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

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