Parbhoo and Others v Getz NO and Another

• Jurisdiction: South Africa
• Judge: Ackermann J, Chaskalson P, Langa DP, Kriegler J, Goldstone J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 18 September 1997
• Citation: 1997 (4) SA 1095 (CC)
• Docket Number: CCT 16/97
• Hearing Date: 18 September 1997
• Counsel: M S M Bassey (with him G Kerr-Phillips) for the appellants A J Fourie for the State
• Court: Constitutional Court

Ackermann J:

[1] Sitting in the Witwatersrand Local High Court, Southwood J, in an application not opposed H by either respondent, granted the following order at the instance of the four applicants:

'1.

The provisions of s 415(3) read with s 415(5) of the Companies Act 61 of 1973 are declared invalid, to the extent only that the words in s 415(5) I

'(a)ny evidence given under this section shall be admissible in any proceedings instituted against the person who gave that evidence''

apply to the use of any such answer against the person who gave such answer, in criminal proceedings against such person, other than proceedings where the person stands trial on a charge J

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relating to the administering or taking of an oath or the administering or making of an A affirmation or the giving of false evidence or the making of a false statement in connection with such questions and answers or a failure to answer lawful questions fully and satisfactorily.

2

No incriminating answer given pursuant to the provisions of s 415(3) of the Companies Act B shall be used against the person who gave such answer, in criminal proceedings against such person, other than proceedings referred to in 1 above and described after the words ''other than proceedings''.

3.

The Registrar of this Court is directed to refer this judgment and order together with the entire C record of this application to the Constitutional Court pursuant to the provisions of s 167(5) of Act 108 of 1996.'

[2] Under s 172(2)(a) of the Constitution of the Republic of South Africa 108 of 1996 (the '1996 Constitution') [1] read with s 172(1) [2] Southwood J was competent to make the order in D paras 1 and 2 quoted above. However, s 167(5) of the 1996 Constitution provides that:

'The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.' E

Section 172(2)(c) stipulates that national legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court. Such legislation has not yet been enacted, nor have rules or procedures been provided for the Constitutional Court under s 171. [3] The interim Constitution [4] contained no provisions comparable to ss 172(2) and 167(5) of the F 1996 Constitution and the current Rules of the Constitutional Court provide no direct guidance for the procedure to be adopted to obtain confirmation by this Court of a declaration of invalidity. Section 172(2)(d) provides that:

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'Any person or organ of State with a sufficient interest may appeal, or apply, directly to the A Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection.'

[3] The applicants could have brought an application directly to this Court for the confirmation of Southwood J's order, as could, for example, the Minister of Trade and Industry or the B Minister of Justice. The learned Judge in the Court below was no doubt concerned about leaving his order hanging in the air with no assurance that the applicants or any other interested party would seek confirmation speedily or at all. This would have led to legal uncertainty. Adopting a cautious approach, Southwood J followed the practical and sensible course of directing the Registrar of the Witwatersrand Local High Court to refer his judgment (together C with the entire record of the application) to this Court for confirmation.

[4] Section 173 of the 1996 Constitution confers on the Constitutional Court the inherent power to protect and regulate its own process. In S v Pennington and Another [5] this Court decided the following: D

'Section 173 of the 1996 Constitution gives this Court an ''inherent power'' to ''protect'' and ''regulate'' its process. It is a power which has to be exercised with caution. It is not necessary to decide whether it is subject to the same constraints as the ''inherent reservoir of power to regulate its procedures in the interests of the proper administration of justice'' which vested in the Appellate E Division prior to the passing of the 1996 Constitution. Even if it is subject to such constraints, the present situation, in which there is a vacuum because the legislation and rules contemplated by the Constitution have not been passed, is an extraordinary one in which it would be appropriate to exercise the power.' [6]

The present situation, which is at least as extraordinary as the one in Pennington's case, also F warrants the exercise of this power. The procedure followed by Southwood J should accordingly be sanctioned and the confirmation of the learned Judge's declaration of invalidity should be dealt with on the record transmitted to us.

[5] Pending the enactment of legislation under s 172(2)(c) and promulgation of the relevant G rules, this Court should adopt a procedure which follows as closely as possible the intended purpose of ss 167(5) and 172(2). Despite the fact that an order of constitutional invalidity has no force unless it is confirmed by this Court, it appears undesirable for any court to make an order under s 172(2)(a) concerning the invalidity of an Act of Parliament or a provincial Act, H where a relevant organ of State is not a party to the proceedings, unless that organ has had an opportunity to intervene in such proceedings. [7] It might be necessary for the court first

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seized of the matter to hear evidence for purposes of deciding the issue of invalidity. That is the A appropriate stage for the relevant organ of State to be afforded an opportunity of adducing such evidence, otherwise the issue might only arise when the order of invalidity is before this Court for confirmation. This would cause unnecessary delay and inconvenience.

[6] No organ of State was a party to the proceedings before Southwood J. The Master of the B High Court was, but such officer cannot be equated with an organ of State in a matter of constitutional invalidation. The Ministers of Trade and Industry and of Justice are aware that the confirmation of the order of invalidity is before the Constitutional Court and both Ministers have indicated that they abide by this Court's decision and do not wish to be heard. The same C attitude has been adopted by the two respondents.

[7] The relevant provisions of ss 414 and 415 of the Companies Act 61 of 1973 read as follows:

'414. Duty of directors and officers to attend meetings D

(1) In any winding-up of a company unable to pay its debts, every director and officer of the company shall -

(a)

attend the first and second meetings of creditors of the company, including any such meeting which is adjourned, unless the Master or the officer presiding or to preside...