Imprisonment of Judgment Debtors

Abstract

The Constitutional Court in South Africa in In re Farieda Coetzee v. Government of the Republic of South Africa (unreported, 1995), has held unanimously that the power of a magistrates' court to issue an order to commit to prison a judgment debtor on account of a failure to satisfy a judgment debt violates the right to freedom contained in Chapter 3 of the Constitution. Applying the proviso in section 33 of the Constitution, the court accepted that the goal sought to be achieved, that is the provision of a mechanism for the enforcement of judgment debts, was a legitimate and reasonable governmental objective, but that ultimately the offending provisions in the Magistrates' Court Act were overly broad and thus outside the proviso in that they caught not only those who could pay but were refusing to do so, but also those who were genuinely unable to pay.