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

MR VALLY: Thank you Advocate Potgieter. Now in quoting what Justice Chaskalson says and I want to emphasise that he agrees with the order by Justice Ackerman but he disagreed with the reasoning. Most of the other judges and I am trying to find this section but it is not really relevant, concurred with Justice Chaskalson's judgment. And his reference all the time is to Section 25(3) - the right to a fair trial. He is not separating the right to be silent and the right to self-incrimination. In addition thereto I would have thought it is implicit in the judgment if not explicit that if you say as long as you are not prejudiced in your criminal trial in that the evidence can be used against you and you can be questioned that implicitly states that you do not have the right to be silent. This is vis- a-vis this at the enquiry, at the insolvency enquiry. I am not talking about criminal trial. I am talking about the insolvency enquiry. Because bearing in mind the needs of society etc, relating to public companies and I will come back to that in relation to the needs that this Commission has to discover the truth as part of this overall package. On the one hand of giving amnesty to people on the other hand of giving reparations to victims and on the third hand, if you have a third hand of determining what gross violations of human rights took place in this period. It is a package deal.
 And these are the interests in society and these are the relevant issues which have to be weighed up by the persons who both, by parliament ultimately and by the Constitution which is - and it is something I have to come back to as well. Which is what our Act is based on. It is where the genesis of our Act is. It is in the post-amble to the interim Constitution and which post-amble has been incorporated in a slight amended form in the final Constitution.
 Having dealt with this case I must just add bearing in mind my learned friend quoting Justice Kriegler. I believe in the 1988 unreported judgment in I think the TPD Justice Kriegler had a minority view in this case. A minority view which does not help my learned friend.
 At paragraph 195, page 259 he says:-
"The crucial point is that no witness subpoenaed to testify at a Section 417 enquiry can at that stage,"
and it is underlined. Not my underlining,
"possibly formulate allegations essential for relief based on fair trial provisions. And if the witness cannot bring the case within those provisions I see nothing in the Constitution that avails. There simply is no general prohibition against self-incrimination to be found anywhere in the Constitution. Nothing express and nothing implicit. It is only if  and when the production of evidence obtained pursuant to a Section 417 enquiry jeopardises the fairness of the trial that the Constitution can be invoked."
 So in our Constitution we do not have a free-standing provision relating to self-incrimination or right to be silent. We do not have the provision you see invoked in American congress hearings or whatever. There is no free-standing provision. It is a provision related to a fair trial. And just (...intervention)

CHAIRPERSON: But Mr Vally why then did the legislature in the new Constitution seek to separate the rights? If you read Section 35(1)(A)
"Everyone who is arrested for allegedly committing an offence has the right to remain silent."
 Now the Section 35(3) seems to be emphasising the right to a fair trial which includes the right and then. It does not - in other words if I heard you correctly you seem to be suggesting that in the judgment you have been reading Chaskalson does not separate the right to remain silent from the right to a fair trial. All of those are grouped together. But the new Constitution just reading it I am not saying something (...indistinct) but just reading it, it seems to please the right to remain silent as free-standing (...indistinct)

MR VALLY: Not law, with respect Mr Chairperson the interim Constitution said 25(1)
"Every person who is detained including every sentenced prisoner shall have the right,"
and then it goes through the rights.
 Section 25(2) says: -
"Every person arrested for the alleged commission of an offence shall in addition to the rights which he or she has a detained person,"
the first one and it sets out the rights.
 Section 25(3) says: -
"Every accused person shall have the right to a fair trial which shall include the right to,"
And it sets out those provisions. It is emphasised in the fact that at every stage at the time of your detention, at the time of your arrest, at the time of your trial you have those rights. They are not free-standing. It relates to detention, it relates to the arrest, it relates to the trial.
 Similarly Section 35 of the present Constitution, 35(1) says: -
"Everyone who is arrested for allegedly committing an offence has the right,"
Allegedly committing an offence. Then it says under 2:
"Everyone who is detained including every sentenced prisoner has the right,"
and it sets out the rights. 
 Section 35(3): -
"Every accused person has the right to a fair trial which includes the right,"
and it sets out the right.
 The point I am making is it is not a free-standing right standing on its own. It is related to these; detention, arrest, trial. The point being made by my learned friend is we are prejudicing his client's right to a fair trial. That is what he is alleging. And that is the point I am making Mr Chair.

CHAIRPERSON: Yes Mr Vally?

MR VALLY: I have got other points but my colleague just wants to point something out to me if you bear with me Mr Chair.
 Thanks for your indulgence Mr Chair. If we could go on. That is my primary argument. That we are entitled to do what we are doing and we are not in breach of the fundamental rights and my authority is FERREIRA v LEVINE. 
 Let's look at the limitation provision of the new Constitution. We are talking Section 36. 
"The rights in a Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable. In an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors including A; nature of the right.
B; importance of the purpose of the limitation.  
C; the nature and extent of the limitation. 
D; the relation between the limitation and its purpose and 
E; less restrictive means to achieve the purpose.
 Subsection 2: -
"Accept as provided for in Subsection 1 or in any other provision of the Constitution no law may limit any right entrenched in the Bill of  rights."
 Now there are two points flowing from here. The first point is the post-amble to our Act. Is again incorporated in Schedule 6 Section 22 of the Constitution. It says: -
"Notwithstanding the other provisions of the new Constitution and despite the repeal of the  previous Constitution all the provisions relating to amnesty contained in the previous Constitution under the heading National Unity  and Reconciliation are deemed to be part of the new Constitution for the purposes of the Promotion of National Unity and Reconciliation Act 34 of 1995 as amended. Including for the purposes of its validity."
 The point is the post-amble is part of the Constitution. And Section 36 subsection 2 says: -
 "Except as provided for its subsection 1,"
and I am coming to those limitations.
 "or in any other provision of the Constitution  this includes the post-amble."
Which is as I pointed out located in Schedule 6 section 22. This was held explicitly to be so by the Constitutional Court again because the points my learned friend are making are constitutional points. It was held to be by Justice Mohammed in the matter of AZAPO AND THREE OTHERS v THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND FOUR OTHERS.

CHAIRPERSON: Do you have a citation?