Miscellaneous | The De Lange Case

The issue in this case was whether a provision in the law that enabled a magistrate in an insolvency (bankruptcy) enquiry to lock up recalcitrant witnesses until they answered questions, was compatible with the right to freedom in the Bill of Rights. In a separate judgment, Justice Sachs held that the matter should be determined on the right not to be deprived of freedom arbitrarily or without just cause [Sec 12(1)a] and not under the provision not to be detained without trial [Sec 12(1)b]. Justice Sachs explained that he himself had been detained without trial and seen the extent to which the whole criminal justice system had been turned on its head by the power given to the security police. He personally had included the express prohibition of detention without trial into the Constitution to ensure that it never happened again. He didn’t mention these factors in discussion with his colleagues or in his judgment. But he expressed his concern that if Section 12(1)b was used in an ahistorical and literal way to cover recalcitrant witnesses generally, or mental health emergencies, restraints could be justified. This could lead to undermining the firm rejection of detention without trial for political purposes.