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

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.