Revolutionary Constitutionalism: Some Thoughts on Laurie Ackermann’s Jurisprudence

• Jurisdiction: South Africa
• Pages: 204-218
• Citation: 2008 Acta Juridica 204
• Date: 15 August 2019
• Published date: 15 August 2019
• Author: Roger Berkowitz

Revolutionary Constitutionalism: Some

Thoughts on Laurie Ackermann’s

Jurisprudence

ROGER BERKOWITZ*

Bard College

The end of rebellion is liberation, while the end of revolution is the

foundation of freedom.

1

In the African Weltanschauung, a person is not basically an independent,

solitary entity. A person is human precisely in being enveloped in the

community of other human beings, in being caught up in the bundle of life.

To be . . . is to participate.

2

I INTRODUCTION

Justice Laurie Ackermann’s decision in Ferreira

3

is a study in tonal

dissonance. Ackermann’s 232 paragraph judgment begins slowly. It plots

out the judicial history of the case; it wades through questions of

jurisdiction and standing; and it frames the question of the case all

without offering a narrative version of the facts.

One must read carefully and between the lines to discern that the case

concerns a plaintiff, Clive Ferreira, who was employed by Prima Bank

Holdings Ltd., a corporation that had gone bankrupt and ceased

operations.

4

Mr. Ferreira was summoned to give sworn testimony about

the affairs and property of Prima Bank.

5

He declined, asserting a right not

to offer self-incriminating testimony.

6

In doing so, Ferreira violated s 417

of the Companies Act 61 of 1973 that requires such testimony in

administrative proceedings and also expressly allows that such testimony

‘may thereafter be used in evidence’ in criminal proceedings.

7

The Ferreira case raises a simple question: does the law requiring

Ferreira to give evidence violate the Constitution? Since the South

* Assistant Professor, Departments of Political Studies and Human Rights, Bard College.

1

H Arendt On Revolution (1990) at 142.

2

A Krog Country of My Skull (1999) at 143.

3

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA

621 (CC).

4

The Ferreira decision actually combines two distinct cases, the f‌irst of Clive Ferreira and

the second of Ann, Luke John, and Andrew Vryenhoek. For matters of narrative simplicity, I

focus on the Ferreira case.

5

Ferreira (n 3) paras 1 and 2.

6

Ibid para 2.

7

Ibid para 1.

204

2008 Acta Juridica 204

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