Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others

• Jurisdiction: South Africa
• Citation: 1995 (2) SA 813 (W)

Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others
1995 (2) SA 813 (W)

1995 (2) SA p813

Citation	1995 (2) SA 813 (W)
Case No	5001/95
Court	Witwatersrand Local Division
Judge	Streicher J, Zulman J, Heher J
Heard	January 6, 1995
Judgment	March 3, 1995

Flynote : Sleutelwoorde H

I Constitutional practice — Courts — Jurisdiction — Supreme Court — Provincial and Local Divisions — Jurisdiction of to grant interdict pending decision of Constitutional Court in proceedings for order declaring provisions of Act of Parliament unconstitutional in terms of Constitution of the Republic of South Africa Act 200 of 1993 — On proper interpretation of ss 101(3)(c) and 98(2)(c), Provincial and Local J Divisions having jurisdiction to consider such applications —

1995 (2) SA p814

A Court accordingly granting temporary interdict prohibiting respondents from conducting inquiry in terms of ss 417 and 418 of Companies Act without granting applicants the right to refuse to answer questions tending to incriminate them or to expose them to civil liability.

B Company — Enquiry in terms of ss 417 and 418 of Companies Act 61 of 1973 — Constitutionality of — Section 25(3)(d) of Constitution of the Republic of South Africa Act 200 of 1993 — Accused's right to a fair trial and not to be a compellable witness against himself — Section 417(2)(b) of Companies Act compelling person summoned under ss (1) to testify and produce C documents — Provincial and Local Divisions of Supreme Court having jurisdiction to entertain application for interim interdict pending decision of Constitutional Court on constitutionality of s 417(2)(b) — As to merits of application, applicants having established that issue a serious one, that there was sufficient likelihood of irreparable harm and D that balance of convenience favoured them, albeit marginally — Applicants requiring limited protection — Enquiry in terms of s 417 allowed to proceed on condition that applicants be allowed to refuse to answer questions tending to incriminate them or to expose them to civil liability.

Headnote : Kopnota

E The applicants in the instant applications, who had been summoned to testify at enquiries ordered in terms of ss 417 and 418 of the Companies Act 61 of 1973, contended that s 417(2)(b), which compels a person summoned under ss (1) to testify about the affairs of a wound-up company 'notwithstanding that the answer might tend to incriminate him' was in conflict with s 25(3)(d) of the Constitution, in terms of which every accused person has 'the right to a fair trial, which shall include the right . . . to adduce and challenge evidence, and not to be a compellable F witness against himself'. The applicants duly approached a Provincial Division for interim interdicts prohibiting the Master and the liquidators of the companies in question (the respondents) from conducting any further interrogation pending the Constitutional Court's decision on the constitutionality of the said s 417(2)(b). The first hurdle the applicants had to overcome was the fact that earlier decisions in that Division held that, because the Supreme Court lacked the constitutional competence to pronounce upon the validity of a Parliamentary law (s G 101(3)(c) of the Constitution), it could not make an interim order of the kind sought by the applicants. The Court a quo followed this line of cases and dismissed the applications for interim relief. On appeal to the Full Bench,

Held (per Heher J, Zulman J concurring, Streicher J dissenting), as to the issue of the interpretation of ss 101 and 98 of the Constitution, that an 'inquiry into the constitutionality' of any law, as the phrase is used in ss 98 and 101, meant 'an investigation with a view to determining finally H whether any law or provision of it is valid or not': it did not encompass the preliminary assessment of the merits of an applicant's case which was an element of interim relief. (At 824H.)

Held, further, that the fact that the Constitution provides in certain circumstances for laws or provisions in them to remain in force until repealed by Parliament was not a bar to the grant of interlocutory relief in such cases. (At 824I.)

Held, further, as to the nature of the inquiry required to justify the I grant of an interim interdict, that the phrase 'a prima facie case though open to some doubt' test for the granting of an interdict required a preliminary assessment of the merits of an applicant's case. Accordingly, it did not require an enquiry into the constitutionality of an Act of Parliament where final relief was dependent on the invalidity of that Act or a provision in it. (At 824I/J-825A/B.)

Held, further, that the test enunciated in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL) at 510d (viz that there had to be 'a serious J question to be tried') had to be recognised as of equal validity with the 'prima facie though open to some

1995 (2) SA p815

A doubt' test when deciding whether interim relief should be granted in constitutional cases. This test also did not require an 'inquiry into the constitutionality' of an Act within the meaning of s 101(3)(c) of the Constitution. (At 825A/B-B/C.)

Held, further, that a Provincial or Local Division of the Supreme Court had jurisdiction to grant temporary interdicts in circumstances such the present. (At 825B/C.)

Held, further, as to the merits of the application, that it was clear that the applicants had managed to establish that the issue was a serious one and that they had good reason to fear irreparable harm if protection was B not accorded to them. (At 825C-D.)

Held, further, having regard to the public interest served by s 417 of the Companies Act, that the balance of convenience also favoured the applicants, though only to a marginal extent, and that the applicants required a limited exemption from the effects of the section. (At 825D.)

Held, further (per Zulman J), that it might be suggested that the lack of a specific provision conferring jurisdiction upon a Provincial or Local C Division to grant interim relief pending the decision of the Constitutional Court was a simple casus omissus. (At 846G-H.)

Held, further, it would be 'efficacious' to imply such jurisdiction in favour of Provincial and Local Divisions. (At 847C.)

Held, further, that the contrary approach would lead to a situation where the protection of the fundamental right relied upon by a particular applicant might exist only on paper and would have the effect of eroding the very right which was sought to be protected or at least tested in due D course in the Constitutional Court. (At 848C-F, paraphrased.)

Held, further, that such a construction ran counter not only to the power given to the Supreme Court in terms of s 101(3)(a) of the Constitution but also to the principle of supremacy of the Constitution enunciated in ss 4 and 35(3). (At 848F.)

Held, further, that unless the Supreme Court was afforded the implied or ancillary right, when referring an appropriate matter for decision by the Constitutional Court, to grant interim relief, such referral could well be E rendered nugatory. (At 849C.)

Held, further, that the Supreme Court's jurisdiction in respect of chap 3 violations accordingly included a jurisdiction to interdict, in an appropriate case, a threatened chap 3 violation pending the determination of the constitutional validity of a Parliamentary enactment. (At 849E/F-F.)

Held, further, that one had to distinguish the 'final' right in issue and the 'interim' right effectively to pursue such right in the Constitutional Court: whilst s 101(3)(c) might oust the jurisdiction of the Supreme Court F to determine finally the final right in issue, it did not upon a proper construction thereby oust the jurisdiction of a Supreme Court to determine the interim right where the final right was in jeopardy. (At 849I-850A/B.)

Held, further, that the applicants' interim right, viz the right to approach the Constitutional Court to determine the constitutionality of s 417 of the Companies Act, was plainly established; that the threat of infringement of the right was also plainly established; that the applicants did not have a sufficient or other legal remedy whereby their G right could be protected; and that the balance of convenience favoured the applicants: there was nothing of overriding consequence which dictated that the respondents should pursue an interrogation of the applicants upon matters wherein they might incriminate themselves or expose themselves to civil liability before the matter was dealt with by the Constitutional Court. (At 850E-G, 850H, 851B and 852A-D, summarised.)

The appeal was accordingly upheld and the order of the Court a quo substituted by one in terms of which the s 417 enquiry was allowed to H proceed on condition that applicants be allowed to refuse to answer questions which tended to incriminate them or to expose them to civil liability. (At 844I-845B, 845D-G and 852E.)

The decision of the single Judge in the Witwatersrand Local Division in Ferreira v Levin NO and Others; Vryenhoek v Powell NO and Others reversed. I

Case Information

Appeal from a decision of a single Judge in the Witwatersrand Local Division (Van Schalkwyk J). The nature of the issues appears from the judgment of Heher J.

R D Levin SC (with him D N Unterhalter) for the appellant in the Ferreira case.

D J Shaw QC (with him C Edeling) for the first respondent in the Ferreira case. J

1995 (2) SA p816

C Edeling for the second respondent in the Ferreira case. A

No appearance for the third respondent (the Master) in the Ferreira case.

R D Levin SC (with him D N Unterhalter) for the appellants in the Vryenhoek case.

D J Shaw QC (with him C Edeling) for the first and second respondents in the Vryenhoek case. B

C Edeling for...