Parbhoo and Others v Getz and Others (CCT16/97) [1997] ZACC 9; 1997 (10) BCLR 1337; 1997 (4) SA 1095 (18 September 1997)

Parbhoo and Others v Getz and Others (CCT16/97) [1997] ZACC 9; 1997 (10) BCLR 1337; 1997 (4) SA 1095 (18 September 1997)

Section 415(3) read with section 415(5) of the Companies Act 1973 is constitutionally invalid to the extent that it allows incriminating answers given under compulsion at creditors' meetings to be used against the person in subsequent criminal proceedings, except for proceedings relating to perjury or failure to answer lawfully. This is inconsistent with the right to a fair trial and the right not to be compelled to give self-incriminating evidence as guaranteed by section 35(3)(j) of the 1996 Constitution. The High Court's order of invalidity must be confirmed by the Constitutional Court before it has any force. In the absence of enabling legislation or rules, the Constitutional Court...

Citation
[1997] ZACC 9
Parties
Applicant: Jaintilal Parbhoo; Applicant: Kaniyalal Kishorbhai Parbhoo; Applicant: Chunilal Parbhoo; Applicant: Navnitlal Parbhoo; Respondent: Arnold Getz NO; Respondent: The Master of the High Court
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
18 September 1997
Case Number
CCT 16/97
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity
Outcome
Order of constitutional invalidity confirmed.
Judges
Ackermann, Chaskalson, Langa, Kriegler, Goldstone, Madala, Mokgoro, O'Regan, Sachs
Legal Topics
Right to Fair Trial, Self Incrimination, Companies Act Section 415, Confirmation of Invalidity, Constitutional Procedure
Constitutional Law Commercial and Corporate Right to Fair Trial Self Incrimination Companies Act Section 415 Confirmation of Invalidity Constitutional Procedure

Case Brief

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Parties

Jaintilal Parbhoo

Applicant

Kaniyalal Kishorbhai Parbhoo

Applicant

Chunilal Parbhoo

Applicant

Navnitlal Parbhoo

Applicant

Arnold Getz NO

Respondent

The Master of the High Court

Respondent

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Whether section 415(3) read with section 415(5) of the Companies Act 1973 is constitutionally invalid to the extent that it allows incriminating answers to be used against the person in criminal proceedings.
  2. 2 Whether the High Court's order of invalidity requires confirmation by the Constitutional Court before taking effect.
  3. 3 Whether the procedure adopted for referral to the Constitutional Court is permissible in the absence of enabling legislation.

Ratio Decidendi

Section 415(3) read with section 415(5) of the Companies Act 1973 is constitutionally invalid to the extent that it allows incriminating answers given under compulsion at creditors' meetings to be used against the person in subsequent criminal proceedings, except for proceedings relating to perjury or failure to answer lawfully. This is inconsistent with the right to a fair trial and the right not to be compelled to give self-incriminating evidence as guaranteed by section 35(3)(j) of the 1996 Constitution. The High Court's order of invalidity must be confirmed by the Constitutional Court before it has any force. In the absence of enabling legislation or rules, the Constitutional Court...

Court Disposition

Order of constitutional invalidity confirmed.

Orders

  • The provisions of section 415(3) read with section 415(5) of the Companies Act 1973 are declared invalid, to the extent only that the words in section 415(5) allowing evidence to be used against the person in criminal proceedings do not apply, except for proceedings relating to perjury or failure to answer lawfully.
  • No incriminating answer given pursuant to section 415(3) of the Companies Act shall be used against the person who gave such answer in criminal proceedings, other than those relating to perjury or failure to answer lawful questions.