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arrest tanquam suspectus de fuga
by Renier Kriek
The remedy known as arrest tanquam suspectus de fuga has been a part of South African law since at least 1842. It is an extraordinary remedy,
which allows a creditor who could prove that his debtor was planning an imminent departure from the country with the intention of evading the debt to have that debtor arrested and incarcerated, without first having to prove his claim. Although an extraordinary remedy, it was seemingly regularly sought, and could be granted by a Magistrates Court for any alleged indebtedness greater than R40.
Ms Tatiana Malachi, a national of Moldova, came to South Africa in 2009 to work as an erotic dancer under the patronage of two South African companies, Cape Dance Academy International (Pty) Ltd and House of Rasputin Properties (Pty) Ltd. Upon her arrival, her travel documents were seized by representatives of the two companies, purportedly as a form of security for repayment of the expenses incurred by the companies in relocating Ms Malachi to South Africa.
After working for the two companies for some months, Ms Malachi expressed her dissatisfaction with her employment conditions, and sought to return to her home country. Eventually she secured the help of the Consul General of Russia in obtaining an air ticket to return home. Upon learning of Ms Malachi’s imminent departure, the two South African companies applied for her arrest and imprisonment tanquam suspectus de fuga, and such an order was granted. Ms Malachi was arrested on 9 July 2009, and was incarcerated at Pollsmoor from 9 July to 24 July 2009, when she eventually approached the High Court for relief.
Judge President Hlophe in the Western Cape High Court declared the relevant sections of the Magistrates Court Act that allowed for arrest tanquam suspectus de fuga to be unconstitutional and invalid. Hlophe JP’s order included an order declaring the underlying common law to be unconstitutional and invalid, meaning that order of arrest tanquam suspectus de fuga will no longer be possible in the Western Cape High Court or any of the country’s Magistrates Courts.
On 24 August 2010, after the matter was duly referred to the Constitutional Court for confirmation, the highest court in the country made its ruling, confirming the order of invalidity made against the relevant sections of the Magistrates Court Act. The judgment relies mostly on the constitutional right to personal freedom as enshrined in the Bill of Rights. The court observes, among other things, that allowing for imprisonment for an unproven civil debt seems absurd in view of the fact that imprisonment for proven civil debts has long since been done away with.
We agree, based on the circumstances of this particular matter, that the remedy of arrest tanquam suspectus de fuga was open for abuse by unscrupulous creditors, but note with dismay the passing of one of the few remaining legal strong arms available to creditors. Collecting civil debts has become a nightmare in this country, and both the courts and the legislature seem to be engaged in excessive peering at the rights of the little man, at the expense of creditors, and ultimately to the detriment of commercial life.
The moral of the saga is presumably never a debtor or traveling pole dancer be!
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