Amnesty Hearings — Durban — 1999-10-04

MR RICHARD: And then it means who has the rights in terms of the Section?  The person who gave the evidence.  Collateral, the word "person concerned", cannot be taken beyond that.  At page 18, again that is Section 31(4).

CHAIRPERSON: It has just come to mind, what would be the situation if somebody then wants to produce evidence of this nature, Section 29 evidence in a court of law in a claim for damages?  You say this Section wouldn't provide protection for that, because it is not criminal proceedings?

MR RICHARD: That is my submission.  I know and I concede my guilt in relation to what is said on page 18.  I also have been guilty of using very loose terminology.   In all the other Sections that I quoted earlier, there is no mention of the word "privilege".   When one considers Section 31(4), it is the first time that the notion is introduced, there is no provision in any of the other Sections creating any legal notion of privilege.  It may create situations where a person might be compelled to give incriminating evidence, protect the person, remove the protection if a person does not, and so on.  To ascertain what this Section means, my first consideration is what type of privilege is under discussion and I came to the conclusion that only two could be in point, and that is the standard common law of the privilege or now known as the right not to answer incriminating questions, and the right of privilege pertaining to communications between legal advisor and client.  On reflection, I then understood the policy reason why this subsection was enacted.   Firstly, I think it would have been an unjustifiable limitation of the rights of a client to abolish practitioner/client privilege.  The Act does that in clear unambiguous terms.  Then when one refers to the Section, the last number of words of the Section say
"... the law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court of law, shall apply in relation to the questioning of a person in terms of (1)."
	So, subject to (1) and subject to the limitations and the right not to incriminate, provided (1) has been complied with, incriminating questions which breach the privilege against self-incrimination are permissible, provided the subsection has been complied with.  So, to speak of the information contained in Exhibit B being privileged, is within the concept of legal notions and principles, not correct in its first instance.

CHAIRPERSON: What are you saying, are you saying that the question of privilege if any existed or if there was any reason to object to anything being said on the grounds that it contravenes the doctrine of privilege, should have been raised at the Section 29 hearing?

MR RICHARD: Correct.

CHAIRPERSON: I refuse to answer that, for the following reasons because Attorney/client or because it incriminates me, or whatever?

MR RICHARD: Quite correct.   And for it to say that the evidence is now privileged, I don't know how any of us have ever extended this Section or the other Sections into that phraseology.  I think what is being intended to be said is that it is protected and its use is circumscribed and conditional on all sorts of provisions within the Act, but to say that it is privilege, is not the correct notional concept.  In fact what we have been arguing about, Section 29(5), is not, it has nothing to do with privilege.

JUDGE PILLAY: Isn't your strong point here that in the broad sense it is privileged as against any tribunal, be it a criminal court or otherwise, which has the power to impose penal punishment if you will, of whatever form whereas this Committee is not entitled to do that?  Isn't that the cut-off point?

CHAIRPERSON: I think what, correct me if I am wrong Judge Pillay, what Judge Pillay, what I understand being put is that the question of privilege as contained in Section 31(4) is there to protect the person concerned, not with the person giving the evidence from any possible criminal sanction, etc, etc, whereas what we are involved with here, there is no need to protect any person from such sanction because we don't have the power or authority to impose any sanction?

MR RICHARD: That is correct and it goes further.    	Nothing emanating from this Section that we are dealing with  now, creates privilege in the information beyond the loose notion that it is not admissible against the person in the situations that we have outlined at length earlier, and therefore to extend it as is the case in my learned friend's arguments, to say that he has a right of privilege in the information, is nonsense.  He has no rights of such privilege.  In fact, he has nothing to waive or not waive in the information.  	And then I return to the beginning of my argument and say taking the above into account, we now have a bundle of transcripts which is information emanating from an enquiry, investigation, conducted by the Commission.  It is public information which must remain so in the interests of firstly full disclosure, openness and transparency and the other precepts which may emanate from Section 20.
	Now, as Judge Pillay and the Chair have emphasised, this is not a penal tribunal, no penal sanction will be imposed by this body.  I remember the Archbishop getting most annoyed when I called it a tribunal, I apologise.   In the circumstances I submit that my learned colleague has not made out a case as to why, whatever is in this document, may not be placed before the Committee, used in cross-examination and generally be regarded as any other document of a sworn nature before this particular Committee and that clearly the onus and duty is on him to establish such a case.  Factually no basis at all for such a case has yet been laid.  The document hasn't even been alluded to in relation to his client.  In this regard I question whether I should not take a point in limine at the start and say the argument is premature?  Perhaps my learned colleague might be able through his client, to establish such a factual basis, I do not know.  But in the absence of that, I cannot see a basis upon which this Committee or the Commission can make a ruling that cross-examination on Exhibit C of the fifth applicant can be precluded.  That is my case.

CHAIRPERSON: Thank you Mr Richard.   I think if we can just take, did you want to ...

ADV PRIOR: Mr Chair, yes, I just have three or four very short points.

CHAIRPERSON: But you see the Interpreters are working and I thought maybe just take a short tea adjournment and that will also give Mr Dehal time to digest Mr Richard's submissions.

MR DEHAL: I am indebted to you.

CHAIRPERSON: And then we can make any submissions after that.  Just let us know when you are ready, thank you.  We will take a short tea adjournment.
COMMITTEE ADJOURNS

MR RICHARD: Thank you Chair, I had concluded subject to my original statement that once Mr Dehal has finished, I will make such reply as might be ...

CHAIRPERSON: Yes, thank you.