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

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.