deeply implanted in our country2
and resolutely affirmed by the Constitution.3
[247]
What is more complex is to decide the
question which logically should be anterior, namely, precisely what
constitutional right, if
any, would such an enforced confession unjustifiably
limit? More particularly, what protected right, if any, would be violated
if a potentially punishable confession were compulsorily extracted outside the
context of detention or trial? By not including
in the South African
Constitution a general and free-floating Fifth Amendment-type prohibition
against self-incrimination, the framers
presumably did not intend to establish
a right as powerful and generalized as that contained in the US Constitution.4
Yet the mere fact that in South Africa the right against self-incrimination is
located expressly in the context of a criminal
trial,5 does not mean that it was by
implication excluded from other areas. Section 33(3) clearly rules out
such an implication.6
At the same time, the existence of such a common law principle outside of but
not inconsistent with Chapter 3, as recognized
by section 33(3), would not in
itself provide the basis for invalidating a statute. However long and
honourable the pedigree of such
a common law principle might be, without
embodiment in a specific constitutional text, it could not render a statute
unconstitutional;
we deal not with rights in the air, but with rights anchored
in the wording of the Constitution. Furthermore, we are concerned not
with
invasion of rights in abstract but with infringements of rights at a particular
time and in a concrete factual setting.
[248]
The specific question we have to
decide is not what constitutional rights of the examinee could be violated as a
matter of abstract
reasoning, nor what rights could be infringed at a
subsequent criminal trial, but, rather, what rights, if any, are violated at
the
moment that he or she is summoned to answer questions about the company’s
affairs, or, more particularly, when the potentially
incriminating questions
are put. I have difficulty in accepting that the examinee’s right
to a fair trial as guaranteed
by section 25 of the Constitution is trespassed
upon at that moment. It may be that the examinee’s right to have a fair
trial
at some time in the future is threatened, and in a manner far from
academic, namely, by the express provision that the answers may
indeed by used
against him or her at a subsequent criminal trial. What might have been
fair compulsion in the context of reconstituting
information about the affairs
of the company, could cease to be fair when it becomes a forced confession,
actually tendered for the
purposes of a criminal trial. Yet even if the
examinee’s right to a fair trial in the future is being threatened, the
examinee
is still not an ‘arrested’ or an ‘accused’ person as contemplated by
section 25, and might never become such. The time
to assert a fair trial
right would be when a trial was pending or imminent, and the use of the
incriminating answers actually threatened.
In the absence of imminent
prosecution, the jeopardy in which the examinee is placed relates to the
potentially unconscionable and
concrete pressures of the moment, rather than
the hypothetical, even if grave, possibility of future penalisation. What is in
issue,
then, is a right to a fair examination, not a right to a fair trial.
[249]
In this connection, I find myself in
agreement with Ackermann J that the answer to the problem before us is to be
found in a recognition
of the existence of a residuary and unenumerated right
protected by section 11(1).7
At the same time, I am far from convinced that the concept of freedom contained
in section 11(1) should be given as expansive
a treatment as Ackermann J
suggests,8
or that the residual space is as large as he indicates. I
accordingly offer the following tentative observations to indicate
where I
differ.
[250]
To equate freedom simply with autonomy
or the right to be left alone does not accord with the reality of life in a
modern, industrialized
society.9 Far from violating freedom, the
normal rules regulating human interaction and securing the peace are
preconditions for its
enjoyment. Without traffic regulation, it would be
impossible to exercise freedom of movement in a meaningful sense; absent
government compulsion to pay taxes, the expenditure necessary for elections to
be held, for Parliament to pass legislation, or for
this court itself to uphold
fundamental rights, would not be guaranteed. The rechtsstaat, as I
understand it, is not simply
a state in which government is regulated by law
and forbidden to encroach on a constitutionally protected private realm.
It
is one where government is required to establish a lawfully regulated regime
outside of itself in which people can go about their
business, develop their
personalities and pursue individual and collective destinies with a reasonable
degree of confidence and security.10 I accordingly cannot accept that
the laws that guarantee my freedom - for example, my right to vote, or to
litigate, or to
receive education - represent invasions of my freedom, simply
because they are subject to governmentally enforced rules and contain
penal
clauses. We should ever be mindful of the fact that the review powers of
this Court are not concerned with maintaining
good government, or correcting
governmental error, but with keeping government within constitutional limits.
[251]
The reality is that meaningful
personal interventions and abstinences in modern society depend not only on the
state refraining from
interfering with individual choice, but on the state
helping to create conditions within which individuals can effectively make such
choices. Freedom and personal security are thus achieved both by
protecting human autonomy on the one hand, and by acknowledging
human
interdependence on the other.11 The interdependence is not a
limitation on freedom, but an element of it. It follows that the
definition of freedom requires
not the exclusion of inter-dependence, but its
embodiment, bearing in mind that such incorporation should be accomplished in a
manner
which reinforces rather than undermines autonomy and upholds rather than
reduces the value of maximising effective personal choice.
[252]
In my view, the values of an open and
democratic society require an application of Chapter 3 which is centred on what
- in a culture
dedicated to freedom and equality - have come to be regarded as
real issues of fundamental rights.12 Ordinary rights are protected by
the common law and statute;13 only fundamental rights are safeguarded
by the Constitution.14 The Constitution accordingly
requires this Court to focus its attention on real and substantial
infringements15 of fundamental rights, and not to risk
dispersing energies, losing its sharp critical gaze and over-extending its
legitimate functioning,
by being drawn into testing the reasonableness or
necessity for each and every piece of regulation undertaken by the State.
[253]
For the purposes of the present case,
I accordingly regard Ackermann J’s valuable analysis as providing a broad
framework within
which to approach the question of freedom, rather than as
establishing a focused and operational definition of the concept. I find
his
approach particularly useful as a guide to what is meant by the values of
freedom and equality which the Constitution requires
us to promote.
Freedom and equality are at one and the same time in tension with each other,
and mutually supportive; in the
context in which the Constitution has to be
interpreted, the quest for equality should not be used as a justification for
suppressing
freedom, just as the need to protect freedom should not become a
means for denying equality.
[254]
In relation to the definition of what
is meant by the words ‘freedom and personal security’ in section 11(1), I
therefore believe
that something more is required than a broad philosophical
framework allied to a concept of residual, constitutionally protected
liberty. My view is that it is not necessary for the purposes of this
case to go beyond treating freedom and personal security
as two elements of a
single basic right which encompasses protection from interferences, of a
substantial rather than a trivial kind,
with the basic freedoms known to our
legal culture, of which freedom from physical restraint is the most pungent
example, but not
the only one.16
[255]
The text of section 11, which includes
a prohibition against detention without trial, as well as the exclusion of
torture and other
forms of physical and emotional ill-treatment, indicates a
narrow concern with the theme of bodily restraint or abuse, rather
than a
sweeping repudiation of any impediment whatsoever to the orderly pursuit of
happiness. On the other hand, the express acknowledgement
of the rights to
dignity and privacy in sections 10 and 13 respectively, read together with the
preamble and the afterword, establish
a setting which allows for a more
expansive role for the word freedom. Similarly, the general injunction to
interpret Chapter
3 in such a way as to promote the values which underlie an
open and democratic society based on freedom and equality, also encourages
a
broad rather than a narrow interpretation of the concept of freedom.
Where the text permits, the different provisions should
be read together in
such a way as to maintain rather than reduce hard-won freedoms.17 The antiquity of an institution is, of
course, no guarantee in itself of its constitutional virtue.18 Yet tried and tested principles
generally associated with fundamental fairness and manifestly in harmony with
the Constitution,
should, if the text so allows, be subsumed into rather than
blotted out from the Constitution.
[256]
The question arises whether or not a
violation of the privilege against self-incrimination could enter into this penumbra
of protected
liberties. I think it would be incorrect to regard the
express inclusion of protections against self-incrimination in section
25(2)
and 25(3) in favour of detained or accused persons, as representing an
intention by the framers to restrict the right purely
to the pre-trial and
trial situations. I feel it is more appropriate to regard these
provisions as constituting evidence in
a particularly pungent and impermeable
form of a wider underlying and unifying principle, that which in Canada has
been summed up
as ‘the case to meet’.19 One’s right to freedom and
personal security is jeopardised when any part of this inter-related structure
is touched.
In the celebrated words of Mr Justice Frankfurter;
the history of liberty has largely been the history of
procedural observance of safeguards.20
Freedom and procedural safeguards are closely inter-related, and the
principal focus of this Court's activity should accordingly not
"lie in
the realm of general public policy but in the inherent domain of the judiciary
as guardian of the justice system"21 .
[257]
Adopting this approach, which I do,
allows for an amplified interpretation of the concept of freedom and personal
security, one capable
of giving shelter under its wing to protections which
have evolved over the ages against abusive state power while recognising that
such protections will be primarily, but by no means exclusively, related to
freedom from physical restraint. The words of section
11 should then be
construed in such a manner as to provide constitutionally defensible space
against invasions of freedom of a kind
analogous in character and intensity to
the imposition of physical restraint. Legal traditions, both positive and
negative,
would help to define what this analogous or penumbral area would
include: legal institutions developed and applied in the past with
a view to
curtailing abusive State action, would readily fit; similarly, negative
memories of past oppressive State behaviour in
our country and elsewhere, would
help define whether or not a freedom issue is being raised.22 The first step is to establish
the existence of what is a real or substantial invasion of freedom, and not a
normal regulatory
act;23 only when this is done should the need
to justify the infringement arise. Once a substantial breach of this kind
has been shown
to exist, however, the scrutiny for justification required by
section 33(1) can be truly stringent.24
[258]
In my view, a breach of the
long-standing right not to be compelled to incriminate oneself out of one’s own
mouth would, in any
context, raise a question of fundamental freedom. At
the same time, the absence of an explicitly stated generalized right against
self-incrimination in the Constitution, indicates that the operation of
the principle outside of a trial situation is weaker
than within. The
privilege against self incrimination should therefore neither be reduced to a
restricted immunity confined
to the trial situation, nor be enlarged so as to
become an absolute right to be used on all occasions. Its application
depends
on time, place and context.25 The closer to a trial situation,
the more powerful the principle; the more remote from a trial, the weaker it
will be.
Thus there would be little scope, if any at all, for possible
weakening of the right of a detained or accused person [so firmly protected
by
sections 25(2) and 25(3)] not to be compelled to testify. The interests of
shareholders and creditors, however aggrieved they
may feel, would not even be put
into the balance in this context, let alone weighed. Their very real
concerns are subsumed
into the general interest of the community in ensuring
that crime does not pay and criminals are duly punished. The further
away
from the trial situation one gets, however, and the more residual rather than
primary the application of the privilege, the
more does it submit itself to
countervailing interests. Accordingly, the claims of shareholders and
creditors would firmly
enter the scales at a section 417 enquiry, to be
balanced against the principle that people should not be compelled to condemn
themselves
out of their own mouths.
[259]
Similarly, the more that
self-incrimination takes the form of oral communication, the more compelling
will the protection be; the
more objective or real the existence of the
incriminating material, on the other hand, the more attenuated.
Accordingly, pre-trial
procedures of a non-communicative or non-testimonial
kind, such as compulsory fingerprinting, blood tests, blood-alcohol tests,
attendance
at identity parades, DNA and other tests of an objective nature,26 or, in company fraud matters,
hand-writing tests, all of which would seem to fall directly under the concept
of freedom and personal
security, have become well-established processes
regarded in many parts of the world as being consistent with the values of an
open
and democratic society based on freedom and equality, and in suitably
controlled conditions, would have far less difficulty
in passing section
33 scrutiny in terms of our Constitution.
[260]
Section 417 procedures involve both
oral and documentary elements, and cover areas that are both far removed from
the context of a
criminal trial and quite proximate to it. Its most
remote aspect in relation to the privilege against self-incrimination is
the
summons to appear at the enquiry. In my view, applying the reasoning advanced
in the earlier part of this judgment, this obligation
to attend the enquiry and
submit to questions does not raise a question of fundamental freedom as
envisaged by section 11.
The holding of an enquiry is an integral part of
regulating companies. The duty to attend such an enquiry after the
company
has failed, flows not from intrusive State action, but from the need to
wind up the company in an orderly way and protect the interests
of creditors
and shareholders. As far as the company director or other official is
concerned, it goes with the job, and does
not require section 33(1) justification.
Similarly, I would hold that the compulsion to answer non-incriminating
questions
does not constitute an infringement of section 11 rights of
sufficient substance to require special sanction in terms of section
33(1).
[261]
Section 417 read with section 424 goes
further, however. The examinee is obliged to answer questions which may be
incriminating;27 and the answers may be used in
subsequent criminal proceedings.28 Once one enters the zone of
possible self-incrimination and potential punishment, a freedom interest
is clearly engaged,
and section 33(1) justification is required. In my
opinion, the compulsion to answer all questions dealing with stewardship
of the
company, whether incriminating or not, can be justified in terms of section 33
criteria with relative ease. The whole purpose
of getting to the bottom of the
collapse so as to inform and reimburse as much as possible those who invested
or traded in good faith,
would be defeated if the director could shield him or
herself behind the right not to answer incriminating questions.
It
is precisely in areas where assets have been fraudulently disposed of, that
specially penetrative investigations for their recovery
might be required.
Company directors and other officials who appeal to the public for funds and
engage in public commercial activity
with the benefit of not being personally
liable for company debts, cannot complain if they are subsequently called upon
to account
for their stewardship, at least, for the purposes of discovering all
assets so as to minimize the loss to creditors and give full
information to
shareholders. When raising funds and trading with the protection of not
being personally liable for company
debts, the company officials implicitly
undertake to submit to such enquiry, and effectively waive in advance any claim
not to answer
questions of an incriminating kind that relate to their
management of the company’s affairs. Indeed, it would be ironical
if
crooked directors were more able to avoid submitting themselves to enquiry than
honest ones.29 The problem therefore lies not in
the interrogation per se, however, discomfiting to the examinee it might be, but
in the knowledge
that the answers can be used in subsequent criminal
proceedings. It is this that gives rise to the constitutionally
questionable
situation of being damned with prison if you do, and damned with
prison if you don’t. Hence the examinee’s quadrilemma:
confess to a
crime, refuse to answer, commit perjury, or seek refuge in the Constitutional
Court.30
Justification in terms of section 33(1) for using state compulsion to create
such a situation is accordingly far more difficult
to achieve.
[262]
This is not to say that no case can be
made out for justifying interrogatory procedures not only to collect
information but also to
help secure the conviction of fraudulent company
officials, that is, for elements of the inquisitorial system of criminal
justice
to be used in our procedures for the specific purpose of combatting
company fraud. This would not constitute a startling innovation
but,
rather, represent the continuation of an established practice. In the
well known English case of Reg. v Scott,31 Lord Campbell said that the
interpolation of an implied clause to the effect that the examination
should not be used as evidence
against the bankrupt on any criminal charge,
would be more likely to defeat than to further the intention of the
legislature.
Considering the enormous frauds practised by bankrupts
upon their creditors,
he
observed,
the object may have been, in an exceptional instance, to
allow a procedure in England universally allowed in many highly civilised
countries.
This was in 1856. More recently, Lord Mustill has pointed out
that the statutory interference with the right against self-incrimination
is
almost as old as the right itself. Since the 16th century, he says
legislation has established an inquisitorial form of
investigation into the dealings and assets of bankrupts which is calculated to
yield potentially incriminating material, and in more recent times there have
been many other examples in widely separated fields,
which are probably more
numerous than is generally appreciated.32
[263]
The question must, however, still be
asked: does the fact that the exception is a longstanding one mean that it
would constitute a
reasonable, justifiable, and necessary limitation of the
general protection accorded against self-incrimination? It is, of course,
not
for the Constitution to conform to legislation, however antique the latter may
be, but for legislation to be consistent with
the Constitution.33 Nevertheless, the
well-established nature of the legislative exception, both in our country34 and abroad, when measured against the
relatively inchoate and adaptive nature of the common-law principle, indicates
that it could
well pass the test at least of reasonableness and
justifiability. In S v Zuma, supra, Kentridge AJ asked
why it should be thought reasonable to undermine a
long-established and now entrenched right.
In the present case, however, the limitation itself is almost as
ancient as the right it impinges on, and furthermore the right is
not directly
and robustly entrenched, but only subsumed in a residuary manner into a broader
right. This would, of course,
not make it a ‘lesser right’ as such, but
would affect its intensity and weight in the balancing process.
[264]
In South Africa today, ‘enormous
fraud’ is unfortunately a continuing occurrence. As I have said, it might
well be reasonable
and justifiable to continue with inquisitorial procedures
against officials of failed companies. The public interest undoubtedly
requires both that fraudulent dealings be exposed and set aside where possible,
and that those responsible be punished. The
corporate veil functions not
only at the legal level to promote corporate identity and create the conditions
for limited liability,
but also at the evidential level to hide the doings of
dishonest company officials. Front companies and nominee holdings can
obscure the true economic nature of transactions. Frauds can be
intricate, take place over a long period of time, and depend
on the effect of
activities which in their separate detail appear lawful, but in their
cumulative conjunction are fraudulent.
There is no ‘smoking gun’ to be
detected by ordinary police enquiry methods. Yet, even allowing for the
fact that special
procedures of ancient provenance, designed to pierce the
corporate veil and ensure that fraud is properly uncovered and punished,
may
pass the tests of reasonableness and justifiability, do they as well overcome
the third hurdle provided by section 33(1) in relation
to section 11, namely,
that they are necessary?
[265]
The concept of necessity gives central
place to the proportionality of the means used to achieve a pressing and
legitimate public
purpose.35 In positive terms, the public
interest served by the challenged provisions would have to be so compelling as
clearly to outweigh
the questionable pressure to which the examinees would be
put at the time of their interrogation, and the consequent sense of unfairness
that would flow from their being obliged to convict themselves out of their own
mouths. Expressed negatively, the burden imposed
should not go beyond
what would be strictly required to meet the legitimate interests both of
shareholders and creditors and of society
as a whole. The means adopted
by Parliament should thus be shown to fall within the range of options which
would not be unduly
burdensome, overbroad or excessive, considering all the
reasonable alternatives. In making this assessment of proportionality,
a
structured value judgment, taking account of all the established elements, is
required. Applying what I consider the wise counsel
of Dickson CJC of the
Canadian Supreme Court to focus on
the synergetic relation between the values underlying the
Charter and the circumstances of the particular case,36
I have grave doubts as to whether the materials placed before us
indicate that the test of necessity has been met.
[266]
The Serious Economics Offences Act,37 which, with the sole objective of
investigating economic crimes, establishes inquisitorial procedures not
dissimilar to those contained
in section 417, expressly immunises answers from
subsequent use at a criminal trial.38 There is nothing before us to
show why the legislature can balance the securing of effective investigatory
capacity, and the
maintenance of sensitivity to basic rights, when it comes to
fraud investigated as such in terms of the Serious Economic Offences
Act, and
not manage to do so in respect of fraud discovered as a result of a broader
enquiry in terms of section 417 of the Companies
Act. Similarly, the
Insolvency Act provides that no evidence regarding questions and answers at an
Insolvency Enquiry shall
be admissible in subsequent criminal proceedings.39 Far from being manifestly
necessary, therefore, the provisions of section 417(2)(b) appear to be out of
step with what is considered
appropriate in sibling statutory material.
[267]
I would add that unfortunate
experiences in the past suggest that we should exercise great caution in
accepting any departure from
the ‘case to meet’ principle. Failure to do
so could open up the way to justifying pre-trial interrogations of persons
suspected of treason or sedition, and the wheel could then turn full circle,
with the Star Chamber - type inquisition which gave
rise to the right against
self-incrimination in the first place, ending up being legitimized by the very
chapter in the Constitution
designed to protect fundamental rights. In
the words, once more, of Mr Justice Frankfurter,40
No doubt the constitutional privilege (against self-incrimination),
may, on occasion, save a guilty man from his just deserts.
It was aimed
at a more far-reaching evil - a recurrence of the Inquisition and the Star
Chamber, even if not in their stark brutality.
Prevention of the greater
evil was deemed of more importance than occurrence of the lesser evil. Having
had much experience with
a tendency in human nature to abuse power, the
Founders sought to close the doors against like future abuses by law
enforcing-agencies.
The framers of our Constitution no doubt had more recent South
African experience in mind when they drafted Chapter 3.41
[268]
To sum up: I agree with the
implications of Ackermann J’s judgment that section 417 should not be seen as a
piece of criminal procedure
legislation deliberately targeting company
officials for specially harsh treatment, but rather as an integral part of an
Act designed
to consolidate the law relating to companies. If meaningful
regulation of companies requires compulsory disclosure of information
to
interested persons while the company is in existence, such a duty to ‘come
clean’, or in modern parlance to manifest transparency,
should not cease, but
if anything become stronger, when the company enters its demise. The duty
to disclose does not entirely
eliminate the right against self-incrimination,
but does attenuate it. When the principle of the duty to reveal all
material
information is balanced against the privilege against
self-incrimination, the scales come to rest in such a way as to compel the
production of the testimony, while ensuring that it is not used in evidence at
a criminal trial.42 The granting of use immunity thus
saves the authorities from being put to an invidious (and not necessary)
election between
the option of examining and recovering, on the one hand, and
that of prosecuting and punishing, on the other. The public interest
requires that both possibilities remain open, subject to the former not
trespassing unduly on the latter.43 Once the provision authorizing the
admission of the answers at a subsequent criminal trial is removed, and use
immunity is granted,
as Ackermann J proposes, the dilemma that remains is the
constitutionally non-problematic one which faces any witness in any
proceedings:
whether or not to tell the truth.
[269]
Subject to these observations, I agree
with the conclusions of Ackermann J and the order he proposes.
Counsel
for the Applicants:
R.D. Levin S.C.
D.
Unterhalter
Instructed
by:
Moss-Morris Inc.
Counsel
for the 2nd Respondents in the
Ferreira
Matter:
S.A. Cilliers S.C.
R.
Strydom
Instructed
by:
Hofmeyr Van Der Merwe Inc.
Counsel
for the 3rd Respondent in the
Vryenhoek
Matter:
C. Edeling
Instructed
by:
Allan Levin & Associates
Counsel
for the Amicus Curiae -
Fourie,
J.S.N. and
Others:
W.H. Trengove S.C.
G.J.
Marcus
Instructed
by:
Deneys Reitz
[1][1995] ZACC 5; 1995
(3) SA 292 (CC); 1995 (7) BCLR 851 (CC) at para 10.
[3]At
para 59.
[4]Id.
[5]Id.
[6]At
p. 2 - 3 of Van Schalkwyk J's judgment.
[7]Supra
note 2 at para 55. Although the judgment of Kentridge AJ was the minority
judgment, there was no disagreement on this issue.
[8][1995] ZACC 1; 1995
(2) SA 642 (CC); 1995 (4) BCLR 401 (CC) at para 10.
[9]At
paras 6 - 8.
[10]See
Ferreira v Levin NO and Others 1995(2) SA 813 (W) at 843 H.
[11]In
para 37 thereof.
[12]R
v. Camana 1925 AD 570 at 575.
[13]Id
at 575. See also S v. Zuma supra note 8 at para 31; S v. Mabaso and
Another [1990] ZASCA 24; 1990 (3) SA 185 (A) at 208 G; S v. Shangase and Another 1995
(1) SA 425 (D) at 431 D; Nkosi v. Barlow NO en Andere 1984 (3) SA 148
(T) at 151 I; S v. Evans 1981 (4) SA 52 (C) 56 A; S v. Robinson
1975 (4) SA 438 (RA).
[14]See
Pyne Board Pty. Ltd. v. Trade Practices Commission (1983) ALJR 236 at
240 G; Sorby and Another v. The Commonwealth of Australia and Others (1983)
ALJR 248 at 260 and Solsky v. R. (1979) 105 D.L.R. (3d) 745 at 757.
[15]This
is of course challenged, but its correctness is assumed for purposes of this
part of the argument.
[16]See
Re Edward v. Edward (1987) 39 D.L.R. (4th) 654 (Sask. C.A.) at 661 - 664
and R v. Big M Drug Mart Ltd. (1985)
13 C.R.R. 64
at 80 where the following was stated:
"Any
accused, whether corporate or individual, may defend a criminal charge by
arguing that the law under which the charge is
brought is constitutionally
invalid. Big M is urging that the law under which it has been charged is
inconsistent with s. 2(a) of
the Charter and by reason of s. 52 of the Constitution
Act, 1982, it is of no force or effect.
..........................................................................................................................................................
The
argument that the respondent, by reason of being a corporation, is incapable of
holding religious belief and therefore incapable
of claiming rights under s.
2(a) of the Charter, confuses the nature of this appeal. A law which itself
infringes religious freedom
is, by that reason alone, inconsistent with s. 2(a)
of the Charter and it matters not whether the accused is a Christian, Jew,
Muslim,
Hindu, Buddhist, atheist, agnostic or whether an individual or a
corporation. It is the nature of the law, not the status of the
accused, that
is in issue."
[17] Constitutional Law of Canada 3ed (1992)
1242.
[18] Das Bundesverfassungsgericht 3ed (1994)
220 - 1. See 1 BVerfGE 14 at 37.
[19]See
in general Tribe American Constitutional Law 2ed (1988) 67 - 155.
[20]See
in general Hogg Constitutional Law of Canada 3ed (1992) 1263 - 1278.
[21]See
in general Umbach and Clemens Bundesverfassungsgerichtsgesetz (1992)
1039 - 46.
[22]See
S v. Zuma and Others supra note 8 at paras 17-18, per Kentridge AJ.
[23] 1955
(2) BCLR 167 (N) per Hurt J at 169 I - 170 A.
[24]See
generally S v. Zuma and Others supra note 8 at para 21 and S v.
Makwanyane and Another 1995(6) BCLR 665(CC)[1995] ZACC 3; ; 1995 (3) SA 391 (CC) at paras
100 - 102.
[25]S
v. Makwanyane and Another supra note 24 at para 102.
[26]Id
at para 9.
[27] (1985)
13 C.R.R. 64 at 103.
[28]Id
at para 10.
[29]Compare
p. 6 of the Fifth Report with p. 6 of the Sixth Report.
[30]S
v. Makwanyane and Another supra note 24 at para 144.
[31]Id
at para 327.
[32]Id
at para 328.
[33]Id
at para 329.
[34]"[T]hose
who have ever valued liberty for its own sake believed that to be free to
choose, and not to be chosen for, is an inalienable
ingredient in what makes
human beings human." Isaiah Berlin "Introduction" in Four
Essays on Liberty Oxford University Press (1969) lx.
[35]Amongst
others, the rights entrenched in sections 12, 14, 15, 16, 17, 18, 19, 20, 21,
25(2)(c) and (d), 25(3)(c) and (d), 27, 28,
30(1)(e), 30(2) and 31.
[36]Karl
Popper in The Open Society and its Enemies 4 ed (1962) Vol. I at 173
refers to the "open society" as:
"the society in which
individuals are confronted with personal decisions" and the "closed
society" as "the
magical or tribal or collectivist society".
[37]Supra
note 24 at para 329.
[38]Some
of the most egregious are catalogued in Dugard Human Rights and the South
African Legal Order (1978) 107 - 145 and Matthews Law, Order and Liberty
in South Africa (1971) and Freedom, State Security and the Rule of
Law (1988).
[39]Sections
4 - 7 of the Population Registration Act 30 of 1950.
[40]The
old provinces had original legislative powers i.t.o. s 84(1) of the
Constitution of the Republic of South Africa Act 32 of 1961
to deal with, inter
alia, public health. This power was used to segregate the provision of
health services. See, for example, Section 20(2)(A) of Ordinance
8 of 1971 of
the Orange Free State in its original version.
[41]Bantu
Education Act 47 of 53; Indians Education Act 60 of 1965; Coloured Persons
Education Act 47 of 1963; Extension of University
Education Act 45 of 1959.
[42]Section
4 of the Group Areas Act 41 of 1950.
[43]Section
5 of the Natives (Urban Areas) Act 21 of 1923; Section 10 - 15 of the Black
(Urban Areas) Consolidation Act 25 of 1945.
[44]Section
1 of the Natives Land Act 27 of 1913, section 2 of the Asiatic Land Tenure and
Indian Representation Act 28 of 1946, Section
5 of the Group Areas Act 41 of
1950; Section 7 of the Black (Urban) Areas Consolidation Act 25 of 1945.
[45]Section
4 of Act 12 of 1911; Section 14 of the Black Building Workers Act 27 of 1951;
Bantu Labour Act 67 of 1964; Section 15(1) of
Occupational Diseases in Mines
and Works Act 78 of 1973.
[46]Section
1 of the Prohibition of Mixed Marriages Act 55 of 1949.
[47]Section
47(2) of the Publications Act 42 of 1974; Section 29 of the Black
Administration Act 38 of 1927; Section 15 of the Internal
Security Act 74 of
1982.
[48]Section
2 of the Suppression of Communism Act 44 of 1950; Section (1) of the Unlawful
Organisations Act 34 of 1960; Prohibition of
Political Interference Act 51 of
1968; Affected Organisations Act 31 of 1974; Section 4(1) of the Internal
Security Act 74 of 1982.
[49]Local
government structures were specifically authorised to segregate burial grounds
through passing appropriate by-laws. See, for
example, Section 146(1) of Orange
Free State Ordinance 8 of 1962 in its original form.
[50]Supra
note 24 at para 156.
[51]Id
at para 156 note 1.
[52]Isaiah
Berlin "Two Concepts of Liberty" in Four Essays on Liberty
Oxford University Press (1969) at 121.
[53]Id
at 121-122.
[54]Id
at 122.
[55]Berlin
"Introduction" in Four Essays on Liberty supra note 52 at Iiii
to
Iv.
[56]The
solution to this paradox is eloquently stated by Popper as follows in The
Open Society and its Enemies 4 ed (1962) Vol. II at 124 -- 5:
"Freedom,
we have seen, defeats itself, if it is unlimited. Unlimited freedom means that
a strong man is free to bully one who
is weak and to rob him of his freedom.
This is why we demand that the state should limit freedom to a certain extent,
so that everyone's
freedom is protected by law. Nobody should be at the mercy
of others, but all should have a right to be protected by the state.
Now
I believe that these considerations, originally meant to apply to the realm of
brute force, of physical intimidation, must be
applied to the economic realm
also. Even if the state protects its citizens from being bullied by physical
violence (as it does,
in principle, under the system of unrestrained
capitalism), it may defeat our ends by its failure to protect them from the
misuse
of economic power. In such a state, the economically strong is still
free to bully one who is economically weak, and to rob him of
his freedom.
Under these circumstances, unlimited economic freedom can be just as
self-defeating as unlimited physical freedom, and
economic power may be nearly
as dangerous as physical violence; for those who possess a surplus of food can
force those who are starving
into a 'freely' accepted servitude, without using violence.
And assuming that the state limits its activities to the suppression
of
violence (and to the protection of property), a minority which is economically
strong may in this way exploit the majority of
those who are economically weak.
If this
analysis is correct, then the nature of the remedy is clear. It must be a political
remedy - a remedy similar to the one which we use against physical
violence. We must construct social institutions, enforced by the
power of the
state, for the protection of the economically weak from the economically
strong. The state must see to it that nobody
need enter into an inequitable
arrangement out of fear of starvation, or economic ruin."
[57]The
Metaphysical Elements of Justice (tr. John Ladd) Macmillan
(1985) at 43.
[58]Supra
note 52 "Introduction" at Ii.
[59]Id
at Iv.
[60]I
would, however, refer in passing to the analysis and suggested resolution by
Prof Louis Henkin of the clash, in constitutional law,
between freedom and
privacy on the one hand and equality on the other, in his seminal article,
"Shelley v. Kraemer: Notes for a Revised Opinion" (1962) 110 U
Pa L Rev 473 particularly at 487-492 and 494-496.
[61]Berlin
supra note 52 "Introduction" at xxxix. See also R v. Big M
Drug Mart supra note 27 at 97, where Dickson CJC, in the context of the
freedom of conscience and religion guaranteed in section 2(a) of the
Canadian
Charter, characterised freedom "primarily ... by the absence of coercion
or constraint" and stated that,
"[i]f
a person is compelled by the state or the will of another to a course of action
or inaction which he would not otherwise
have chosen, he is not acting of his
own volition and he cannot be said to be truly free. One of the major purposes
of the Charter
is to protect, within reason, from compulsion or restraint.
Coercion includes not only such blatant forms of compulsion as direct
commands
to act or refrain from acting on pain of sanction, coercion includes indirect
forms of control which determine or limit
alternative courses of conduct
available to others."
[62][1995] ZACC 1; 1995
(4) BCLR 401 (SA); 1995 (2) SA 642 (CC); at paras 14-15.
[63]Id
at para 15.
[64]European
Convention on Human Rights articles 3 and 15(2).
[65]European
Convention on Human Rights articles 3 and 15(2); International Covenant on
Civil and Political Rights articles 4(2) and 7.
[67]Tribe
American Constitutional Law 2ed (1988) at 769.
[68]One
is not here concerned with discrete provisions which might give rise to
constitutional controversy even with a narrowly construed
right to freedom.
[69]See
Popper's analysis supra note 56. The German Basic Law emphasises the social as
well as the democratic character of the state (article
20(1)) and that property
imposes duties and should serve the public weal (article 14(2)): In fact a very
considerable jurisprudence
has been built up around the concept of the
social responsibility of the state, as to which, in general, see
the comprehensive
list of literature on the topic in
Maunz-Dürig Grundgesetz Kommentar (1994) Vol. II, commentary on article
20 at 295-302.
[70]The
section 8 right to equality before the law and the freedom from unfair
discrimination is qualified in subsection (3) as follows:
“(3)(a) This section shall not
preclude measures
designed to achieve the adequate protection and advancement
of persons or groups or categories of persons disadvantaged by unfair
discrimination, in order to enable their full and equal enjoyment of all rights
and freedoms.
(b)
Every person or
community dispossessed of rights in land before the commencement of this
Constitution under any law which would have
been inconsistent with subsection
(2) had that subsection been in operation at the time of the dispossession,
shall be entitled to
claim restitution of such rights subject to and in
accordance with sections 121, 122 and 123.”
The
section 26 right to free economic activity is qualified in subsection (2) as
follows:
“(2)
Subsection (1) shall not preclude
measures
designed to promote the protection or the improvement of the quality of life,
economic growth, human development, social
justice, basic conditions of
employment, fair labour practices or equal opportunity for all, provided such measures
are justifiable
in an open and democratic society based on freedom and
equality.”
Section 27
is to the following effect:
“(1) Every person shall have the
right to fair
labour practices.
(2) Workers shall have
the right to form and join trade unions, and
employers shall have the right to form and join employers’
organisations.
(3) Workers and
employers shall have the right to organise and bargain
collectively.
(4) Workers shall
have the right to strike for the purpose of collective bargaining.
(5)
Employers' recourse to the lock-out for the purpose of collective bargaining
shall not
be impaired subject to section 33(1)."
[71]See
previous note 70.
[72]See
supra paragraph [49] and note 61.
[73]Hogg
Constitutional Law of Canada 3 ed (1992) at 1026 - 1027 states that,
"'Liberty'
certainly includes freedom from physical restraint. Any law that imposes the
penalty of imprisonment, whether the
sentence is mandatory or discretionary, is
by virtue of that penalty a deprivation of liberty and must conform to the
principles
of fundamental justice."
[74] [1990]
48 C.R.R. 1 at 15.
[75][1990]
67 D.L.R. (4th) 161.
[76]R.S.C.
1970, c. C-23.
[77]Thomson
supra note 75 at 175 a - b.
[78]Id
at 186 h.
[79]Id
at 186 d - f.
[80]Id
at 204 e - h.
[81]Id
at 204 f - h.
[82]Id
at 242 c.
[83]Id
at 264 d - e.
[84]Id
at 271 g and 281 e - f.
[85]Id
at 290 e - f.
[86]Id
at 294 a.
[87]Id
at 206 h - 207 a.
[88]Miranda
v. Arizona [1966] USSC 130; 384 US 436 (1965) at 461.
[89]Id
at 467.
[90]Feldman
v. United States [1944] USSC 111; 322 US 487 (1944) 489. See also Hoffman v
.United States 341 US 479 (1950) at 486.
[91]United
States v. James 60 F. 257 (1894) at 264 - 265 and Ullmann
v. United States [1956] USSC 31; 350 US 422 (1955) at 454.
[92]Ullmann
v. United States supra note 91 at 426. In Bolling v. Sharpe
[1954] USSC 41; 347 US 497 (1953) (a school segregation case) Chief Justice Warren pointed out
the following at 499 - 500:
"Although
the Court has not assumed to define 'liberty' with any great precision, that
term is not confined to mere freedom from
bodily restraint. Liberty under law
extends to the full range of conduct which the individual is free to pursue,
and it cannot be
restricted except for a proper governmental objective.
Segregation in public education is not reasonably related to any proper
governmental
objective, and thus it imposes on Negro children of the District
of Columbia a burden that constitutes an arbitrary deprivation of
their liberty
in violation of the Due Process Clause."
Generally
speaking the right to liberty is given a broad definition by the United States
Supreme Court, even in modern times and it
is certainly not limited to mere
freedom from bodily restraint. In Board of Regents of State College v. Roth
[1972] USSC 168; 408 US 564 (1972) at 572, Stewart J explained the broad reach of the concept of
liberty as embodied in the Fourteenth Amendment by quoting with
approval the
following passage from Meyer v. Nebraska [1923] USSC 154; 262 US 390 (1923) at 399:
"While
this Court has not attempted to define with exactness the liberty ...
guaranteed [by the Fourteenth Amendment], the term
has received much
consideration and some of the included things have been definitely stated.
Without doubt, it denotes not merely
freedom from bodily restraint but also the
right of the individual to contract, to engage in any of the common occupations
of life,
to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own
conscience, and
generally to enjoy those privileges long recognized ... as essential to the
orderly pursuit of happiness by free
men."
The
learned Judge then added:
"In a
Constitution for a free people, there can be no doubt that the meaning of
'liberty' must be broad indeed."
[93]Supra
note 75.
[94]Para
44 above.
[95]Thompson's
case supra note 75 at 192 h - 193 and 193 c - d.
[96]Id
at 172 f.
[97]Id
at 243 g - 244 c.
[98]Id
at 277 f, 278 a - b and 280 a.
[99]Id
at 293 g - 294 a.
[100]Id
at 185 c - d.
[101]Supra
note 8.
[102]Id
at para 31.
[103]Id.
[104]Id
at para 33.
[105]
(1985) 24 D.L.R. (4th) 536 at 565.
[106]Supra
note 8 at para 21.
[107]Id.
[108]Maunz-Dürig
Grundgesetz Kommentar (1944) Vol. I, commentary on article 2 at 110 -
111; 10 BVerfGE 302 at 318.
[109]Maunz-Dürig
supra note 108 at 110 - 111; 10 BVerfGE 302 at 322 - 323.
[110]6
BVerfGE 32 at 36 - 37; 55 BVerfGE 159 at 165; 74 BVerfGE
129 at 151; 80 BVerfGE 137 at 152 - 3.
[111]6
BVerfGE 32 at 37 - 38.
[112]55
BVerfGE 159 at 165; 75 BVerfGE 108 at 155; 80 BVerfGE 137
at 153.
[113]80
BVerfGE 137 at 153.
[114]Isensee
and Kirchhof Handbuch des Staatsrechts (1988) Vol. vi at 1192.
[115]6
BVerfGE 32.
[116]54
BVerfGE 143.
[117]55
BVerfGE 159.
[118]4
BVerfGE 7 at 26; 10 BVerfGE 89 at 102; 10 BVerfGE 354 at
361; 11 BVerfGE 105 at 126; 12 BVerfGE 319 at 323; 38 BVerfGE
281 at 297.
[119]See
Gunther Constitutional Law 12ed (1992) at 433; Stone et al Constitutional
Law 2ed (1991) at 786.
[120]In
applications 5573/72 and 5670/72, Adler and Bivas v. Federal Republic of
Germany, Yearbook XX (1977) 102 at 146, as cited in Van Dijk and Van
Hoof Theory and Practice of the European Convention on Human Rights 2ed
(1990) at 252. The same learned authors point out at 252-253 that the case-law
“seems to share Fawcett’s view when he says:
‘liberty and security are the two
sides of the same coin; if personal liberty spells actual freedom of movement
of the person,
security is the condition of being protected by law in that freedom’.”
[121]Murphy
et al v. Waterfront Commission of New York Harbor 378 US 52
(1964) at 55; 12 L Ed 2nd 678 at 681 - 2.
[122]See
also the concluding phrase in section 35(1) of the Constitution.
[123]Supra
note 8 at paras 29 - 30.
[124]E.g.
Prof JH Langbein of Yale Law School "The Historical Origins of the
Privilege against Self-incrimination at Common Law"
in 92 (1994) Michigan
Law Review 1047 and Prof. E Moglen of Columbia Law School "Taking the
Fifth: Reconsidering the Origins of the Constitutional Privilege against
Self-incrimination" in 92 (1994) Michigan Law Review 1086. Both
learned authors conclude that the privilege did not develop in the way commonly
suggested but that it became functional only
because of the fact that the
advent of defence counsel and adversary criminal procedure substantially
changed the nature of the criminal
trial.
[125]See,
for example, Thompson's case, supra note 75 at 193 g - 194 f and Bishopsgate
Investment Management Ltd (In Provisional Liquidation) v. Maxwell and Another
(1993) Ch 1 (CA) at 17 D - H.
[127]Id
at 30 F - G.
[128] (1992)
Ch 578 (CA).
[130] (1993)
Ch 1 (CA).
[131]At
46 D - H; 48 B.
[133]See
Anton Piller KG v. Manufacturing Processes Ltd. (1976) Ch 55 (CA).
[134]Rank
Film Distributors, supra note 114 at 438 H - 439 H;
443 H.
[135]See
the invitation to legislate by Lord Russel of Killowen in Rank Film
Distributors Ltd supra note 114 at 448 G.
[136]For
further examples see J.D. Heydon "Statutory Restrictions on the Privilege
Against Self-Incrimination" in 87 (1971) LQR 214.
[137]R
v. Camane 1925 AD 570 at 575 per Innes CJ.
[138]Magmoed
v. Janse van Rensburg and Others [1992] ZASCA 208; 1993 (1) SA 777 (A) at
819I.
[139]Id
at 820 F and S v. Ramaligela en _ Ander 1983 (2) SA 424 (V) at 428 -
430.
[140] 1992
(2) SACR 411 (N) at 421 E.
[141]The
South African Law of Evidence 4ed (1988) at 239.
[144]In
Pyne Board, at 240 G. In Sorby, at 260.
[145]At
253.
[146]At
260. See also the Court's dicta at 253 and 261.
[147]At
255 A - C per Gibbs CJ.
[148]
[1979] 105 D.L.R. (3d) 745 at 757.
[149]
R.S.C. 1985, c. C-5.
[150]Supra
note 75 at 195 h - 196 a.
[151]Id
at 200 a - c.
[152]White
J explains this approach in Duncan v. Louisiana [1871] USSC 121; 391 US 145 (1968) at
147:
"In
resolving conflicting claims concerning the meaning of this spacious language
[of due process], the Court has looked increasingly
to the Bill of Rights for
guidance; many of the rights guaranteed by the first eight Amendments to the
Constitution have been held
to be protected against state action by the Due
Process Clause of the Fourteenth Amendment. That clause now protects the
right
to compensation for property taken by the State; the rights of speech,
press, and religion covered by the First Amendment; the Fourth
Amendment rights
to be free from unreasonable searches and seizures and to have excluded from
criminal trials any evidence illegally
seized; the right guaranteed by the Fifth
Amendment to be free of compelled self-incrimination; and the Sixth Amendment
rights to
counsel, to a speedy and public trial, to confrontation of
opposing witnesses, and to compulsory process for obtaining witnesses.
The test
for determining whether a right extended by the Fifth and Sixth Amendments with
respect to federal criminal proceedings is
also protected against state actions
by the Fourteenth Amendment has been phrased in a variety of ways in the
opinions of this Court.
The question has been asked whether a right is among
those 'fundamental principles of liberty and justice which lie at the base of
all our civil and political institutions', Powell v. Alabama 287 US 45,
67 (1932); whether it is 'basic in our system of jurisprudence,' In re Oliver
[1948] USSC 28; 333 US 257, 273 (1948; and whether it is “a fundamental right, essential to a
fair trial,” Gideon v Wainwright; ..." (footnotes omitted).
[153]
378 US 1 (1964). Previously the Supreme Court refused to apply the right
against self-incrimination against the States. See Adamson v. California,
332 US 46 (1947).
[154] 142
US 547 (1892) at 562; 35 L Ed 1110 at 1114.
[155]McCarthy
v Arndstein 266 US 34 (1924) at 40, where the privilege
was upheld in bankruptcy proceedings.
[157]See
section 344 of the Bankruptcy Code 11 USC.
[158]Thomson
supra note 75 per L'Heureux-Dubé J at 279 f - g.
[159]Supra
note 154.
[160]Id
at 585-6 where Justice Blatchford, writing for the Court said:
"no
statute which leaves the party or witness subject to prosecution after he
answers the criminating questions put to him, can
have the effect of
supplanting the privilege conferred by the Constitution of the United States.
Section 860 of the Revised Statutes
does not supply a complete protection from
all the perils against which the constitutional prohibition was designed to
guard, and
is not a full substitute for the prohibition. In view of the
constitutional provision, a statutory enactment, to be valid, must afford
absolute immunity against future prosecution for the offence to which the
question relates."
[161]"But
no such witness shall be prosecuted or subjected to any penalty or forfeiture
for or on account of any transaction, matter,
or thing concerning which he is
compelled, after having claimed his privilege against self-incrimination, to
testify or produce evidence,
nor shall testimony so compelled be used as
evidence in any criminal proceeding (except prosecution described in
sub-section (d)
hereof (essentially for perjury and contempt) against him in
any court."
[162][1956] USSC 31; 350
US 422 (1955).
[163]Id
at 426.
[164]Id
at 429.
[165]Id
at 439.
[166]Brown
v. Walker [1896] USSC 83; 161 US 591 (1896) at 610.
[167][1972] USSC 160; 406
US 441 (1972).
[168]Id
at 462.
[169]Id
at 460 - 461.
[170]Supra
note 75 at 174, 183.
[171]Para
55.
[172]General
Motors of Canada Ltd. v. City National Leasing (1989) 58
D.L.R. (4th) 225 at 280, quoted with approval in Thomson supra note 75
at 290 h and 223 h - 224 b.
[173]Thomson,
supra note 75 at 184 d - e.
[174]Id
per Wilson J at 200 b - c.
[175]Id
at 200 d - e.
[176]Id.
[177][1972] USSC 160; 406
US 441 (1972).
[178]Section
24(2) of the Canadian Charter reads as follows:
"(2)
Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed
or denied any rights or freedoms guaranteed
by this Charter, the evidence shall be excluded if it is established that,
having regard
to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute."
[179]Thomson
supra note 75 at 202 c - e; 202 g - 203 a; 203 a - d.
[180]Thomson,
supra note 75 at 206 a - c.
[181]Id
at 207 c - e.
[182]Id.
[183]Id
at 290 e - f.
[184]Id
at 297 d - e.
[185]Id
at 297 g.
[186]Id
at 232 - 233.
[187]S.V.
Wilson and A.H. Matz, "Obtaining Evidence for Federal Economic Crime
Prosecutions: An Overview and Analysis of Investigative
Methods" (1977),
14 Am. Crim. L. Rev. 651 at 651, quoted with approval by La Forest J in Thomson
supra note 75 at 233 f - g.
[188]Thomson
supra note 75 at 246 e.
[189]Id
at 247 d - f.
[190]Id
at 250 h - 251 a.
[191]Id
at 252 c.
[192]Id
at 253 f - 254 e.
[193]Id
at 256 a - e.
[194]Id
at 260 h - 261 a; 262 c - e.
[195]Id
at 264 d - e.
[196]Id
at 281 a.
[197]See,
generally, Joubert (ed) The Law of South Africa Vol. 4 at paras 3 - 7;
Pretorius et al, Hahlo's South African Company Law Through the Cases 5
ed (1991) at 1 - 3; Cilliers et al, Corporate Law 2 ed (1992) at 18 -
24; De la Rey "Aspekte van die vroeë Maatskappyereg: _ Vergelykende
Oorsig" (1986) Codicillus 4, 18.
[198]Pretorius
et al, supra note 197 at 2 - 3.
[199]See,
for example, Partnership in Mining Bpk v. Federale Mynbou Bpk en Andere
1984 (1) SA 175 (T) at 179 G - H; Kotze v. De Wet NO and Another 1977
(4) SA 368 (T) at 374 B - C and S v. Heller 1969 (2) SA 361 (W) at 363 A
- 366 A.
[200]The
private examination provisions were contained in section 268 of this Act.
[201]See
L.P. Pyemont "The Companies Bill for the Union of South Africa" 40
(1923) SALJ 389.
[202]Act
46 of 1952. This was an Act passed in consequence of the report of the Millin
Commission. (Report of the Commission of Enquiry
on the Amendment of the
Companies Act (UG 69 of 1948)).
[203]This
section corresponded to section 64(1) of the Insolvency Act 24 of 1936.
[204]This
section corresponded to section 65(1) of the Insolvency Act of 1936.
[205]Section
156 of the 1926 Companies Act was not repeated in the Companies Act 1973. This
was on the recommendation of the Van Wyk de
Vries Commission of Enquiry into
the Companies Act: Main Report (1970) para 50.21.
[206]By
section 3(b) of Act No. 89 of 1989.
[207]For
example, Meskin et al (eds) Henochsberg on the Companies Act 5 ed Vol 1
at 876 - 877.
[208] 1994
(4) SA 662 (T) at 671 G - I.
[209]In
Wehmeyer v. Lane NO and Others 1944 (4) SA 441 (C).
[210]In
Rudolph and Another v. Commissioner for Inland Revenue and Others NNO,
1994 (3) SA 771 (W).
[211]In De
Kock en _ Ander v. Prokureur-Generaal,
Transvaal, 1994 (3) SA 785 (T). We are not
here concerned with the central issue involved in Wehmeyer, Rudolph
and De Kock, viz. whether a Provincial or Local Division of the Supreme
Court had jurisdiction (as the law then stood) to grant a temporary interdict
on the basis that an Act of Parliament might be invalid, pending the decision
of the issue of such validity by the Constitutional
Court. Section 101(7) of
the Constitution, as introduced by section 3 of the Constitution of the
Republic of South African Second
Amendment Act 44 of 1995 now provides
expressly for such jurisdiction.
[212]Section
391 of the Companies Act 61 of 1973.
[213]Id
section 392.
[214]Id
section 400(1).
[215]Id
section 402(b).
[216]Per
van Winsen J in Western Bank Ltd v. Thorne NO and Others NNO 1973 (3) SA
661 (C) at 666 F.
[217]Merchant
Shippers SA (Pty) Ltd v. Millman NO and Others 1986 (1)
SA 413 (C) at 417 D - E.
[218] 1990
(1) SA 954 (A) at 960 G - I per Hefer JA.
[219]Pretorius
and Others v. Marais and Others 1981 (1) SA 1051 (A) at
1063 H - 1064 A.
[220] 1995
(2) BCLR 167 (N) at 170 D - F per Hurt J.
[221] [1991]
1 All ER 894 (CA) at 900 e.
[222] [1968]
3 All ER 698 (ChD) at 700.
[223]In
Re Esal (Commodities) Ltd [1989] BCLC 59 at 64.
[224] [1969]
3 All ER 1386 at 1396 - 1397.
[225] [1992]
4 All ER 876 (HL) at 884 b - h and 884 j. See also Anderson and Others v.
Dickson and Another NNO 1985 (1) SA 93 (N) at 111 F - G where Booysen J
said the following:
"It
seems that the object of an examination under ss 417 and 418 is similar to that
of an examination at a meeting of creditors
under s 415 and that it is to gain
information which the creditors, or some of them, and the liquidator do not
have or cannot otherwise
effectively possess. It is a means of obtaining
discovery of facts which may be of financial benefit to creditors of the
company
with the important limitation that it should be of financial benefit to
them qua creditors of the company."
[226]Supra
note 24.
[227]Id
at para 104.
[228] 1995
(10) BCLR 1382 (CC) at para 16. The footnote reference in the text quoted has
been omitted but the footnote itself reads: "Johannesburg City Council
v. Chesterfield House 1952 (3) SA 809 (A) at 822 D - E. See also S v.
Lasker 1991 (1) SA 558 (CPD) at 566."
[229]Supra
note 75.
[230]Supra
note 75 at 260 g.
[231]Id
at 244 a - b.
[232]As
La Forest J observed in Thomson Newspapers supra note 75 at 241 e:
"The
courts in Canada ... cannot remain oblivious to the concrete social, political
and economic realities within which our system
of constitutional rights and
guarantees must operate."
The
learned Judge further pointed out at 245 e that,
"these
principles [of natural justice] vary with the context,"
and
at 245 g that the entitlement of an accused,
"to
a fair hearing ... does not entitle him to the most favourable procedures that
could possibly be imagined",
citing from R. v. Lyons
(1987) 44 D.L.R. (4th) 193 at 237.
[233]Id
generally at 252 - 260 and specifically at 252 h.
[234]Id
at 253 a.
[235]Id
at 252 f - h.
[236] (1991)
2 AC 212 (PC).
[237][1995] ZACC 1; 1995
(4) BCLR 401 (SA) at para 31.
[238]Id
at 220.
[239]Supra
note 75 at 255 e. Section 24(2) of the Canadian Charter reads:
"(2)
Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed
or denied any rights or freedoms guaranteed
by this Charter, the evidence shall be excluded if it is established that,
having regard
to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute."
[240](1987)
38 D.L.R. (4th) 508 at 522 - 523 per Lamer J.
[241]The
English rule is formulated in Kuruma v. R, [1995] AC 197 (PC) at 203;
[1985] 1 All ER 236 at 239. See Ex Parte Minister of Justice: In re R. v.
Matemba 1941 AD 75; S v. Nel 1987 (4) SA 950 (W) at 953 E - J and
see, generally, Hoffmann and Zeffert The South African Law of Evidence 4
ed (1988) 278 - 281.
[242]Supra
note 240 at 526.
[243]Supra
note 75 at 255 f - 256 a.
[244]Id
at 257 f - g.
[245]Id
at 258 f - h.
[246]Id
at 259 c.
[247]Id
at 259 d.
[248]Id
at 260 - 261.
[249] (1988)
41 C.C.C. (3rd) 385 at 416.
[250]Supra
note 75 at 261 C.
[251]Thomson
Newspapers supra note 75 at 261 F and see also R v. Potvin
(1989) 47 C.C.C. (3d) 289.
[252]Id
at 262 c - e.
[253]Id
at 264 d - e.
[254]Id
at 202 h.
[255]Id
at 255 a - b.
[256]Id
at 203 a.
[257](1995)
121 D.L.R. (4th) 589.
[258]Act
51 of 1977.
[259]R.v.S.
(R.J.) supra note 257, per Iacobucci J at 607 in fin - 608
b. At 612 e - g the learned Judge further stated the following:
"[T]he
encroachment upon liberty is complete at the moment of compelled speech,
regardless of its character. David Stratas, in
The Charter of Rights in
Litigation: Direction from the Supreme Court of Canada, vol. 1 (Aurora,
Ont: Canada Law Book Inc., 1990)(loose-leaf [updated 1994]), has noted that an
uncertainty which currently exists
is 'just how immediate a threatened
deprivation of liberty must be' (at p. 17 - 2.1). Inasmuch as a statutory
compulsion to give
oral testimony engages the liberty interest, it is
unnecessary to resolve this uncertainty today. When J.P.M. challenged the
subpoena
in this case, he faced an imminent deprivation of liberty."
La Forest,
Cory and Major JJ concurred fully in the entire judgment of Iacobucci J.
L'Heureux-Dubé J (Gonthier J concurring) did
not differ with Iacobucci J on
this part of his judgment see p. 677) and in fact specifically confirmed his
approach thus (at 692
a):
"The
compulsion to testify subject to possible imprisonment for failure to comply
is, itself, a deprivation of liberty which
brings the issue of witness
compellability within the scope of a s. 7 examination."
Neither
Lamer CJC, Sopinka J nor McLachlin J questioned the correctness of the
aforegoing approach.
[260]Id
at 612 b - c.
[261]Id.
[262]Id
at 608 h, relying on Singh v. Canada (Minister of Employment and Immigration)
(9185), 17 D.L.R. (4th) 422.
[263]Which
provides that "[a]ny person charged with an offence has the right ... not
to be compelled to be a witness in proceedings
against that person in respect
of the offence".
[264]Which
provides that "[a] witness who testifies in any proceedings has the right
not to have any incriminating evidence so given
used to incriminate that
witness in any other proceedings, except in a prosecution for perjury or for
the giving of contradictory
evidence."
[265]Id
at 631 b - h. See also R v Hebert (1990) 57 C.C.C. (3d) at 33 where
McLachlin J, recognising in section 7 of the Charter a residual
protection against self-incriminated
because of (in part) a need to protect the
section 11(c) right, states the following:
"From
a practical point of view, the relationship between the privilege against
self-incrimination and right to silence at the
investigatory phase is equally
clear. The protection conferred by a legal system which grants the accused
immunity from incriminating
himself at trial but offers no protection with
respect to pre-trial statements would be illusory".
McLachlin
J at 34 also postulates a principle of fundamental justice involving "the
right of the individual to choose whether
to make a statement to the authorities
or to remain silent, coupled with concern with the repute and integrity of the
judicial process."
[266]Id
at 632 b- e.
[267]Id
at 613 b.
[268]Id
at 620 c - e.
[269]Id
at 626 h.
[270]Id
at 627 f.
[271]Id
at 637-650.
[272]Id
at 649 e.
[273]Supra
note 75 at 246 e - f.
[274]Supra
note 257 at 659 a.
[275]Id
at 662 a - e.
[276]Id
at 662 f.
[277]Id
at 661 - 669.
[278]Supra
note 75 and see also para [135] above.
[279]R.v.S.
(R.J.) supra note 257 at 669 d.
[280]Id
at 670 h - 671 a.
[281]Iacobucci
J quoted this passage with approval from R. v. Sweitzer (1982) 137
D.L.R. (3d) 702 at 706.
[282]R.v.S.(R.J.)
supra note 257 at 669 g.
[283]See,
particularly in the latter regard, S v. Sheehama [1991] ZASCA 45; 1991 (2) SA 860 (A).
[284]See
Kuruma v. R [1955] 1 All ER 236 (PC) at 239; R v. Uys and Uys 1940
TPD 405; S v. Nel 1987 (4) SA 950 (W) at 953 G and Du Toit et al Commentary
on the Criminal Procedure Act 24 - 98. In Nel van der Walt J added,
however, with reference to Ex Parte Minister of Justice in re R. v. Matemba
1941 AD 75, that evidence illegally obtained could be excluded on the basis
that accused could not be compelled to provide evidence against
themselves and
that evidence obtained under duress from an accused could not be used against
such an accused.
[285]In
S v. Hammer and Others 1994 (2) SACR 496 (C) at 498 g, Farlam J held
that, in the exercise of a general discretion to exclude improperly obtained
evidence on the grounds
of unfairness and public policy, the Court should
endeavour to strike a careful and credible balance, since although it was
important
for a criminal court to maintain high standards of propriety in its
own process, public confidence could be undermined by indiscriminate
exclusions
of improperly obtained evidence. Farlam J considered the following factors to
be useful in the exercise of the discretion
(at 499 a - e):
"(a) society's
right to insist that those who enforce the law themselves respect it, so that a
citizen's precious right to immunity from arbitrary and unlawful intrusion into
the daily affairs of private life may remain unimpaired;
(b) whether the
unlawful act was a mistaken act and whether in the case of mistake, the cogency
of evidence is affected;
(c) the ease with
which the law might have been complied with in procuring the evidence in
question
(a deliberate 'cutting of corners' would tend towards the
inadmissibility of the evidence illegally obtained);
(d) the nature of the
offence charged and the policy decision behind the enactment of the offence
are
also considerations;
(e) unfairness to the
accused should not be the only basis for the exercise of the discretion;
(f) whether the
administration of justice would be brought into disrepute if the evidence was
admitted;
(g) there should be no
presumption in favour of or against the reception of the evidence, the question
of an onus should not be introduced;
(h) it should not be a
direct intention to discipline the law enforcement officials;
(i) an
untrammelled search for the truth should be balanced by discretionary measures,
for in
the words of Knight Bruce VC, 'Truth, like other good things, may be
loved unwisely - it may be pursued too keenly - may cost too
much'."
In
S v. Melani en Andere 1995 (2) SACR 141 (ECD) at 153 a Froneman J
reaches the conclusion that a judge should have a discretion to exclude
unlawfully obtained evidence on
a case by case basis. The learned judge
considered (at 154 B) the Canadian criterion of "bringing into disrepute
the administration
of justice" as the appropriate guideline for exercising
the discretion.
[286]R
v. Roets and Another 1954 (3) SA 512 (A) at 521 A.
[287]Annual
Survey of South African Law (1990) at 498 - 9.
[288]See
Hoffmann and Zeffertt The South African Law of Evidence 4 ed (1988) at
284 - 292; Du Toit et al Commentary on the Criminal Procedure Act (1995)
24 - 98.
[289] (1977)
(2) SA 629 (A) at 840 E.
[290] [1955]
1 All ER 236 at 239.
[291]In
particular the case of R v. Sang [1979] UKHL 3; [1979] 2 All ER 1222 at 1231 where the
House of Lords held that
"[a]
trial judge in a criminal case has always a discretion to refuse to admit
evidence if in his opinion its prejudicial
effect outweighs its probative
value."
See also C. Tapper Cross on
Evidence 7 ed (1990) 180 - 193.
[292]S.
78 of the Police and Criminal Evidence Act 1984 which provides that:
"(1)
In any proceedings the court may refuse to allow evidence on which the
prosecution proposes to rely to be given if
it appears to the court that,
having regard to all the circumstances in which the evidence was obtained, the
admission of the evidence
would have such an adverse effect on the fairness of
the proceedings that the court ought not to admit it.
(2) Nothing in this
section shall prejudice any rule of law requiring a court to exclude
evidence."
[293]I
deliberately exclude the question as to whether the rule applies to an
otherwise admissible confession. See, in this regard S v. Mkanzi en _ Ander
1979 (2) SA 757 (T) at 759 E and on appeal 1982 (4) SA 509 (A) at 512 H - 513 E
and S v. Zuma supra note 8 at para 28.
[294]See
S v Holshausen 1983 (2) SA 699 (D) at 704 F - H; S v Mbatha 1985
(2) SA 26 (D) at 30 - 31.
[295]See,
apart from the obiter dictum in Mushimba referred to above, S
v Lebea 1975 (4) SA 337 (W) at 339 D.
[296]See
S v Boesman 1990 (2) SACR 389 (E) at 399 J - 401 C; Shell SA (Edms)
Bpk en Andere v Voorsitter, Dorperaad van die Oranje-Vrystaat en Andere
1992 (1) SA 906 (O) at 916; and the earlier dictum in S v Forbes and Another
1970 (2) SA 594 (C) at 598 H - 599 A.
[297]Supra
note 1.
[298]Id
at paragraph 1 per Didcott J and compare with S v. Khanyile and Another
1988 (3) SA 795 (N); S v. Davids; S v. Dladla 1989 (4) SA 172 (N) and S
v. Rudman and Another; S v. Mthwana 1992 (1) SA 343 (A).
[299]See
R v. Sand [1979] UKHL 3; [1980] AC 402 and Thomson Newspaper supra note 75 at
261, respectively.
[300]Supra
note 75 at 261 F.
[301]Id
at 262 c and 264 d - e.
[302]In
Canada under sections 7 and 11(d) of the Charter; see Thomson Newspapers
supra note 75 at 261 h. In South Africa under section 25(3) of the
Constitution.
[303]Supra
note 75 at 260 g.
[304]Lipschitz
NO v. Wolpert and Abrahams 1977 (2) SA 732 (A) at 742 - 750
and particularly at 750 G.
[305]
Meskin et al (eds) Henochsberg On the Companies Act 5ed Vol. 1 at 523.
[306]For
example, sections 282, 300 and 301 and see, generally, Henochsberg supra note
305 at 535 - 539 and 580 - 588.
[307]Act
80 of 1991. See in particular section 20(5) (a) which prescribes the action to
be taken by an auditor when he or she is "satisfied
or has reason to
believe that in the conduct of the affairs of such undertaking a material
irregularity has taken place or is taking
place which has caused or is likely
to cause financial loss to the undertaking or to any of its members or
creditors".
[308] 1995
(2) BCLR 198 (C) at 213 D - H; 1995 (2) SA 148 (C) at 165 D - J per Tebbutt J
(Scott J concurring).
[309]See,
generally, Cilliers Costs (1972) at 11 - 17.
1Compare:
S v Zuma and Others 1995(4) BCLR 401(CC), para. 33; see also, Ackermann
J's judgment at para. 79.
2R
v Kuyper 1915 TPD 308; R v Hubbard 1921 TPD
433; Ramsay v Attorney General for the Transvaal 1937 WLD 70; Halsbury’s Laws of England, vol.
17, para. 240 (4th ed. 1976).
3Reported
as Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and
Others (1995) (4) BCLR 437(W) at 456C-G.
4 Roodepoort-Maraisburg Town Council v Eastern Properties
(Prop.) Ltd. 1933 AD 87 at 101 (Wessels, CJ,
concurring).
51995(10)
BCLR 1424 (CC), para. 7.
6Laurence H. Tribe, American Constitutional Law,
at 109 (2d ed. 1988).
7Ex
Parte Nell 1963(1) SA 754 (A) at 759G-760A; Ex Parte
Prokureur-General, Transvaal 1978(4) SA 15 (T) at 20B-D; Ex Parte Chief
Immigration Officer, Zimbabwe 1994(1) SA 370 (ZSC) at 376B-377F.
8See,
e.g., R v McDonough [1989] 40 CRR 151 at 155.
9Morgentaler,
Smoling and Scott v R [1988] 31 CRR 1 at 26.
10R
v McDonough (supra) at 155 (citation omitted).
11 R v Wholesale Travel Group Inc. [1992] 7
CRR (2d.) 36 at 84-86; R v Big M Drug Mart Ltd. 18 DLR (4th) 321; Hogg, Constitutional Law of Canada,
para. 37.2(d) (3rd ed 1992).
12
Cf. Roodepoort Maraisburg Town Council (supra) and the comments there
made concerning the actio popularis.
131995(10)
BCLR 1382 (CC).
14Id.
at para. 10.
15Id.
16[1990]
67 DLR (4th) 161 (“Thomson”).
17Id.
at 186.
18Supra
note 5, at para. 5.
19Guzzardi
v Italy [1980] ECHR 5; 3 EHRR 333 at 362, para. 92 (with respect to that
wording in Article 5 of the European Convention).
20Sieghart, The International Law of Human Rights,
Clarendon Press, Oxford (1992) 139-142 (citing Guzzardi’s case, supra; Arrowsmith
v United Kingdom (7050/75) Report: DR 19,5; and X v United Kingdom
(5877/72) CD 45,90).
21 S v Zuma [1995] ZACC 1; 1995 (4) BCLR 401 (CC), para. 15;
S v Makwanyane 1995 (6) BCLR 655 (CC), para. 9; and S v Mhlungu
[1995] ZACC 4; 1995 (7) BCLR 793 (CC), para. 8.
22S
v Makwanyane 1995 (6) BCLR 655 (CC), para. 10.
23See
in this regard the comments of L’Heureux-Dubé J in the Thomson case,
supra, at p.269-270.
24I.e.,
“the right not to have “obstacles to possible choices and activities” placed in
[the way of any person] by ... the State”,
para. 54 (citation omitted).
25Bolling
v Sharpe [1954] USSC 41; 347 US 497 (1954) at 499; Board of Regents v
Roth [1972] USSC 168; 408 US 564 (1972) at 572.
26See,
in this regard, the judgment of Lamer J in Reference Re Criminal Code s. 192
and 195 (1)(c) [1990] 48 CRR 1 at 46, and Hogg,
supra, para. 44.7 and 44.8 (3rd ed 1992).
27 Thomson, supra, at 186 (Wilson J,
dissenting); see also, Edward Brooks and Art v The Queen 35 DLR (4th) 1
at 54 (per Dickson, CJC).
28Supra,
at 46.
29Supra,
at 17.
30Morgentaler,
Smoling and Scott v R [1988] 31 CRR 1 at 33.
31The Basic Law of the Federal Republic of Germany,
Press and Info. Office of the Government of the Federal Republic of Germany
(1977).
32David P. Currie, The Constitution of the Federal
Republic of Germany, at 316 (Univ. of Chicago Press 1994).
33Id.
346
BverfGE 32.
35Supra
note 32 at 317-318 (citation omitted).
36Supra
note 32 at 318 (citation omitted).
38Supra
note 6, at 769.
39Id.
at 582.
40Supra
note 37 at 76.
41Hogg, supra note 11, at 44.16.
42See
paragraph 79 of his judgment.
1Section
25(3) of the Constitution of the Republic of South Africa No. 200 of 1993.
2Companies
Act No. 61 of 1973.
3The
qualification to section 417(b) of the Companies Act which renders admissible
at a subsequent criminal trial evidence compulsorily
obtained from persons at
an enquiry into the affairs of an insolvent company.
4Contained
in section 7(4).
6Especially
in paragraph [6] of his judgment.
7At
Paragraph [9] of his judgment.
8See
section 417(1) of the Companies Act.
9I
do not overlook but regard as remote the kind of case where the witness is not
sure whether the particular conduct does or does
not constitute a crime.
10See
Laurence H. Tribe, AMERICAN CONSTITUTIONAL
LAW 78 - 82, paragraph 3.10 (1988); Peter W. Hogg, CONSTITUTIONAL
LAW OF CANADA
paragraphs 56.4 and 56.17 (1992); Robert J. Sharpe, CHARTER
LITIGATION 340-2 (1987).
11Supra note
10, at 328 et. seq.
12See
section 7(4) and the analysis of the section in the judgment of Chaskalson P,
at paragraphs [166] to [169]. See also Zantsi v Council of
State, Ciskei and Others, 1995 (10) BCLR 1424 (CC) at paragraph 7.
13The
values of which we and the other courts of land are enjoined by section 35(1)
of the Constitution to promote.
14See
paragraphs [72] to [113] of his judgment in the course of which he reviews on
an array of relevant Canadian, American, English, German
and European Union
sources.
15The
maxim "nemo pro se prodere tenetur" of ancient lineage, encapsulates
the principle.
16In
paragraphs [171] and [184] of his judgment.
1See
paragraph 170 of the judgment of Chaskalson P.
2See
paragraph 171 of the judgment of Chaskalson P.
3See
paragraph 184 of the judgment of Chaskalson P.
4See
paragraph 211.
5S
v Mhlungu (supra) at para.108.
1I
say ‘as a general rule’ because special attention has to be given to the
question whether answers elicited in a Companies Act
enquiry constitute an
exception, the tendering of which can be justified in terms of section 33(1) of
our Constitution.
2It could
have been different. Had Dutch overlordship in the Cape not been replaced
by that of the British, we could well be
extolling the virtues of the
inquisitorial system of criminal justice, in terms of which the interrogation
of potential accused persons
is normal. See H R Hahlo and Ellison Kahn: The
South African Legal System and its Background,Juta & Co 1968 at p576; also
Jonathan Burchell and John Milton, Principles of Criminal Law, Juta
& Co. 1991 at pp20-21, and CJR Dugard, South African Criminal Law and
Procedure Vol IV Introduction to Criminal Procedure, Juta and Co. 1977 p26
where he says
...a
welcome innovation of English origin was the abolition of the judicial practice
of interrogating an accused. The accused
was now warned that he was not obliged
to make a statement which might incriminate him, and no confession was
admissible in evidence
against him unless it was shown to have been freely and
voluntarily made (s.28 of Ordinance 72 of 1830).
Hoffmann
and Zeffert in South African Law of Evidence (4th ed) at p7, point out
that this Ordinance formed a model from which virtually all subsequent South
African legislation on the
subject was taken. See also S v Sesetse ‘n
Ander 1981 (3) SA353(A) at 355 F, where the court stated that our criminal
law is based on two principles, the first being that
we have an
accusatorial system where an accused is considered to be innocent until he is
found guilty.
3See
the fair trial guarantees contained in section 25, especially in subparagraphs
2(c), 3(c) and 3(d).
4R
v S (RJ) ]121 D.L.R. (4th) 589 at p620 where Iacobucci J
points out that in the United States both the accused person and the witness
benefit from a constitutionalised version of the common law privilege against
self-incrimination. Later he says
(at p657)
.....what
should be obvious in the American context... is that a statute in that country
which purports to abrogate a testimonial
privilege is in direct violation of
the Fifth Amendment. As a general rule, a statute which purports to do
the same thing in
Canada is in direct violation of nothing at all.
The same could be said for
this country.
5Section
25(2): Every person arrested for the alleged commission of an offence shall
...... have the right - ( c) not to be compelled
to make a confession or
admission which could be used in evidence against him or her.
25(3): Every accused person shall have the right to a
fair trial which shall include the right - ( c) to be pressumed innocent and
to
remain silent during plea proceedings or trial and not to testify during trial;
(d) ...... not to be a compellable witness against
himself or herself .....
6Section
33(3): The entrenchment of the rights in terms of this Chapter shall not be
construed as denying the existence of any other
rights or freedoms recognised
or conferred by common law, customary law or legislation to the extent that
they are not inconsistent
with this Chapter.
7Virtually
all the judges in R v S (RJ) and Thomson Newspapers v Canada,
67 DLR (4th) 161, located the right against self-incrimination in a residual
protection against self-incrimination under section
7 of the Canadian Charter,
which deals with life, liberty and personal security, rather than in a penumbra
relating to the specific
Charter provisions dealing with protections accorded
to an accused in the course of a trial. Freedom comes from two barrels
of
our Constitution, the protected freedom interest in section 11, and the
interpretive freedom value in section 35(1). One
might say that freedom
is squared. In my view, the case before us lends itself readily to
treatment in terms of the freedom
interest contained in section 11, as
interpreted by the freedom value urged upon us by section 35(1). I
accordingly do
not find it necessary to offer a definitive opinion in the the
present case as to whether or not a fair trial right can be said actually
to be
threatened.
8To
replicate the broad American approach to liberty in the context of the
structure of our Constitution, would mean that just
about every law
would, simply by virtue of its compulsory character, represent an
invasion of freedom and as such have to be
justified by section 33(1)
criteria. The two-stage enquiry which our Court normally adopts - see S
v Zuma [1995] ZACC 1; 1995 (4) BCLR 401; S v Makwanyane and another [1995] ZACC 3; 1995 (6) BCLR
665 (CC); S v Williams and others [1995] ZACC 6; 1995 (7) BCLR 861 (CC) - would in
effect be reduced to a one-stage enquiry. The further consequence would
be to over-extend the judicial power
by allowing this Court to review virtually
all legislation in terms of its ‘necessity’. In addition, there is the
danger
of many of the remaining provisions of Chapter 3 being subsumed under
the right to freedom and becoming redundant, with consequent
impoverishment of
the texture of the Chapter and a weakening of its internal balance.
Sometimes less is more - a narrowly defined
concept of freedom can be more
easily defended against invasion than a broad one - see Peter W Hogg - Constitutional
Law of Canada, 3ed (1992) Carswell Chapter 4.
9Thomson
Newspapers v Canada supra note 7 per La Forest J. at
p220
.....in
a modern industrialised society it is generally accepted that many activities
in which individuals can engage must never the
less to a greater or lesser
extent be regulated by the state to ensure that the individual's pursuit of his
or her self-interest
is compatible with the community's interest in the
realization of collective goals and aspirations.
He
goes on to point out at 228 that
..... the
ultimate justification for a constitutional guarantee of the right to privacy
is our belief...that it is for the individual
to determine the manner in which
he or she will order his or her private life.....to decide what persons or
groups he or she will
associate with. One does not have to look far in
history to find examples of how the mere possibility of the intervention of
the
eyes and ears of the state can undermine the security and confidence that are
essential to the meaningful exercise of the right
to make such choices.
But where the possibility of such intervention is confined to business records
and documents, the situation
is entirely different. These records and
documents do not normally contain information about one's lifestyle, intimate
relations or political or religious
opinions. They do not, in short, deal
with those aspects of individual identity which the right of privacy is
intended to protect
from the overbearing influence of the state. On
the contrary...... it is imperative that the state have power to regulate
business and the market both for economic reasons
and for the protection of the
individual against private power. Given this, state demands concerning
the activities and internal
operations of business have become a regular and
predictable part of doing business. (My emphasis.)
10See Dennis
Davis, Matthew Chaskalson and Johan de Waal, The Role of Constitutional
Interpretation in Rights and Constitutionalism Van Wyk et al eds,
Juta 1994 at p88
The
classical approach sees rights as the protection of those historically
vulnerable areas of individual and societal freedom against
state
interference. The individual's dependence on the state for the
realisation of his/her rights and the individual's need
for protection from
societal infringements of his/her rights is addressed by the objective dimension.
And at p100:
The state
must therefore establish the necessary social preconditions for the exercise of
Grundrechte.
11Dawn
Oliver, The Changing Constitution, 3rd ed, Jowell and Oliver eds,
Clarendon Press (1994) p461,
To
define people as autonomous individuals is to underestimate the extent to which
we are, inevitably and indeed beneficially, dependent
on one another.
Lawrence
Tribe, American Constitutional Law, 2nd ed, p1305,
Meaningful
freedom cannot be protected simply by placing identified realms of thought or
spheres of action beyond the reach of government,
anymore than it can be
defended entirely by establishing minimum levels of specific services for
government to provide.
Nedelsky,
Reconceiving Rights as Relationships, p7, paper delivered at the Centre for
Applied Legal Studies, University of Witwatersrand (1993), quoted in van Wyk et
al p63
dependence
is no longer the antithesis of autonomy, but a pre-condition in the relationships
- between parent and child, student and
teacher, state and citizen - which
provide the security, education, nurturing and support that make the
development of autonomy possible
... the collective is a source of autonomy as
well as a threat to it.
See also, Nedelsky, Private
Property and the Limits of American Constitutionalism, University of
Chicago Press (1990).
12For a
Canadian example of this kind of reasoning see Morgantaler v Queen
(1988) 44 D.L.R. (4th) 385 at p493 per McIntyre J (dissenting)
to
invade the s.7 right of security of the person, there would have to be more
than state-imposed stress or strain. A breach of the
right would have to be
based upon an infringement of some interest which would be of such nature and
such importance as to warrant
constitutional protection.
The majority of the court in that
case, which dealt with abortion, felt that the physical and psychological
integrity of the pregnant
woman did engage such an interest.
13In terms
of section 35(3),
in
the interpretation of any law and the application and development of common law
and customary law, a court shall have due regard
to the spirit, purport and
objects of Chapter 3.
Chapter 3 is headed ‘Fundamental
Rights’. Guarding the fundamental rights framework is the function of
this Court; interpreting
and developing the law within this framework is the
task of the ordinary courts.
14If
one looks at other rights entrenched in our Constitution, then the need to
impose sensible functional restrictions on the circumstances
where proof of
reasonable limitation is required, becomes even clearer. Thus, the right
to dignity is expressed in a totally
unqualified manner in section 10.
Could this mean that every statute and each and every action by a state
official causing
embarrassment, discomfort or a loss of composure to any
person, would have to be justified in terms of section 33(1) criteria?
Could it be appropriate to regard the right to dignity as being so wide as to
catch the fragments of state-induced inconvenience
that escape even the
residuary net said to be provided by the right to freedom? To carry the
matter even further, could the
right to privacy be the ultimate barrier,
requiring justification of any state action whatsoever?
15In R v
Edwards Books and Art Ltd (1986) 35 D.L.R. (4th) 1 at p55 Dixon CJC wrote
in
my opinion ‘liberty’ in s.7 of the Charter is not synonymous with unconstrained
freedom.
In
another case, Reference re s.94(2) of Motor Vehicle Act (1985), 24
D.L.R. (4th) 536 at 565 Wilson J observed:
Indeed,
all regulatory offences impose some restriction on liberty broadly construed.
But I think it will trivialize the Charter
to sweep all those offences into s.7
as violations of the right to life, liberty and security of the person even if
they can be sustained
under s.1.
See
also her remarks in Operation Dismantle Inc (1985) 1SCR 441 at pp489-91;
Patrice Garant in The Canadian Charter of Rights and Freedom, Beaudoin
and Ratushny eds, (1989) Carswell 2nd ed at p352:
Countless
standards, provisions and measures which affect the security of individual
citizens are established by public authorities.
Would it be necessary to
see in each case an interference with or threat to the security of the
individual?
16The
definition which I propose, is, unavoidably I believe, the result of a certain
degree of circular reasoning. In my view,
it is inevitable that the
definitional ambit of section 11 should be influenced by a considered
evaluation, structured by the
text and the overall purposive design of
the Constitution, as to the kinds of state intervention that by their nature
are so potentially
injurious to fundamental rights, that they can only be
condoned if they meet the strict justificatory requirements of section
33.
For a forceful critique of this kind of ‘definitional balancing’, however,
see David Beatty, Constitutional Law in Theory and Practice, Toronto
(1995) at p84 et seq.
17This is
consistent with the approach adopted by Kentridge AJ in S v Zuma supra
note 8, where he said at para 33,
I therefore
consider that the common law rule on the burden of proof is inherent in the
rights specifically mentioned in section 25(2)
and 3( c) and 3(d), and forms
part of a right to a fair trial. In so interpreting these provisions of the
Constitution I have taken
account of the historical background, and comparable
foreign case law. I believe too that this interpretation promotes the
values which underlie an open and democratic society and is entirely consistent
with the language of section 25.
18Garant
supra note 15 at p344 points out that in Canada certain fundamental legal
traditions, such as those associated with patriarchy
and the treatment of
aboriginal people, were in fact in contradiction with the Charter.
Quoting Tanya Lee in Section 7 of the Charter: An Overview (1985)
43 U.T. Fac. L. Rev. 1 at p8 where she states
.....the
traditions of a society are not necessarily admirable.
The afterword to our Constitution
speaks unequivocally of a past characterised by untold suffering and injustice
and gross violations
of human rights.
19See
Iacobucci J in R v S (RJ) supra note 7 at p632. In Thomson
Newspapers supra note 7 at p195 Wilson J quotes Stephen’s classic statement of
what
is meant by the phrase ‘criminating himself’,
It is not
that a man must be guilty of an offence and say substantially, ‘I am guilty of
the offence, but am not going to furnish
evidence of it.’ I do not think
the privilege is so narrow as that, for then it would be illusory. The
extent of the
privilege is I think this: the man may say ‘if you are going to
bring a criminal charge, or if I have reason to think a criminal
charge is
going to be brought against me, I will hold my tongue. Prove what you
can, but I am protected from furnishing evidence
against myself out of my own
mouth’.
20McNabb
v. United States [1943] USSC 122; 318 U.S. 332 at 347 (1943).
21Per
Lamer J, as he then was, in Reference re s.94(2) of Motor Vehicle Act,
supra note 15 at p549-50. He was dealing with the 'principles of
fundamental justice' in the Canadian Charter.
22The
‘never again’ principle as in the USA after Independence and Germany after the
Second World War, has particular relevance
in respect of interpreting our
Constitution. In the present context, issues such as banning orders and abusive
use of Commissions
of Enquiry, come to mind. Professor Dugard, supra note
2 at p86, writing contemporaneously, shows how the fairness of trials
in
security matters was jeopardized by pre-trial interrogations of witnesses and
potential accused in solitary confinement, even
where their statements were not
directly used in evidence at subsequent trials.
23See
discussion in paras 250 - 252.
24See
Hogg supra note 8.
25Per
Iacobucci J in R v S (RJ) supra note 7 at p636:
the
principle against self-incrimination may mean different things at different
times and in different context [It] admits of many
rules.
See
also Lord Mustill’s reference in Reg. v Director of Serious Fraud Office, Ex
p. Smith [H.L.(E)] 1993 A.C. p1 at p24G, to what is
compendiously,
albeit inaccurately, called the ‘right of silence’.
A
term which
arouses
strong but unfocused feelings (but) does not denote any single right, but
rather refers to a disparate group of immunities,
which differ in nature,
origin, incidence and importance
at p30F. One of these motives is
the
instinct that it is contrary to fair play to put the accused in a position
where he is exposed to punishment whatever he does.
If he answers, he may
condemn himself out of his own mouth: if he refuses he may be punished for his
refusal ......
at p32B.
26L'Heureux-Dube
J in R v S (RJ) supra note 7 at p702-3 mentions that all these
activities enlist the individual's co-operation in his or her own
investigation.
The
dignity of the individual,
she
says,
is a
fundamental value underlying both the common law and the Charter.
Although the search of an individual's home is an invasion
of privacy, and
although the taking of fingerprints, breath samples or bodily fluids are even
more private, there is no doubt that
the mind is the individual's most private
sanctum. Although the state may legitimately invade many of these spheres
for valid
and justifiable investigatory purposes vis-a-vis the accused, it is
fundamental to justice that the state not be able to invade the
sanctum of the
mind for the purpose of incriminating that individual. This fundamental
tenet is preserved, in its entirety,
by the principle against
self-incrimination.' I would support this approach.
27Section
417(2)b, first part.
28Section
417(2)b, latter part. In terms of section 424(1) and (3) concerning
liability of directors and others for fraudulent
conduct of business
every
person who was knowingly a party to the carrying on of the business in the
manner aforesaid, shall be guilty of an offence.
29MacKenna
J in Regina v Harris (Richard) and another, 1970 (1) WLR 1252 G.
30Iacobucci
J in R v S (RJ) supra note 7 at p635 quotes Wigmore as referring to the
3
horns of the triceratops - harmful disclosure, contempt, perjury.
Mr
Justice Goldberg converted this into
the
cruel trilemma of self-accusation, perjury or contempt.
Murphy
v Waterfront Com. of New York Harbor 378 U.S.
52 (1964) 678 at 681. The full quotation bears repetition:
The
privilege against self-incrimination ..... reflects many of our fundamental
values and most noble aspirations: Our unwillingness
to subject those suspected
of crime to the cruel trilemma of self-accusation, perjury or contempt; our
preference for an accusatorial
rather than an inquisitorial system of criminal
justice; our fear that self-incriminating statements will be elicited by
inhumane
treatment and abuses; our sense of fair-play which dictates ‘a fair state-individual
balance by requiring the government to leave
individual alone until good cause
is shown for disturbing him and by requiring the government in its contest with
the individual
to shoulder the entire load’; our respect for the inviolability
of the human personality and of the right of each individual ‘to
a private
enclave where he may lead a private life’; our distrust of self-deprecatory
statements; and our realisation that the
privilege, while sometimes ‘a shelter
to the guilty’ is often ‘a protection to the innocent’.
31(1856)
Dears. & B. 47 at p58.
32Reg.
v Director of Serious Fraud Office, Ex p. Smith supra
note 25 at p40 D-E. It should be borne in mind that these remarks
were made in the context of the interpretation
of a statute where parliamentary
supremacy prevailed and no issue of constitutionally inviolable fundamental
rights could be raised.
Furthermore, the statute in question expressly
excluded the use of answers in a subsequent criminal trial. Nevertheless,
the
passage does indicate that the common law privilege against
self-incrimination has, as far as company officials are concerned, been
honoured as much in the breach as in the observance.
33Section
4(1) of the Constitution reads
This
Constitution shall be the supreme law of the Republic and any law or act
inconsistent with its provisions shall, unless otherwise
provided expressly or
by necessary implication in this Constitution, be of no force or effect to the
extent of the inconsistency.
See the remarks by Wilson J on a
similar provision in the Canadian Charter, in the Thomson Newspapers
case supra note 7 at p203.
34As
Ackermann J points out in paras 118 - 119, legislation in the Transvaal, the
commercial hub of the country, has, at least since
1926, expressly authorised
the use of incriminating answers in subsequent criminal proceedings.
35In
Coetzee v Government of the Republic of South Africa and Matiso and others v
Commanding Officer Port Elizabeth Prison and others 1995 (10) BCLR 1382 at
paras 55 - 60, I had occasion to cite a large number of international
instruments and commentaries on the subject, and I
will not repeat them here.
36R
v Keegstra (1990) 3 C.R.R. (2d) 193 at p221.
37Act
No. 117 of 1991.
38See section
5(b);
No
evidence regarding any questions and answers contemplated in paragraph (a)
shall be admissible in any criminal proceedings, except
in criminal proceedings
where the person concerned stands trial on a charge contemplated in subsection
(10) (b) or (c), or in section
319 (3) of the Criminal Procedure Act, 1955 (Act
No. 56 of 1955).
These latter exceptions refer
essentially to perjury and making contradictory statements on oath.
39Act
No. 24 of 1936 section 65(2A)(b); the only exceptions relate to the giving of
false evidence or the failure to answer lawful questions
fully and
satisfactorily.
40In Ullman v United States,
[1956] USSC 31; 350 U.S. 422 (1956) at p428.
41Writing in
1977, Professor Dugard supra note 2 points out supra at p86,
While
the Criminal Procedure Act introduces a procedure with slight resemblances to
the inquisitorial system, ‘the drastic process’
has produced a procedure with
striking similarities to the inquisitorial method. The 90 day detention
law (section 17 of Act
No. 37 of 1963), the 14 day detention law(section 22 of
Act No. 62 of 1966), section 6 of the Terrorism Act and section 13 of the
Abuse
of Dependence-producing Substances and Rehabilitation Centres Act all authorise
police interrogation in solitary confinement before the arrested person
is brought to trial .....Thus as an example of the inquisitorial
method it is
closer to the Roman-Dutch extra-ordinary procedure than it is to modern
continental inquisitorial methods where the
person subjected to interrogation
is assured all the guarantees normally accorded to a person under the
accusatorial system.
(Original emphasis).
42The judges
in both Thomson Newspapers case supra note 7 and R v S (RJ) supra
note 7 were all agreed that use immunity should be co-extensive with the oral
testimony given. They disagreed on
the question of derivative
immunity. The coupling of compellability with protection in the form of
evidentiary immunity, was
regarded as a unique Canadian balancing of individual
and societal interests. See Iacobucci J in R v S (RJ) at
p649. In Thomson Newspapers case at p246 La Forest J said
A
right to prevent the subsequent use of compelled self-incriminating testimony
protects the individual from being ‘conscripted
against himself’ without
simultaneously denying an investigator's access to relevant information.
It strikes a just and proper
balance between the interests of the individual
and the state.
43I agree
with Ackermann J that at this stage that we are not called upon to make a
definitive finding on whether the use
of derivative evidence, or so
called ‘clue facts’, should at the subsequent criminal trial automatically be
regarded as either
permissible or impermissible. The trial court would,
at that stage, not be dealing with the ‘fruits of a poisoned tree’,
but rather
with the product of a legitimate and legally controlled enquiry. Nor
would it be concerned with evidence existing
solely of words used by the
accused, but instead with objective evidence existing independently of any oral
communication.
In addition, if all incriminating evidence possibly
derived from the examinee’s answers were automatically to be excluded in the
same way as the incriminating answers themselves, then a subtle and crooked
examinee could gain effective immunity from prosecution
by answering questions
in such a manner as to cover all possible sources of evidence at a subsequent
criminal trial. In Thomson Newspapers case supra note 7 at 260 Le
Forest J says that
a
general requirement of derivative use immunity would mean that in many cases
the use of the power to compel testimony would furnish
wrongdoers with the type
of ‘immunity baths’ that were characteristic of the transaction immunity
formerly available in the United
States:
Sopinka J in R v S (RJ)
supra note 7 at p721 expresses the further fear that even challenges to
derivative use could lead to interminable admissibility
proceedings resulting
in virtual transactional immunity. I feel, however, that there could well
be circumstances where it would
manifestly not be fair to admit such derivative
evidence. These are matters, which, in my view, should be determined by
the
trial court, using a voir dire if necessary.