oa Comparative and International Law Journal of Southern Africa - Insolvency enquiries and the right against self-incrimination: divergent approaches in South Africa and other jurisdictions
In South Africa, the recognition, in the Bill of Rights, of the right to remain silent and the right against self-incrimination, gave rise to challenges to the validity of statutory provisions which regulate insolvency enquiries. The Constitutional Court confirmed the validity of sections 64, 65 and 66 of the Insolvency Act, but declared invalid certain portions of sections 415 and 417 of the Companies Act on the basis of their infringement of the right against self-incrimination. Subsequent legislative amendments appear to favour an examinee's right against self-incrimination to an extent which goes beyond what the Constitutional Court required for the legislation to be valid. Striking parallels may be drawn between developments in the United Kingdom, since the coming into force of the Human Rights Act 1998, and the European Convention on Human Rights having become applicable. However, there is a marked difference in approach on the question whether the right against self-incrimination requires derivative use, as well as direct use, immunity to be extended to an examinee in insolvency enquiries. Apparent inconsistencies have also emerged in the approach of the European Court. It is hoped that, before long, the issue will be resolved in the European Court in such a way as to provide guidance to South African legislators.
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