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

MR VALLY: Well Mr Chair you should not conflate it all. 35 (3) says: "Every accused person has the right to a fair trial which includes the right," and then it spells out (I). (I) which is what you have just read. But I do not think it was (I). I think it was (J) not to be compelled to give self-incriminating evidence.
 The point I am making is this fundamental right. Right to silence and right not to be incriminated or not to be forced to give evidence which is self-incriminating are within the context of a fair trial. Having started off from that premise my authority for saying that we have complied and are not in violation of the fundamental rights of the two witnesses. The primary authority is the matter of FERREIRA v LEVINE, South African Constitutional law reports 1995, vol.7 page 63. I have given my learned friend a copy of this judgment. 
 Maybe I should briefly say what this matter was about so as to contextualise it. This was an insolvency enquiry at which at the time Section 417 or I believe the Companies Act said two things which are relevant to this matter.
"1: In any winding up of a company unable to pay its debts the master or the court may at any time after a winding up order has been made, summon before him or it any director or officer of the company or person known or suspected to have in his possession any property of the company or believed to be indebted to the company. Or any person who the master or the court deems capable of giving information concerning the trade, dealings, affairs or property of the company."
And then there is a small b under 2. 
"Any such person may be required to answer any question put to him at the examination. Notwithstanding that the answer might tend to incriminate him. And any answer given to any such question may thereafter be used in evidence against him. "
 Now this was challenged. It was challenged under the provisions of the interim Constitution but with respect the provisions had been repeated with the language slightly cleaned up in the present Constitution. If you look at the interim Constitution and a number of different aspects were raised. I will deal with the one point which was raised which is the issue of self-incrimination. I will also show why the issue of self-incrimination is also directly relevant to the other point raised by my learned friend. Which is the issue of the right to remain silent.
 At great length after detailed examination of various authorities we talking about American, Canadian, English authorities and also our own courts. And I also want to point out certain things as I quote from this section. The judgment I have before me I am looking at page 214, paragraph 153. And this is Ackerman J. 
"A compulsion to give self-incriminating evidence coupled with only a direct used immunity along the lines indicated above and subject to a judicial discretion to exclude derivative evidence at the criminal trial would not negate the essential content of  Section 11(1) right, which is the right to freedom or the 25(3) right to a fair trial."
In the interim Constitution you have Section 25(3) which says: -
"Every accused person shall have right to a fair trial which shall include the right,"
and then it refers to, adduce and challenge evidence and not to be compelled by witness against himself or herself.
 You also under Section 25(3)(C): -
"To be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial."
I will continue. The Constitutional Court judgment goes on to say: -
"Would not negate the essential content of the Section 11(1) right to freedom or the 25(3) right to a fair trial."
Which covers those two aspects - self-incrimination and right to be silent. 
"Only a discrete and narrowly defined part of the broad right to freedom is involved which could not conceivably be described as a  negation of its essential content. As far as Section 25(3) is concerned the trial judge is obliged to ensure a fair trial. If necessary by his or her discretion to exclude in the appropriate case derivative evidence. Ultimately this is a question of fairness to the accused and is a issue which has to be decided on the facts of each case. The trial judge is the person best placed to take that decision. The development of the law of evidence in this regard is a matter for the Supreme Court. The essential content of the right is therefore not even touched."
 The point here is having gone through all those cases and at bedlam discussed it felt it was very important for any society and trade in any society for directors of public companies to be held accountable for possible mismanagement and possible fraud. And to have to answer questions in relation to that. However in getting them to answer questions about their mismanagement, alleged mismanagement or alleged fraud relating to a company their fundamental rights should not be infringed. So the only issue for the court as Justice Ackerman has set out was the use of that information against that person in a trial. 
 If I can go on to what the ruling of Justice Ackerman was. He declared invalid only that section of the Companies Act to the extent only that the words: -
 "And any answer given to any such question may  thereafter be used in evidence against him."
 That is a point. Once that prejudice is removed the right to question the person was held to be constitutionally valid in this instance there was not even a criminal trial pending. But even if a criminal is pending as in the case of Doctor Basson or a possible criminal trial pending as in the case of Doctor Mijburgh.

CHAIRPERSON: Are you saying that is the material difference between the provisions of Section 31 (3) and the provisions of that Section of the Insolvency Act?