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

• Jurisdiction: South Africa
• Citation: 1996 (1) SA 984 (CC)

Ferreira v Levin NO and Others;
Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984 (CC)

1996 (1) SA p984

Citation	1996 (1) SA 984 (CC)
Case No	CCT 5/95
Court	Constitutional Court
Judge	Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J and Trengove AJ
Heard	May 9, 1995
Judgment	December 6, 1995
Counsel	R D Levin SC (with him D Unterhalter) for the applicants in both applications.; S A Cilliers SC (with him R Strydom) for the second respondents in the Ferreira application.; C Edeling for the third respondent in the Vryenhoek application.; W H Trengove SC (with him G J Marcus) for the amici curiae (J S N Fourie and others).

Flynote : Sleutelwoorde H

Constitutional law — Human rights — Right of accused to a fair trial in terms of s 25(3) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Validity of s 417(2)(b) of Companies Act 61 of 1973 in terms of — Section requiring examinee to answer under pain of fine or G imprisonment or both any question put to him or her, notwithstanding that the answer might tend to incriminate examinee and notwithstanding that any answer to any such question might be used in evidence in subsequent criminal proceedings against examinee — Section violating right of an individual not to be compelled to testify in an investigatory proceeding H with a view to possible subsequent prosecution in absence of legislative assurance that any derivative evidence obtained as result of his testimony cannot be used against him or her in such a prosecution — Section infringing rule against self-incrimination and therefore right to fair trial.

I Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Limitation of fundamental rights in terms of s 33(1) of Constitution — Limitation by s 417(2)(b) of the Companies Act 61 of 1973 of right to fair trial in terms of s 25(3) of Constitution — Limitation not necessary in sense that there is not an acceptable proportionality between legitimate J objective sought to be achieved

1996 (1) SA p985

A by s 417(2)(b) and means chosen to achieve that objective — Nothing to suggest that objective cannot fully be achieved if some form of immunity against use in a subsequent criminal trial of evidence obtained by means of compelled testimony in terms of s 417(2)(b) were to be appended to section — Violation of fundamental rights by s 417(2)(b) cannot therefore be justified under s 33(1) of the B Constitution.

Constitutional law — Human rights — Right to freedom and security of the person in terms of s 11(1) in chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Interpretation of.

Constitutional law — Legislation — Validity of — Declaration of invalidity C — Invalidity of a law determined by an objective enquiry — A statute is either objectively valid or is 'of no force and effect to the extent of its inconsistency' as provided for in s 4(1) of the Constitution of the Republic of South Africa Act 200 of 1993 — Subjective positions in which parties to dispute may find themselves cannot have a bearing on status of D provisions of statute under attack — Issue of whether a law is invalid or not does depend on whether, at the moment when the issue is considered, a particular person's rights are threatened or infringed by the offending law or not.

Constitutional law — Legislation — Validity of — Declaration of invalidity E — Effect of s 98(5) of Constitution of the Republic of South Africa Act 200 of 1993 requiring Court to indicate extent of inconsistency of a legislative provision with Constitution — Constitution requiring a narrow striking down, but in so doing according Court latitude in formulating its declaration of invalidity.

Constitutional law — Legislation — Validity of — Declaration of invalidity F — Validity of s 417(2)(b) of the Companies Act 61 of 1973 in terms of Constitution of the Republic of South Africa Act 200 of 1993 — Approach of Canadian Courts to use of evidence from compelled testimony should be adopted in respect of use of evidence obtained under s 417(2)(b) — Direct use of compelled testimony should be distinguished from use of evidence G derived from compelled testimony — While direct use of compelled evidence not permissible, trial Judge should have discretion to exclude derivative evidence — Court accordingly declaring s 417(2)(b) invalid — Court ordering that no incriminating answer given pursuant to the provisions of s 417(2)(b) on or after 27 April 1994 shall be used against person who gave such answer in criminal proceedings against such person other H than in criminal proceedings where that person stands trial on charge relating to administering or taking of oath or administering or making of an affirmation or giving of false evidence or making of false statement in connection with such questions and answers or failure to answer lawful I questions fully and satisfactorily.

Constitutional law — Human rights — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Limitation of fundamental rights in terms of s 33(1) of Constitution — Limitation by s 417(2)(b)of the Companies Act 61 of 1973 of right to fair J trial in terms of s 25(3) of Constitution —

1996 (1) SA p986

A Approach whereby blanket exclusion of derivative evidence obtained by means of s 417(2)(b) compulsion is not applied but where instead it is dealt with on flexible basis of discretionary admissibility passes s 33(1) muster.

Constitutional law — Human rights — Protection of — Fundamental rights in B terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Standing to enforce — Broad approach should be adopted to issue of standing in constitutional cases — Where impugned legislation has direct bearing on applicant's common-law rights, and non-compliance with section has possible criminal consequences, applicant has sufficient standing to C secure declaration as to constitutionality of section.

Constitutional law — Human rights — Protection of — Fundamental rights in terms of chap 3 of Constitution of the Republic of South Africa Act 200 of 1993 — Standing to enforce — Effect of s 7(4) of Constitution — Section D 7(4) not denying right of litigant to seek declaration of rights in respect of validity of law which directly affects his or her interests adversely — Section 7(4)(b)(i) not requiring that person acting in his or her own interest should be person whose constitutional right has been infringed or threatened — Rather the section requires litigant to bring E constitutional challenge in his or her own interest — For the Court to decide what constitutes sufficient interest in circumstances.

Constitutional practice — Courts — Constitutional Court — Jurisdiction — Referral to Constitutional Court in terms of s 102(1) of Constitution of the Republic of South Africa Act 200 of 1993 — Conditions for valid referral set out. F

Headnote : Kopnota

In the course of the winding-up of two companies, the applicants were summoned for examination by the Master of the Supreme Court acting in terms of s 417(1) and (2) of the Companies Act 61 of 1973 (the Act). During the course of the examination the applicants objected to being compelled, by virtue of the provisions of s 417(2)(b) of the Act, to answer questions which might tend to incriminate them. They applied to a G Local Division for a temporary interdict against the respondents, prohibiting the further interrogation of the applicants pending the determination of the constitutionality of s 417(2)(b) of the Act. On 28 November 1994 the Court dismissed both applications for interim relief, granted leave to appeal against the dismissal and referred the following issues to the Constitutional Court in terms of s 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993:

'1.

Whether s 417(2)(b) of the Act is unconstitutional in that it compels a person summoned to an enquiry pertaining to the winding-up of a H company unable to pay its debts to testify and produce documents, even though that person seeks to invoke the privilege against self-incrimination.

2.

Whether evidence given by a person at an enquiry in terms of s 417 falls to be excluded in any subsequent criminal proceedings brought against that person where the evidence may be incriminating and was extracted without recognition of that person's privilege against self-incrimination.

3.

I Whether a person appearing at an enquiry in terms of s 417 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 inquiry relevant to the interrogation of that person.

4.

Whether a person is required to give testimony at an inquiry in terms of s 417 which may tend or have the effect of supporting a civil J claim against that person.

1996 (1) SA p987

5.

A Whether a person who has given testimony at an enquiry in terms of s 417 which tends to support a civil claim against that person, may have that testimony excluded in any subsequent civil proceedings.'

At the hearing of the matter in the Constitutional Court, preliminary questions were raised about the validity of the referral from the Supreme Court and about the standing of the applicants. The judgment of Ackermann B J on the question of jurisdiction was concurred in by Chaskalson P. In turn, the entire judgment of Chaskalson P was concurred in by Mahomed DP, Didcott J, Langa J, Madala J and Trengove AJ. On the question of standing, the judgment of Ackermann J, holding that the applicants did have...