|
''Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others''〔1995 (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 declarating 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.〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Coetzee and Matiso」の詳細全文を読む スポンサード リンク
|