Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others1995 (4) SA 631 (CC). is an important case in South African law, with an especial bearing on civil procedure and constitutional law. It concerned the constitutional validity of certain provisions of the Magistrates' Courts Act.Act 32 of 1944. It was heard, March 6, 1995, in the Constitutional Court by Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J. They delivered judgment on September 22. The applicant's attorneys were the Legal Resources Centres of Cape Town, Port Elizabeth and Johannesburg. Attorneys for the first and second respondents in the Coetzee application were the State Attorneys of Cape Town and Johannesburg, and Du Plessis & Eksteen for the Association of Law Societies. IMS Navsa SC (with him L. Mpati) appeared for the applicants in both matters, D. Potgieter for the first and second respondents in the Coetzee matter, and JC du Plessis for the Association of Law Societies (as amicus curiae).
Sections 65A to 65M of the Magistrates' Courts Act provided for the imprisonment of judgment debtors in certain circumstances, and were found by the court to be inconsistent with the right to personal freedom provided for in section 11(1) in Chapter 3 of the Interim Constitution. Such provisions were also not capable of being justified as reasonable in terms of the limitation provisions of section 33(1) of the Constitution.It was possible that there might be circumstances which justifying the use of imprisonment to ensure that court orders for payment of debts were obeyed, but the legislature was in a better position to research and investigate this and to give full attention to the relevant considerations. In undertaking such investigation, Sachs J recommended, the legislature should ensure that the eventual process should not permit the imprisonment of persons merely because they were unable to pay contractual debts, that the procedures would have to be manifestly fair, and that imprisonment was the only reasonably available way of achieving the stated objectives. It was further impossible, the court found, to excise only those provisions which failed to distinguish between debtors who could not pay and those who could but would not. It was possible, however, to sever from the rest those provisions which made up the option of imprisonment, leaving the balance of the debt-collecting system usefully in force. The court declined to exercise its powers under section 98(5) of the Constitution to keep the provisions in issue alive until Parliament had rectified them, as the debt-collecting system was not dependent upon the imprisonment sanction for its viability, and such provisions were clearly inconsistent with section 11(1) and so manifestly indefensible under section 33(1) that there was no warrant for their retention, even temporarily.
The court also held that, in declaring invalid the provisions of a statute inconsistent with the fundamental rights in chapter 3 of the Constitution, and in severing the invalid provisions from the remainder of the statute, the court should take account of the coming into force of the new Constitution and pay due regard to the values which it requires the court to promote. The court, held Sachs J, should posit a notional, contemporary Parliament dealing with the text in issue when the choice about severance falls to be made.
The case is often cited now for its provision of the test for severability:
Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute. The test has two parts: first, is it possible to sever the invalid provisions and, second, if so, is what remains giving effect to the purpose of the legislative scheme?Para 16.
The effect of section 232(3) of the Constitution would be to give effect to the principle of "reading down" the provisions in issue, permitting a pared-down construction of the legislation so as to rescue it from a declaration of invalidity. Importantly, however, it did not require restricted interpretation of fundamental rights so as to interfere as little as possible with pre-existing law. Nor was it the function of the court to fill in lacunae in pre-constitutional statutes to save them from invalidity.
As to the applicability of the provisions of section 33(1) of the Constitution, which justify the limitation of a fundamental right, the court set out a two-stage approach. It appeared to the court that the more profound the interest being protected, and the graver the violation, the more stringent should be the scrutiny. The two-stage process was not to be applied mechanically and in a sequentially divided way. The values derived from the concept of an open and democratic society, based on freedom and equality, were to suffuse whole process, such values being normative in the employment of such a process. The court would frequently be required to make difficult value judgments where logic and precedent were of limited assistance.
In interpreting the Constitution, the court would have to consider the area of comparative law. Section 35 of the Constitution was to be understood as requiring the court to give due attention to international experience, with a view to finding principles rather than rigid formulae, and to look for rationales rather than rules.
Judgment The court found that the following provisions of the Magistrates' Courts Act were inconsistent with the Constitution and declared them invalid, with effect from the date of the order, September 22, 1995:
the words "why he should not be committed for contempt of court and" in section 65A(1) of the Act; sections 65F, 65G and 65H; paragraphs (a) and (b) of section 65J(1); paragraph (b)(ii) of section 65J(2); the following words in paragraph (a) of section 65J(9): "(a) or" and "and may, subject to the provisions of s 65G, be committed for contempt of court for failing to comply with the said order;" paragraph (b) of section 65J(9); the following words in section 65K(2): "or warrant for the committal of a judgment debtor or a director or an officer of any juristic person or of any sentence imposing a fine on any director or officer representing a judgment debtor who is a juristic person;" and section 65L.
The court ordered further that all other provisions of sections 65A-65M of the Act were to remain in force. Consequent upon the declaration of invalidity, it was ordered that, with effect from the date of the order, the committal or continuing imprisonment of any judgment debtor in terms of section 65F or 65G was invalid.Para 19.
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 and Sachs J concurring) that to determine whether or not the right provided for in section 11(1) of the Constitution—"every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial"—was limited by the various provisions of sections 65A to 65M of the Act, it really would not be necessary to determine the outer boundaries of the right. Nor would it be necessary to examine the philosophical foundation or the precise content of the right. Certainly to put someone in prison is to limit that person's right to freedom; to do so without any criminal charge being levelled, or any trial being held, is manifestly a radical encroachment upon that right.Para 10, read with paras 7 and 8.
Accepting that the goal of sections 65A to 65M was to provide a mechanism for the enforcement of judgment debts, and recognising that such goal is a legitimate and reasonable governmental objective, Kriegler J determined that the question was whether or not the means to achieve the goal were reasonable. The answer, clearly, was in the negative.Para 12. The fundamental reason for this was that the provisions were overbroad. The sanction of imprisonment was ostensibly aimed at the debtor who would not pay, but it was unreasonable in that it also struck at those who could not pay and simply failed to prove this at a hearing, often due to negative circumstances created by the provisions themselves.
There were seven distinct reasons, Kriegler J found, why the provisions were indefensible:
They allowed persons to be imprisoned without having actual notice either of the original judgment or of the hearing. It was not only theoretically possible, but also quite possible in practice, that the debtor's first notice of the case against him would be when the warrant of committal was executed. In terms of the procedure permitted by the Act and the Rules promulgated thereunder, there need not necessarily have been personal service of any process prior to that. Even if a person had notice of the hearing, he could be still imprisoned without knowledge of the possible defences available to him, and accordingly without any attempt to advance any of them. The so-called notice to show cause issued, pursuant to section 65A, did not spell out what the defences were or how they could be established. The burden cast on the debtor with regard to inability to pay, although possibly defensible in principle as pertaining to matters peculiarly within his knowledge, was so widely couched that persons genuinely unable to pay were nevertheless struck. The provisions of section 65F(3)(c), which spelt out what the debtor must prove, were not only unreasonably wide, but also unreasonably punitive. Whatever might be said about a debtor who wilfully frustrates payment,s 65F(3)(c)(i) and (ii). the nakedly punitive retribution inherent in the provisions of sections 65F(3)(c)(iii) and (iv) could not be justified. The provisions allowed a person to be imprisoned without knowing that they had a burden to prove their defence, or how to discharge that burden. It could possibly be contended that the magistrate ought to explain a debtor's rights and duties to an undefended layman, and would probably do so in practice. The fact remained, however, that there was no express obligation on the magistrate to do so. It was hardly defensible to treat a civil-judgment debtor more harshly than a criminal. The latter was entitled in terms of section 25(3) of the Constitution to a fair trial with procedural safeguards, including the right to legal assistance at public expense if justice so required. The debtors, who faced months of imprisonment, must fend for themselves as best they could. The procedure made no provision for recourse by the debtor to the magistrate or higher authority once an order for committal had been made. Section 65L, which dealt with the release of a debtor from prison, contained no mechanism whereby a debtor, even one against whom a committal order had been made in absentia, was entitled to approach a court for relief. As a result of these defects, the statute swept up those who could not pay with those who could but simply would not. For this reason, the limitation could not be justified as reasonable, as required by section 33(1) of the Constitution.Para 13, read with para 11.
Severability