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

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).