The demise of the Roman-Dutch ‘kommer-recht’: Interpretation of statutes so as to conform to the spirit, purport and objects of the South African Bill of Rights

Abstract

The Supreme Court of Appeal (in a judgment dated 23.11.07) in the case of Bid Industrial Holdings v Strang (2007) SCA 144 (RSA) (now cited as 2008(3) SA 355 (SCA)) held that the common-law requirement of arrest to found or confirm jurisdiction where an incola plaintiff wishes to sue a foreign peregrinus, which procedure is authorised in section 19(1) (c) of the Supreme Court Act 59/1959,1 is unconstitutional. In essence it was so held because such an arrest restricts a person’s liberty and freedom (as entrenched in section 12 (1) of the Constitution) without a just cause. This article evaluates the judgment and highlights the importance of the full historical context and rationale for the existence of a common-law rule as yardstick against which to measure its constitutional justifiability. In this instance the rationale for the existence of the common-law rule of jurisdictional arrest was also, in essence, premised on the unequal treatment of foreigners vis à vis citizens, and predictably, this could not have passed the standard set by section 39(2) of the Constitution. The article investigates the method employed by the SCA in its interpretation of the alleged unconstitutional stipulations of the Supreme Court Act so as to bring it in line with the spirit,purport and objects of the South African Bill of Rights. Special attention is paid to the criticism of the judgment that it failed to comply with the peremptory stipulations of section 172 of the Constitution. The article concludes that such criticism is unwarranted.