[2] It was heard, March 6, 1995, in the Constitutional Court by Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J.

The case is often cited now for its provision of the test for severability: Although severability in the context of constitutional law may often require special treatment, in the present case the trite test can properly be applied: if the good is not dependent on the bad and can be separated from it, one gives effect to the good that remains after the separation if it still gives effect to the main objective of the statute.

Section 35 of the Constitution was to be understood as requiring the court to give due attention to international experience, with a view to finding principles rather than rigid formulae, and to look for rationales rather than rules.

It would accordingly be improper for the court to hold constitutional a system which conferred on creditors the power to consign the person of an impecunious debtor to prison, at will and without the interposition at the crucial ime of a judicial officer.

Given the manifest and substantial invasion of personal freedom thus involved, the real issue that the court had to decide was whether such an infringement could be justified in terms of the general limitations on rights permitted by section 33 of the Constitution.

[24] Sachs J's conclusions, on this point, were as follows: When the Law Commission says committal of judgment debtors is an anomaly that cannot be justified and should be abolished; when it is common cause that there is a general international move away from imprisonment for civil debt, of which the present committal proceedings are an adapted relic; when such imprisonment has been abolished in South Africa, save for its contested form as contempt of court in the magistrate's court; when the clauses concerned have already been interpreted by the Courts as restrictively as possible, without their constitutionally offensive core being eviscerated; when other tried and tested methods exist for recovery of debt from those in a position to pay; when the violation of the fundamental right to personal freedom is manifest, and the procedures used must inevitably possess a summary character if they are to be economically worthwhile to the creditor, then the very institution of civil imprisonment, however it may be described and however well directed its procedures might be, in itself must be regarded as highly questionable and not a compelling claimant for survival.The court, accordingly, should not exercise its discretion under section 98(5) of the Constitution in favour of keeping the institution of imprisonment in sections 65A-65M of the Act alive.

The court must accordingly posit a notional, contemporary Parliament dealing with the text in issue, paying attention both to the constitutional context and to the moment in the country's history at which the choice about severance is to be made.

[27] Sachs J concurred with Kriegler J that the necessary excisions from sections 65A to 65M would leave a statutory provision that was linguistically sustainable, conceptually intact, functionally operational and economically viable.

[28] Sachs J added that, although notionally the court, in testing the constitutionality of legislative provisions, proceeds in two distinct analytical stages, there is clearly a relationship between the two curial enquiries.

In the end, the court must decide whether, bearing in mind the nature and intensity of the interest to be protected, as well as the degree to which and the manner in which it is infringed, the limitation provided for in section 33 is permissible.

The values which must suffuse the whole process are derived from the concept of an open and democratic society based on freedom and equality, several times referred to in the Constitution.

The notion of an open and democratic society is therefore not merely aspirational or decorative; it is normative, furnishing It follows, Sachs J determined, from the principles laid down in S v Makwanyane[30] that the Court ought not to engage in purely formal and academic analyses; nor should it simply restrict itself to ad hoc technicism.

[31] In the present matter, the court was called upon to exercise what Sachs J described as a structured and disciplined value judgment, taking account of all the competing considerations that arose in the circumstances of the case, as to whether or not, in the open and democratic society based on freedom and equality contemplated by the Constitution, it was legitimate or acceptable or appropriate to continue to send defaulting judgment debtors to gaol in terms of the procedures set out in sections 65A to 65M of the Magistrates' Courts Act.

[31] Sachs J noted the invitation to the court in section 35 of the Constitution to have regard to international experience where applicable when seeking to interpret provisions relating to fundamental rights.

The section is to be understood, he held, as requiring the court to give due attention to such experience, with a view to finding principles rather than extracting rigid formulae, and to look for rationales rather than for rules.

The section would permit a pared-down construction of legislation so as to rescue it from being declared invalid, but it would not, of course, require a restricted interpretation of fundamental rights so as to interfere as little as possible with pre-existing law.

Furthermore, it would not be the function of the court to fill in lacunae in statutes that might not have been visible or regarded as legally significant in the era when parliamentary legislation could not be challenged, but which would become glaringly obvious in the age of constitutional rights.