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

VAN VUUREN: judgment does not assist you whatsoever. The law says that you also only undertake an inquest where there are not criminal proceedings. In terms of the right to an inquest if a person dies from unnatural causes there should be a prosecution. If there is no prosecution there should be an investigation. You can have a prosecution after the investigation.
 Section 5 it is also quoted on the judgment: - 
"If a criminal proceeding regarding the death or the alleged death is not made the prosecutor should provide the documents to the magistrate. And inquest will only be held where there is an unnatural death and where no criminal proceedings are instituted."
You are correct that there is a theoretical probability. But if there was a prosecution and if Mr van Vuuren was charged with murder no court would have been allowed that his right to silence would be broken regarding Section 5 of the Act on inquest. Dr Basson has already been charged. He had appeared in court. You have already received a charge sheet and therefore that judgment is totally irrelevant for your purposes. And it is also determined like that by the court. There the defence said that you he had already been charged and it was withdrawn but Section 119 proceedings are not criminal proceedings when they have been withdrawn. You can look at the factual rulings of the court in that respect. I don't want to waste your time any further.
 The next judgment he referred to was the judgment regarding 205 of the Criminal Procedure Act.

CHAIRPERSON: Is that the NEL v LE ROUX case?

MR CILLIERS: Correct. Now with the greatest of respect how my learned colleague could find relevance in that judgment I can't see. Section 205 and 189 and 191 on which this judgment was based was about the handling of certain kind of witnesses. These are people who are not involved in an offence but they have knowledge of an offence. And the State suspect that they have knowledge of the offence which can be used in their prosecution. Definitely not the prosecution of the person itself, it is the prosecution of other people.
 In practice you know yourself and you are in the legal profession you find that Section 205 in cases which are well publicised are cases where journalists are summoned. The journalist for example writes in the newspaper that this situation might be an offence. This was the situation in Namibia where somebody was sent to jail because he didn't want to expose certain information. The journalist was not involved in this offence but he had obtained knowledge from his source he does not want to supply to the police and then Section 201 is used to compel him. 
 Section 205 is also used to compel bank officials to present bank statements from their clients' bank statements to the courts. Banks usually refuse to do this because it will infringe on the privilege of the clients but according to this Section the bank officials are compelled to provide information to the police. In respect of this case there is no way that the bank official is involved in this. He only has information and according to this Article he is compelled to make this information known. This judgment has to do with that person's right to silence but this person can be compelled and it is not unconstitutional. In the Constitution no reference is made to a right to silence of a person other as the person identified in Section 35 itself. And that is an accused person like the applicants here.
 Also in our Common law you won't find any reference where a right to silence has been given to a witness in a case. The example is for example the priests. The person who confesses to a priest such a person does not have a right to silence to protect a member of his church in such a situation. 
 The point I want to make is you can find no assistance from the fact that a witness summoned in terms of 305 did not succeed. It is definitely in a different class. Regarding the submission of my learned colleague that in terms of Section 36 he says that, that right should be limited and this is a case where there should a limitation of the right. The authority is very clear. Section 36 and the layout of that as given by our courts is very clear. You can restrict a fundamental right but never to the extent that you destroy the essence of that Act. Now this is not a limitation of the right to silence. It is the destruction of such a right. Because they must testify then you can never make good the right that was taken away. You can in no way give protection for the right that you have taken away.

ADV POTGIETER: Why not? Why is the provision in Section 31(3) not sufficient protection for your client? That is actually the crux of this matter. You conceded yesterday that where we must rule as to the question of prejudice the provisions are in Section 31(5). Now the question is why is that not sufficient protection for your client? Why is it not sufficient to make those provisions unconstitutional? That is actually one of the points that you are arguing if I hear you correctly.

MR CILLIERS: I cannot argue before you that your provision is unconstitutional because you do not have the authority in terms of the law to decide on the constitutionality or not of this provision.

ADV POTGIETER: Justice Nugent makes the provision that Advocate Tipp who was the presiding officer at that disciplinary investigation was within his rights to give a ruling as to the question of constitutionality. And applicant

DAVIS: his advocate made that submission before Justice Nugent that the presiding officer at the investigation had no authority to express himself as to the constitutionality thereof. And Justice Nugent said that the role of the Court is merely to ensure that bodies such as that disciplinary panel should keep within the provisions of the Constitution. That is how the judgment reads.

MR CILLIERS: With the greatest respect you are confusing two principles. You can find that a Section in an Act is unconstitutional.

ADV POTGIETER: No that is not what I am saying. We can hear your argument and your submissions and we can give a ruling regarding your submission that a specific provision is unconstitutional. We can give a ruling in that regard but we cannot say that a specific Section is unconstitutional but we can hear your argument. We can give a ruling as to your argument.

MR CILLIERS: Practically I can put it to you as I understand the situation. If you find that the right to silence has been affected you can make my application succeed and adjourn the proceedings. With that you give effect to the Constitution. But you can never rule as to whether is constitutional or not. But you can protect fundamental rights and that is what the specific Justice Nugent says. You cannot wash your hands of it and say this for the courts. Take me to court and let them force me to apply fundamental right. You can apply the rights but you can never make a ruling as to the constitutionality of certain Sections.

ADV POTGIETER: You would not be able to make the submission that because you are raising the constitutional point that we immediately adjourn the proceedings and send it elsewhere because we will not be authorised to hear you and to give our ruling in this regard. That is the practical point which Justice Nugent also made.