Nel v Le Roux NO and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 04 April 1996
• Citation: 1996 (3) SA 562 (CC)
• Docket Number: CCT 30/95
• Hearing Date: 20 February 1996
• Counsel: L J van der Merwe for the applicant. P P Stander for the second respondent. E M Patel for the third respondent. P F Louw for the fourth respondent.
• Court: Constitutional Court

C Ackermann J:

[1] Pursuant to a referral from the Witwatersrand Local Division of the Supreme Court in terms of s 103(4) of the Constitution [1] we are called upon to decide the constitutionality of D s 205 of the Criminal Procedure Act [2] which is in the following terms:

'(1)

A Judge of the Supreme Court, a regional court magistrate or a magistrate may, subject to the provisions of ss (4), upon the request of an Attorney-General or a public prosecutor authorised thereto in writing by the Attorney-General, require the attendance before him or any other Judge, regional court magistrate or magistrate, for examination by the Attorney-General or the public prosecutor authorised thereto in writing by the Attorney-General, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to F the satisfaction of the Attorney-General or public prosecutor concerned prior to the date on which he is required to appear before a Judge, regional court magistrate or magistrate, he shall be under no further obligation to appear before a Judge, regional court magistrate or magistrate.

(2)

The provisions of ss 162-165 inclusive, 179-181 inclusive, 187-189 inclusive, 191 and 204 shall mutatis mutandis apply with reference to the proceedings under ss (1).

(3)

The examination of any person under ss (1) may be conducted in G private at any place designated by the Judge, regional court magistrate or magistrate.

(4)

A person required in terms of ss (1) to appear before a Judge, a regional court magistrate or a magistrate for examination, and who refuses or fails to give the information contemplated in ss (1), shall not be sentenced to imprisonment as contemplated in s 189 unless the Judge, regional court magistrate or magistrate concerned, as the case may be, is also of the opinion that the furnishing of such information is H necessary for the administration of justice or the maintenance of law and order.'

[2] One Hoogakker was charged in the Johannesburg magistrate's court on various counts of fraud and of contravening the Exchange Control Regulations promulgated under I s 9 of the Currency and Exchanges Act. [3] In March 1995 a subpoena in terms of s 205(1) of the Criminal Procedure Act was served on the applicant requiring him to J appear in the magistrate's court to be examined in connection with information

Ackermann J

A relating to the offences with which Hoogakker had been charged. The subpoena indicated that information was required from the applicant concerning, inter alia, the acquisition of a property by him in Spain and his association with Hoogakker. On presenting himself to the examining magistrate (the first respondent) on 13 April 1995, but B before being sworn, the unconstitutionality of s 205 was raised on the applicant's behalf by his attorney.

[3] The issue referred to this Court is whether s 205 of the Criminal Procedure Act is consistent with the provisions of ss 8(1), 11(1), 11(2), 13, 15(1), 23, 24 and 25(3)(a), (c) and (d) of the Constitution. Sections 189(1) and (3), [4] 203 [5] and 204 [6] of the Criminal C Procedure Act are relevant to the construction of s 205. Sections 189 and 204 are incorporated

Ackermann J

A therein by reference. Although s 203 is not similarly incorporated by reference, it was held in S v Waite [7] that an examinee at a s 205 examination is fully entitled to claim the privilege against self-incrimination.

B [4] In view of the transactional indemnity and use immunity provisions in s 204(2) and (4) respectively of the Criminal Procedure Act, the applicant could not validly (and did not) object to answering self-incriminating questions. [8] His complaint was that if he answered questions foreshadowed in the subpoena he would risk exposing himself to the civil forfeitures provided for in paras 22A, 22B and 22C of the Exchange Control C Regulations. This contention formed the point of departure for a substantial part of the attack on s 205 of the Criminal Procedure Act.

The attack based on ss 8(1) (equality); 13 (privacy); 15(1) (freedom of speech and D expression); 25(3)(c) (an accused's right to be presumed innocent and to remain silent) and 25(3)(d) (insofar as it entrenches an accused's right against self-incrimination)

[5] It is unnecessary for purposes of deciding this case to consider the ambit of these rights and the extent to which, if any, they are facially infringed when the provisions of s E 205 of the Criminal Procedure Act are enforced. The arguments advanced on behalf of the applicant did not take adequate account of the implications of the qualification to s 189(1) of the Criminal Procedure Act as it applies to s 205, namely that the examinee is not obliged to testify or to answer any particular question

Ackermann J

A put or to produce any book, paper or document if he/she has 'a just excuse' for refusing or failing so to answer or to produce. In my view the proper application of this provision affords the complete answer to the applicant's contentions on this score.

[6] In Bernstein and Others v Bester and Others NNO [9] we considered the meaning B and implications of the provisions of s 418(5)(b)(iii)(aa) of the Companies Act, [10] which provide that a person who, having been duly summoned under s 417 or s 418 of the Act to an examination,

'fails, without sufficient cause . . . to answer fully and satisfactorily any question lawfully put to him in terms of s 417(2) or this section . . . shall be guilty of an C offence'.

(Emphasis added.) We found [11] that:

'There is no other provision in s 417 or s 418, or for that matter in any other provision of the Act which expressly or by necessary implication compels the examinee to answer a specific question which, if answered, would threaten any of D the examinee's chap 3 rights. It must, in my view, follow from this that the provisions of ss 417 and 418 can and must be construed in such a way that an examinee is not compelled to answer a question which would result in the unjustified infringement of any of the examinee's chap 3 rights. Fidelity to s 35(2) of the Constitution requires such a construction and fidelity to s 35(3) read with s 7(4) of the Constitution requires an appropriate remedy; in the present case that the examinee should not be compelled to answer a question which would result in E the infringement of a chap 3 right.'

Applying this analysis to be above-quoted provisions of s 418(5)(b)(iii)(aa) of the Companies Act we concluded: [12]

'Nothing could be clearer, in my view, than this. If the answer to any question put F at such examination would infringe or threaten to infringe any of the examinee's chap 3 rights, this would constitute "sufficient cause", for purposes of the above provision, for refusing to answer the question unless such right of the examinee has been limited in a way which passes s 33(1) scrutiny. By the same token the question itself would not be one "lawfully put" and the examinee would not, in terms of this very provision, be obliged to answer it. The answer to this leg G of Mr Marcus' argument is that there is, on a proper construction of these sections, and in the light of this Court's order in Ferreira v Levin, no provision in s 417 or s 418 of the Act which is inconsistent with the examinee's right to privacy in terms of s 13 of the Constitution now under consideration.'

[7] There is, in the context of what we are presently examining, no material difference H between the expression 'a just excuse' in s 189(1) of the Criminal Procedure Act and 'sufficient cause' in s 418(5)(b)(iii)(aa) of the Companies Act. If the answer to any question put to an examinee at an examination under s 205 of the Criminal Procedure Act would infringe or threaten to infringe any of the examinee's chap 3 rights, this would constitute a 'just excuse' for purposes of s 189(1) for refusing to answer the question I unless the s 189(1) compulsion to answer the

Ackermann J

A particular question would, in the circumstances, constitute a limitation on such right which is justified under s 33(1) of the Constitution. In determining the applicability of s 33(1), regard must be had not only to the right asserted but also to the State's interest in securing information necessary for the prosecution of crimes. We are not alone in B adopting a procedure such as that embodied in s 205. Other open and democratic societies based on freedom and equality do the same. In the United States it is accepted that the investigative authority of the grand jury rests largely on 'the longstanding principle that "the public has a right to every man's evidence" ' [13] There is nothing in the provisions of s 205 read with s 189 of the Criminal Procedure Act which compels or requires the C examinee to answer a question (or for that matter to produce a document) which would unjustifiably infringe or threaten to infringe any of the examinee's chap 3 rights. This disposes of the present part of the applicant's complaint.

D [8] The aforegoing conclusion has important procedural implications for s 205 enquiries which were adumbrated in Bernstein v Bester. [14] It is for the presiding officer at the s 205 examination to determine, when the objection is raised, whether the examinee has a 'just excuse' for refusing to answer the question in issue. A considerable body of case law has E already developed on the meaning of 'just excuse'. [15] It is not in the first place our task, but that of other courts, including the Supreme Court, to construe what this means, but in doing so they must bear in mind the duty imposed on them by s 35(3) of the Constitution to 'have due regard to the spirit, purport and objects' of chap 3 '(i)n the...