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- Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 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. 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 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? 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. (en)
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- President Chaskalson, Deputy President Mahomed, Justices Ackermann, Didcott, Kriegler, Langa, Madala, Mokgoro, O'Regan, Sachs, Acting Justice Kentridge (en)
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- Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 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. 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, (en)
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