Patent office with evidence invalidating cultural dating in history
On 28 November 1994 Van Schalkwyk J dismissed both the applications for interim relief, granted leave to appeal against such dismissal to the full bench of the Transvaal Provincial Division or the Witwatersrand Local Division, if the Judge President so directed, and referred the following matters to the "1.Whether section 417(2)(b) of the Companies Act 68 of 1973, as amended ("the Act"), is unconstitutional in that it compels a person summoned to an enquiry to testify and produce documents, even though such person seeks to invoke the privilege against self-incrimination. Whether evidence given by a person at an enquiry in terms of section 417 of the Act falls to be excluded in any subsequent criminal proceedings brought against such person where the evidence may be incriminating and was extracted without recognition of such person's privilege against self-incrimination.5.of conditions (a) and (c) depends upon the Court in question reaching particular conclusions on the basis of the criteria there stated, but these conclusions have to be reached (and condition (b) must exist) before the Court is empowered and obliged to refer the issue.with the referral by a Provincial or Local division of the Supreme Court to this Court of issues originating in Courts other than Provincial or Local divisions of the Supreme Court and, in particular, with the referral to this Court of an issue regarding the validity of a law falling within the exclusive jurisdiction of this Court.In dismissing both applications for interdicts Van Schalkwyk J in fact disposed of all (and the only) matters properly before him.At this stage the issue of the validity of section 417(2)(b) had become irrelevant.In addition to stipulating other conditions precedent for such referral, the sub-section requires the Povincial or Local Division of the Supreme Court to be of the opinion "that there is a reasonable prospect that the relevant law or provision will be held to be invalid." Although there is no such express requirement in section 102(1), Kentridge AJ, in (It is clear from the context of the above passage, that Kentridge AJ was dealing only with condition (c) of my above analysis.) He explained why it was not always in the interests of justice to make a referral immediately (an exposition which I need not repeat here) and laid down "as a general principle" that "where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed".
When, however, the question of the competence of the referrals of the issues in paragraphs (2) - (5) of the referral order was raised with Mr.
We were informed that many section 417 enquiries were being held up because the issue of the constitutionality of section 417(2)(b) had been raised in such enquiries.
This is substantially hampering the proper liquidation of companies and is therefore a matter of such urgency and public importance that a ruling should be given thereon.
In adopting this approach he in fact decided (albeit implicitly) that the matter before him could and should be decided without reference to the validity issue, in other words, that the validity issue could not be decisive for the case.
The implication of this is that the first condition for a section 102(1) referral, mentioned in paragraph (a) above, has not been fulfilled.Accordingly the learned judge was precluded from referring the constitutional validity of section 417(2)(b) of the Act to this Court.