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

CHAIRPERSON: Were you wanting Section 39(E)(ii)?

MR VALLY: I was looking for the Section where a person could not refuse to answer questions without just cause.

CHAIRPERSON: Section 39(E)(ii).

ADV POTGIETER: It says sufficient cause.

MR VALLY: I am indebted to the Chairperson. The point I am making is this case, a Constitutional Court case on the right to remain silent is apposite in this matter. I would like to go further quoting you various sections of this case. But I have not got into it in such great detail. I was rushed to come back. I will just quote one last section at page 580 paragraphs c to f
"The Section 25(3) rights to a fair trial accrue only to an accused person. The recalcitrant examinee who on refusing or failing to answer a question triggers the possible operation of the imprisonment provisions of Section (1)(89)(1), is not in my view an accused person. 'For purposes of the protection afforded of Section 25(3) of the Constitution. Such examinee is unquestionably entitled to procedural fairness. A matter which will be dealt with below but not directly to the Section 25(3) rights. For the simple reason that such examinee is not facing criminal prosecution. The Section (1)(89)(1) proceedings are not regarded as criminal proceedings, do not result in the examinee being convicted of any offence. And the imprisonment of an examinee is not regarded as a criminal sentence or treated a such. If after being imprisoned an examinee becomes willing to testify this would entitle the examinee to immediate release. In American parlance such examinees carry the keys of their prison in their own pockets. The imprisonment provisions in Section (1)(89) constitute nothing more than process in aid of the essential objective of compelling witnesses who have a legal duty to testify to do so. It does not constitute a criminal trial nor make an accused of the examinee. This disposes of the attack based on the Section 25(3) fair trial rights."
 And with respect I think that last sentence also applies to this particular hearing. But there is just one other case that I want to bring to the panel's attention. This is an Appellate division judgment of VAN VUUREN v ESTERHUIZEN N O AND ANOTHER. Unfortunately I have not given - have I? No I have not given my learned friend a copy of this. This also arrived a short while ago, a short while before I started arguing. In this case.

CHAIRPERSON: What is the citation?

MR VALLY: I beg your pardon Mr Chair. VAN VUUREN v ESTERHUIZEN N O AND ANOTHER, 1996 (4) SA 03 and it is the Appellate Division.
"The appellate was a former accused in a murder case. After plea procedures in terms of the Criminal Procedure Act were concluded the Attorney General refused to prosecute the appellate further at that stage and he had the accused and members of the family summoned to give evidence at an inquest. At the commencement of the proceedings before the Magistrate the first respondent, the appellate requested that the inquest proceedings be discontinued. The Magistrate dismissed the application and the appellate then brought an application for review of the proceedings."
I will go further with regards to the head note. I will just read the relevant portions Mr Chair: -
"The appellant's right in the case of a prosecution to silence was going to be infringed. Appellant argued that. And a continuation of the inquest would thus conflict with the appellant's rights to a fair trial as conferred by Section 25 of the Constitution of the Republic of South Africa Act number 200 of 1993. It was held the alleged prejudice simply sprung from the procedure which the Act had laid down. It was not attributable to the second respondent's conduct. So the Appellate Division held that the inquest could go on regardless of the points raised regarding the alleged infringement of the right to a fair trial because there were criminal proceedings pending and because there was an inquest relating to similar evidence."

CHAIRPERSON: And now you are saying that the right there that was being placed into consideration in regard to a fair trial was the right to remain silent?

MR VALLY: That is what the appellant was arguing. Again there are probably other quotable quotes in the Act. Time does not permit me to go through all of them. I just want to very briefly (...intervention)

CHAIRPERSON: Are you giving us the authority there Mr Vally?

MR VALLY: The citation of the

VAN VUUREN: case?

CHAIRPERSON: No these other cases that you say you have not got time. In fact you do not have time?

MR VALLY: Well I am not going to exact quotes of what the judgments (...intervention)

CHAIRPERSON: That is why I am saying are you giving us citations so that we can go and look up the judgments?

MR VALLY: I can give you the citations. I thought I had Mr Chair. You want me to give you specific citations?

CHAIRPERSON: Are there further cases that you want to give to us?

MR VALLY: Oh I see, I see. There are other cases referred to in the cases I have given you but not at this stage. No not further citations I beg your pardon I misunderstood you Mr Chair.

CHAIRPERSON: Does that conclude your submissions?

MR VALLY: Almost.

CHAIRPERSON: Somebody is having a cell phone which is disturbing the proceedings because it is coming through the sound system. Mr Vally.

MR VALLY: Some of the other points raised by my learned friend I believe I have responded to most of them. I have already stated that I cannot state as a fact that we are doing the same as the criminal case. We are covering I believe a much broader area and we are covering an area as determined by the provisions of our Act. So I am not ad idem with my learned friend in that regard.
 Another issue that I want to raise is my learned friend has pointed out that the fact that we have not called Doctor Immelmann is an indication that we have a choice to do so. I am not sure exactly what he said but any way he criticised us for that fact. The reality is this that whilst we are in the process of furthering the objectives of our Act there will be situations where we have problems with other State departments carrying out their statutory obligations. These issues will have to be resolved by negotiation failing which, by rulings. We have had that with Non-proliferation Board. In fact if the Attorney General had his way we would not have this hearing at all.
 Yes there has been a compromise but no we have not compromised on our principles or the integrity of this hearing. We have got a submission in the form of an affidavit which has been made available to my learned friend which sets out all the allegations by Doctor Immelmann. They can in evidence rebut it. They can rebut it by their own representations in terms of Section 30. 
 But yes there will be such negotiations like they were with the Non-proliferation Council, like there was with the Department of Foreign Affairs representatives, office of the President, office of the Deputy President. We agreed to withdraw some documents. We are not in isolation. The Truth Commission is acting in the context of a society in transition. In the context of other peoples' statutory obligations. So we will not be unreasonable except where our obligations and our objectives and our functions are compromised. We will not compromise on the sui generis of this Commission and the decision was our decision. There was no compulsion by the AG. 
 And finally, (...intervention)

CHAIRPERSON: Before very finally?