Arrest Tanquam Suspectus De Fuga Declared Unconstitutional

Arrest tanquam suspectus de fuga was a remedy available to a creditor in terms of Sections 30(1) and 30(3) of the Magistrate's Court Act. It was applied for in a situation where a debtor owes money to a creditor, who holds no security for the payment of the debt, and there are reasonable grounds for believing that the debtor is about to leave the country in order to avoid paying creditors.

In the recent case of Malachi v Cape Dance Academy and Others (Case CCT 05/10 [2010] ZACC 13) the Constitutional Court looked at whether this remedy as authorised by the abovementioned legislation was consistent with the Constitution.

The Constitutional Court held that the arrest of a person in terms of the impugned provisions was without “just cause”, because, inter alia:

    the arrest does not necessarily render the debt any more executable than would have been the case had the debtor left the country;
    the impugned provisions severely curtailed the applicant’s fundamental right to freedom as enshrined in the Bill of Rights,
    the degrading effect of incarceration could not be undone if it is determined that the money is not owed; and
    it is inconceivable that imprisonment of a person can ever be justified where liability has not been established, bearing in mind that imprisonment for non-payment of an established debt is unconstitutional.


Additionally, it was held that these provisions were not reasonable or justifiable in an open and democratic society based on human dignity, equality and freedom in terms of section 36 of the Constitution. The order of constitutional invalidity made by the High Court was accordingly confirmed insofar as it related to the impugned provisions.

Nonetheless, a creditor will, in appropriate circumstances, still be able to attach the debtor’s property in order to found or confirm jurisdiction should the debtor have fled the country. See also Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others [1995] ZACC 7; 1995 (4) SA 631 (CC); 1995 (10) BCLR 1382 (CC) at para 22 for other remedies available to a creditor faced with a similar situation.