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

• Jurisdiction: South Africa
• Citation: 1995 (4) SA 631 (CC)

Coetzee v Government of the Republic of South Africa;
Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others
1995 (4) SA 631 (CC)

1995 (4) SA p631

Citation	1995 (4) SA 631 (CC)
Case No	CCT/19/94
Court	Constitutional Court
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
Heard	March 6, 1995
Judgment	September 22, 1995

Flynote : Sleutelwoorde

C Constitutional law — Legislation — Validity of — Provisions of ss 65A -65M of Magistrates' Courts Act 32 of 1944 providing for the imprisonment of judgment debtors in certain circumstances — Such provisions inconsistent with right to personal freedom provided for in s 11(1) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Such provisions also not capable of being justified as reasonable as intended D in limitation provisions of s 33(1) of Constitution — Not possible to excise only those provisions of ss 65A-65M of Act which failed to distinguish between debtors who could not pay and those who could but would not — Possible, however, to sever from rest those provisions which made up option of imprisonment, leaving balance of debt-collecting system E usefully in force — Court declining to exercise its powers under s 98(5) of Constitution to keep provisions in issue alive until Parliament had rectified them as debt-collecting system not dependent upon imprisonment sanction for its viability and such provisions clearly inconsistent with s 11(1) and so manifestly indefensible under s 33(1) that there was no F warrant for their retention, even temporarily.

Constitutional law — Legislation — Validity of — Provisions of ss 65A-65M of Magistrates' Courts Act 32 of 1944 providing for the imprisonment of judgment debtors in certain circumstances — Such provisions inconsistent with right to personal freedom provided for in s 11(1) in chap 3 of G Constitution of the Republic of South Africa Act 200 of

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A 1993 — Such provisions also not capable of being justified as reasonable as intended in limitation provisions of s 33(1) of Constitution — Semble: Possible that there may be circumstances justifying use of imprisonment to ensure court orders for payment of debts were obeyed — Legislature in B better position to research and investigate such matter and give full consideration to relevant considerations — In undertaking such investigation, Legislature should ensure that eventual process should not permit imprisonment of persons merely because they were unable to pay contractual debt, that procedures would have to be manifestly fair, and C imprisonment only reasonably available way of achieving stated objectives.

Constitutional law — Legislation — Validity of — Declaration of invalidity of provisions of statute — Provisions inconsistent with fundamental rights in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Severability of invalid provisions from remainder of statute — Court to D take account of coming into force of new Constitution and to pay due regard to values which it requires Court to promote — Court to posit a notional, contemporary Parliament dealing with text in issue when choice about severance to be made.

Constitutional law — Legislation — Validity of — Declaration of invalidity E of provisions of statute — Provisions inconsistent with fundamental rights in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Applicability of provisions of s 33(1) of Constitution justifying limitation of fundamental right — Two-stage approach for determining whether provisions in issue saved by s 33(1) — Semble: More profound the F interest being protected and the graver the violation, the more stringent the scrutiny — Two-stage process not to be applied mechanically and in sequentially divided way — Values derived from concept of open and democratic society based on freedom and equality to suffuse whole process G — Such values normative in employment of such process — Court frequently required to make difficult value judgments where logic and precedent of limited assistance.

Constitutional law — Constitution — Interpretation of — Constitution of the Republic of South Africa Act 200 of 1993 — Comparative law — Section H 35 of Constitution to be understood as requiring Court to give due attention to international experience with view to finding principles rather than rigid formulae and to look for rationales rather than rules.

Constitutional law — Legislation — Validity of — Declaration of invalidity I of provisions of statute — Provisions inconsistent with fundamental rights in chap 3 of Constitution of Republic of South Africa Act 200 of 1993 — Effect of s 232(3) of Constitution — Section giving effect to principle of 'reading down' of provisions in issue — Such permitting pared-down construction of legislation so as to rescue it from declaration of invalidity — But not requiring restricted interpretation of fundamental J rights so as to interfere as little as possible with

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A pre-existing law — Nor is it function of Court to fill in lacunaein pre-Constitution statutes to save them from invalidity.

Headnote : Kopnota

The Court found that the following provisions of the Magistrates' Courts Act 32 of 1944 (the Act) were inconsistent with the Constitution of the Republic of South Africa Act 200 of 1993 and declared them to be invalid B with effect from the date of the order, 22 September 1995:

(a)

the words 'why he should not be committed for contempt of court and' in s 65A(1) of Act 32 of 1944;

(b)

ss 65F, 65G and 65H;

(c)

paras (a) and (b) of s 65J(1);

(d)

para (b)(ii) of s 65J(2);

(e)

C the following words in para (a) of s 65J(9): '(a) or' and 'and may, subject to the provisions of s 65G, be committed for contempt of court for failing to comply with the said order';

(f)

para (b) of s 65J(9);

(g)

the following words in s 65K(2): 'or warrant for the committal of a judgment debtor or a director or an officer of any juristic person or of any sentence imposing a fine on any director or officer D representing a judgment debtor who is a juristic person'; and

(h)

s 65L.

The Court ordered further that all other provisions of ss 65A-65M of the Magistrates' Courts Act remained in force. Consequent upon the declaration of invalidity of the abovementioned provisions of the Magistrates' Courts Act, it was ordered that, with effect from the date of the order, the committal or continuing imprisonment of any judgment debtor in terms of s 65F or s 65G was invalid. (Paragraph E [19] at 645H/I-646D/E.) The decision of the Court was based on the following considerations:

Per Kriegler J; Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J concurring: To determine whether the right provided for in s 11(1) of the Constitution (ie that '(e)very person shall have the right to freedom and security of the person, which shall include the right not to be detained F without trial') is limited by the various provisions of ss 65A-65M of the Magistrates' Courts Act 1944 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. To do so without any criminal charge being levelled or any trial being held is manifestly a radical encroachment upon such right. G (Paragraph [10] at 642C-D, read with paras [7] and [8] at 641B-G.) Accepting that the goal of ss 65A-65M of the Act is to provide a mechanism for the enforcement of judgment debts and that such goal is a legitimate and reasonable governmental objective, the question is whether the means to achieve the goal are reasonable. The answer is clearly in the negative. (Paragraph [12] at 643B-C.) The fundamental reason why the means are not reasonable is because the provisions are overbroad. The sanction of imprisonment is ostensibly aimed at the debtor who will not pay. But it is unreasonable in that it also strikes at those who cannot pay and simply fail to prove this at a hearing, often due to negative H circumstances created by the provisions themselves. There are seven distinct reasons why the provisions are indefensible: (i) They allow persons to be imprisoned without having actual notice of either the original judgment or of the hearing. It is not only theoretically possible but also quite possible in practice that the debtor's first notice of the case against him is when the warrant of committal is executed. In terms of the procedure permitted by the Act and the Rules I promulgated thereunder, there need not necessarily be personal service of any process prior to that. (ii) Even if a person has notice of the hearing, he can be imprisoned without knowing of the possible defences available to him and accordingly without any attempt to advance any of them. The so-called notice to show cause issued pursuant to s 65A does not spell out what the defences are or how they could be established. (iii) The burden cast on the debtor with regard to inability to pay, although possibly defensible in principle as pertaining to matters peculiarly within his knowledge, is so widely couched that persons J genuinely unable

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A to pay are nevertheless struck. (iv) The provisions of s 65F(3)(c), which spell out what the debtor must prove, are not only unreasonably wide, but also unreasonably punitive. Whatever may be said about a debtor who wilfully frustrates payment (s 65F(3)(c)(i) and (ii)), the nakedly punitive retribution inherent in the provisions of s 65F(3)(c)(iii) and (iv)...