SECTIONS 417 AND 418 OF THE COMPANIES ACT 61 OF 1973 – RELEVANCE PREVAILING OVER THE RIGHT TO PRIVACY Gumede v Subel NO 2006 3 SA 498 (SCA)

Abstract

As the bulk of the law of insolvency is procedural it is by nature a rightsbased law, for the rules of procedure are premised on the principles of the law of natural justice. Bankruptcy laws have traditionally been procedural statutes providing a means by which a debtor and all his or her creditors may readjust their relationship when the debtor becomes insolvent (cf Plank “The Constitutional Limits of Bankruptcy” 1996 Tennessee Law Review 487 495). In Gumede v Subel NO (2006 3 SA 498 (SCA)) the issue the Supreme
Court of Appeal had to decide was whether the right to privacy entrenched in section 14 of the Constitution of the Republic of South Africa Act, 1996 (hereinafter “the Constitution”) entitled the appellants to refuse to produce documents as summoned by the commissioner in an enquiry in terms of section 417 read with section 418 of the Companies Act (61 of 1973) (unless otherwise stated, all references to sections are references to this Act). Before discussing and commenting on the decision in Gumede it is necessary to first provide a brief summary of the facts and judgment of the case.