Issue: When facing civil and criminal proceedings stemming from the same facts, can you put the civil proceedings on hold until the criminal proceedings are complete?
Here’s a question from Matthys:
“Last year, I found myself entangled in a legal whirlwind when I was arrested and charged with theft. My former employer accused me of taking from the company safe. Despite denying the allegations, I’m now facing not only criminal charges but also a relentless civil claim from my ex-employer, demanding that I repay the money. The problem is that I don’t want to divulge my defence in the civil case for fear that the prosecution in the criminal case may use it against me. I feel like having to defend the civil case is violating my right to remain silent because whatever I say in the civil case will be used against me in the criminal case. Can I make them stop the civil claim until the criminal case is complete?”
From The Legal Desk:
Thanks for the question, Matthys. First and foremost, let me extend a heartfelt “Ouch!” Your situation seems to be a classic case of walking the tightrope – damned if you do, and well, still pretty much damned if you don’t. Applications to stay civil proceedings in instances where those proceedings and criminal proceedings arise out of the same circumstances are not uncommon. As is the case in your situation, these applications typically stem from a fear that the accused might be prejudiced in the criminal proceedings if the civil proceedings were heard first. But, to answer your question, let’s take a look at the legals…
On the subject of the right to remain silent, you are correct. Per section 35 of the Constitution of the Republic of South Africa 1996 (“the Constitution”), when arrested, you have the right to remain silent and not to be compelled to make any confession or admission that could be used as evidence against you. However, presenting a defence in a civil case is not considered a violation of the right to remain silent. This is because the choice to present a defence in the civil case lies solely with you.
The case Davis v Tip1 serves as the authority in matters of staying civil proceedings where criminal proceedings exist. In Davis, Nugent J2 highlighted that the potential for prejudice is limited to cases where a further element is present, namely ‘the potential for State compulsion to divulge information’.
In Seapoint Computer Bureau (Pty) Ltd v McLoughlin & De Wet,3 Navsa J followed and applied the principle in Davis and stressed that, in principle, a party should be left to their choice as to how they conduct their civil proceedings. The court emphasised that mere accusations in ongoing criminal investigations or proceedings unless there are signs that the State will use compulsion or coercion in the civil proceedings, are not enough to demonstrate the necessary prejudice justifying a stay (at 649H-I).
This Davis approach was approved in Law Society of the Cape of Good Hope v MW Randell4 where the Supreme Court of Appeals (SCA) noted (at 1158H-J) that to extend the court’s intervention to cases where an applicant for a stay of the civil proceedings has a “hard choice” to make (as you do, Matthys), would actually bring the right to remain silent into disrepute. The court held that the ratio for the discretion being narrowly circumscribed is that a distinction must be maintained between the situation where an individual has the choice whether to testify (even though the alternatives over which he has a choice are equally unattractive) and where he is compelled to testify because a failure to do so attracts a penalty.
As the Davis, Seapoint, and Law Society cases all highlight, the determining factor is “state compulsion”. So, Matthys, the million-dollar question: “Is the State compelling you to present your defence in the civil case?” If it is, you can approach the court to stay those civil proceedings until your criminal matter is finalised. If it is not, then, unfortunately, the courts will not intervene. You’ll just have to decide whether or not to defend the civil claim, bearing in mind the consequences of not defending it.
It is pertinent to note, though, that the development and formulation of the Davis principle occurred within the milieu of sequestration proceedings, particularly section 65 of the Insolvency Act5 (prior to its amendment), which provided that the person concerned was not entitled to refuse to answer questions. The examinee respondent was required to subject themselves to interrogation or to answer questions put to them by the provisional trustee. This was effectively compulsion by the state and is why the issue of compulsion became a focal element to consider in such matters.
What I’m essentially saying is that there is no authority or jurisprudential precedent to support the proposition that the Davis principle is of application in conventional civil proceedings that do not involve an element of compulsion on the party seeking a stay of civil proceedings. In other words, there’s no legal backing that the Davis principle applies in regular civil cases (like yours) that do not involve state compulsion. So, should you take your matter to court to attempt to have the civil proceeding stayed? You could, but I personally wouldn’t. After all, you are denying the theft anyway, so you’d probably file an exculpatory statement in your civil case…which won’t harm the criminal case, much.
Written by Theo Tembo
The Legal Desk 
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