NEL V LE ROUX NO AND OTHERS 1996 (3) SA 562 (CC)
NEL V LE ROUX NO AND OTHERS 1996 (3) SA 562 (CC)
NEL V LE ROUX NO AND OTHERS 1996 (3) SA 562 (CC)
South African Law Reports, The (1947 to date)/CHRONOLOGICAL LISTING OF CASES – January 1947 to February 2023/1996/Volume 3: 355 744 (August)/NEL v LE
ROUX NO AND OTHERS 1996 (3) SA 562 (CC)
URL:
http://jutastat.juta.co.za/nxt/gateway.dll/salr/3/7356/7576/7596?f=templates$fn=default.htm
NEL v LE ROUX NO AND OTHERS 1996 (3) SA 562 (CC)
1996 (3) SA p562
Citation 1996 (3) SA 562 (CC)
Case No CCT 30/95
Court Constitutional Court
Judge Chaskalson P, MAHOMED DP, ACKERMANN J, DIDCOTT J, KRIEGLER J, LANGA J, MADALA J, MOKGORO J, O'REGAN J and SACHS J
Heard February 20, 1996
Judgment April 4, 1996
Counsel L J van der Merwe for the applicant.
P P Stander for the second respondent.
E M Patel for the third respondent.
P F Louw for the fourth respondent.
Annotations Link to Case Annotations
Flynote : Sleutelwoorde
Criminal procedure Evidence Witnesses Examination in terms of s 205 of the Criminal Procedure Act 51 of 1977 Constitutionality of s 205
If answer to any H question put to an examinee at a s 205 examination would infringe or threaten to infringe any of examinee's rights in terms
of chap 3 of the Constitution of the Republic of South Africa Act 200 of 1993, this would constitute a 'just excuse' for purposes of s 189(1) of
Criminal Procedure Act for refusing to answer the question unless the s 189(1) compulsion to answer the particular question would, in the I
circumstances, constitute a limitation on such right which is justified under s 33(1) of the Constitution Nothing in provisions of s 205 read with
s 189 of Criminal Procedure Act which compels or requires examinee to answer a question (or for that matter to produce a document) which
would unjustifiably infringe or threaten to infringe any of examinee's chap 3 rights Section accordingly not J unconstitutional.
1996 (3) SA p563
A Constitutional law Human rights Right of accused to a fair trial in terms of s 25(3) in chap 3 of Constitution of the Republic of South Africa
Act 200 of 1993 Whether available to a person in terms of s 205 of the Criminal Procedure Act 51 of 1977 Such a person who, on refusing
or failing to answer a question, triggers the B possible operation of the imprisonment provisions of s 189(1) of the Act is not an accused
person for purposes of the protection afforded by s 25(3) of Constitution Such an examinee is unquestionably entitled to procedural fairness
but not directly to s 25(3) rights.
Constitutional law Human rights Right not to be detained without trial in terms C of s 11(1) of Constitution of the Republic of South Africa
Act 200 of 1993 Mischief at which s 11(1) is aimed is deprivation of person's physical liberty without appropriate procedural safeguards In
its most extreme form, mischief exhibits itself in detention of a person pursuant to exercise by an administrative official of a subjective
discretion without any, or grossly inadequate, procedural safeguards D 'Trial' envisaged by this right not in all circumstances requiring
procedure which duplicates all requirements and safeguards embodied in s 25(3) of Constitution In most cases it will require the interposition
of an impartial entity, independent of Executive and the Legislature to act as arbiter between individual and State Mechanism providing for
imprisonment of recalcitrant witness in s 205 read with s E 189 of the Criminal Procedure Act 51 of 1977 fulfils these requirements and is
therefore not a violation of s 11(1).
Headnote : Kopnota
One H was charged in the Johannesburg magistrate's court on various counts of fraud and F of contravening the Exchange Control Regulations
promulgated under s 9 of the Currency and Exchanges Act 9 of 1993. In March 1995 a subpoena in terms of s 205(1) of the Criminal Procedure
Act 51 of 1977 was served on the applicant requiring him to appear in the magistrate's court to be examined in connection with information
relating to the offences with which H had been charged. The subpoena indicated that information was required from the applicant concerning,
inter alia, the acquisition of a property by him in Spain and his association with H. On presenting himself to the examining magistrate G (the first
respondent) on 13 April 1995, but before being sworn, the question of the constitutionality of s 205 was raised on the applicant's behalf by his
attorney. The applicant's complaint was that if he was compelled to give the information required by the subpoena he would risk exposing
himself to the civil forfeitures provided for in regs 22A, 22B and 22C of the Exchange Control Regulations.
The issue of whether s 205 of the Criminal Procedure Act was consistent with ss 8(1), H 11(1), 11(2), 13, 15(1), 23, 24 and 25(3)(a), (c) and
(d) of the Constitution of the Republic of South Africa Act 200 of 1993 was thereafter referred to the Constitutional Court by the Witwatersrand
Local Division in terms of s 103(4) of the Constitution.
The Court first considered the applicant's contention that s 205 violated ss 8(1) (right to equality), 13 (right to privacy), 15(1) (freedom of
speech and expression), 25(3)(c) (right I of an accused person to be presumed innocent and to remain silent) and 25(3)(d) (insofar as it
relates to an accused person's right against selfincrimination) of the Constitution.
Held, that the arguments advanced on behalf of the applicant did not take adequate account of the implications of the qualification to s 189(1)
of the Criminal Procedure Act as it applies to s 205, namely that the examinee is not obliged to testify or to answer any particular question put
or to produce any book, paper or document if he/she has 'a just J excuse' for refusing or failing so to answer or to produce. If the
1996 (3) SA p564
A answer to any question put to an examinee at an examination under s 205 would infringe or threaten to infringe any of the examinee's chap 3
rights, this would constitute a 'just excuse' for purposes of s 189(1) for refusing to answer the question unless the s 189(1) compulsion to
answer the particular question would, in the circumstances, constitute a limitation on such right which is justified under s 33(1) of the
Constitution. In determining the applicability of s 33(1), regard must be had not only to the right asserted but also to B the State's interest in
securing information necessary for the prosecution of crimes. There is nothing in the provisions of s 205 read with s 189 of the Criminal
Procedure Act which compels or requires the examinee to answer a question (or for that matter to produce a document) which would
unjustifiably infringe or threaten to infringe any of the examinee's chap 3 rights. (At para [7].)
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Held, further, that it was for the presiding officer at the s 205 examination to determine, C when the objection is raised, whether the examinee
has a 'just excuse' for refusing to answer the question in issue. It is the task of the Courts to construe what this means, but in doing so they
answer the particular question would, in the circumstances, constitute a limitation on such right which is justified under s 33(1) of the
Constitution. In determining the applicability of s 33(1), regard must be had not only to the right asserted but also to B the State's interest in
securing information necessary for the prosecution of crimes. There is nothing in the provisions of s 205 read with s 189 of the Criminal
Procedure Act which compels or requires the examinee to answer a question (or for that matter to produce a document) which would
unjustifiably infringe or threaten to infringe any of the examinee's chap 3 rights. (At para [7].)
Held, further, that it was for the presiding officer at the s 205 examination to determine, C when the objection is raised, whether the examinee
has a 'just excuse' for refusing to answer the question in issue. It is the task of the Courts to construe what this means, but in doing so they
must bear in mind the duty imposed on them by s 35(3) of the Constitution to 'have due regard to the spirit, purport and objects' of chap 3 '(i)n
the interpretation of any law and the application and development of the common law . . .'. Sections 189 and 205 can and must be construed
so that their application does not unjustifiably infringe or threaten to infringe any of the examinee's chap 3 rights. (At para D [8].)
The Court then considered the applicant's contention that s 205 read with s 189(1) providing for the imprisonment of a recalcitrant s 205
examinee following a summary enquiry by the court violated ss 25(3) (right to a fair trial) and 11(1) (right not to be detained without trial) of
the Constitution.
Held, that a recalcitrant examinee who, on refusing or failing to answer a question, triggers E the possible operation of the imprisonment
provisions of s 189(1), is not an accused person for purposes of the protection afforded by s 25(3) of the Constitution. Such examinee is
unquestionably entitled to procedural fairness but not directly to s 25(3) rights, for the simple reason that such examinee is not an accused
facing criminal prosecution. Section 189(1) proceedings are not regarded as criminal proceedings, do not result in the examinee being convicted
of any offence and the imprisonment of an F examinee is not regarded as a criminal sentence or treated as such. The imprisonment provisions in
s 189 constitute nothing more than process in aid of the essential objective of compelling witnesses who have a legal duty to testify to do so;
the process does not constitute a criminal trial, nor does it make an accused of the examinee. (At para [11].)
Held, further, that the mischief at which s 11(1) was aimed is the deprivation of a person's physical liberty without appropriate procedural
safeguards. In its most extreme form, the G mischief exhibits itself in the detention of a person pursuant to the exercise by an administrative
official of a subjective discretion without any, or grossly inadequate, procedural safeguards. The nature of the fair procedure contemplated by
this right will depend upon the circumstances in which it is invoked. The 'trial' envisaged by this right does not in all circumstances require a
procedure which duplicates all the requirements and safeguards embodied in s 25(3) of the Constitution. In most cases it will require the H
interposition of an impartial entity, independent of the Executive and the Legislature to act as arbiter between the individual and the State. (At
para [14].) As far as s 205 is concerned the entity is a normal judicial officer who ordinarily functions in the ordinary courts. The 'court' before
which the s 205 enquiry takes place is in every material respect, particularly insofar as its independence and impartiality is concerned, identical
to the 'ordinary court of law' envisaged by s 25(3) of the Constitution. (At para [15].)
The Court then considered an argument that the summary nature of the s 205(3) I imprisonment proceedings and the fact that the section
provides that the examination 'may be conducted in private' and makes no express provision for the examinee to be informed at any stage,
whether orally or in writing, of what awaits the examinee if he/she persists in refusing to answer the question, violated the applicant's right to a
'public trial', by analogy with s 25(3)(a) and his right to be informed with sufficient particularity of the charge, by analogy with s 25(3)(b).
Held, that fair or due process or natural justice in relation to the s 205 provisions cannot J in principle require more than an ordinary criminal trial
requires. There are
1996 (3) SA p565
A wellrecognised exceptions in our criminal procedure to the general rule that criminal proceedings are to be conducted in open court. The s
205 procedure is an evidencegathering mechanism; the examinee is not giving evidence in a trial; the examination is a preparatory step and the
examinee's evidence might never be utilised. There are obvious and legitimate inhibitions to furnishing evidence in that context in public. B
There are accordingly important and justified policy grounds for holding the s 205 enquiry in private. In any event the provision for holding the s
205 enquiry 'in private' is permissive, not mandatory. It is a discretion which must be exercised judicially, taking into account all the relevant
facts. One of the relevant facts would be the interests of the examinee. (At para [17].)
Held, further, that, assuming that the applicant is entitled to be informed with sufficient particularity of the 'charge against him', the question as
to whether any such right is C infringed can only arise after the s 205 proceedings commence and after the applicant has refused to answer
any question. While s 205 contains no express provision that the 'charge' be put to the examinee, the section also does not prevent the
presiding officer from doing so. (At para [19].)
Held, further, that the s 205 summary procedure for imprisoning a recalcitrant witness is, D when read in the context of s 205 proceedings as a
whole, as narrowly tailored as possible to meet the legitimate State interest of investigating and prosecuting crime. The persons who are
authorised to take evidence at the s 205 proceedings are all independent judicial officers and the very persons who preside over criminal trials.
The subpoena to attend the proceedings is obtained at the request of an AttorneyGeneral or public prosecutor authorised thereto in writing by
an AttorneyGeneral and can only be issued at the instance of the judicial officer. A person can only be summoned to attend 'who is likely E to
give material or relevant information as to any alleged offence'. Section 205(4) prohibits the presiding judicial officer from sentencing the
examinee to imprisonment as contemplated in s 189 unless such judicial officer 'is also of the opinion that the furnishing of such information is
necessary for the administration of justice or the maintenance of law and order'. This affords an examinee the widest possible residual
protection. (At para [20].)
The Court accordingly held that the provisions of s 205 of the Criminal Procedure Act F were not inconsistent with the Constitution.
The following decided cases were cited in the judgment of the Court:
AttorneyGeneral, Transvaal v Kader 1991 (4) SA 727 (A)
Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC)
Branzburg v Hayes et al 408 US 665 (1972)
Cheff v Schnackenberg 384 US 373 (1966)
G Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621 (CC) (1996 (1) BCLR 1)
Harris v United States 382 US 162 (1965)
Natal Law Society v N 1985 (4) SA 115 (N)
Nevitt, In re 117 F 448, 461 (CA 8th Cir) (1902)
Richmond Newspapers Inc et al v Virginia et al 448 US 555 (1980)
S v Heyman 1966 (4) SA 598 (A)
S v Mhlungu and Others 1995 (3) SA 867 (CC)
H S v Waite 1978 (3) SA 896 (O)
Shillitani v United States 384 US 364 (1966)
United States v Procter & Gamble Co et al 356 US 677 (1958)
United States v Rose 215 F 2d 617
76 BVerfGE 363
I 25 BVerfGE 296
64 BVerfGE 108.
The following statutes were considered by the Court:
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The Criminal Procedure Act 51 of 1977, ss 189, 189(1), 205(1), 205(2), 205(4): see Juta's Statutes of South Africa 1995 vol 1 at 2219
76 BVerfGE 363
I 25 BVerfGE 296
64 BVerfGE 108.
The following statutes were considered by the Court:
The Criminal Procedure Act 51 of 1977, ss 189, 189(1), 205(1), 205(2), 205(4): see Juta's Statutes of South Africa 1995 vol 1 at 2219
The Constitution of the Republic of South Africa Act 200 of 1993, ss 8(1), 11(1), 11(2), 13, 15(1), 23, 24, 25(3)(a), 25(3)(b), 25(3)(c), 25(3)
(d), 33(1), 35(3), 103(4): see J Juta's Statutes of South Africa 1995 vol 5 at 1 209.
1996 (3) SA p566
ACKERMANN J
Case Information
A Adjudication of constitutional issues referred by the Witwatersrand Local Division in terms of s 103(4) of the Constitution. The facts appear
from the judgment of Ackermann J.
L J van der Merwe for the applicant.
P P Stander for the second respondent.
B E M Patel for the third respondent.
P F Louw for the fourth respondent.
Cur adv vult.
Postea (April 4).
Judgment
C Ackermann J:
[1] Pursuant to a referral from the Witwatersrand Local Division of the Supreme Court in terms of s 103(4) of the Constitution1 we are called
upon to decide the constitutionality of D s 205 of the Criminal Procedure Act2 which is in the following terms:
(1) A Judge of the Supreme Court, a regional court magistrate or a magistrate may, subject to the provisions of ss (4), upon the request
of an AttorneyGeneral or a public prosecutor authorised thereto in writing by the AttorneyGeneral, require the attendance
before him or any other Judge, regional court magistrate or magistrate, for examination by the AttorneyGeneral or the public
prosecutor authorised thereto in writing by the AttorneyGeneral, of any person who is likely to give material or relevant
information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such
person furnishes that information to F the satisfaction of the AttorneyGeneral or public prosecutor concerned prior to the date
on which he is required to appear before a Judge, regional court magistrate or magistrate, he shall be under no further obligation
to appear before a Judge, regional court magistrate or magistrate.
(2) The provisions of ss 162165 inclusive, 179181 inclusive, 187189 inclusive, 191 and 204 shall mutatis mutandis apply with
reference to the proceedings under ss (1).
(3) The examination of any person under ss (1) may be conducted in
G private at any place designated by the Judge, regional court magistrate or magistrate.
(4) A person required in terms of ss (1) to appear before a Judge, a regional court magistrate or a magistrate for examination, and who
refuses or fails to give the information contemplated in ss (1), shall not be sentenced to imprisonment as contemplated in s 189
unless the Judge, regional court magistrate or magistrate concerned, as the case may be, is also of the opinion that the
furnishing of such information is H necessary for the administration of justice or the maintenance of law and order.'
[2] One Hoogakker was charged in the Johannesburg magistrate's court on various counts of fraud and of contravening the Exchange Control
Regulations promulgated under I s 9 of the Currency and Exchanges Act.3 In March 1995 a subpoena in terms of s 205(1) of the Criminal
Procedure Act was served on the applicant requiring him to J appear in the magistrate's court to be examined in connection with information
1996 (3) SA p567
ACKERMANN J
A relating to the offences with which Hoogakker had been charged. The subpoena indicated that information was required from the applicant
concerning, inter alia, the acquisition of a property by him in Spain and his association with Hoogakker. On presenting himself to the examining
magistrate (the first respondent) on 13 April 1995, but B before being sworn, the unconstitutionality of s 205 was raised on the applicant's
behalf by his attorney.
[3] The issue referred to this Court is whether s 205 of the Criminal Procedure Act is consistent with the provisions of ss 8(1), 11(1), 11(2), 13,
15(1), 23, 24 and 25(3)(a), (c) and (d) of the Constitution. Sections 189(1) and (3),4 2035 and 2046 of the Criminal C Procedure Act are
relevant to the construction of s 205. Sections 189 and 204 are incorporated
1996 (3) SA p568
ACKERMANN J
A therein by reference. Although s 203 is not similarly incorporated by
reference, it was held in S v Waite that an examinee at a s 205 examination is fully entitled to claim the privilege against selfincrimination.
B [4] In view of the transactional indemnity and use immunity provisions in s 204(2) and (4) respectively of the Criminal Procedure Act, the
applicant could not validly (and did not) object to answering selfincriminating questions.8 His complaint was that if he answered questions
foreshadowed in the subpoena he would risk exposing himself to the civil forfeitures provided for in paras 22A, 22B and 22C of the Exchange
Control
C Regulations. This contention formed the point of departure for a substantial part of the attack on s 205 of the Criminal Procedure Act.
The attack based on ss 8(1) (equality); 13 (privacy); 15(1) (freedom of speech and
D expression); 25(3)(c) (an accused's right to be presumed innocent and to remain silent) and 25(3)(d) (insofar as it entrenches an accused's
right against selfincrimination)
[5] It is unnecessary for purposes of deciding this case to consider the ambit of these rights and the extent to which, if any, they are facially
infringed when the provisions of s
E 205 of the Criminal Procedure Act are enforced. The arguments advanced on behalf of the applicant did not take adequate account of the
implications of the qualification to s 189(1) of the Criminal Procedure Act as it applies to s 205, namely that the examinee is not obliged to
testify or to answer any particular question
1996 (3) SA p569
ACKERMANN J
A put or to produce any book, paper or document if he/she has 'a just excuse' for refusing or failing so to answer or to produce. In my view
the proper application of this provision affords the complete answer to the applicant's contentions on this score.
[6] In Bernstein and Others v Bester and Others NNO9 we considered the meaning B and implications of the provisions of s 418(5)(b)(iii)(aa) of
the Companies Act,1 0 which provide that a person who, having been duly summoned under s 417 or s 418 of the Act to an examination,
'fails, without sufficient cause . . . to answer fully and satisfactorily any question lawfully put to him in terms of s 417(2) or this section . . . shall
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be guilty of an C offence'.
11
the proper application of this provision affords the complete answer to the applicant's contentions on this score.
[6] In Bernstein and Others v Bester and Others NNO9 we considered the meaning B and implications of the provisions of s 418(5)(b)(iii)(aa) of
the Companies Act,1 0 which provide that a person who, having been duly summoned under s 417 or s 418 of the Act to an examination,
'fails, without sufficient cause . . . to answer fully and satisfactorily any question lawfully put to him in terms of s 417(2) or this section . . . shall
be guilty of an C offence'.
(Emphasis added.) We found1 1 that:
'There is no other provision in s 417 or s 418, or for that matter in any other provision of the Act which expressly or by necessary implication
compels the examinee to answer a specific question which, if answered, would threaten any of D the examinee's chap 3 rights. It must, in my
view, follow from this that the provisions of ss 417 and 418 can and must be construed in such a way that an examinee is not compelled to
answer a question which would result in the unjustified infringement of any of the examinee's chap 3 rights. Fidelity to s 35(2) of the Constitution
requires such a construction and fidelity to s 35(3) read with s 7(4) of the Constitution requires an appropriate remedy; in the present case that
the examinee should not be compelled to answer a question which would result in E the infringement of a chap 3 right.'
Applying this analysis to be abovequoted provisions of s 418(5)(b)(iii)(aa) of the Companies Act we concluded:1 2
'Nothing could be clearer, in my view, than this. If the answer to any question put F at such examination would infringe or threaten to infringe
any of the examinee's chap 3 rights, this would constitute "sufficient cause", for purposes of the above provision, for refusing to answer the
question unless such right of the examinee has been limited in a way which passes s 33(1) scrutiny. By the same token the question itself would
not be one "lawfully put" and the examinee would not, in terms of this very provision, be obliged to answer it. The answer to this leg G of Mr
Marcus' argument is that there is, on a proper construction of these sections, and in the light of this Court's order in Ferreira v Levin, no provision
in s 417 or s 418 of the Act which is inconsistent with the examinee's right to privacy in terms of s 13 of the Constitution now under consideration.'
[7] There is, in the context of what we are presently examining, no material difference
H between the expression 'a just excuse' in s 189(1) of the Criminal Procedure Act and 'sufficient cause' in s 418(5)(b)(iii)(aa) of the Companies
Act. If the answer to any question put to an examinee at an examination under s 205 of the Criminal Procedure Act would infringe or threaten to
infringe any of the examinee's chap 3 rights, this would constitute a 'just excuse' for purposes of s 189(1) for refusing to answer the question I
unless the s 189(1) compulsion to answer the
1996 (3) SA p570
ACKERMANN J
A particular question would, in the circumstances, constitute a limitation on such right which is justified under s 33(1) of the Constitution. In
determining the applicability of s 33(1), regard must be had not only to the right asserted but also to the State's interest in securing information
necessary for the prosecution of crimes. We are not alone in
B adopting a procedure such as that embodied in s 205. Other open and democratic societies based on freedom and equality do the same. In the
United States it is accepted that the investigative authority of the grand jury rests largely on 'the longstanding principle that "the public has a
right to every man's evidence" '1 3 There is nothing in the provisions of s 205 read with s 189 of the Criminal Procedure Act which compels or
requires the C examinee to answer a question (or for that matter to produce a document) which would unjustifiably infringe or threaten to
infringe any of the examinee's chap 3 rights. This disposes of the present part of the applicant's complaint.
14
D [8] The aforegoing conclusion has important procedural implications for s 205 enquiries which were adumbrated in Bernstein v Bester. It is
for the presiding officer at the s 205 examination to determine, when the objection is raised, whether the examinee has a 'just excuse' for
refusing to answer the question in issue. A considerable body of case law has E already developed on the meaning of 'just excuse'.1 5 It is not
in the first place our task, but that of other courts, including the Supreme Court, to construe what this means, but in doing so they must bear
in mind the duty imposed on them by s 35(3) of the Constitution to 'have due regard to the spirit, purport and objects' of chap 3 '(i)n the
interpretation of F any law and the application and development of the common law . . . '.1 6 What we do hold herein is that ss 189 and 205 of
the Criminal Procedure Act can and must be construed in the way suggested above so that their application does not unjustifiably infringe or
threaten to infringe any of the examinee's chap 3 rights.
[9] This is what the magistrate in the present case should have done in the first instance. If G he had found that in answering any of the
questions the examinee's chap 3 rights would be infringed, he should have held that this constituted a 'just excuse' for the examinee's refusal to
answer, unless of course he came to the conclusion in respect of any particular question that the s 189 compulsion to answer constituted, in
the context of the s 205 H enquiry, a limitation on the examinee's right which was justified under s 33(1) of the Constitution. If he had
concluded that there was no such infringement nor any other just excuse for refusing to answer, he should have compelled the applicant to
answer. In I particular the magistrate should have applied this approach to the applicant's
1996 (3) SA p571
ACKERMANN J
A specific objection that answering certain questions would expose him to the civil forfeitures provided for in paras 22A, 22B and 22C of the
Exchange Control Regulations.
The attack based on ss 25(3) and 11(1)
B [10] It was contended that certain of the applicant's rights to a fair trial in terms of s 25(3) and his right in terms of s 11(1) 'not to be
detained without trial' were infringed by the summary compulsion mechanism of s 189(1) of the Criminal Procedure Act (incorporated into s 205)
which provides for the recalcitrant witness to be sentenced to imprisonment for a period of up to two years after the court has only enquired in
'a
C summary manner' into the examinee's failure or refusal to testify or answer questions. There was a considerable overlap between these
arguments.
[11] The s 25(3) rights to a fair trial accrue only to an accused person. The recalcitrant examinee who, on refusing or failing to answer a
question, triggers the possible operation D of the imprisonment provisions of s 189(1) is not, in my view, an 'accused person' for purposes of the
protection afforded by s 25(3) of the Constitution. Such examinee is unquestionably entitled to procedural fairness, a matter which will be dealt
with below, but not directly to the s 25(3) rights, for the simple reason that such examinee is not an accused facing criminal prosecution. The s
189(1) proceedings are not regarded as E criminal proceedings,1 7 do not result in the examinee being convicted of any offence1 8 and the
imprisonment of an examinee is not regarded as a criminal sentence or treated as such. If, after being imprisoned, an examinee becomes willing
to testify this would entitle the examinee to immediate release;1 9 in American parlance such examinees 'carry the keys F of their prison in their
own pockets'.2 0 The imprisonment provisions in s 189 constitute nothing more than process in aid of the essential objective of compelling
witnesses who have a legal duty to testify to do so; it does not constitute a criminal trial, nor make an accused of the examinee. This disposes
of the attack directly based on the s 25(3) fair trial rights.
G [12] In the attack based on s 11(1) of the Constitution it was contended that the s 205(3) procedure (incorporating the summary
incarceration
1996 (3) SA p572
ACKERMANN J
A procedure of s 189) did not constitute a 'trial' for purposes of s 11(1) and in any event infringed the requirement of 'fairness' or 'due process'
or 'natural justice' which is implicit in the 'trial' component of this right. I have no doubt that this latter requirement, however one wishes to
label it, is implicit in this right.
B [13] It was argued that the 'trial' contemplated in s 11(1) was the 'fair trial' provided for in s 25(3) of the Constitution and which entitled the
applicant more specifically in terms of para (a) of the latter subsection to 'a public trial' before 'an ordinary court' and in terms of para (b) 'to be
informed with sufficient particularity of the charge'. It is difficult to C understand how, without any textual link between the 'trial' referred to in
s 11(1) and the 'trial' referred to in s 25(3), such a conclusion can possibly be reached.
[14] The s 11(1) right relied upon by the applicants is the 'right not to be detained without D trial'. The mischief at which this particular right is
aimed is the deprivation of a person's physical liberty without appropriate procedural safeguards. In its most extreme form, the mischief exhibits
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itself in the detention of a person pursuant to the exercise by an administrative official of a subjective discretion without any, or grossly
applicant more specifically in terms of para (a) of the latter subsection to 'a public trial' before 'an ordinary court' and in terms of para (b) 'to be
informed with sufficient particularity of the charge'. It is difficult to C understand how, without any textual link between the 'trial' referred to in
s 11(1) and the 'trial' referred to in s 25(3), such a conclusion can possibly be reached.
[14] The s 11(1) right relied upon by the applicants is the 'right not to be detained without D trial'. The mischief at which this particular right is
aimed is the deprivation of a person's physical liberty without appropriate procedural safeguards. In its most extreme form, the mischief exhibits
itself in the detention of a person pursuant to the exercise by an administrative official of a subjective discretion without any, or grossly
inadequate, E procedural safeguards. The nature of the fair procedure contemplated by this right will depend upon the circumstances in which it
is invoked. The 'trial' envisaged by this right does not, in my view, in all circumstances require a procedure which duplicates all the requirements
and safeguards embodied in s 25(3) of the Constitution. In most cases it will require the interposition of an impartial entity, independent of the
Executive and the F Legislature to act as arbiter between the individual and the State.
[15] It is unnecessary for purposes of this case to decide whether this 'entity' to which I have referred must in all cases be a judicial officer
who ordinarily functions as such in the ordinary courts. As far as s 205 of the Criminal Procedure Act is concerned the entity is G indeed a
normal judicial officer who ordinarily functions in the ordinary courts. The 'court' before which the s 205 enquiry takes place is in every material
respect, particularly insofar as its independence and impartiality is concerned, identical to the 'ordinary court of law' envisaged by s 25(3) of the
Constitution. On no basis can this leg of the s 11(1) attack succeed.
H [16] It was also argued, as part of this and the wider s 11(1) attack, that the summary s 189 imprisonment proceedings (incorporated into
the s 205 proceedings) denied the applicant his right to a 'public' trial by analogy with the s 25(3)(a) right and his right 'to be informed with
sufficient particularity of the charge' by analogy with the s 25(3)(b) right. I This was so, it was argued, because of the summary nature of the
s 205(3) imprisonment proceedings and in particular the fact that the section provides that the examination 'may be conducted in private' and
makes no express provision for the examinee to be informed at any stage, whether orally or in writing, of what awaits the examinee if he/she
persists in J refusing to answer the question.
1996 (3) SA p573
ACKERMANN J
A [17] As far as the first of these two complaints is concerned it is not necessary, for this case, to decide what fair or due process or natural
justice requires in this regard. It cannot in principle require more than an ordinary criminal trial requires. There are wellrecognised exceptions in
our criminal procedure to the general rule that criminal proceedings are to be B conducted in open court.2 1 In the United States, grand jury
secrecy is seen by the courts as contributing in several ways to the grand jury's dual roles as both 'the shield and the sword' of the criminal
justice process.2 2 In the United States of America, although the right to attend criminal trials is held to be implicit in the First Amendment
protection of speech, press and the right to assemble, there are nevertheless circumstances when closing a trial C to the public does not
infringe this right.2 3 The s 205 procedure is an evidencegathering mechanism; the examinee is not, as it were, giving evidence in a trial; this is
a preparatory step and the examinee's evidence might never be utilised in the end. There are obvious and legitimate inhibitions to furnishing
evidence in that context in public. Having the s 205 D examination in public serves much less of a public interest and could in fact be severely
damaging to both the examinee and to the administration of justice. There are accordingly important and justified policy grounds for holding the
s 205 enquiry in private. In any event the provision for holding the s 205 enquiry 'in private' is permissive, not mandatory. E It is a discretion
which must be exercised judicially, taking into account all the relevant facts. One of the relevant facts would be the interests of the examinee.
In many cases it would be in the interests of the examinee, and the examinee's express wish, to have the enquiry conducted in private. But
before the first respondent in this case has exercised his discretion in favour of conducting the enquiry in private, the question of an
infringement of F any right of the applicant in this regard simply does not arise.
[18] This illustrates a conceptual confusion which characterised the applicant's argument in other respects as well. The only issue before us is
whether, on a proper construction of s 205, it expressly or by necessary implication infringes any of the rights relied upon by the G applicant. If
the section, properly construed, compels the presiding officer to act or apply the provisions in a way which would infringe any of the rights
relied upon, then the constitutionality of the section in respect of that right is properly before us. This would also be the case if the presiding
officer were prohibited by the section from acting or H intervening in a way which would prevent a particular infringement which would
inevitably follow in the absence of such intervention. What is certainly not before us is a consideration of a multitude of questions relating to
hypothetical decisions or rulings which I may (not must) be made in applying the
1996 (3) SA p574
ACKERMANN J
A provisions of s 205 and the question whether such rulings or decisions would or might infringe any of the examinee's chap 3 rights or not. We
are also not called upon to decide whether the examinee is entitled as of right to legal representation or how precisely the unrepresented
examinee must be treated and what must be explained to him/her. B Judgments concerning the proper application and construction of s 205
which were delivered before the Constitution came into operation2 4 will not necessarily correctly reflect the postconstitutional position,
because s 35(3) of the Constitution requires that this section now be construed by all courts (including the magistrates' courts) having 'due
regard to the spirit, purport and objects of' chap 3.
C [19] The second of the two complaints referred to above runs into the same difficulties. Assuming that the applicant is entitled to be
informed with sufficient particularity of the 'charge against him', the question as to whether any such right is infringed can only arise after the s
205 proceedings commence and after the applicant has refused to answer any D question. While s 205 contains no express provision that the
'charge' be put to the examinee, the section also does not prevent the presiding officer from doing so.
[20] Even taking the broadest and least technical view of the applicant's complaints that s E 189 as applied in s 205 proceedings denies him a
fair hearing on the imprisonment issue, there is no substance in them. The summary procedure for imprisoning a recalcitrant witness must be
adjudged in the context of the s 205 proceedings as a whole. The persons who are authorised to take evidence at the s 205 proceedings (a
Judge of the F Supreme Court, a regional court magistrate or a magistrate) are all independent judicial officers and the very persons who
preside over criminal trials. The subpoena to attend the proceedings is obtained at the request of an AttorneyGeneral or public prosecutor
authorised thereto in writing by an AttorneyGeneral and can only be issued at the instance of the abovementioned judicial officer. A person can
only be summoned to attend G 'who is likely to give material or relevant information as to any alleged offence'. In addition there is the important
and farreaching provision in s 205(4), introduced for the first time in 1993,2 5 which prohibits the presiding judicial officer from sentencing the
examinee to imprisonment as contemplated in s 189 unless such judicial officer 'is also of H the opinion that the furnishing of such information is
necessary for the administration of justice or the maintenance of law and order'. This affords an examinee the widest possible residual
protection. This all shows that the s 205 provisions are as narrowly tailored as possible to meet the legitimate State interest of investigating
and prosecuting crime.
I [21] What more, one may legitimately ask, can the examinee possibly want to know about the 'charge' than that the law demands, in the
absence of a just excuse for the examinee not doing so, that he/she answers
1996 (3) SA p575
ACKERMANN J
A all questions, failing which imprisonment will follow? If the examinee is legally represented such representative will know all this. If
unrepresented one would expect the presiding officer to explain this to the examinee. There is absolutely nothing to suggest that, on a proper
postconstitutional construction of s 205, there is not a duty on the B presiding officer to do so. Natural justice and fair procedure would, in my
view, require this. That being the case the presiding officer is obliged to do so.
[22] Summary proceedings for imprisoning recalcitrant witnesses, where the normal strict criminal procedure rules are not applied, are not
unknown in other open and democratic C societies based on freedom and equality. In the United States of America the grand jury investigation,
amongst its other objects, fulfils the same function as s 205 of the Criminal Procedure Act of obtaining information under oath from persons
unwilling to assist voluntarily in a criminal investigation; both civil and criminal contempt procedures are used D to coerce the recalcitrant grand
jury witness into testifying.2 6 'Civil contempt is used to coerce the recalcitrant witness into complying with the subpoena. The witness is
sentenced to imprisonment or to a fine (which may increase daily), but he may purge himself by complying with the subpoena.'
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such civil contempt proceedings in relation to grand jury proceedings, departures from criminal procedure applicable to E ordinary criminal
[22] Summary proceedings for imprisoning recalcitrant witnesses, where the normal strict criminal procedure rules are not applied, are not
unknown in other open and democratic C societies based on freedom and equality. In the United States of America the grand jury investigation,
amongst its other objects, fulfils the same function as s 205 of the Criminal Procedure Act of obtaining information under oath from persons
unwilling to assist voluntarily in a criminal investigation; both civil and criminal contempt procedures are used D to coerce the recalcitrant grand
jury witness into testifying.2 6 'Civil contempt is used to coerce the recalcitrant witness into complying with the subpoena. The witness is
sentenced to imprisonment or to a fine (which may increase daily), but he may purge himself by complying with the subpoena.'2 7 In the case of
such civil contempt proceedings in relation to grand jury proceedings, departures from criminal procedure applicable to E ordinary criminal
prosecutions are permissible and even in criminal contempt proceedings 'procedures may vary somewhat from procedures applicable to ordinary
criminal prosecutions'.2 8 Rule 42(a) of the Federal Rules for Criminal Procedure authorises summary criminal contempt proceedings in matters
other than grand jury investigations.2 9 In Germany s 70 of the Criminal Procedure Code3 0 provides for summary F proceedings against a
witness who refuses to testify without legal justification. The witness is fined and on failure to pay is imprisoned. The witness may also be
imprisoned without being given the option of a fine. Such and similar summary proceedings leading to imprisonment have been upheld as
constitutional by the German Federal Constitutional Court.3 1
G [23] The applicant's complaints on these grounds can accordingly not, in my view, succeed.
The attack based on ss 11(2) (cruel, inhuman or degrading treatment or punishment); 23 (access to information) and 24 (administrative justice)
H [24] No argument was addressed to us why, if the s 205 procedure were otherwise not in conflict with the Constitution, the nature or extent
of the
1996 (3) SA p576
ACKERMANN J
A penal sanction infringed the applicant's s 11(2) rights. We are unaware of any authority which suggests that this complaint is worthy of
serious consideration. The same is true of the s 23 complaint, which was not pursued in argument. I have grave doubts whether s 24 is
applicable at all to s 205 proceedings, since their aim is limited to the gathering of B factual information; in fact they constitute no more than a
mechanism for compelling a witness statement. No report is issued pursuant to the s 205 examination and the examinee's rights are adequately
protected by the transactional immunity and use indemnity provisions and the 'just excuse' exception contained in s 189 of the Criminal
Procedure Act. The summary sentencing procedure, which forms the essence of the C complaint, is clearly judicial and not administrative
action; it is in terms of ss (4) of s 189 subject to appeal in the same manner as a sentence imposed in any criminal case. Even assuming that
the provisions of s 24 are applicable, there would be no infringement of s 24 for the very same reason that the applicant's s 11(1) fair trial rights
have not been infringed.
D [25] Notwithstanding the form of the referral, the real thrust of the constitutional attack has in substance been directed to the
constitutionality of s 189(1) of the Criminal Procedure Act. The fact that s 189 has been incorporated by reference into s 205 would not alter
the fact that if we had found s 205 to be inconsistent with the Constitution and E declared it invalid in terms of s 98(5) of the Constitution we
would in substance have done so because of the inconsistency of s 189(1). The question would then arise as to whether we had jurisdiction to
strike down s 189(1) in view of the fact that its inconsistency with the Constitution had not been referred to us. There is also the conundrum
as to whether it is logically or constitutionally possible to declare s 189(1) F invalid for purposes of s 205 only and not for all purposes.
Fortunately these problems do not have to be addressed in the present case because of the conclusion we have reached that the provisions of
s 205 of the Criminal Procedure Act are not inconsistent with the Constitution. They may well have constituted a bar to granting an order in
terms G of s 98(5) of the Constitution had we come to the conclusion that the provisions of s 189(1) rather than those of s 205 of the Criminal
Procedure Act were inconsistent with the Constitution.
[26] These problems do, however, once again highlight the great care which must be exercised in referring matters to this Court under s 102 of
the Constitution and the duty H resting on litigants in this regard. This has been emphasised in recent judgments of this Court.3 2 In Bernstein v
Bester I pointed out that
'(w)hile Provincial and Local Divisions might initially have been hesitant to grapple with the implications and application of the new Constitution
and might
I have preferred to refer constitutional issues to this Court, it must be stressed that, for the proper development of our law under the
Constitution, it is essential
1996 (3) SA p577
ACKERMANN J
A that these courts and indeed all other courts empowered to do so, play their full role in developing our postconstitutional law. It would
greatly assist the task of the Provincial and Local Divisions of the Supreme Court, and in so doing ultimately the task of this Court, if counsel were
called upon to justify rigorously why it was contended that the particular provision of the Constitution relied upon renders the law or provision in
question invalid and why it is necessary or B advisable to refer the issue in question to the Constitutional Court at that particular juncture. This
would lead to narrower and more closely focused referrals and enable the Provincial and Local Divisions to furnish more comprehensive reasons
for any particular referral, which would in turn assist the task of this Court and the development of our constitutional jurisprudence. Such an
approach would also decrease the risk of wrong referrals and avoid the C unsatisfactory expedient in such cases of having to try to invoke, at the
last moment, in a forced manner and in unsatisfactory circumstances, the direct access procedure provided for in Constitutional Court Rule 17.'
In Ferreira v Levin (2)3 4 I also commented on the fact that the failure of parties to adopt D a critical attitude at the referral stage could have
implications for costs:
'Parties, and respondents in particular, should not be encouraged to consent supinely to matters being referred to this Court in the mistaken
belief that an applicant's failure to achieve substantial success on referral will automatically entitle the respondents to their costs. . . . If parties
are of a mind to oppose the relief being sought in a referral they should in the first place be astute to prevent E matters being incorrectly referred
and should oppose inappropriate referral at the time when they are sought; they should not sit back and raise their opposition for the first time in
this Court after the referral has been made.'
Had the litigants so applied their minds to the present referral, there is good reason to believe that the issue of the constitutionality of s 189 of
the Criminal Procedure Act would F also have been referred and that the referral would have been a more narrowly focused one.
[27] In the result it is declared that the provisions of s 205 of the Criminal Procedure Act 51 of 1977 (as amended) are not inconsistent with the
Constitution of the Republic of South Africa Act 200 of 1993.
G Chaskalson P, Mahomed DP, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J concur in the above judgment of
Ackermann J.
Applicant's Attorneys: Edeling Vorster Pagel. Third and Fourth Respondents' Attorneys: The State Attorney.
1 The Constitution of the Republic of South Africa Act 200 of 1993.
2 Act 51 of 1977.
3 Act 9 of 1933 as amended.
4 Subsections 189(1) and (3) provide:
'(1) If any person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness,
or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or refuses or fails to produce any book, paper or
document required to be produced by him, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a
just excuse for his refusal or failure, sentence him to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an
offence referred to in Part III of Schedule 2, to imprisonment for a period not exceeding five years.
(3) A court may at any time on good cause shown remit any punishment or part thereof imposed by it under ss (1).'
5 Section 203 provides:
'No witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not on the thirtieth
day of May, 1961, have been compelled to answer by reason that the answer may expose him to a criminal charge.'
6 Section 204 provides:
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'(1) Whenever the prosecutor at criminal proceedings informs the court that any person called as a witness on behalf of the prosecution will be required by the
prosecution to answer questions which may incriminate such witness with regard to an offence specified by the prosecutor
just excuse for his refusal or failure, sentence him to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an
offence referred to in Part III of Schedule 2, to imprisonment for a period not exceeding five years.
(3) A court may at any time on good cause shown remit any punishment or part thereof imposed by it under ss (1).'
5 Section 203 provides:
'No witness in criminal proceedings shall, except as provided by this Act or any other law, be compelled to answer any question which he would not on the thirtieth
day of May, 1961, have been compelled to answer by reason that the answer may expose him to a criminal charge.'
6 Section 204 provides:
'(1) Whenever the prosecutor at criminal proceedings informs the court that any person called as a witness on behalf of the prosecution will be required by the
prosecution to answer questions which may incriminate such witness with regard to an offence specified by the prosecutor
(a) the court, if satisfied that such witness is otherwise a competent witness for the prosecution, shall inform such witness
(i) that he is obliged to give evidence at the proceedings in question;
(ii) that questions may be put to him which may incriminate him with regard to the offence specified by the prosecutor;
(iii) that he will be obliged to answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the answer may incriminate
him with regard to the offence so specified or with regard to any offence in respect of which a verdict of guilty would be competent upon a charge relating to the
offence so specified;
(iv) that if he answers frankly and honestly all questions put to him, he shall be discharged from prosecution with regard to the offence so specified and with regard to
any offence in respect of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and
(b) such witness shall thereupon give evidence and answer any question put to him, whether by the prosecution, the accused or the court, notwithstanding that the
reply thereto may incriminate him with regard to the offence so specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be
competent upon a charge relating to the offence so specified.
(2) If a witness referred to in ss (1), in the opinion of the court, answers frankly and honestly all questions put to him
(a) such witness shall, subject to the provisions of ss (3), be discharged from prosecution for the offence so specified by the prosecutor and for any offence in respect
of which a verdict of guilty would be competent upon a charge relating to the offence so specified; and
(b) the court shall cause such discharge to be entered on the record of the proceedings in question.
(3) The discharge referred to in ss (2) shall be of no legal force or effect if it is given at preparatory examination proceedings and the witness concerned does not at
any trial arising out of such preparatory examination, answer, in the opinion of the court, frankly and honestly all questions put to him at such trial, whether by the
prosecution, the accused or the court.
(4)(a) Where a witness gives evidence under this section and is not discharged from prosecution in respect of the offence in question, such evidence shall not be
admissible in evidence against him at any trial in respect of such offence or any offence in respect of which a verdict of guilty is competent upon a charge relating to
such offence.
(b) The provisions of this subsection shall not apply with reference to a witness who is prosecuted for perjury arising from the giving of the evidence in question, or
for a contravention of s 319(3) of the Criminal Procedure Act 56 of 1955, or, in the case of the territory, for a contravention of s 300(3) of the Criminal Procedure
Ordinance 34 of 1963, arising likewise.'
7 1978 (3) SA 896 (O) at 898EF.
8 See generally Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1).
9 CCT 23/95 delivered on 27 March 1996 paras [58][63] (reported at 1996 (2) SA 751 (CC)).
1 0 61 of 1973 (as amended).
1 1 Supra, n 9 para 60.
1 2 Id para [61].
1 3 Branzburg v Hayes et al 408 US 665 (1972) at 688.
1 4 Supra, n 9 paras [62] and [63].
1 5 See, for example, the discussion in Du Toit, De Jager et al, Commentary on the Criminal Procedure Act 2350B to 2353. In AttorneyGeneral, Transvaal v
Kader 1991 (4) SA 727 (A) at 735BC the Appellate Division held that the term goes beyond matters of privilege, compellability and admissibility.
1 6 Bernstein v Bester (supra, n 9 paras [62] and [63]).
1 7 In S v Heyman and Another 1966 (4) SA 598 (A) the Appellate Division was called upon to construe the provisions of s 212 of the Criminal Procedure Act 56 of
1955 (as amended) whose provisions, save for the length of the sentence that could be imposed, were in all material respects identical to paras (1)(5) of s 189 of the
Criminal Procedure Act. At 601G Steyn CJ said the following:
'Section 212(1) does not in specific terms create an offence or require the presentation of a formal charge to which the witness has to plead, and the provision in ss
(4) for an appeal against the sentence as if it were a sentence imposed in a criminal case clearly implies that an enquiry under this section does not constitute criminal
proceedings.'
1 8 See Natal Law Society v N 1985 (4) SA 115 (N) at 116F.
1 9 See s 189(3) of the Criminal Procedure Act and S v Heyman (supra, n 17 at 601H).
2 0 In re Nevitt 117 F 448, 461 (CA 8th Cir, 1902); Shillitani v United States 384 US 364 (1966) at 368. See also La Fave and Israel Criminal Procedure 2nd ed (1992)
at 382.
2 1 For example those contained in s 153 of the Criminal Procedure Act; as to which see generally Du Toit, De Jager et al (supra, n 15 at 226A to 228).
2 2 La Fave and Israel (supra, n 20 at 376, 390) and United States v Procter & Gamble Co et al 356 US 677 (1958) at 6812, quoting United States v Rose 215 F 2d 617
at 6289.
2 3 Richmond Newspapers Inc et al v Virginia et al 448 US 555 (1980) at 5801 (and in particular fn 18), 598 (and in particular fn 24).
2 4 See, generally, Du Toit, De Jager et al (supra, n 15 at 2315ff) and Hiemstra Strafproses 5th ed (Johan Kriegler) at 465ff.
2 5 By s 11 of Act 204 of 1993.
2 6 La Fave and Israel (supra, n 20 at 382).
2 7 Id 382.
2 8 Id 383 and fn 2. See also Harris v United States 382 US 162 (1965) at 1647; Shillitani v United States 384 US 364 (1966) at 36871; Cheff v Schnackenberg 384
US 373 (1966) at 377, 380.
2 9 See Cheff v Schnackenberg (supra, n 28).
3 0 Strafprozessordnung (StPO).
3 1 In 76 BVerfGE 363 II [383, 386]; 25 BVerfGE 296 [304]; 64 BVerfGE 108 [116].
3 2 For example S v Mhlungu and Others 1995 (3) SA 867 (CC) (1995 (7) BCLR 793); Ferreira v Levin (1) 1996 (1) SA 984 (CC) paras [6][8] and Bernstein v Bester
(supra, n 9 para [2]).
3 3 Supra, n 9 para [2].
3 4 CCT 5/95 delivered on 19 March 1996 para [9] (now reported as Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC)).
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