Special Hearings — Chemical And Biological Warfare Hearings — 1998-06-08

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.