Nel v Le Roux
Nel v Le Roux | |
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Interim Constitution . | |
Decision by | Ackermann J (unanimous) |
Nel v Le Roux NO and Others is a 1996 decision of the Constitutional Court of South Africa in the area of criminal procedure. The Constitutional Court dismissed a constitutional challenge to section 205 of the Criminal Procedure Act 51 of 1977, which allowed judicial officers to compel witnesses to provide evidence in pre-trial examinations. The court held unanimously that the summary imprisonment of recalcitrant witnesses in section 205 examinations was consistent with the Interim Constitution. In particular, the court found that the relevant sentencing procedure was neither criminal nor administrative in nature, so it was governed neither by the right to a fair trial nor by the right to just administrative action. The judgment was written by Justice Laurie Ackermann on behalf of a unanimous court.
Background
Section 205(1) of the Criminal Procedure Act 51 of 1977 (CPA) provides that, at the request of public prosecutors, judges and magistrates may compel individuals to appear for examination by prosecutors, provided that such persons are deemed "likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed". Section 205(2) incorporates by reference section 189(1) of the CPA, which provides for the summary imprisonment of recalcitrant witnesses. In the context of section 205 examinations, a person who refuses or fails to provide prosecutors with the desired information may be sentenced to imprisonment summarily "unless the person so refusing or failing has a just excuse for his refusal or failure".
In March 1995, the applicant, Jan Kemp Nel, was served with a
Nel challenged the constitutionality of section 205 of the CPA, asserting that it violated various of his rights under the
Judgment
Writing on behalf of a unanimous court, Justice Laurie Ackermann dismissed the application, finding that section 205 of the CPA was consistent with the Interim Constitution. Moreover, Ackermann chastised the applicant for his framing of the constitutional issue, arguing that if the litigants had "applied their minds", the Constitutional Court would have heard the matter as a challenge to section 189 of the CPA, which was more to the point than section 205.
Ackermann's judgment dealt most substantially with Nel's arguments on the basis of the right to a fair trial and right to administrative justice. Although Nel's application invoked several other constitutional rights, two of those rights were not pursued in argument. Further, Ackermann dismissed the invocation of several other rights, including the
Fair trial rights
Nel contended that the summary sentencing procedure violated his right not to be
Administrative justice
Section 24 of the Interim Constitution protected the right to
I have grave doubts whether section 24 is applicable at all to section 205 proceedings, since their aim is limited to the gathering of factual information; in fact they constitute no more than a mechanism for compelling a witness statement
Reception
Ackermann's judgment was criticised for its narrow conception of the section 11(1) and 25(3) rights.[1][2] Commentators have argued that the court's finding on the scope of section 25(3) results in a situation in which persons are afforded constitutional protection in inverse proportion to the "arbitrariness or informality" of the sentencing proceedings.[3]
In administrative law, the judgment was significant for its affirmation that judicial action does not constitute administrative action for the purposes of section 24.[4][5]
References
- ^ Van Wyk, Dawid (1997). "Administrative Justice in Bernstein v Bester and Nel v Le Roux". South African Journal on Human Rights. 13: 249.
- ^ Swanepoel, Jonathan (2007). "Shielding Those Who Highlight the Emperor's New Clothes - Does the Constitution Demand a Journalistic Privilege?". Pretoria Student Law Review. 1: 18.
- ISBN 978-0-7021-7308-0.
- ^ Hoexter, Cora (2004). "The Principle of Legality in South African Administrative Law". Macquarie Law Journal. 4: 165.
- ^ Henderson, Andrew J. H. (1998). "The Meaning of Administrative Action". South African Law Journal. 115: 634.