CHAIRPERSON: The honeymoon is over, let's get on with the job. Mr Cilliers.
MR CILLIERS: As it pleases you Mr Chairman, the witness hasn't been called formally yet but can we continue with the legal argument regarding the question if there's obligation on these witnesses to testify.
CHAIRPERSON: One of the witnesses, we have sworn Dr Mijburgh I think. Can I ask....
MR CILLIERS: The witness Mijburgh has been sworn, Basson not yet. My submission will be, for practical reasons, that we first have the argument although I have no specific prejudices I think it will be practical that you first make the decision before he is sworn in.
CHAIRPERSON: Adv Potgieter can you swear the witness in.
WOUTER BASSON: (sworn states)
CHAIRPERSON: Mr Cilliers.
MR CILLIERS: As it pleases you. As indicated Mr Chairman during last week to Mr Vally and Mr Chaskalson and more specifically this week to you, there is at this stage an application on behalf of the two witnesses before you and what we want is that their evidence be suspended according to the criminal charges pending against them.
At this stage, in view of the attitude of Mr Vally I will make no distinction between the two. I will deal with the legal position on the same basis, although there is a small difference between the two, but Dr Basson, as you possibly know, has already been arrested and is out on bail and a date has already been set for his appearance in court. He has appeared in court regularly, but from the 17th of August a final charge sheet will be provided and he will be expected to plead and from there the case will be continued.
The position is not quite the same regarding Dr Mijburgh, but I have been told by Mr Vally that we can deal with the matter and it's my submission that this is an agreement with the present law in this regard and that Dr Mijburgh has the same rights, in light of the indications, that Dr Mijburgh will be charged for these crimes or offences. It is only the finalising thereof in the near future.
As regards the legal position ...(intervention)
ADV POTGIETER: I am sorry Mr Cilliers before you do that, don't you just want to sketch the practical situation for us? You said that this evidence must be suspended or curtailed pending the criminal charges, what is the prognosis? How far has this case progressed? When is it going to be completed? Is there any idea that this case will be completed by the time that this Commission has to complete its work which is the 30th of June?
MR CILLIERS: No, this is an absolute date and that there's no possibility of an extension as has happened in the past then there can surely be no realistic estimation that it will be completed by that stage unless the government will not continue with the prosecution. But there was an initial indication that the State would be ready at the end of January this year, but as a result of problems on their side they could not continue with this or could not even give us the charge sheet at this stage and the situation was extended or delayed, postponed till August.
So it is our submission that this is a realistic possibility that has not been envisaged at all by the Attorney-General and we can therefore not make a realistic estimation that if the case continues that it will be completed by the end of June.
ADV POTGIETER: So if we should curtail this or postpone it, it would not be practical unless there is an extension of the period of taking of evidence. That's out of the question.
MR CILLIERS: I am not clued up about that. I can possibly boil down to that, yes.
ADV POTGIETER: So you want to deal with the legal position?
MR CILLIERS: Yes. As regards the legal position you must just understand the factual basis first and I think that Mr Vally and I are in agreement about the fact that the factual basis on which this questioning rests is exactly the same as the factual basis of the criminal charges against these two witnesses.
The evidence that they will give here, if they are obliged or compelled to testify, that will deal with exactly the same aspects as the complaints are against these specific witnesses. You must accept this as the basic point of departure because this is of cardinal importance.
As has already been said I will not continue with the factual situation, the distinction thereof, in view of Mr Vally's attitude that he makes no distinction between the two.
We must then start with Section 35 of the Constitution which deals with the relevant situation. You must keep in mind this so-called right not to answer, the dealing with accused people which has been entrenched in our common law. It's the deep-rooted law or right which is in all the legal systems in the world including the Canadian and the British legal systems, so it's a deep-rooted right which is accepted throughout the world as a right in the fair dealing, handling, of any person who is charged.
Section 35 of the Constitution went further and this specific right was entrenched in the Constitution. Section 35, as you possibly know, deals with three sub cases. The heading is perhaps already an indication of which three cases are dealt with, namely arrested persons; detained persons and accused persons.
Subsection 1, already this is now before the charge sheet has been given to a person, or a decision has been made, but on his arrest already the Constitution in Section 35(1)(a) gives the right without any - for such a person and such a person has the right not to answer. There is no compromise reached in that article and this is a right which he is given and which will be our respectful submission which cannot be affected by proceedings of any nature. This is how in the recent past it was dealt with in the courts in South Africa and we will in time refer you to that.
At the outset I would also like to make something clear. We must just make a clear distinction and perhaps for the people on the panel who are not jurists that is just something which you must distinguish between in your own mind, one gets the situation of self-incrimination on the one hand and the so-called right not to answer on the other hand. These are two total different rights and they must be dealt with, are dealt with differently in the Constitution and are dealt with by different sections.
This is also dealt with on a different basis in different legislation. I will try to explain briefly what the difference is.
The right against self-incrimination is purely that right that a person has not to give any testimony during any proceedings which will implicate himself. Such right is also included in Section 35 and 35(3)(c). It's been entrenched in these sections, the right not to answer as opposed to this is merely the right that an accused person is not obliged or cannot be compelled to - this is a basic right that he has to say that during my case I will give my testimony. The basic difference and handling of this is of great importance and this is explained as such. And this is the right to give self-incriminating evidence can be saved by legislation and Section 31 argues this to a large extent.
The negative effect that this has for a witness is that the incriminating evidence cannot be used against that person in a later hearing.
CHAIRPERSON: ....to remove yourselves here. Thank you.
MR CILLIERS: Thank you Chairperson. So to a large extent measures have been built into legislation which can eliminate the possibility of incriminating yourself or can justify it by the section which says that it cannot be used later.
The right not to answer is, however, a different situation. If that right is ever affected or infringed then there is no way in which that infringement in a situation such as this, can be rectified. If the witness has to give his testimony in a matter such as this, which is held in public, where the Attorney-General and the police have access to etc, where there are representatives present of the Investigative Team then you can understand that the infringement of that right cannot be rectified. And not even you or an order from any Supreme Court can do this. The Act does not make provision for special treatment of this. There are Acts which make provision for special treatment, Section 35 of the Insolvency Act makes special provision and provides that such proceedings be held in camera where the right not to answer can be brought up. It determines that it will be a crime to make public that information even to the police. So it will place the obligation on you, as members, and the Investigative Team that, that information should not even be given to the police, because it makes it a simple offence to even publicise such information.
The legislation does not have such a protective provision and as a so-called creature of statute, you are not entitled to tackle something like that on your own.
The further situation is that even the Insolvency Act, where one does have those protective measures the way in which the courts deal with this is that those proceedings are curtailed, the evidence which is gathered from the specific person is curtailed pending the outcome of the criminal case. And the reason appears very clear, and the best I can do for you is to quote from a ruling from Justice Kriegler in the Constitutional Court, at that stage in the Transvaal Provincial area which he gave in the judgment of HAVENGA v RHEEDER AND ANOTHER, 25th of March 1988. It's not reported but you will find it in all the legal documents and it's been quoted. I am reading the quote by Judge Navsa in the judgment, SEAPOINT COMPUTER BUREAU v KLAGEN & DE WET 1997, the second judgment on page 66, and I am reading on page 644G, in which Judge Kriegler says -
"What is the background or the basis of this law and what it entails? The practice is very clear....."
this is regarding the right now to answer -
"...this is fairness towards a person who is approaching a criminal case in which he can be prejudiced when he has to give all the information before the criminal case starts".
This is the situation here also.
Our law then went along a different route than the Canadian and the English law which handles these aspects much stricter or has better protection of the right not to answer. In the recent past, as mentioned by Judge Navsa in this judgment I've already referred to, and also Judge Nugent in one of his judgments and DAVIS v TIPP when specifically attention is paid to the right not to answer and how it should be handled. I will discuss this later on.
The first question is whether in that case whether courts can suspend activities such as these depending on the finalisation of criminal cases. And a long list of authorities the court did find that they could do that. I am also referring you to a passage from the judgment of Judge Nugent where he said expressly that the handling and the protection of fundamental rights, this is the protection of Section 35(1)(a) is not only the duty of the courts, but it's also the duty of any instance which has to do with the rights of individuals such as you. And the courts, at the end of the day, are the instance who should decide whether this had been complied with. But in the first instance this is an organisation like you.
And the reason why I am mentioning this here is, and why I am addressing you on the aspect that courts could suspend procedures, and I want to show you, indicate that you also have those rights and it's not necessary to go to the court to ask them to ask you to suspend the proceedings because you have the right to enforce those rights.
DAVIS v TIPP ...(indistinct) (SA) 1152 and the citation that I wanted to quote to you Mr Chairman, is. I quote on page 1156C from the relevant judgment to illustrate this point.
".... admitted that this was a question which the first respondent had been precluded from enquiring into as the Constitution is the sole domain of the courts. I do not think that is correct. The Constitution's charter of rights is the touchstone for testing the validity of conduct which is subject to its terms. It must necessarily, in those circumstances, be the light which guides those who are bound to act in accordance with its terms and not one against which their eyes are to be shielded. The role of the courts is merely to ensure that there is no deviation from the path".
So our submission, with respect, is that it is clear and it is the correct approach that any organisation which is working with the infringement of rights has to keep the Constitution in mind and it must be used as the basis and the point of departure according to which certain laws are evaluated or tested. And the court is just a way of saying whether it has been interpreted correctly.
CHAIRPERSON: Can I just put a question Mr Cilliers, you need not respond to it directly, but you may do so. Section 35 seems to be referring to arrested, detained and accused persons, and everyone who is arrested for allegedly committing offences, the right to remain silent. Now talking about forums, is this the forum where you can state that right?
MR CILLIERS: Yes.
CHAIRPERSON: This particular right?
MR CILLIERS: In Judge Navsa and Justice Nugent their judgment was about procedures and it is your task, during any procedure, to enforce those rights.
CHAIRPERSON: (Microphone not on)
MR CILLIERS: The first one the SEAPOINT 1997 (2) SA 636B. It is my submission that these are judgments, I have copies of those. I have given to my learned colleagues and you can look at those. These are the recent judgments and the very latest judgments regarding this specific aspect, and it will be fruitful to consider those.
Before I mentioned this new aspect I indicated that in a long series of cases in the South African legal system and also internationally, that this right, the right to suspend proceedings I have referred to what Judge Kriegler had said and I am referring you again to a judgment in GRATIS & GRATIS (PTY) LTD v JACK LOUW, 1930 (VLD) 496. You will find extracts from this in the SEAPOINT judgment. I am quoting: -
"The respondent certainly might be prejudiced if pending the decision of the criminal proceedings he were examined under the Insolvency Act or if he were interrogated by the provisional trustee. But the applicants agree to a direction being given that pending the decision of the criminal proceedings there shall be no examination of interrogation of the insolvent and provided that safe guard is laid down I fail to see how the sequestration of the respondent's estate can cause any prejudice to the respondent in the criminal proceedings."
So what the Court decided in that instance what that he allows the sequestration but in the light of the applicants regarding the sequestration in that matter they agreed that the insolvency should not be interrogated before the criminal proceedings. But this should be made part of the order that he is not allowed to testify or be interrogated by the trustee depending on the finalisation of the criminal case.
I want to refer you to DU TOIT v VAN RENSBURG, 1967 4SA433 and it is Cape Provincial division decision. And I will quote from that. It is on page 1072 (H).
CHAIRPERSON: It cannot be. Didn't you say it is 433?
MR CILLIERS: It is.
CHAIRPERSON: It would be a long judgment to cover (...indistinct)
MR CILLIERS: It is in fact. I am coming back to that and I am quoting from a later judgment IRVIN AND JOHNSON LTD v BASSON, 1977 (3).
CHAIRPERSON: This is not this Basson (...indistinct) What is the year Mr?
MR CILLIERS: 1977 (3) 1067 Transvaal decision. And the judgment was given by Justice Trengrove and I quote: -
CHAIRPERSON: And what is the page where you will be?
MR CILLIERS: 1072 (H) and further:-
"The principle as I understand it is that if it is shown that proceedings in an insolvency and the examination of an insolvent are likely to prejudice the insolvent in his defence and related criminal proceedings the Court has a discretion to stay all proceedings against him until the criminal proceedings have been concluded."
It refers to various authorities: -
"This arises out of the general rule in civil proceedings that until criminal proceedings have been disposed of where a defendant or a respondent as the case may be, might be prejudiced in criminal proceedings if the civil proceedings were heard first. The civil proceedings would then be postponed or suspended."
CHAIRPERSON: Can I just ask was there a provision or is there a provision by law is not that? Is there a provision in the Insolvency Act for the (...indistinct) of witnesses to self incriminate themselves?
MR CILLIERS: Ja. Section 65 ja.
CHAIRPERSON: Okay. You can go on now.
MR CILLIERS: I want to make something clear mention is made here of a discretion. Reference is made to discretion in later authority and you will find it in the judgement of Justice Nugent and I will give you the passage later on. He finds that the Court and including you yourself there does not have the discretion. Should an occasion arise where there is a potential prejudice there is an obligation. And under the term of the constitution which give you the basic right not to answer it is my submission that it is even stronger now when we have the constitution and Section 35 (1) (A) which gives somebody the right not to answer who is approaching a criminal court case.
I have given you the passage from du Toit page 435 next to the letter H. Says: -
"It has been held that where civil proceedings and criminal proceedings arising out of the same circumstances are pending against the person it is the usual practice to stay the civil proceedings until the criminal proceedings have been disposed of. The principle at the root of this practice is that the accused might be prejudiced in the criminal proceedings if the civil proceedings were heard first. Because he might have to give evidence in the civil proceedings and he might be subject to cross-examination or he might be compelled to disclose information in his possession before the criminal proceedings were disposed of."
I just want to make two remarks regarding this matter. On the one hand this matter is about a civil court case where a witness had the choice whether he wanted to testify or not. There is a difference between our law and the European and other legal systems. This is irrelevant here because in this situation we do not have that choice. Here we have the situation where Justice Kriegler has already indicated and Havenga Justice this is a statutory obligation. In the Canadian legal system usual proceedings where a witness has the choice to give evidence it can be suspended depending on the criminal proceedings. The choice he has is not a proper choice but should he not testify a negative deduction could be made or (...indistinct) inference could be drawn. And such normal civil proceedings are suspended. In our legal system the view has developed that although it is not a pleasant choice it still remains a choice. And there will be not an attempt made to protect his right not to answer. When something will be done is when there is some or other form of force. Where for example there is statutory pressure to make him testify. That is the case in the South African legal system. This is why I do not want to go deeper into this distinction here is a situation where there is not a choice but statutory enforcement.
ADV POTGIETER: Just give us the reference to Justice Nugent's judgment where he says the position is that there is no discretion?
MR CILLIERS: Page 1157 next to the letter d. Shortly I want to read from that so that you can see or hear that in context. It is the judgment of DAVIS.
ADV POTGIETER: Please read it.
MR CILLIERS: He says: -
"Although the principle has been articulated in the language of a discretion."
That was after the quote from the BASSON court case.
"Although the principle has been articulated in the language of a discretion this may be misleading. I do not understand the decided cases to have been held that the court may direct the civil proceedings to continue even where it has been found where they may prejudice an accused person. On the contrary, it is clear that once the potential for prejudice has been established the courts have always intervened to avoid it occurring. In that sense then it has no discretion."
ADV POTGIETER: What was the situation in DAVIS v TIPP?
MR CILLIERS: It was in disciplinary. DAVIS v TIPP the facts are that it was an official of a municipality who allegedly took some action which led to criminal prosecution. I think corruption and fraud were involved. And together with that with the court proceeding they had a disciplinary hearing during which the applicant approached the Court and said suspended all these proceedings pending a completion of the criminal case. In the end to give you the full picture. In this case the applicant had a choice because a municipality has no right to force somebody to testify. And in the end the judgment was that they will not suspend it. They will only do that when there is statutory pressure on the applicant to testify. Then they could do it. This is where the distinction is mentioned that the distinction regarding the choice. They say that the applicant is in a difficult position but should he not testify at his disciplinary hearing he was in a poorer position than otherwise. But he says he still has the choice. It is a difficult choice but this is not found in the Canadian legal system. Then they would only interfere if what they called there would be State coercion to force him to testify.
In the light of the fact that I have already mentioned it previously referred to the judgment in the Canadian legal system where regarding this decision situation civil proceedings are suspended. WILLIAMS v DEPUTY SUPERINTENDENT OF ASSURANCE, 1993 (18) CRR (2D) page 315. I shortly want to quote from the relevant judgment. The presiding judge was a certain McAdam. And I quote: -
"Justice Hallard (in Phillips case) confirms that the right to silence may even be compromised where the person agrees to testify."
And then he quotes from the PHILLIPS decision.
"Therefore respondent's right to silence will have been compromised even if they agreed to testify which they may be forced to do as they may not want to leave unanswered allegations that are made at the public enquiry. They are in the coercive power of the State. The Crown will be able to gather evidence without the usual safe guards provided by the criminal law."
And then he goes on: -
"Similarly the applicant faced with the evidence before the advisory board may notwithstanding that he has not been subpoenaed to give evidence be forced to waive the right to silence in order to respond to the evidence in the possession of the superintendent. He will therefore be in the coercive power of the State and the Crown will be able to gather evidence without the usual safeguards provided by the criminal law."
The effect of that and I do not want to take too much time we have here a typical example of State coercion. These are statutory obligation because the accused have no choice. And the handling of that they follow the approach that when there are criminal proceedings which are pending like these, those proceedings would be stayed. Although during those proceedings there are no statutory pressure on people. But the feeling is that perhaps he wants to testify but because he does not want to prejudice himself in the criminal proceedings pending he is in a difficult position should he or should he not testify. And that "pressure" to force him to give evidence to answer questions that difficult choice called State coercion by them, that is so unacceptable that all these proceedings are suspended until the criminal proceedings have been finalised.
In the light of the fact that we have an easier situation here where there is direct statutory force from the side of the State and it leaves them no choice and you do not have to pay any attention to that.
CHAIRPERSON: Would I be understanding you correctly Mr Cilliers that the gravamen of your argument is that your client would suffer great prejudice in the criminal proceedings in relation to which they have been charged were they to be compelled in terms of Section 31 of the Promotion of National Unity and Reconciliation Act?
MR CILLIERS: That is the crux of the argument yes.
CHAIRPERSON: Now I know that you did mention this in your argument but I just want to hear you again. And are you saying that prejudice will not be prevented from occurring or in other words it will not be that Subsection 3 of Section 31 of the Act - Promotion of National Unity and Reconciliation Act, is cold comfort from the point of view of prejudice. Subsection 3: -
"Is there any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of Subsection 1 shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or before anybody or institution established by or under any law. "
And then the proviso is only in relation to the law relevant to (...indistinct)
MR CILLIERS: That is the reason why with respect Mr Chairman right in the beginning I have made a distinction between the two types of law. That is in Common Law and according to the Constitution. The distinction between the right to prevention of self incrimination and the right to keep silent are two various laws handled in various aspects in the Constitution and in the law. The protection of the right to keep silent is more difficult than the right to self incrimination. This is referred to in Section 31 on a proper basis it is handled there.
To illustrate this Dr Swanepoel was advised by me and I advised him: "Answer the questions that do not fall in this category and the protection by Section 31 is enough protection."
But in this case where the right to keep silent is relevant I cannot do it better than Justice Kriegler in that first quote where he made a clear distinction. And he said the underlying principle is fairness towards a person who is approaching a criminal court case and who can be prejudiced if he has to kind of show his hand before the criminal proceedings start. It not has to do with incriminating but it is revealing all information.
ADV POTGIETER: Does it have to do with prejudicing himself? But regarding prejudice and Subsection 3 is also relevant.
MR CILLIERS: Only during incriminating questions.
ADV POTGIETER: Why?
MR CILLIERS: The disclosure of your hand that is when you give certain questions which indicate in which direction your defence is going to be made. It is not an evidence that somebody is going to stand in a court and say: "You are saying this. Last time you said that you produced this agent." It gives the State the advantage that he now knows long before the court case what is the hand, what is the essence of the defence. To illustrate it on two bases. It is the same as to listen what an accused and his legal representative are saying. The policeman would go to court and say this person is not telling the truth because he told his legal representative on the day the crime was committed he was in Cape Town. And the fact that he should not do that does not make that it could be allowed. Now they can do this because of the statutory force which is put on the person that this accused was pressurised to show his hand.
ADV POTGIETER: You have to read this whole Subsection. If you interpret that we should take into consideration the potential prejudice the client can experience when he testifies you should show us the potential prejudice. And I am asking you when we measure all this up why can't we take the provisions of Subsection 3(1)? If we find for example that in the light of the protection provided by Subsection 3(1) he cannot be prejudiced and we can find that we did not make these points.
MR CILLIERS: Should you find that compulsory evidence under statutory pressures cannot prejudice a person. I will fall off this chair with surprise.
ADV POTGIETER: We are referring to the principle now. Subsection 3 is not irrelevant whether you are talking about the right to keep silent or self incrimination it is not relevant. It is one of the considerations we can put in the whole pot. If we talk about prejudicing.
MR CILLIERS: Subsection 3 refers to one of the basic rights involved here. Subsection 3 of Section 3 refers to the fact that incriminating answers or evidence or evidence of an incriminating nature cannot be used against the person.
ADV POTGIETER: That is the point. If we look at the Afrikaans: -
"An incriminating answer or information or incriminating evidence."
So in other words anything which is mentioned within the context of our proceedings cannot be used in any later criminal proceedings. And I am asking you is your submission that we can take this into consideration only regarding the right not to incriminate yourself. It is irrelevant regarding the right to keep silent.
MR CILLIERS: I am telling you in its context that is clear that, that is an incriminating way to obtain information. If you look at Section 31 and the heading to not allow incriminating evidence. And with respect you cannot take certain passages and not read that in context. If you read that in context it is very clear with what 3 has to do.
ADV POTGIETER: Is your submission that the positions of Subsection 3 of 31 are irrelevant if we have to decide about prejudicing regarding this right to keep silent?
MR CILLIERS: It handles one of the problems because the right to keep silent and the incriminating question are inter-related. There is always a situation where you infringe on the right to keep silence goes further and is a right broader than the right to self incrimination. This is why I have read the judgment of Kriegler. It is not about evidence which can be given in court.
ADV POTGIETER: Mr Cilliers I want to assure you that we understand your submission and the authority. I just want to address a simple point. Do you agree with that or not?
CHAIRPERSON: Can I put the question differently. If it is prejudice that is sought to be protected. Whether it is prejudice against self incrimination or prejudice that would come if a person did not remain silent. Now if we had to test prejudice which would come from an (...indistinct) of the right to remain silent are we not permitted to take into account the sort of prejudice that would arise if we were to consider the prejudice that would be brought about by compelling a witness to incriminate him or herself?
MR CILLIERS: These are two different rights. I will concede this is something which can be taken into consideration. But perhaps I thought you wanted to limit it and all you wanted to know is whether it is applicable. All I want to emphasise is that it should be taken into consideration but you should be careful that you keep in mind that it is not limited to that disadvantage. It is the smaller disadvantage of the matter. This is what Justice Kriegler is saying. And I want to ask you to be careful that this is not the only disadvantage. It is a broader concept.
I want to emphasise it that Subsection 3 of the Act says it should not be allowed as evidence. And this is to do with the fact whether the record of your proceedings could be used as evidence in a latter court case. Or could ask somebody from the public to say that I was present and I heard that and that. This is the situation Subsection 3 addresses. But Subsection 3 gives no assistance for the situation described by Justice Kriegler in disclosing his hand. And if I can give the absurd example of the policeman who eavesdropped on the consultation and now they know what is coming, they can position themselves. They know what the defence will be. This can never be allowed in court but it can be to the detriment of the accused because his right to keep silent has been abrogated. And you must watch against this situation and prevent that. And that is the situation the Constitution makes provision for. And it says that this person has the right to keep silent.
ADV POTGIETER: Mr Cilliers one other point please. Your submission regarding the discretion is your submission that as long as there is statutory obligation a person like your client must only indicate potential prejudice and it leaves the tribunal with no discretion?
MR CILLIERS: In due course I will give you the relevant quotes but you precisely summed it up. That as soon as there is a potential prejudice and I will also refer you to authority and that is a basic right. It is trite law that the statutory obligation to disclose your hand to testify at all is a potential prejudicing for somebody who is approaching a criminal case. And it was the approach by Justices Navsa and Nugent that, that moment when State coercion is found to compel a person and leaves him no choice. And Justice Kriegler called it when a statutory obligation is placed on a person then there is prejudice. And there is the prejudice in the sense that he has to disclose his hand before the criminal proceedings.
ADV POTGIETER: It is the case and usually the case that non of these authorities you referring to has to do with the situation like this Commission which is of a temporary nature. You are referring to civil proceedings or to situations where after the criminal proceedings you can always return back to the proceedings which were suspended. We are not referring to a temporary body like this.
MR CILLIERS: You are probably one of the only temporary institutions who is doing this work and you yourself have never been confronted by this situation. The right to keep quiet is in the moment in the process of being presented to the Constitutional Court but it is not been finalised. And that is also what my research revealed. And there is no authority regarding the position regarding the right to keep silent. And I can refer you to Justice Navsa and Nugent who refers to these rights. Both these judgments do not refer to temporary institutions like you are.
ADV POTGIETER: Won't it be relevant regarding the matter of prejudice? It would be one of the factors which would be considered?
MR CILLIERS: It is difficult for me to say that you can ignore it but in the handling of that you should ask yourself the question is the position then in our legal system that a person's fundamental right as provided expressly by the Constitution through decades long legal process should you negate that and say because we are just a temporary institution we are going to ignore your constitutional rights. That is putting it very harshly but if you give to much weight or any weight to the fact that you are a temporary institution that would mean that temporary institutions can ignore the Constitution. And that only permanent institutions - and it is only parts of the Constitution with which you have a problem. And to put it very strongly it means that those provisions of the Constitution only are applicable to permanent institutions of State.
ADV POTGIETER: All that in the light of the objectives of this process for which the Truth Commission was convened in the view of the national objectives. In the case of the individual it is just a temporary suspension of constitutional rights and the national objective is stronger than the right of the individual.
MR CILLIERS: I am just sharing my views with you and I want to differ from you. Just to a temporary infringement of the rights. The rights of the individual are irreversibly finally prejudiced. This is an interesting approach and it is something which you should keep in consideration. And the choices which should be made and balancing the various interests. It is one of the things you should pay attention to. These individuals should be kept in consideration that it would be a final infringement of rights. So in other words this individual is placed on the altar.
You should pay attention to that yes. But unfortunately the factual situation is that here is a temporary institution and you can give me an assurance its time span is not going to be extended. This is the factual situation we have.
CHAIRPERSON: Mr Cilliers what would the position be - I do not know if in any of your authorities that you have referred us there is a reference to the application of what now is Section 36 of the Constitution? In other words the limitations clause. How would that impact on your right?
MR CILLIERS: Regarding the right to self discrimination discussions were held in the Constitution Court and this is why it is so important that distinction between the right to keep silent and the right against self incrimination. And on the basis of the limiting provision and it is allowed that an institution like you can force a person to answer an incriminating question but you should give him guarantee that it will not be used against him. This balances out and this is acceptable. In the Insolvency Act and also in the Company Acts regarding insolvency interrogations and the Office for Serious Economic Crimes had the same situation they found that acceptable to balance the disadvantage accrued by the individual to answer a discriminating question. You give him the protection that it should never be used in against him. Although you say here I killed him at that and that time, it cannot be used against you. And that is the end of the matter.
It has not been tested the limitation clause, limitation based on the right to keep silent has never been tested. Why it cannot be applied is my submission is that this right if it is violated will never be put right. And this is what I have just told Mr Potgieter. This is not a temporary infringement by measures within your sphere. As soon as a person is forced to show his hand that is the end of his right to keep silent and every aspect of that is contaminated and that is final. In the light of that it is my respectful submission that no court can find that according to Section 36, the limitation clause will ever allow that in an open and democratic society to do this infringement.
One of the criteria in Section 36 is the essence of the right should not be infringed. And the essence of the right to self incrimination, that you should not be found guilty on the basis of your own evidence. And that should never be used against you. Although you are infringing on the right the effect of that is cancelled out. On no basis can the essence of the right to keep silent be protected. On that basis I submit it and I will argue that it is not justifiable.
CHAIRPERSON: Have you made all your submissions Mr Cilliers?
MR CILLIERS: I will continue. I want to quote to you short passages from His Honour Justice Navsa's ruling or judgment in SEAPOINT. And it is my respectful submission that Justice Navsa if you go and look at the judgment did a great deal of or big work in the evaluation of the position regarding the right to silence. He really looked at a variety of our decisions, Common Law decisions and gave an extensive judgment in this regard. So with all respect one should place great weight on his judgment.
I refer you to page 647 of his judgment. After most of the authority which I have referred you to he also refers further to the judgment by Justice Nugent the DAVIS v TIPP judgment. And gives the following ruling: -
"Refused to stay proceedings on the basis that the right to remain silent derives from the abhorrence of coercion to secure conviction and it achieves this by protecting an accused person from being placed under compulsion. Not by shielding him from making legitimate choices."
What the judge is saying there with all respect was the choice situation that I sketched to you earlier. What he is saying that is in the South African law he agrees with what Justice Nugent says that the right to silence does not shield some one from making legitimate choices however difficult they may be. What the law does intend to protect is protecting an accused person from being placed under compulsion. And this is the situation with all respect that we have here. We do not have the choice situation. We have the compulsion situation.
He continues: -
"He concludes that what distinguishes compulsion from choice is whether the alternative to remaining silent presents itself as constituting a penalty which serves to punish a person for choosing a particular route as an inducement to him not to do so."
In dealing with the facts before him, Nugent J says the following, he quotes: -
"In the present case the applicant may well be required to chose between incriminating himself and losing his employment. If he loses his employment that is a consequence of the choice which he has made but not a penalty for doing so. It will be the natural consequence of being found guilty of misconduct and not a punishment to induce him to speak. Hard as the choice may be it is a legitimate one which the applicant may be called upon to make and does not amount to compulsion. In my view his right to silence does not shield him from making that choice."
He continues in his conclusions by saying: -
"I do not consider the judgment of DAVIS case to be wrong. On the contrary I find it a persuasive and analytically correct."
On page 649 he continues opposite the letter (B): -
"In my view an examination of the history of the origin of the rule against self incrimination or the right to remain silent as conducted by Nugent J and as set out in the ZUMA judgment supra."
Honourable Chairman and members the judgment of Justice Kentridge in the Constitutional Court I have a reference in front of me. I will give it to you in time.
"Provides a pointer to how the problem ought to be approached. It is clear that compulsion by the State was the mischief aimed at. That explains why our courts are loathed to have persons who would be accused in criminal proceedings subjected to the coercive machinery provided by insolvency and companies legislation."
And that is exactly the situation in which we find ourselves. Here it is just not the compulsion by the Insolvency Act or the Companies Acts. This compulsion originates from your legislation with all respect. But that it is still compulsion and still is the coercive machinery of the State that is undoubtedly so. He continues lower down the page opposite letter (G): -
"I agree with Nugent J that in principle a defendant should be left to his own choice as to how he conducts the civil proceedings. In this case if the defendant is of the view that it cannot succeed on its present plea and that it is unable to file one because it might thereby incriminate Kennedy or expose itself to criminal charges it must then face the consequence of having filed a plea it cannot succeed on or it must face the consequences of not having a plea at all. The consequence may be judgment for the plaintiffs. This is not in the field of 'coercive power of the State' bona fide litigants ought not to be thwarted merely because the opponents are unable to resist the claims. Allegations of pending criminal investigations or proceedings without indicators that State coercive means are to be employed in the civil proceedings are not sufficient to prove prejudice of a kind that will justify a stay."
Here we have the situation and I can refer Honourable member, Mr Potgieter to this. We have a situation here that the opposite is said by Justice Navsa they are not only indications but the coercive machinery comes directly from the State. The direct statutory compulsion of national legislation. And we have a situation sufficient to prove prejudice of a kind that will justify a stay.
ADV POTGIETER: Was Justice Navsa dealing with a liquidation or insolvency case?
MR CILLIERS: I do not want to mislead you but I think it was a normal civil trial which he was dealing with. It was a normal civil matter yes.
In the judgment of DAVIS v TIPP there are also certain aspects which you can look at. Page 1157 of the judgment opposite (F) I want to quote briefly: -
"Civil proceedings invariably create the potential for information damaging to the accused to be disclosed by the accused himself. Not least so because it will often serve his interests in the civil proceedings to do so. The exposure of an accused person to those inevitable choices as never been considered in this country to conflict with his right to remain silent during the criminal proceedings. Where the courts have intervened here has always been a further element which has been the potential for State compulsion to divulge information."
And with all respect that is exactly what we are dealing with here. In as far as this the "civil" proceedings can be indicated you have exactly the situation where His Honour Justice Nugent just as Justice Navsa has ruled. We here have State compulsion by the statutory process.
He continues opposite letter (H): -
"In the present case the preservation of the applicant's rights" (that is the right to remain silent) "lies entirely in his own hands and there is no such element of compulsion. What the applicant seeks to be protected against is the consequence of the choice he may be called upon to make."
That is the opposite situation which is being presented to you and this is also contrary to the situation that you have before you. You have a situation here as indicated by Justice Navsa and Nugent where they will intervene where the courts have to intervene. That is where there is any form of compulsion to break that right to silence. The fact that we have to bring this application to you is an indication that there is statutory compulsion. There are punitive measures which can be used if you have found this correct and still refuse them then it could be a criminal offence and therefore there can be no doubt that this is State coercion or compulsive to break their right to silence. And as far as I am concerned this is in direct contrast to Section 35 of the Constitution.
Honourable Chairman, Honourable members it is clear and it is our respectful submission that in the subject discussion that all the elements are present whereby the legal statements over all the law in the long period and also decided by Justice Nugent and Navsa where you should intervene and not allow that as a result of statutory compulsion two accused people who would fall within the cadre of Section 35 that their right to silence is being denied them and that the Constitution is being ignored in that regard. With all respect you must look at the layout of a Constitution and I think that you have been confronted with arguments in this regard quite often. Perhaps I can just refer you to a useful discussion thereof in the judgment of ZUMA, 1995 (2) SA642 Constitutional Court on page 651. It boils down to the fact that a Constitution must be set out as such that it is there for the protection of rights and that all other legislation must be expounded in a way subject to the provisions of the Constitution. More specifically the fundamental principles.
In conclusion I would once again like to emphasise a point in view of the discussion that took place and exchange of ideas between Mr Potgieter and I. That we are convinced that in our law it says that the breaking of a right to silence is a potential prejudice to the State for purposes of judgment as follows. In a situation like this where it is common cause that his right to silence is going to be denied him to force him to give evidence regarding aspects which are exactly the same as the aspects for which he is going to have to testify in a criminal case. Where it can be said clearly that this is apparently prejudicial as is said very clearly by Justice Kriegler.
I just want to make this clear to you that our submission is that at its least it is a potential prejudicing and that apparently it is all that is required for you to give a ruling as requested and as quoted from the judgment of Justice Nugent. I do not want to repeat it again I have already read it to you. But with all respect in this situation we fall squarely in that cadre. And it is our submission that there is no other way in which to deal with this matter. That these proceedings be suspended until the finalisation of the criminal case. The short duration of life of this Commission which lies ahead can never be weighed against the disadvantages for the witnesses that their right to silence be denied them.
For purposes of illustration, just to emphasise this potential prejudice to you I want to illustrate. This is something that happened here this morning. The Attorney General made an agreement with the persons at the Commission who have to decide who is going to testify that their witness who they regard as important should not testify, must not be denied his right to silence. He has no such right because Mr Chaskalson said to us that this is going to prejudice the criminal case. If that person has to give his version now, it is going to prejudice the criminal case. I am not criticising Mr Chaskalson or the Attorney General in this regard. Most probably they are correct. The fact that Immelmann must come and tell his story will possibly prejudice the criminal case but even more so the fact that the witnesses here who are going to be the accused here in that criminal case it will prejudice their case even more by forcing them to testify. And in view of the fact that these accused other than Doctor Immelmann in terms of Section 35 of the Constitution have a fundamental right which is entrenched in the Constitution that such a situation should not exist. You should with all respect not take this away from them.
Further I can just mention that if it will be a problem I accept that my learned colleagues know about this, this witness which is now having to be protected and kept away from the disclosing of his testimony is one of approximately 300 witnesses that they regard it as so important that their important witness be kept away. That they want to protect that witness. How much more so not the situation with regard to the two accused who will be the only two accused in this specific case. As it pleases you.
ADV POTGIETER: Do you agree that the testimony of the two clients but especially Doctor Basson is of cardinal importance to this investigation which is before us?
MR CILLIERS: I will agree with you that in view of the evidence that I have heard his evidence will be important. Whether it will be of cardinal importance is certainly a question which is debatable. But I will concede that in view of the fact that the evidence before you is that he was the liaison person between the defence force and the specific laboratory that it is of importance. I do however want to see it in context. If I have listened to the testimony of Doctor van Rensburg more specifically that of this morning and so extent that of Doctor Swanepoel it seems to me if one speaks about a cardinal witness then Doctor Immelmann is that witness. But I will concede that Doctor Basson is an important witness.
ADV POTGIETER: And apparently it is relevant to us to consider when we make our ruling whether the testimony which Doctor Basson can place before us will be taken away from this process. Will be denied our process or not.
MR CILLIERS: If he does not testify and no written answers are given then it is the case. I am of the opinion and it is something that has never been discussed that instead of testimony a written submission can be given. Because the big danger I must say lies in the questioning situation. In the authority which is being referred here by Justices Navsa and Nugent it is one of the points that is made. That is the danger. Something which might be totally irrelevant for your decision comes out in re-examination or cross-examination by one of the lawyers representing any of their clients. I am of the opinion that there is a way of overcoming this problem by making a written submission.
ADV POTGIETER: Although this does not assist your submission. You say that there is an absolute right to silence.
MR CILLIERS: Yes but I will also tell you that in order to assist you we would definitely be prepared with regard to certain aspects we will have to accept that it will be difficult to deal with this because we have the problem with possible self incrimination, etc, etc. But that we would be prepared on a written basis to answer certain of the important questions that you might have.
CHAIRPERSON: Mr Vally?
MR VALLY: Thank you Mr Chair. Mr Chair let's just understand the time frames here firstly. The first issue is that my learned friend did contact Mr Chaskalson on Thursday and said they may be bringing an application objecting to Mr Basson giving evidence. He said he would let Mr Chaskalson know what the decision was on Friday. It did not happen last week Friday. We did hear on Monday I concede that they were going to raise this point.
Having said that let me leave the Commission in no doubt that we regard the evidence, especially of Doctor Basson but also of Doctor Mijburgh of being of crucial importance to us. We have a limited life span. Our function and our statutory mandate is absolutely clear. We are talking about gross human rights violations potentially on a mass scale if the evidence regarding the cholera for example is found to be correct we are actually talking a form of genocide. So we find it very important to tress that it is crucial. We are coming to the end of our life. We have to complete our work at the very latest presently by June if the amendment goes through by the end of July. We are not going to have an opportunity to wait for this criminal matter which has been dragging on for a very, very long time in terms of when the arrest took place and when the trial is starting. I am not saying it is my learned friend's client's fault but that is the reality we have had to deal with. So we are strongly opposing the application.
Let me first start off with one of the points my learned friend made. He said that we are ad idem that the issues we are raising and the issues at the criminal trial are identical. I am afraid we cannot make such an unequivocal statement. Our knowledge of the criminal trial and the evidence relating thereto is not of such a detailed nature that we can say that. We have had a letter from the office of the Attorney General which we read into the court record. We do not know much more than that. Our hearing is clearly set out, the purposes of our hearing is clearly set out in the subpoenas we have sent and we want to enquire about the aspects relating to the gross violation of human rights in relation to the chemical and biological warfare programme. Of which Doctor Wouter Basson was at the centre. There is no doubt about that.
Let's just deal with the legal issues being raised. Let me say from the outset Mr Chair that we regard the provisions of Section 35 of the Constitution as binding on us. Let's be clear on that. We are (...indistinct) Commission but we are a Commission within the context of the laws of South Africa which makes it explicit that the Constitution should apply to us as well. So I have got no qualms about conceding that.
The first issue is this; are we in breach of either of the two gentlemen's constitutional rights. These are set out in Section 35 of the Constitution. There are two rights which we allegedly are in breach of. Now when you read Section 35 you read Section 35 subsection 1 and then the further subsections relating to the two issues. Section 35 subsection 1 reads: -
"Everyone who is arrested for allegedly committing an offence has the right,"
and then you talk about
"a: to remain silent."
And elsewhere there is reference to not being compelled to make any confession of admission that could be used in evidence against that person. So (...intervention)
CHAIRPERSON: Section 35 (I).
MR VALLY: Very well again.
CHAIRPERSON: 3 (J) I think. "Every accused person has the right to a fair trial which includes the right not to be compelled to give self-incriminating evidence."
MR VALLY: Well Mr Chair you should not conflate it all. 35 (3) says: "Every accused person has the right to a fair trial which includes the right," and then it spells out (I). (I) which is what you have just read. But I do not think it was (I). I think it was (J) not to be compelled to give self-incriminating evidence.
The point I am making is this fundamental right. Right to silence and right not to be incriminated or not to be forced to give evidence which is self-incriminating are within the context of a fair trial. Having started off from that premise my authority for saying that we have complied and are not in violation of the fundamental rights of the two witnesses. The primary authority is the matter of FERREIRA v LEVINE, South African Constitutional law reports 1995, vol.7 page 63. I have given my learned friend a copy of this judgment.
Maybe I should briefly say what this matter was about so as to contextualise it. This was an insolvency enquiry at which at the time Section 417 or I believe the Companies Act said two things which are relevant to this matter.
"1: In any winding up of a company unable to pay its debts the master or the court may at any time after a winding up order has been made, summon before him or it any director or officer of the company or person known or suspected to have in his possession any property of the company or believed to be indebted to the company. Or any person who the master or the court deems capable of giving information concerning the trade, dealings, affairs or property of the company."
And then there is a small b under 2.
"Any such person may be required to answer any question put to him at the examination. Notwithstanding that the answer might tend to incriminate him. And any answer given to any such question may thereafter be used in evidence against him. "
Now this was challenged. It was challenged under the provisions of the interim Constitution but with respect the provisions had been repeated with the language slightly cleaned up in the present Constitution. If you look at the interim Constitution and a number of different aspects were raised. I will deal with the one point which was raised which is the issue of self-incrimination. I will also show why the issue of self-incrimination is also directly relevant to the other point raised by my learned friend. Which is the issue of the right to remain silent.
At great length after detailed examination of various authorities we talking about American, Canadian, English authorities and also our own courts. And I also want to point out certain things as I quote from this section. The judgment I have before me I am looking at page 214, paragraph 153. And this is Ackerman J.
"A compulsion to give self-incriminating evidence coupled with only a direct used immunity along the lines indicated above and subject to a judicial discretion to exclude derivative evidence at the criminal trial would not negate the essential content of Section 11(1) right, which is the right to freedom or the 25(3) right to a fair trial."
In the interim Constitution you have Section 25(3) which says: -
"Every accused person shall have right to a fair trial which shall include the right,"
and then it refers to, adduce and challenge evidence and not to be compelled by witness against himself or herself.
You also under Section 25(3)(C): -
"To be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial."
I will continue. The Constitutional Court judgment goes on to say: -
"Would not negate the essential content of the Section 11(1) right to freedom or the 25(3) right to a fair trial."
Which covers those two aspects - self-incrimination and right to be silent.
"Only a discrete and narrowly defined part of the broad right to freedom is involved which could not conceivably be described as a negation of its essential content. As far as Section 25(3) is concerned the trial judge is obliged to ensure a fair trial. If necessary by his or her discretion to exclude in the appropriate case derivative evidence. Ultimately this is a question of fairness to the accused and is a issue which has to be decided on the facts of each case. The trial judge is the person best placed to take that decision. The development of the law of evidence in this regard is a matter for the Supreme Court. The essential content of the right is therefore not even touched."
The point here is having gone through all those cases and at bedlam discussed it felt it was very important for any society and trade in any society for directors of public companies to be held accountable for possible mismanagement and possible fraud. And to have to answer questions in relation to that. However in getting them to answer questions about their mismanagement, alleged mismanagement or alleged fraud relating to a company their fundamental rights should not be infringed. So the only issue for the court as Justice Ackerman has set out was the use of that information against that person in a trial.
If I can go on to what the ruling of Justice Ackerman was. He declared invalid only that section of the Companies Act to the extent only that the words: -
"And any answer given to any such question may thereafter be used in evidence against him."
That is a point. Once that prejudice is removed the right to question the person was held to be constitutionally valid in this instance there was not even a criminal trial pending. But even if a criminal is pending as in the case of Doctor Basson or a possible criminal trial pending as in the case of Doctor Mijburgh.
CHAIRPERSON: Are you saying that is the material difference between the provisions of Section 31 (3) and the provisions of that Section of the Insolvency Act?
MR VALLY: Yes our Act was passed bearing in mind this potential prejudice. And therefore Section 31(3) of our Act says specifically, having invoked Section 31 and having passed the requirement for Section 31(2) as we did this morning for Doctor Swanepoel. It says: -
"Any incriminating answer or information obtained or incriminating evidence directly of indirectly derived from a questioning in terms of Subsection 1 shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or before anybody or institution established by or under any law. Provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned on the charge of perjury or a charge contemplated in terms of Section 39 of this Act or in Section 3193 of the Criminal Procedure Act, 1955."
So that prejudice has been removed now the I would submit equivalent provision was left intact provided that prejudicial aspect was removed in the judgment of the Constitutional Court. On that issue the majority judgment is ad idem in this case. There are aspects of the judgment related to referral to the Constitutional Court and other aspects regarding Judge Ackerman's reasoning where the majority have their own views. I will quote what Justice Chaskalson said in that same matter he confirmed that aspect of the judgment of Justice Ackerman. I am just trying to find my quote quickly.
"I have the meticulous judgment of Ackerman J. I agree with paragraphs 1 to 33 of his judgment. I also agree with his conclusion that Section 4172 (B) of the Companies Act 1973 is inconsistent with the Constitution and with the order he propose as a remedy for that situation. Just deleting the part that it could be used in evidence against that person. I am however unable to agree with the analysis of the issue of standing and with the interpretation of Section 11(1) of the Constitution on which he ultimately arise for his decision. In my view the matter is one in which the applicants have standing and which can and should be dealt with under Section 25(3) of the Constitution."
Section 25(3) of the Constitution I will remind the panel again is in terms of the interim Constitution the provision which says: "Every accused person shall have the right to a fair trial which shall include the right to," and then we go into those two issues - self-incrimination and right to be silent.
"The finding that Section 41 (4)(1)(7) 2 (B) of the Companies Act is inconsistent with the Constitution is in essence based on a finding that the Section infringes a rule against self-incrimination. This is apparent from the reasons given by Ackerman J for holding the Section to be inconsistent with the Constitution. The rule against self-incrimination is not simply a rule of evidence. It is a right which by virtue of the provisions of Section 25 subsection 3 is as far as an accused person is concerned entitled to the status of a Constitutional right. It is inextricably linked to the right of an accused person to a fair trial.
The rule exists to protect that right. The right to a fair trial. If that right is not threatened the rule has no application. Thus a person who has been indemnified against prosecution or a person convicted of a crime who is subsequently called to give evidence against a co-conspirator would not be entitled to claim the privilege in respect of evidence covered by the indemnity or the conviction, would not be entitled.
This connection between the unconstitutionality of Section 417(2)(B) and the privilege is recognised in the order made by Ackerman J which is designed to eliminate the conflict by ensuring that evidence given by a witness at a Section 417(2)(B) inquiry cannot be used against that witness if he or she is subsequently prosecuted.
A challenge to the constitutionality to Section 417(2)(B) should therefore in my view be characterised and dealt with as a challenge founded on the right to a fair criminal trial. It is precisely because Section 417(2)(B) is inconsistent with that right that its validity can be impugned. It is also the basis upon which the applicants launched their constitutional challenge in the present case. Although they relied on various provisions of chapter 3 to support their argument at the core of their complaint was a concern that they were required to answer questions at the inquiry which might incriminate them and which might thereafter be used in evidence against them"
ADV POTGIETER: Mr Vally whose judgment are you quoting from there?
MR VALLY: I am now quoting Chaskalson.
ADV POTGIETER: Chaskalson?
MR VALLY: That is right.
ADV POTGIETER: And what is the reference?
MR VALLY: I have quoted on my copy.
ADV POTGIETER: FERREIRA.
MR VALLY: That is FERREIRA v LEVINE.
ADV POTGIETER: Yes just the page reference of Chaskalson's?
MR VALLY: In my copy it is paragraph 160 page 221 leading onto page 222. That was the last quote.
ADV POTGIETER: Paragraph 160?
MR VALLY: Paragraph 160. And the previous quote was page 220 paragraph 158 a continuation thereof and paragraph 159.
ADV POTGIETER: Thank you.
MR VALLY: I am advised that my references may not be the same as the other references. We took this copy off the Internet and therefore the page numbers may not be identical.
ADV POTGIETER: I think the paragraph numbers would probably be the same.
MR VALLY: Thank you Advocate Potgieter. Now in quoting what Justice Chaskalson says and I want to emphasise that he agrees with the order by Justice Ackerman but he disagreed with the reasoning. Most of the other judges and I am trying to find this section but it is not really relevant, concurred with Justice Chaskalson's judgment. And his reference all the time is to Section 25(3) - the right to a fair trial. He is not separating the right to be silent and the right to self-incrimination. In addition thereto I would have thought it is implicit in the judgment if not explicit that if you say as long as you are not prejudiced in your criminal trial in that the evidence can be used against you and you can be questioned that implicitly states that you do not have the right to be silent. This is vis- a-vis this at the enquiry, at the insolvency enquiry. I am not talking about criminal trial. I am talking about the insolvency enquiry. Because bearing in mind the needs of society etc, relating to public companies and I will come back to that in relation to the needs that this Commission has to discover the truth as part of this overall package. On the one hand of giving amnesty to people on the other hand of giving reparations to victims and on the third hand, if you have a third hand of determining what gross violations of human rights took place in this period. It is a package deal.
And these are the interests in society and these are the relevant issues which have to be weighed up by the persons who both, by parliament ultimately and by the Constitution which is - and it is something I have to come back to as well. Which is what our Act is based on. It is where the genesis of our Act is. It is in the post-amble to the interim Constitution and which post-amble has been incorporated in a slight amended form in the final Constitution.
Having dealt with this case I must just add bearing in mind my learned friend quoting Justice Kriegler. I believe in the 1988 unreported judgment in I think the TPD Justice Kriegler had a minority view in this case. A minority view which does not help my learned friend.
At paragraph 195, page 259 he says:-
"The crucial point is that no witness subpoenaed to testify at a Section 417 enquiry can at that stage,"
and it is underlined. Not my underlining,
"possibly formulate allegations essential for relief based on fair trial provisions. And if the witness cannot bring the case within those provisions I see nothing in the Constitution that avails. There simply is no general prohibition against self-incrimination to be found anywhere in the Constitution. Nothing express and nothing implicit. It is only if and when the production of evidence obtained pursuant to a Section 417 enquiry jeopardises the fairness of the trial that the Constitution can be invoked."
So in our Constitution we do not have a free-standing provision relating to self-incrimination or right to be silent. We do not have the provision you see invoked in American congress hearings or whatever. There is no free-standing provision. It is a provision related to a fair trial. And just (...intervention)
CHAIRPERSON: But Mr Vally why then did the legislature in the new Constitution seek to separate the rights? If you read Section 35(1)(A): -
"Everyone who is arrested for allegedly committing an offence has the right to remain silent."
Now the Section 35(3) seems to be emphasising the right to a fair trial which includes the right and then. It does not - in other words if I heard you correctly you seem to be suggesting that in the judgment you have been reading Chaskalson does not separate the right to remain silent from the right to a fair trial. All of those are grouped together. But the new Constitution just reading it I am not saying something (...indistinct) but just reading it, it seems to please the right to remain silent as free-standing (...indistinct)
MR VALLY: Not law, with respect Mr Chairperson the interim Constitution said 25(1): -
"Every person who is detained including every sentenced prisoner shall have the right,"
and then it goes through the rights.
Section 25(2) says: -
"Every person arrested for the alleged commission of an offence shall in addition to the rights which he or she has a detained person,"
the first one and it sets out the rights.
Section 25(3) says: -
"Every accused person shall have the right to a fair trial which shall include the right to,"
And it sets out those provisions. It is emphasised in the fact that at every stage at the time of your detention, at the time of your arrest, at the time of your trial you have those rights. They are not free-standing. It relates to detention, it relates to the arrest, it relates to the trial.
Similarly Section 35 of the present Constitution, 35(1) says: -
"Everyone who is arrested for allegedly committing an offence has the right,"
Allegedly committing an offence. Then it says under 2:
"Everyone who is detained including every sentenced prisoner has the right,"
and it sets out the rights.
Section 35(3): -
"Every accused person has the right to a fair trial which includes the right,"
and it sets out the right.
The point I am making is it is not a free-standing right standing on its own. It is related to these; detention, arrest, trial. The point being made by my learned friend is we are prejudicing his client's right to a fair trial. That is what he is alleging. And that is the point I am making Mr Chair.
CHAIRPERSON: Yes Mr Vally?
MR VALLY: I have got other points but my colleague just wants to point something out to me if you bear with me Mr Chair.
Thanks for your indulgence Mr Chair. If we could go on. That is my primary argument. That we are entitled to do what we are doing and we are not in breach of the fundamental rights and my authority is FERREIRA v LEVINE.
Let's look at the limitation provision of the new Constitution. We are talking Section 36.
"The rights in a Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable. In an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors including A; nature of the right.
B; importance of the purpose of the limitation.
C; the nature and extent of the limitation.
D; the relation between the limitation and its purpose and
E; less restrictive means to achieve the purpose.
Subsection 2: -
"Accept as provided for in Subsection 1 or in any other provision of the Constitution no law may limit any right entrenched in the Bill of rights."
Now there are two points flowing from here. The first point is the post-amble to our Act. Is again incorporated in Schedule 6 Section 22 of the Constitution. It says: -
"Notwithstanding the other provisions of the new Constitution and despite the repeal of the previous Constitution all the provisions relating to amnesty contained in the previous Constitution under the heading National Unity and Reconciliation are deemed to be part of the new Constitution for the purposes of the Promotion of National Unity and Reconciliation Act 34 of 1995 as amended. Including for the purposes of its validity."
The point is the post-amble is part of the Constitution. And Section 36 subsection 2 says: -
"Except as provided for its subsection 1,"
and I am coming to those limitations.
"or in any other provision of the Constitution this includes the post-amble."
Which is as I pointed out located in Schedule 6 section 22. This was held explicitly to be so by the Constitutional Court again because the points my learned friend are making are constitutional points. It was held to be by Justice Mohammed in the matter of AZAPO AND THREE OTHERS v THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND FOUR OTHERS.
CHAIRPERSON: Do you have a citation?
MR VALLY: Yes I do. Actually I do not. I can give you the case number. We had the original judgment I am afraid I do not have the. But I can give you a copy of this. We have lots of copies.
MR VALLY: I am referring to paragraph 9 on page 11 of my copy.
"The effect of an amnesty undoubtedly impacts upon very fundamental rights."
I am quoting Justice, at the time deputy president Mohammed, now Chief Justice, Deputy President of the Constitutional Court. Let me go on. Paragraph 9:
"The effect of an amnesty undoubtedly impacts upon very fundamental rights. All persons are entitled to the protection of the law against unlawful invasion of their right to life. Their right to respect for and protection of dignity and their right not to be subject to torture of any kind. When those rights are invaded those aggrieved by such invasion have the right to obtain redress in the ordinary courts of law. And those guilty of perpetrating such violations are answerable before such courts both civilly and criminally. And amnesty to the wrong-doer effectively obliterates such rights. There would therefore be very considerable force in the submission that Section 20 subsection 7 of the Act constitutes a violation of Section 22 of the Constitution. If there was nothing in the Constitution itself,"
20 subsection of the Act is referring to our Act - Promotion of National Unity and Reconciliation Act, Act 34 of 1995. Section 22 of the interim Constitution refers to the right to have justiciable issues decided by courts.
"If there was nothing in the Constitution itself which permitted and authorised such violation the crucial issue therefore which needs to be determined is whether the Constitution indeed permits such a cause.
Section 33 subsection 2 of the Constitution provides that, same as provided for in subsection 1
"or any other provision of this Constitution no law whether rule of common law, customary law or legislation may limit any right entrenched in this chapter.
Two questions arise from the provisions of this subsection. The first question is whether there is any other provision in this Constitution which permits a limitation of the right in Section 22. And secondly if there is not whether any violation of Section 22 is a limitation which can be justified in terms of Section 33(1) of the Constitution which reads as follows,"
and it has got the limitation clause of the interim Constitution set out therein. He deals with some of the arguments and he says: -
"The status is determined by Section 2 (32)(4) of the interim Constitution which provides as follows,"
and in that section it says that the very fact that the post-amble is in the schedule means that it does not have any lesser status than any other provision of the Constitution. The difference in the final Constitution is as I quoted just now the post-amble itself says it is part of the Constitution. It says so expressly.
The epilogue therefore has no lesser status than any other part of the Constitution. As far as Section 22 is concerned it therefore would have the same effect if the provision was in Section 22 itself which enacted that and I quote: -
"Nothing contained in this subsection shall preclude parliament from adopting a law providing for amnesty to be granted in respect of acts, omissions and offences."
He is deciding to make law in that respect. But what he in fact says is this is how you read it. The post-amble relating to the genesis of our Act is part of the Constitution.
CHAIRPERSON: What point turns on that Mr Vally?
MR VALLY: The point is the provisions of our Act relating to enquiries and hearings into the gross violation of human rights is envisaged in the Constitution and is not in conflict with those fundamental provisions. That is the one point.
The second point I wanted to make is if that is not acceptable then we look at the normal limitation of rights. I have a long quote where Mohammed DP talks at great length about our Act. He refers to the fact that we have a Committee on Human Rights Violations and what the obligations of that Committee on Human Rights Violations are which is finding out gross violation of human rights and the persons responsible therefore, etc. He quotes from our Act directly. He sets out what the provisions are.
The third angle that I want to raise is and if this is envisaged as being in violation of Section 35 then it is justified limitation on those rights in terms of Section 36. And again the answer is contained in the Constitutional Court judgment of Mohammed DP as he then was. On page 1 I think it is apposite especially in this case. This case where we are talking about allegations of Mandrax being manufactured on a large scale. Allegations of Ecstasy being manufactured on a large scale. Allegations of Cholera being used against people. Allegations of murder by Anthrax in cigarettes. Really with respect disgusting in any civilised society. Never could be justified. We are entitled to invoke the limitation to that right in this respect. And I quote from Mohammed DP: -
"For decades South African history has been dominated by a deep conflict between a minority which reserved for itself all control over the political instruments of the State and a majority who sought to resist that domination. Fundamental human rights became a major casualty of this conflict as the resistance of those punished by the denial was met by laws to counter in fact the effectiveness of such resistance. The conflict deepened with the increased sophistication of the economy, the rapid acceleration of knowledge and education and the ever-increasing hostility of an international community steadily outraged by the inconsistency which had become manifest between its own articulate ideals after the Second World War and the official practices which had become institutionalised in South Africa through laws enacted to give them sanction and teeth by a parliament elected only by a privileged minority. The result was a debilitating war of internal political dissension and confrontation, massive expressions of labour militancy, perennial student unrest, punishing international economic isolation, wide-spread dislocation in crucial areas of national endeavour. Accelerated levels of armed conflict and a dangerous combination of anxiety, frustration and anger among expanding proportions of the population.
The legitimacy of law itself was deeply wounded as the country haemorrhaged dangerously in the face of this tragic conflict which had begun to traumatise the entire nation. During the eighties it became manifest to all that our country with all its natural wealth, physical beauty and human resources was on a disaster cause unless that conflict was reversed. It was this realisation which mercifully rescued us in the early nineties as those who control the levers of State power began to negotiate a different future with those who had been imprisoned, silenced or driven into exile in consequence of their resistance to that control and its consequences. Those negotiations resulted in the interim Constitution committed to a transition to a more just defensible, and democratic political order based on the protection of fundamental human rights. It was wisely appreciated by those involved in the preceding negotiations that a task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible iniquities it had generated. And that this could not be achieved without a firm generous commitment to reconciliation and national unity. It was realised that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past."
He quotes the post-amble to the Constitution and he goes on: -
"Pursuant to the provisions of this epilogue parliament enacted during 1995 what is colloquially referred to as the Truth and Reconciliation Act. Its proper name is the Promotion of National Unity and Reconciliation Act 34 of 1995, the Act."
He sites the objectives of the Act and he says in paragraph 4: -
"It is enjoined to pursue that objective,"
and he quotes,
"by establishing as complete a picture as possible of the causes, nature and extent of the gross violation of human rights committed during the period commencing 1st of March 1960 to the cut off date."
For this purpose the Commission is obliged to have regard to the perspectives of the victim and the motives and perspectives of the person responsible for the commission of the violations."
CHAIRPERSON: Mr Vally do I understand you to be saying that in pursuit of the aims and I am stating it very generally but I just want to understand the essence of your submission. Are you saying in pursuit of the aims and objectives of the Commission Section 36 can be invoked to limit the fundamental rights of individuals?
MR VALLY: Not all fundamental rights. I am arguing the two propositions put forward by my learned friend.
CHAIRPERSON: Yes I am addressing this particular ones?
MR VALLY: Sure.
CHAIRPERSON: So that those rights are not absolute?
MR VALLY: Yes. Well the Act is clear on that.
CHAIRPERSON: Yes I understand but is that the essence of your submission with regard hereto?
MR VALLY: It is on this aspect yes. On this leg.
CHAIRPERSON: And you are relying on Mohammed's (...indistinct) for the proposition?
MR VALLY: Partly. Should I continue?
MR VALLY: If I look at Constitutional Law of South Africa by Chaskalson et al and they look at the issue of reasonable and necessary and justifiable in an open and democratic society based upon freedom and equality. The first requirement involves a determination as to whether the objective pursuit by the government warrant the infringement of a right. And this is what I have gone through at great length. What the government was pursuing the objective was to find out the truth of gross violation of human rights in exchange a different leg of the Commission would give amnesty in exchange a different leg of the Commission would give reparation.
The objectives which can safely be identified as overriding importance are those objectives which reflect the values inherent in other fundamental rights. What can be more inherent in fundamental rights than protection against gross violation of human rights. It is the very essence of the fundamental rights we are talking about. And I will continue: -
" The government restriction must be designed to impair,"
I am quoting selectively from that paragraph 12 - 25.
"The government restriction must be designed to impair the right no more than absolutely necessary."
None of this can prejudice Doctor Basson and Doctor Mijburgh. It is up to his counsel and it is up to the trial court to raise any prejudice at the time to exclude any evidence. In a normal course of events he would plead unless he puts everything into dispute. But we are saying that prejudice is limited. Expressly limited in terms of Section 31(3) of our Act.
And finally only those restrictions which realises significant social benefits and do not unduly burden the affected individuals should pass constitutional muster. With respect to our detractors, the social benefits of our process have far overridden what our detectors have said. If you look at Mohammed DP's judgment in that matter. We were facing a civil war in exchange for certain provisions in our Act allowing amnesty. So that there would not be criminal trials, there would not Nuremberg trials, there would not be Tokyo trials. We agreed to give amnesty. For the benefit of the country, for reconstruction and reconciliation. But we need to know what happened.
Brigadier Wouter Basson as he then was is a key character here. We have presented enough evidence before you to at least show you there are questions which remain to be answered. Before any findings need to be made there are questions that need to be answered in terms of our statutory obligations. In terms of our commitment to the nation. In terms of the Act that parliament has given us. A democratically elected parliament.
Now those are my legal points. I just want to respond briefly to some of the points raised by my learned friend.
CHAIRPERSON: Just on legal points Mr Vally. There was a submission which was made by Mr Cilliers which as I understood it was seeking to say Judge Nugent in the DAVIS case was referring to a situation where there is no discretion regardless of the wedding of the provision that seeks to (...intervention)
MR VALLY: Mr Chair I was going to deal with the Nugent judgment specifically.
CHAIRPERSON: Very well.
MR VALLY: What happened here was very simple. Council employee was called to give evidence before a commission of enquiry in Cape Town. I am sorry I beg your pardon, in Johannesburg. The corruption was allegedly in Johannesburg.
"The Council convened an enquiry in terms of the chapter into,"
I am talking about sorry DAVIS v TIPP and O AND OTHER. And I am reading from the head note now Mr Chair.
"The Council convened an enquiry in terms of the chapter into allegations of inter alia bribery, corruption and theft which had been made against an applicant. The first respondent was appointed to conduct the inquiry. The inquiry was due to commence on a certain date."
Sorry I will just jump to get to the crux of the issue.
"The applicant applied for the matter to be postponed until after the conclusion of the criminal proceedings alleging that if the inquiry proceeded his right to remain silent at his trial could be compromised. He also alleged that his conditions of bail precluded him from consulting witnesses and this would prejudice him at the enquiry. It was argued that the applicant's right to remain silent during his criminal trial guaranteed by Section 25(3)(C) of the Constitution would be violated if the enquiry proceeded since he might of necessity be called on to answer evidence given against him. If he wished to avoid a finding of misconduct the applicant's evidence could then be used against him in the criminal proceedings. Accordingly it was argued the first respondent was bound to postpone the enquiry until after the criminal proceedings were concluded. It was held that the role of the courts was merely to ensure that there was no deviation from the path. Accordingly the only question the court was required to decide was whether the first respondent's conclusion that the applicant's constitutional right would not be infringed by the continuation of the proceedings. And this was held to be correct."
The issue that my friend went on about. I beg your pardon I did not mean to phrase it that way. The point that my learned friend was making is that because we have a degree of compulsion therefore the right to remain silent will be infringed. The prejudice involved regarding the right to remain silent being removed would be if the information was to be used against the person. That is an obvious situation.
In this case the argument of the applicant was if I have to give evidence in this disciplinary enquiry I am prejudicing my case and my right to remain silent. If I do not give evidence then I will be fired. So I want to suffer that prejudice. In this case Judge Nugent held that choice is yours but you have to give evidence. We will not postpone the enquiry. If at the enquiry you decide to remain silent well and good and you get fired. If you want to keep your job and give evidence that is your choice. It may prejudice your criminal trial.
The point I am making is the enquiry was not postponed and it was not postponed on that aspect of he was not compelled to give evidence. He had a choice in the matter. Now our compulsion to give evidence has an immunity provision attached to it which is addressed by the case of FERREIRA v LEVINE. And therefore the prejudice - because the very basis of this provision is no one should be compelled to give evidence against themselves. That is the essence of the provision. It is abhorrent to our justice system that people are forced to interdict themselves. It could lead to all sorts of compulsion and although our courts in the past have not been too proactive about protecting confessions this is a reason why confessions have to go through such a testing phase.
So in this case because he was not forced, although he could lose his job if he did not give evidence they refused to postpone the enquiry and left the choice in the hands of the person. He was personally prejudiced of course. But because there wasn't State compulsion involved it was found that they would not postpone the enquiry. And the enquiry continued.
ADV POTGIETER: So Mr Vally do I understand it correctly there the point was that if there was a statutory compulsion without immunity then
MR NTSEBEZA: Nugent J said well you have little or no discretion. So in other words a statutory compulsion without the immunity, without excluding the evidence that you would be giving from being used against you in a subsequent criminal proceeding?
MR VALLY: That is in essence correct. Nugent J did not go so far as to talking about whether if there was immunity. Like FERREIRA v LEVINE did. FERREIRA v LEVINE said provided you had that immunity and its quotes from there you could have that enquiry. Nugent simply said if there was compulsion then you would postpone. But compulsion meaning State compulsion. Nugent did not address the issue of immunity as far as I am aware.
We must bear in mind that our Section 31(3) takes the issue of derivative evidence very far. It says: -
"Any incriminating evidence, answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of Subsection 1.
The protection is very broad. What is 'indirect information' derived from the questioning. It is much broader than just direct evidence. And I think this right, this protection, this immunity inherent in our Act Section 31(3) is that immunity which is offered.
So the State compulsion is protected with this immunity which does away with the prejudice as FERREIRA v LEVINE has explained. So in this case the prejudice he would suffer regarding whether he had a job or not was regarded as one of choice. That is a matter of judgment of Justice Nugent in the matter of DAVIS v TIPP AND ANOTHER.
The issue of SEAPOINT COMPUTER BUREAU again the issue is - sorry I had certain sections marked. This dealt with I believe an insolvency enquiry. And I would respectfully submit that the Constitutional Court is very clear on this issue. It has made a ruling on something very similar. I believe it was (...intervention)
ADV POTGIETER: I think Mr Cilliers told me it was a civil matter but just check on that.
MR VALLY: I am sorry I had better check up clearly. It does involve liquidators but it involves - let me just read a brief bit of the head note for you Advocate Potgieter.
"The applicant applied for an order staying a civil
action instituted against it as defendant by the
respondents as plaintiff pending the determination of
a criminal case which was to be instituted against it
or in the alternative its managing director. In the civil
action the respondents, the joint liquidators of a
certain company claimed R487 500 from the applicant
company. The claim was based on the alleged
unlawful appropriation by the applicant of monies due
to the company in liquidation. It is common cause
that the police were investigating the alleged
misappropriation and that there was thus a nexus
between the action and the criminal investigation."
Again the judgment is interesting. In the head note they said - and by the way the civil case was not postponed. The issue was if there was State compulsion then there would be intervention. However the Court ruled:
"Bona fide litigant should not be thwarted merely because the opponents were unable to resist their claims. Allegations of pending criminal investigations or proceedings without indications that State coercive measures were to be employed in the civil proceedings were not sufficient to prove prejudice of a kind that will justify a stay."
So the fact that he would have to give evidence in a civil trial and it could be used against him in a criminal trial that prejudice was not held to affect him. In fact if the State compelled him to give evidence then the court would intervene. So the civil case was not postponed. The application was dismissed. Again our compulsion is linked to an immunity as covered in FERREIRA v LEVINE.
CHAIRPERSON: Do you have any further submissions to make Mr Vally?
MR VALLY: Yes very briefly I just need to, I have not gone into these cases in great detail. I got them a very short while ago. I have given my learned friend one copy of one of the cases. When he came to my office during the break I did mention to him that I could not find Constitutional Court cases specifically on the right to remain silent. Which he then raised in open session. It was an off the cuff, off the record discussion. I have given him a copy of this case now and it is a Constitutional Court case. NEL v LE ROUX N.O. AND OTHERS, citation is again 1996, 1 South African Constitutional Reports 572. The situation in this case:
"A certain person was charged on various counts of fraud and contravening exchange control regulations in the Magistrates Court. A subpoena in terms of Section 2051 of the Criminal Procedure Act 51 of 1977 was served on him requiring him to appear in the Magistrates Court to be examined in connection with information relating to offences with which he had been charged. The subpoena indicated that information was required from the applicant concerning inter alia the acquisition of a property by him in Spain and his association with H. On presenting himself to the magistrate but before being sworn in the question of the constitutionality of Section 205 was raised on the applicant's behalf. The applicant complained that if it was that if he was compelled to give the information required by the subpoena he would risk exposing himself to civil forfeitures as provided for in the Exchange Control Act."
I am still reading from the head note: -
"The Court first considered the applicant's contention that a Section 205 violated Sections 8(1) - right to equality, Section 13 - right to privacy, Section 15(1) - freedom of speech and expression, Section 25(3)(C) - right of an accused person to be presumed innocent and to remain silent and Section 25(3)(D) - insofar as it relates to an accused person's right against self-incrimination of the Constitution. Held that the arguments advanced on behalf of the applicant did not take adequate account of the implications of the qualifications in Section (1)(89)(1) of the Criminal Procedure Act as it applies to Section 205. Namely that the examinee is not obliged to produce any book, paper of document if he/she has a just excuse for refusing or failing so to answer or produce. If the answer to any question put to the examinee at an examination under Section 205 would infringe or threaten to infringe any of the examinee's chapter 3 rights this would constitute a just excuse for purposes of (...indistinct) Section (1)(89)(1) for refusing to answer the question. Unless a Section (1)(89)(1) compulsion to answer the particular question would in the circumstances constitute a limitation on such right which is justified under Section 33(1) of the Constitution. In determining the applicability of Section 33(1) regard must be had not only to the right asserted but also to the State's interest in securing information necessary for the prosecution of crimes. There is nothing in the provisions of Section 205 read with Section (1)(89) of the Criminal Procedure Act which compels or requires the examinee to answer a question or for that matter produce a document which would unjustifiably infringe or threaten to infringe any of the examinee's chapter 3 rights."
That is how far the Constitutional Court went in that matter. And I pause at this stage because specifically the right to remain silent is addressed here. And the prejudice in terms of the compulsion it is quite serious. There could possibly be confiscation of vast sums of money. Our punitive provision in terms of our Act is Section 39. And if I could refer to Section 39(E)(ii): -
"Any person having been subpoenaed in terms of this Act without sufficient cause fails to attend at the time and place specified in the subpoena or fails to remain in attendance until the conclusion of the meeting in question or ..."
In any event the point I was trying to make is simply that if he has just cause he must show just cause. You cannot invoke statutory 9 and the provisions therein if just cause is shown. It is precisely one of the defences which would avail to a person who is charged for refusing to obey a subpoena or for refusing to answer questions I would submit.
CHAIRPERSON: Were you wanting Section 39(E)(ii)?
MR VALLY: I was looking for the Section where a person could not refuse to answer questions without just cause.
CHAIRPERSON: Section 39(E)(ii).
ADV POTGIETER: It says sufficient cause.
MR VALLY: I am indebted to the Chairperson. The point I am making is this case, a Constitutional Court case on the right to remain silent is apposite in this matter. I would like to go further quoting you various sections of this case. But I have not got into it in such great detail. I was rushed to come back. I will just quote one last section at page 580 paragraphs c to f: -
"The Section 25(3) rights to a fair trial accrue only to an accused person. The recalcitrant examinee who on refusing or failing to answer a question triggers the possible operation of the imprisonment provisions of Section (1)(89)(1), is not in my view an accused person. 'For purposes of the protection afforded of Section 25(3) of the Constitution. Such examinee is unquestionably entitled to procedural fairness. A matter which will be dealt with below but not directly to the Section 25(3) rights. For the simple reason that such examinee is not facing criminal prosecution. The Section (1)(89)(1) proceedings are not regarded as criminal proceedings, do not result in the examinee being convicted of any offence. And the imprisonment of an examinee is not regarded as a criminal sentence or treated a such. If after being imprisoned an examinee becomes willing to testify this would entitle the examinee to immediate release. In American parlance such examinees carry the keys of their prison in their own pockets. The imprisonment provisions in Section (1)(89) constitute nothing more than process in aid of the essential objective of compelling witnesses who have a legal duty to testify to do so. It does not constitute a criminal trial nor make an accused of the examinee. This disposes of the attack based on the Section 25(3) fair trial rights."
And with respect I think that last sentence also applies to this particular hearing. But there is just one other case that I want to bring to the panel's attention. This is an Appellate division judgment of VAN VUUREN v ESTERHUIZEN N O AND ANOTHER. Unfortunately I have not given - have I? No I have not given my learned friend a copy of this. This also arrived a short while ago, a short while before I started arguing. In this case.
CHAIRPERSON: What is the citation?
MR VALLY: I beg your pardon Mr Chair. VAN VUUREN v ESTERHUIZEN N O AND ANOTHER, 1996 (4) SA 03 and it is the Appellate Division.
"The appellate was a former accused in a murder case. After plea procedures in terms of the Criminal Procedure Act were concluded the Attorney General refused to prosecute the appellate further at that stage and he had the accused and members of the family summoned to give evidence at an inquest. At the commencement of the proceedings before the Magistrate the first respondent, the appellate requested that the inquest proceedings be discontinued. The Magistrate dismissed the application and the appellate then brought an application for review of the proceedings."
I will go further with regards to the head note. I will just read the relevant portions Mr Chair: -
"The appellantís right in the case of a prosecution to silence was going to be infringed. Appellant argued that. And a continuation of the inquest would thus conflict with the appellantís rights to a fair trial as conferred by Section 25 of the Constitution of the Republic of South Africa Act number 200 of 1993. It was held the alleged prejudice simply sprung from the procedure which the Act had laid down. It was not attributable to the second respondentís conduct. So the Appellate Division held that the inquest could go on regardless of the points raised regarding the alleged infringement of the right to a fair trial because there were criminal proceedings pending and because there was an inquest relating to similar evidence."
CHAIRPERSON: And now you are saying that the right there that was being placed into consideration in regard to a fair trial was the right to remain silent?
MR VALLY: That is what the appellant was arguing. Again there are probably other quotable quotes in the Act. Time does not permit me to go through all of them. I just want to very briefly (...intervention)
CHAIRPERSON: Are you giving us the authority there Mr Vally?
MR VALLY: The citation of the VAN VUUREN case?
CHAIRPERSON: No these other cases that you say you have not got time. In fact you do not have time?
MR VALLY: Well I am not going to exact quotes of what the judgments (...intervention)
CHAIRPERSON: That is why I am saying are you giving us citations so that we can go and look up the judgments?
MR VALLY: I can give you the citations. I thought I had Mr Chair. You want me to give you specific citations?
CHAIRPERSON: Are there further cases that you want to give to us?
MR VALLY: Oh I see, I see. There are other cases referred to in the cases I have given you but not at this stage. No not further citations I beg your pardon I misunderstood you Mr Chair.
CHAIRPERSON: Does that conclude your submissions?
MR VALLY: Almost.
CHAIRPERSON: Somebody is having a cell phone which is disturbing the proceedings because it is coming through the sound system. Mr Vally.
MR VALLY: Some of the other points raised by my learned friend I believe I have responded to most of them. I have already stated that I cannot state as a fact that we are doing the same as the criminal case. We are covering I believe a much broader area and we are covering an area as determined by the provisions of our Act. So I am not ad idem with my learned friend in that regard.
Another issue that I want to raise is my learned friend has pointed out that the fact that we have not called Doctor Immelmann is an indication that we have a choice to do so. I am not sure exactly what he said but any way he criticised us for that fact. The reality is this that whilst we are in the process of furthering the objectives of our Act there will be situations where we have problems with other State departments carrying out their statutory obligations. These issues will have to be resolved by negotiation failing which, by rulings. We have had that with Non-proliferation Board. In fact if the Attorney General had his way we would not have this hearing at all.
Yes there has been a compromise but no we have not compromised on our principles or the integrity of this hearing. We have got a submission in the form of an affidavit which has been made available to my learned friend which sets out all the allegations by Doctor Immelmann. They can in evidence rebut it. They can rebut it by their own representations in terms of Section 30.
But yes there will be such negotiations like they were with the Non-proliferation Council, like there was with the Department of Foreign Affairs representatives, office of the President, office of the Deputy President. We agreed to withdraw some documents. We are not in isolation. The Truth Commission is acting in the context of a society in transition. In the context of other peoples' statutory obligations. So we will not be unreasonable except where our obligations and our objectives and our functions are compromised. We will not compromise on the sui generis of this Commission and the decision was our decision. There was no compulsion by the AG.
And finally, (...intervention)
CHAIRPERSON: Before very finally?
MR VALLY: Finally, finally we have by arrangement with my learned friend many weeks ago sent written questions which we required and answer to. In anticipation of this hearing, they contacted us and said: "Well, in considering answering that we have to see the documents". We then sent the documents with a subpoena and said: "Now you have the documents, can we have your answers". These were not detailed questions. And they wrote back to us and said: "Having consulted with our clients" - I'm paraphrasing here, I'm not quoting directly, I don't have the letter with me but they decided, pending this hearing, not to give us that information, not to answer those very simple written questions. They are very broad, very general.
So I note what my learned friend has offered regarding written submissions. I believe, in the circumstances of this hearing and with respect to the issues involved, the very, very serious nature of the alleged gross violation of human rights, that simply providing us with written answers to written questions will not meet our statutory needs and our statutory obligations as set out in our Act. Thank you Mr Chair.
CHAIRPERSON: Advocate Potgieter?
ADV POTGIETER: Thank you Chairperson. Mr Vally, just one issue that remains for me. I was trying to understand the point that Mr Cilliers was making about a discretion. Now, I had thought that what he was doing was to submit an application to us almost in the form of a postponement, an application for an indulgence from us. He was saying that his request is for us to hold over the testimony of his two clients. And then he made the submission in the light of the case that he quoted and that the Chairperson referred to as well and he said well, there's no discretion.
Now, he doesn't say, it seems to me he doesn't say that the subpoenas are defective, he doesn't say that his client has been brought before us irregularly. He's really asking us to say: "No, hold on, don't let him speak now, let him wait until his criminal trial is finalised and then he can come and speak to you".
It appears to me as if there is always a discretion, unless I misunderstand the legal position, but to my mind there is always a discretion if a party approaches you for an indulgence and that as panel, having been given that request and having to decide on that request we have a discretion which we can exercise in the light of all the circumstance. We might find that it is perfectly Constitutional, this provision, Section 31 of our Act, but that because of the special circumstances of this case we will grant the indulgence and hear the witnesses at some later stage but it appears to me as if there is always a discretion. Now he has made the submission that according to the authorities there is no discretion. I don't understand that but what, how do you respond to that?
MR VALLY: I think the authorities are very clear, and I'm referring to the authorities quoted by my learned friend, that each case goes on the facts of that particular matter. The burden is much heavier in the event of State compulsion and this is because of the justifiable ...[indistinct] enforcing people to incriminate themselves which the State may do. This has been part of our common law and now it's part of our Constitutional law but it is based on that premise, that people must not be forced to incriminate themselves and that is why they have the right to remain silent.
I would submit that except for the provisions of the Constitution, there is a discretion and the burden is heavier or lighter, depending on the circumstances and facts of any case. I think my learned friend was quoting the judgement of Justice Trengrove in the matter of IRVIN AND JOHNSON v BASSON, if I am correct. Yes, he was. In the matter of IRVIN AND JOHNSON v BASSON 1977 (3) SA 067, Justice Trengove said and I quote:
"The principle as I understand it, is that if it is shown that proceedings in an insolvency and an examination of an insolvency are likely to prejudice the insolvent in his defence in related criminal proceedings, the Court has a discretion to stay all proceedings against him until the criminal proceedings have been concluded, has a discretion"
And he says where this rule arises rule arises from.
And in this Davis case, this is Justice Nugent's argument:
"Although the principle has been articulated in the language of a discretion, this may be misleading. I do not understand the decided cases to have held that a Court may direct the civil proceedings to continue, even where it has been found that they may prejudice an accused person. On the contrary it is clear that once the potential for prejudice has been established, the Courts have always intervened to avoid it occurring. In that sense it has no discretion"
But the prejudice referred to here is State compulsion again. Prejudice that Davis suffered was either get fired or damage your criminal case. And because he had a choice, regardless of the fact that both of them prejudiced him, he was not allowed to get a postponement of his disciplinary inquiry.
And I would draw the Court's attention to the Constitutional Court case that I quoted, that of NEL v LE ROUX AND OTHERS, in terms of which there was compulsion by the State to answer questions and the reasoning in that matter. So I would submit that that discretion is inherent save for where it compromises the fundamental rights set out in Section 35 of our Constitution.
ADV POTGIETER: So we ought to be persuaded by the factors which are placed before us indicating prejudice and if so, what degree of prejudice and then to be swayed either way on that sort of basis.
MR VALLY: That is correct. Firstly, is there an infringement, which I submit there is not of the fundamental rights. Secondly, if there is an infringement, is there a justifiable limitation of those rights in the circumstances of this matter, which I argued at great length quoting Mohammed and quoting the requirements of nature of the right importance ...[indistinct] and purpose of limitation. The nature and extent of that limitation, the relationship between limitation and it's purpose and less restrictive means to achieve the purpose.
ADV POTGIETER: And what we really must determine is whether in fact we should, on your submission, we should determine this against the background of a fair trial, against that sort of backdrop.
MR VALLY: Absolutely. It's not only my submission I respectfully submit, I'm supported by the Constitutional Court in that submission.
ADV POTGIETER: But then I understand you. And hopefully you have some copies of those decisions available for us because we will have to do some reading between now and when we reconvene.
MR VALLY: I will arrange to have clean copies made. My copies have lots of writing on them Mr Chairman.
CHAIRPERSON: In reply Mr Cilliers?
MR CILLIERS: As it pleases you Mr Chairman. There are certain aspects and decisions I also want to devote some attention to. At this stage I want to suggest, I note it's after 6 o'clock, that I need some time to look at these document Mr Vally has referred to and then tomorrow morning I will address you on that matter. I want to suggest at this stage that we adjourn until whatever time tomorrow morning.
CHAIRPERSON: Can I just confirm with my colleagues?
It is quite clear that due to the lateness of the hour we should be inclined to granting the request by Mr Vally without even hearing you, the request, submission made by Mr Cilliers. How we are looking at this, we would also like to have the opportunity to get copies of the authorities that have been cited. I never thought the day would arise when I have to do that, I thought in the Commission I'm not a lawyer, I'm the Head of the Investigation Unit but you never know, it catches up with you.
We would like to make a tentative arrangement which runs as follows: That the matter stand down, this particular matter stands down until such time as counsel have been able to provide to each other the authorities that they want to provide and/or look at them and until such time as we will also have been provided with copies of the relative judgements, which might be tomorrow or possibly Friday.
In the meantime I would like to indicate that the panel is of the view that if there is other evidence that would have been called, that that evidence be called tomorrow. I was of the impression that that is Mr Goosen and Generals Lothar Neethling and Niel Knobel. If an arrangement can be made for those to be available tomorrow.
MR CILLIERS: If I can assist you, Doctor Neethling is the person who has the medical problem but an arrangement has been made. He will land at approximately 9 o'clock tomorrow morning and be available from half past nine. I have already consulted with him, so the position is that if you need him here you can call him whenever it suits you. He is the available in the vicinity of nine thirty.
CHAIRPERSON: That's very helpful Mr Cilliers. And Doctor Knobel?
MR CILLIERS: General Knobel is here and he is available.
CHAIRPERSON: So can we then tentatively say the matter is, this particular matter is stood down until it can be reinstated, that tomorrow we take further evidence, such further evidence as is available and that we are adjourned until tomorrow morning at nine.