Judgment Coetzee and Matiso

1 judgment

1.1 limitation of rights
1.2 severability
1.3 draconian effects
1.4 constitutional protections
1.5 civil imprisonment
1.6 testing constitutionality
1.7 foreign law
1.8 reading down

judgment

the court found following provisions of magistrates courts act inconsistent constitution , declared them invalid, effect date of order, september 22, 1995:

the words why should not committed contempt of court , in section 65a(1) of act;
sections 65f, 65g , 65h;
paragraphs (a) , (b) of section 65j(1);
paragraph (b)(ii) of section 65j(2);
the following words in paragraph (a) of section 65j(9): (a) or , , may, subject provisions of s 65g, committed contempt of court failing comply said order;
paragraph (b) of section 65j(9);
the following words in section 65k(2): or warrant committal of judgment debtor or director or officer of juristic person or of sentence imposing fine on director or officer representing judgment debtor juristic person; and
section 65l.

the court ordered further other provisions of sections 65a-65m of act remain in force. consequent upon declaration of invalidity, ordered that, effect date of order, committal or continuing imprisonment of judgment debtor in terms of section 65f or 65g invalid.

limitation of rights

kriegler j held (with chaskalson p, mahomed dp, ackermann j, didcott j, kentridge aj, langa j, madala j, mokgoro j, o regan j , sachs j concurring) determine whether or not right provided in section 11(1) of constitution— every person shall have right freedom , security of person, shall include right not detained without trial —was limited various provisions of sections 65a 65m of act, not necessary determine outer boundaries of right. nor necessary examine philosophical foundation or precise content of right. put in prison limit person s right freedom; without criminal charge being levelled, or trial being held, manifestly radical encroachment upon right.

accepting goal of sections 65a 65m provide mechanism enforcement of judgment debts, , recognising such goal legitimate , reasonable governmental objective, kriegler j determined question whether or not means achieve goal reasonable. answer, clearly, in negative. fundamental reason provisions overbroad. sanction of imprisonment ostensibly aimed @ debtor not pay, unreasonable in struck @ not pay , failed prove @ hearing, due negative circumstances created provisions themselves.

there 7 distinct reasons, kriegler j found, why provisions indefensible:

severability

as question of severability of provisions inconsistent constitution remaining provisions of sections 65a 65m, kriegler j held (chaskalson p, mahomed dp, ackermann j, didcott j, kentridge aj, langa j, madala j, mokgoro j, o regan j , sachs j concurring) impossible excise provisions failed distinguish between 2 categories of debtors. reason that, in order achieve this, court have engage in details of law-making, constitutional activity given legislatures. was, however, possible sever provisions made option of imprisonment. in severing such provisions, court nevertheless leave intact object of statute: provide system assist in collection of judgment debts. removal of 1 of options available under system did not render system contrary purpose of legislative scheme. infringing provisions accordingly severed, , balance of system usefully remain in force.

as question of whether or not court should exercise power vested in section 98(5) of constitution, enable legislature devise adequate substitute imprisonment option, held no means system dependent upon imprisonment sanction viability. there number of other aids judgment-debt collection in system: example, property attachment , garnishment of wages. in event, system inconsistent right freedom protected section 11(1) of constitution, , manifestly indefensible under section 33(1) of constitution, there no warrant retention, temporarily.

draconian effects

in addition concurring in judgment of kriegler j, didcott j (langa j concurring) identified 4 draconian effects of provisions in issue rendered limitation provisions of section 33(1) of constitution inapplicable:

didcott j went on hold

that interests of creditors plainly relevant constitutional appraisal of provisions effects set out above;
that credit played important part in modern management of commerce;
that rights of creditors recover debts owed them should command court s respect; and
that enforcement of such rights legitimate business of south african law.

this did not mean, however, interests of creditors should allowed ride roughshod on rights of debtors. legislation in question permitted egregiously in 4 respects mentioned above, , unreasonable , unjustifiable on cumulatively oppressive scores. clear invasion of right personal freedom section 11(1) of constitution guaranteed debtors, did else, therefore not countenanced section 33(1).

the bad parts of statute not judicially severable rest of provisions dealt imprisonment, leaving court no option declare provisions whole constitutionally invalid on account of objectionable overbreadth.

constitutional protections

langa j concurred in judgments of kriegler j , didcott j, noting difference between past , present individual freedom , security no longer fell protected solely through vehicle of common-law maxims , presumptions might altered or repealed statute, protected entrenched constitutional provisions neither legislature nor executive might abridge. accordingly improper court hold constitutional system conferred on creditors power consign person of impecunious debtor prison, @ , without interposition @ crucial ime of judicial officer. impugned provisions constituted, reasons articulated kriegler j , didcott j, unreasonable limitation on freedom , security provision in section 11(1) of constitution , therefore unconstitutional.

civil imprisonment

sachs j (mokgoro j concurring) concurred in judgments of kriegler j , didcott j, held contention of association of law societies—that court should use powers keep committal proceedings alive pending rectification legislature—required fuller analysis of institution of civil imprisonment. on analysis, using approach, there no doubt committing prison involves severe curtailment of person s freedom , personal security; indeed, purpose of committal limit freedom of person concerned. given manifest , substantial invasion of personal freedom involved, real issue court had decide whether such infringement justified in terms of general limitations on rights permitted section 33 of constitution.

the conclusion sachs j draw, such international instruments american declaration of rights , duties of man, american convention of human rights, united nations international covenant on civil , political rights, protocol 4 of european convention , explanatory report on fourth protocol european convention, repudiate core element of institution of civil imprisonment: locking of people merely because fail pay contractual debts. there was, however, penumbra relating money payments in imprisonment used in appropriately defined circumstances.

sachs j s conclusions, on point, follows:

when law commission says committal of judgment debtors anomaly cannot justified , should abolished; when common cause there general international move away imprisonment civil debt, of present committal proceedings adapted relic; when such imprisonment has been abolished in south africa, save contested form contempt of court in magistrate s court; when clauses concerned have been interpreted courts restrictively possible, without constitutionally offensive core being eviscerated; when other tried , tested methods exist recovery of debt in position pay; when violation of fundamental right personal freedom manifest, , procedures used must inevitably possess summary character if economically worthwhile creditor, institution of civil imprisonment, may described , directed procedures might be, in must regarded highly questionable , not compelling claimant survival.

the court, accordingly, should not exercise discretion under section 98(5) of constitution in favour of keeping institution of imprisonment in sections 65a-65m of act alive. sachs j stressed, however, not there never circumstances justifying use of back-up of prison ensure court orders payment of judgment debts obeyed in same way other orders. legislature, if chose, better placed constitutional court requisite research, canvass opinions , receive information; give full consideration relevant interrelated factors, such proper management of debt collection, way in credit extended, remedies ensuring fulfilment of obligations , proper use of court time , prison facilities. weigh competing considerations , take account of cost implications , availability of court , prison officials. if legislature chose undertake such investigation, have operate, sachs j suggested, within following framework:

sachs j held further that, in determining whether or not severed bad legislation, , whether or not legislature have enacted survived on own, court must take account of coming force of new constitution, in terms of court received jurisdiction, , pay due regard values requires court promote. court must accordingly posit notional, contemporary parliament dealing text in issue, paying attention both constitutional context , moment in country s history @ choice severance made.

sachs j concurred kriegler j necessary excisions sections 65a 65m leave statutory provision linguistically sustainable, conceptually intact, functionally operational , economically viable. question of whether or not parts of provisions constitutionally bad should, in interests of justice , government, , intended in section 98(5) of constitution, kept in existence enable parliament rectify legislation, sachs j found had not been established end committal proceedings impair justice or interfere government in drastic or irreparable way. other remedies provided in sections 65a 65m remained available creditors. there no reason court insist on rapid decision parliament, 1 way or other, either accept continuance of sections 65a 65m in truncated form, or else modify them in light of principles enunciated court.

sachs j accordingly concurred in formulation of order in judgment of kriegler j set out above.

testing constitutionality

sachs j added that, although notionally court, in testing constitutionality of legislative provisions, proceeds in 2 distinct analytical stages, there relationship between 2 curial enquiries. more profound interest being protected, , graver violation, more stringent scrutiny. in end, court must decide whether, bearing in mind nature , intensity of interest protected, degree , manner in infringed, limitation provided in section 33 permissible.

the two-stage process, sachs j held, should not approached in mechanical , sequentially divided way, without paying sufficient attention commonalities run through 2 stages. faithfulness constitution best achieved, felt, locating two-stage balancing process within holistic, value-based , case-oriented framework. values must suffuse whole process derived concept of open , democratic society based on freedom , equality, several times referred in constitution. notion of open , democratic society therefore not merely aspirational or decorative; normative, furnishing

the matrix of ideals within court works;
the source court derives principles , rules applies; and
the final measure uses testing legitimacy of impugned norms , conduct.

it follows, sachs j determined, principles laid down in s v makwanyane court ought not engage in purely formal , academic analyses; nor should restrict ad hoc technicism. rather, should focus on has been called synergetic relation between values underlying guarantees of fundamental rights , circumstances of particular case. there no legal yardstick achieving this. in end, predicted, court unable escape making difficult value judgments, logic , precedent of limited assistance. must determinative court s judgment, based on understanding of values on south african society being built, , interests @ stake in particular case. judgment cannot made in abstract; rather speak of values platonic ideals, judge must situate analysis in facts of particular case, weighing different values represented in context.

in present matter, court called upon exercise sachs j described structured , disciplined value judgment, taking account of competing considerations arose in circumstances of case, whether or not, in open , democratic society based on freedom , equality contemplated constitution, legitimate or acceptable or appropriate continue send defaulting judgment debtors gaol in terms of procedures set out in sections 65a 65m of magistrates courts act.

foreign law

sachs j noted invitation court in section 35 of constitution have regard international experience applicable when seeking interpret provisions relating fundamental rights. section understood, held, requiring court give due attention such experience, view finding principles rather extracting rigid formulae, , rationales rather rules. reference such experience, discussed in detail meaning of word necessary in section 33(1) of constitution.

reading down

section 232(3) of constitution, sachs j observed, provided that, if restricted interpretation of law concerned possible, saving unconstitutional inroads fundamental rights, interpretation must favoured, if went against prima facie meaning of words in question. section gave expression principle known in other jurisdictions reading down. section permit pared-down construction of legislation rescue being declared invalid, not, of course, require restricted interpretation of fundamental rights interfere little possible pre-existing law. furthermore, not function of court fill in lacunae in statutes might not have been visible or regarded legally significant in era when parliamentary legislation not challenged, become glaringly obvious in age of constitutional rights. requirement of reading down not authorisation reading in.