Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 22 September 1995
• Docket Number: CCT/19/94
• Court: Constitutional Court
• Hearing Date: 06 March 1995
• Citation: 1995 (4) SA 631 (CC)

Kriegler J:

A [1] These cases raise questions concerning the constitutional validity of the provisions of ss 65A-65M of the Magistrates' Courts Act [1] relating to the imprisonment of judgment debtors.

B [2] The constitutionality of the provisions was first challenged in the Eastern Cape. Shortly after the interim Constitution [2] came into operation, the applicant in the Matiso case, who had been imprisoned in terms of these provisions, applied to the South-Eastern Cape Local Division of the Supreme Court for an order for his urgent release from the Port Elizabeth Prison. The applicant was soon followed by a number of C other judgment debtors in the same predicament. The foundation of the applications was that the statutory authority of the orders committing the particular debtors to prison had been vitiated by ss 11(1) and 25(3) of the Constitution. Those subsections, it was argued, made imprisonment without a fair trial unconstitutional. Although they cited the commanding officer of the prison and their respective judgment creditors as D respondents, there was no opposition.

[3] The Judges who heard the applications (Melunsky and Froneman JJ) ordered the immediate release of the prisoners and referred the challenge to the constitutionality of the allegedly offending provisions of the Magistrates' Courts Act to this Court. [3] Melunsky J delivered an ex E tempore judgment and Froneman J subsequently furnished detailed reasons for the order he made. [4]

[4] Some time after the grant of the orders in the Eastern Cape the applicant in the Coetzee case applied to the Cape of Good Hope Provincial F Division for similar relief, citing the Government of the Republic of South Africa, the Minister of Justice and the judgment creditor as respondents. The Court (per Van Reenen AJ) stayed committal proceedings pending against Ms Coetzee and referred the constitutional validity of ss 65A-65M to this Court for determination. [5] Although the formulation G of the constitutional issues in the orders in the

Kriegler J

A Eastern Cape case differs somewhat from that of Van Reenen AJ, the essential issue is one and the same: is the procedure in the sections mentioned wholly or partially invalid for inconsistency with one or more of the rights guaranteed in chap 3 and circumscribed by s 33(1) of the Constitution?

B [5] I have had the opportunity of considering the judgments prepared by my Colleagues Didcott and Sachs JJ in these cases. Each of them makes quite plain why the provisions of the Magistrates' Courts Act relating to the imprisonment of judgment debtors for contempt of court [6] must be held to be invalid by reason of their inconsistency with the Constitution. Although I fully agree with that finding, my reasoning is sufficiently C different to warrant separate articulation. The grounds for my conclusion are considerably narrower than those set out in the judgment of Sachs J [7] and there is some difference of emphasis as between Didcott J and myself.

D [6] Sections 65A-65M of the Magistrates' Courts Act provide a system for the enforcement of judgment debts. Under the system a judgment debtor who has failed to satisfy the judgment debt within 10 days of the date of the judgment can be required to attend a hearing [8] at which an enquiry will be conducted by a magistrate into the financial position of the debtor, E his ability to pay and his failure to do so. [9] The magistrate may authorise property of or debts due to the judgment debtor to be attached in settlement of all or part of the debt, or the garnishing of emoluments which will accrue to the debtor from his or her employment. The debtor can also be ordered to pay the debt in full or in instalments. [10] The F system does not end there, however. It also provides for the magistrate to issue an order to commit the judgment debtor to prison for contempt of court for failure to pay the debt. [11] This last option of the magistrate is the issue which has given rise to the constitutional challenge.

Kriegler J

A [7] The notice to the debtor to appear at a hearing calls upon the debtor to 'show cause why he should not be committed for contempt of court and why the judgment debtor should not be ordered to pay the judgment debt in instalments or otherwise'. [12] The notice is drawn up by the creditor, signed by the clerk of the court and served on the debtor in accordance with the rules for service of process. [13] The magistrate has a B discretion whether to order committal to prison unless the debtor proves at the hearing that he or she (1) is under the age of 18, (2) was unaware of the original judgment for debt against him, or (3) has no means of satisfying the judgment debt. In order to show absence of means of satisfying the judgment debt the debtor also must show that such lack of C means is not due to wilful disposal of goods in order to avoid payment of the judgment debt wilful refusal to pay such debt, squandering of money or living beyond his means, or incurring of additional debts (except for household goods) after the original judgment date. [14]

D [8] On the face of it, the law seems to contemplate that imprisonment should be ordered only where the debtor has the means to pay the debt, but is unwilling to do so. However, on examination of the provisions in detail and taking notice of the actual carrying out of the provisions, it is clear that the law does not adequately distinguish between the fundamentally different categories of judgment debtors: those who cannot pay and those who can pay but do not want to. The system at issue is used E most often for the collection of small debts, usually of those who are poor and either illiterate or uninformed about the law or both. In the nature of things they do not enjoy legal representation. Imprisonment can and has been ordered without the debtor ever having notice of the original judgment or the notice to appear at the hearing. It can also be ordered F without the uninformed or illiterate debtor having sufficient knowledge about the possibility of raising defences or the means of doing so. In the result, the provisions of the law can be used to imprison the debtor who is unwilling to pay his debt even though he has the means to do so, but can also be used (and they are indeed used) to imprison the debtor who G simply is unable to pay the debt. [15]

[9] This Court has laid down that, ordinarily, one adopts a two-stage approach for determining the constitutionality of alleged violations of rights in chap 3 of the Constitution. The first stage is an enquiry whether the disputed legislation or other governmental action limits rights in chap 3 of the Constitution. If so, the second stage calls for a H decision whether the limitation can be justified in terms of s 33(1) of the Constitution. [16]

Kriegler J

A [10] The first question this Court must answer therefore is whether any of the rights in chap 3 of the Constitution are limited by the relevant provisions of the Magistrates' Courts Act. The parties argued with regard to the right to dignity (s 10), the right to freedom (s 11(1)) and the right to a fair trial (s 25(3)). Obviously the most fundamental right limited by imprisonment is the right to freedom. Section 11(1) of the B Constitution provides:

'11(1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.'

To determine whether that right is limited by the legislative provisions C under scrutiny in these cases, it really is not necessary to determine the outer boundaries of the right. Nor is it necessary to examine the philosophical foundation or the precise content of the right. Certainly to put someone in prison is a limitation of that person's right to freedom. [17] To do so without any criminal charge being levelled or any trial being held is manifestly a radical encroachment upon such right. D

[11] The remaining question then is whether that limitation of the right to freedom can be justified in accordance with s 33(1) of the Constitution. That subsection, insofar as it is relevant here, provides:

'33. Limitation

E (1) The rights entrenched in this chapter may be limited by law of general application, provided that such limitation -

(a)

shall be permissible only to the extent that it is -

(i)

reasonable; and

(ii)

justifiable in an open and democratic society based on freedom and equality; and

(b)

F shall not negate the essential content of the right in question,

and provided further that any limitation to

(aa)

a right entrenched in s . . . 11 . . .

. . .

shall, in addition to being reasonable as required in para (a)(i), also be necessary.'

G In making the determination, especially with regard to a right as fundamental as the one in question, namely personal freedom, one really need not go beyond the test of reasonableness. This is made all the clearer by the criteria for interpretation of the chap 3 rights and limitations found in s 35 of the Constitution. Section 35(1) provides, inter alia:

H '35. Interpretation

(1) In interpreting the provisions of this chapter a court of law shall promote the values which underlie an open and democratic society based on freedom and equality. . . .'

KRIEGLER J

A Clearly that provision applies to the interpretation of both the fundamental right protected and the evaluation of any limitation according to the criteria of s 33(1). In the case of the right and limitation at issue here such interpretation is perfectly simple. At the very least a law or action limiting the right to freedom must have a reasonable goal and the means for achieving that goal must also be reasonable. [18]

B [12] I accept that the goal of ss 65A-65M of the Magistrates'...