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

SEAPOINT COMPUTER BUREAU: judgment which are well researched judgments by Navsa J and Nugent J specifically regarding the nature of the right to silence in the South African law and the right or the compulsion which the court has to interfere when the right to silence is infringed on. You should not find it strange then if the FERREIRA v LEVINE becomes relevant you will find it very strange that not one of Nugent J or Navsa J after an investigation of not only the South African law over decades but also international law did not find it necessary to refer to the BURNSINE v FERREIRA AND LEVINE. Not one of those judgments any reference is made to the FERREIRA v LEVINE.

ADV POTGIETER: But irrespective of this we have to evaluate your argument. Your argument is that should your client be compelled to testify. In other words it means that is an infringement of their right to silence according to Section 35 of the Constitution. Your submission as I understand it is that on the authority of

FERREIRA: a provision like in Section 31 of the our Constitution which provides immunity to a person who is compelled to testify. Such provisions should be unconstitutional and it should not infringe the provisions of Section 31. On authority of

FERREIRA: there is not merit in your submission that there should be infringement of Section 35.

MR CILLIERS: This is the point I want to address. That aspect is not handled in FERREIRA v LEVINE judgment because it was irrelevant there.

ADV POTGIETER: Which aspect (...indistinct)

MR CILLIERS: The aspect the protection of Section 31 whether it is relevant you have to rule on now.

ADV POTGIETER: I am not following.

MR CILLIERS: Please give me an opportunity to take you through this step by step and then I would like to suggest that afterwards you can ask me questions.

ADV POTGIETER: But do I understand your submission correctly? Your submissions is that amongst others there is an infringement of the fundamental right to silence in Section 35 of the Constitution should your clients be compelled to testify here?

MR CILLIERS: Correct.

ADV POTGIETER: ...(inaudible)

MR CILLIERS: You see the FERREIRA v LEVINE judgment was about the aspect being addressed by Section 31. This is the right to compel somebody to answer to incriminating questions. This was the matter which was decided in FERREIRA v LEVINE. This does not concern the right to silence. That was whether the provisions in the Company Act whether during liquidation a person could be asked regarding the causes and the find and determining the assets during a liquidation of a company. The Company Act during that time said that the person was compelled to answer any question. Also incriminating questions. And the answers on those incriminating questions were allowed as evidence in further criminal proceedings. That was what was said in the Company Act at that stage. And the question which had to be answered in FERREIRA v LEVINE was whether that Section in the Company Act was constitutional or not. It did not refer to a factual situation. It only answered the constitutional question; was it constitutional or not. And the Constitutional Court found that it was not constitutional. And in the meantime the Company Act was changed.

ADV POTGIETER: Not constitutional in terms of Section 35 of the interim Constitution. That was the right against which the judgment or rather the provision in the Company Act was weighed up against Section 25. Is that correct?

MR CILLIERS: Yes.

ADV POTGIETER: And that was Mr Vally's submission if I understood him correctly. This whole matter was ruled against the background of a fair trial. And this includes both questions - right to silence and the right against self-incrimination. These all fall within the cadre of a fair trial principle. In other words this decision of

FERREIRA: was in broad terms about the matter of a fair trial. And what you are telling us if your clients are compelled to testify they won't have a fair trial because they would be prejudiced because the Attorney General in one way or the other would be able to obtain this information and your clients would be prejudiced in their criminal court case.

MR CILLIERS: With respect it is my submission that you should not categorise that this is going to be in a category of a fair trial, etc. The Constitution provides, gives you certain fundamental human rights. The Chairman asked Mr Vally a certain question what the relevant question is. He has not answered that. That is the difference in the present Section 35 against the previous Section 25. There is a difference between these two. The right to silence is a separate, independent right entrenched in the Constitution. That is in contrast to Section 25 of the interim Constitution where that was not the case. But I will come to that.

CHAIRPERSON: Well I remember that I raised that with Mr Vally. And he seemed to be addressing it onto the extent that he was saying I think in that same

FERREIRA: judgment Chaskalson  had given his judgment in a way that seemed to suggest that he does not seek to separate the rights to remain silent from the right to a fair trial. That there are no free, as he put it there are no free-standing rights. That each right must be related to either an arrest or a detention or a trial. But that in the totality of those rights in Section 25 of the former Constitution all that it turned on was whether or not there had been a fair trial. So I am simply saying he did reply to it. Whether he replied to it in a manner that satisfies us is a separate question.

MR CILLIERS: The point is that it is unnecessary to go too deep into the FERREIRA v LEVINE case because the present Constitution differs from which was relevant during the case of FERREIRA v LEVINE. But the point I want to stress is that obviously the Constitution did not handle the right to silence and the right to self-incrimination in the same vein. That question was never posed or argued or decided on. This is not correct to draw the inference that they regarded those as the same and that no reference was made to the right to silence in the interim Constitution. It is the present situation that it has been changed now and that the Constitution now it is an independent right in Section 35(1)(A). All I want to illustrate to you is this fact that FERREIRA v LEVINE has nothing to do with the right to silence. And you can find that in the judgment of Nugent J and Navsa J where they had to rule about the right to silence. And they made an in-depth study of decades of authority and also international authority. And they don't even refer to a decision which had been made two years before in the Constitutional Court. The reason is simple. FERREIRA v LEVINE has nothing to do with the right to silence. There is no assistance to be obtained from FERREIRA v LEVINE because this was made under the interim Constitution and has nothing to do with the right to silence. And the point is illustrated in Navsa. My learned colleague referred to the

VAN VUUREN: matter, the judgment in that matter. The VAN VUUREN v ESTERHUIZEN AND OTHERS it was a case which received broad publicity. It was a member of parliament who allegedly and he was also accused at a certain stage that he had murdered his wife. That night after he had come back from parliament his wife was killed in bed. Various shots were fired. But that situation was the following. After charges were initially made against Mr van Vuuren the case was withdrawn and the Attorney General decided not to prosecute. That is the basis of inquest. According to Mr Vally's argument this is irrelevant. The