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

MR CILLIERS: Regarding the right to self discrimination discussions were held in the Constitution Court and this is why it is so important that distinction between the right to keep silent and the right against self incrimination. And on the basis of the limiting provision and it is allowed that an institution like you can force a person to answer an incriminating question but you should give him guarantee that it will not be used against him. This balances out and this is acceptable. In the Insolvency Act and also in the Company Acts regarding insolvency interrogations and the Office for Serious Economic Crimes had the same situation they found that acceptable to balance the disadvantage accrued by the individual to answer a discriminating question. You give him the protection that it should never be used in against him. Although you say here I killed him at that and that time, it cannot be used against you. And that is the end of the matter.
 It has not been tested the limitation clause, limitation based on the right to keep silent has never been tested. Why it cannot be applied is my submission is that this right if it is violated will never be put right. And this is what I have just told Mr Potgieter. This is not a temporary infringement by measures within your sphere. As soon as a person is forced to show his hand that is the end of his right to keep silent and every aspect of that is contaminated and that is final. In the light of that it is my respectful submission that no court can find that according to Section 36, the limitation clause will ever allow that in an open and democratic society to do this infringement. 
 One of the criteria in Section 36 is the essence of the right should not be infringed. And the essence of the right to self incrimination, that you should not be found guilty on the basis of your own evidence. And that should never be used against you. Although you are infringing on the right the effect of that is cancelled out. On no basis can the essence of the right to keep silent be protected. On that basis I submit it and I will argue that it is not justifiable.

CHAIRPERSON: Have you made all your submissions Mr Cilliers?

MR CILLIERS: I will continue. I want to quote to you short passages from His Honour Justice Navsa's ruling or judgment in

SEAPOINT: . And it is my respectful submission that Justice Navsa if you go and look at the judgment did a great deal of or big work in the evaluation of the position regarding the right to silence. He really looked at a variety of our decisions, Common Law decisions and gave an extensive judgment in this regard. So with all respect one should place great weight on his judgment.
 I refer you to page 647 of his judgment. After most of the authority which I have referred you to he also refers further to the judgment by Justice Nugent the DAVIS v TIPP judgment. And gives the following ruling: - 
"Refused to stay proceedings on the basis that the right to remain silent derives from the abhorrence of coercion to secure conviction  and it achieves this by protecting an accused person from being placed under compulsion. Not by shielding him from making legitimate choices."
 What the judge is saying there with all respect was the choice situation that I sketched to you earlier. What he is saying that is in the South African law he agrees with what Justice Nugent says that the right to silence does not shield some one from making legitimate choices however difficult they may be. What the law does intend to protect is protecting an accused person from being placed under compulsion. And this is the situation with all respect that we have here. We do not have the choice situation. We have the compulsion situation.
 He continues: -
"He concludes that what distinguishes compulsion from choice is whether the alternative to remaining silent presents itself as constituting a penalty which serves to punish a person for choosing a particular route as an inducement to him not to do so."
In dealing with the facts before him, Nugent J says the following, he quotes: -
"In the present case the applicant may well be required to chose between incriminating himself and losing his employment. If he loses his employment that is a consequence of the choice which he has made but not a penalty for doing so. It will be the natural consequence of being found guilty of misconduct and not a punishment to induce him to speak. Hard as the choice may be it is a legitimate one which the applicant may be called upon to make and does not amount to compulsion. In my view his right  to silence does not shield him from making that choice."
 He continues in his conclusions by saying: - 
"I do not consider the judgment of

DAVIS: case  to be wrong. On the contrary I find it a persuasive and analytically correct."
 On page 649 he continues opposite the letter (B): - 
"In my view an examination of the history of the origin of the rule against self  incrimination or the right to remain silent as conducted by Nugent J and as set out in the

ZUMA: judgment supra."
Honourable Chairman and members the judgment of Justice Kentridge in the Constitutional Court I have a reference in front of me. I will give it to you in time. 
"Provides a pointer to how the problem ought to be approached. It is clear that compulsion by the State was the mischief aimed at. That explains why our courts are loathed to have persons who would be accused in criminal proceedings subjected to the coercive machinery provided by insolvency and companies legislation."
 And that is exactly the situation in which we find ourselves. Here it is just not the compulsion by the Insolvency Act or the Companies Acts. This compulsion originates from your legislation with all respect. But that it is still compulsion and still is the coercive machinery of the State that is undoubtedly so. He continues lower down the page opposite letter (G): -
"I agree with Nugent J that in principle a defendant should be left to his own choice as  to how he conducts the civil proceedings. In  this case if the defendant is of the view that it cannot succeed on its present plea and that it is unable to file one because it might thereby incriminate Kennedy or expose itself to criminal charges it must then face the consequence of having filed a plea it cannot succeed on or it must face the consequences of not having a plea at all. The consequence may  be judgment for the plaintiffs. This is not in the field of 'coercive power of the State' bona fide litigants ought not to be thwarted merely because the opponents are unable to resist the claims. Allegations of pending  criminal investigations or proceedings without indicators that State coercive means are to be employed in the civil proceedings are not sufficient to prove prejudice of a kind that will justify a stay."
 Here we have the situation and I can refer Honourable member, Mr Potgieter to this. We have a situation here that the opposite is said by Justice Navsa they are not only indications but the coercive machinery comes directly from the State. The direct statutory compulsion of national legislation. And we have a situation sufficient to prove prejudice of a kind that will justify a stay.

ADV POTGIETER: Was Justice Navsa dealing with a liquidation or insolvency case?