25 In the interests of clarity it is necessary to point out that where chevrolet tracker awd 2000 2.0 a/t the 1996 Constitution has, in relation to a specific subject matter, dealt with the procedural aspect of the right to liberty in a particular provision, it is to such provision that.
I agree with Conradie J that when a magistrate presides at a creditors meeting, the magistrate is not acting as a judicial officer but is fulfilling an administrative function, one of many which historically magistrates have performed. .
The Master is an officer in the public service appointed in terms of section 2 of the Administration of Estates Act, 66 of 1965 who may only act within the terms of the powers statutorily conferred expressly or by necessary implication.3 6 It seems.
Section 11(1 which contains no detailed procedures or rules, other than the prohibition of detention without trial, is supplementary to section. .Except gta 4 camera shake fix patch in the particular instances enumerated in the Constitution.Kriegler J concurs in the judgment of Didcott.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.10 0 79 The proceedings under section 205, read with.In the case of detainees in terms of the Mental Health Act,3 0 they may only be detained on the strength of a reception order issued by a magistrate, where the validity of the order is limited to a maximum period of forty-two days. .The Association of Insolvency Practitioners of Southern Africa initially applied to be admitted as an amicus curiae in the proceedings but did not proceed with its application.Used spec of the confinement of a political offender.There accordingly appears to be no room for an argument that the magistrate presides over a court which, while not an ordinary court such as that to which an accused has a right, is nevertheless a court of some kind or other.9 5 77 This.This is evidence indeed of effective coercive powers.In the United States of America the grand jury investigation, amongst its other objects, fulfills the same function as section 205 of the CPA of obtaining information under oath from persons unwilling to assist voluntarily in a criminal investigation; both civil and criminal contempt procedures.13 Before doing so it is necessary to analyse section 66(3) briefly in its context.132 Procedural fairness is, however, not confined to the twin maxims referred to above.1 6 The exact content has eluded judicial definition. .In arriving at the same decision as she does, I have merely taken a different route which I will explain below.Section 139 of the Insolvency Act provides that a person who may have been committed to prison in terms of section 66(3) shall also be guilty of a criminal offence and subject to a fine or imprisonment. .It is, however, implicit in the Courts judgment that this was an essential component of the right to freedom and that the reasons or purposes for the imprisonment of an examinee under the circumstances provided for by section 205 read with section 189 of the.In the case of the section 66(3) proceedings, however, the defining criteria here are the fairness or otherwise of the process under scrutiny, the nature of the right involved, and the existence of less intrusive means to effectively match means with end. .
Everyone is entitled to an impartial judge, not because this guarantees a correct decision, but because the human arbiter, not being omniscient, should not be presented with a point of view that his or her position inherently loads. .
Suffice it to say, that in all jurisdictions to which he refers, the power to imprison a recalcitrant witness in insolvency enquiries in order to compel that witness to testify is reserved for courts of law and is not exercised by administrative or quasi-administrative institutions.62 This principle has long been established in other open and democratic societies. .In respect of other legal proceedings the governing section is section 34, which entrenches the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial.This investigative aspect of creditors meetings is a fact-finding process aimed at identifying assets of the insolvent. .A person summoned to produce a book or document under section 64(3) who fails to do so may be committed; so may any person who is liable to be interrogated in terms of section 65(1) and who refuses to be sworn when called upon.In the result I conclude that the important public objective sought to be achieved by the enforcement mechanism under consideration, when regard is had to its narrow formulation and in-built safeguards, constitutes just cause under section 12(1 a) of the 1996 Constitution for depriving section.Where the examinee under section 66(3) is not the insolvent, the public interest in coercing such person to testify would be at least as compelling.