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

SUBSECTION 5: Any person appearing before the Commission by virtue of the provisions of subsection 1 shall be entitled to peruse any article referred to in that subsection which was produced by him or her as may be reasonably necessary to refresh his or her memory."
That is the end of the quote.
 Mr Cilliers referred us to a number of authorities which are largely dealt with in two decisions of the Witwatersrand local division of the High Court namely; DAVIS v TIPP N O AND OTHERS, 1996 (1)SA 1152W and SEAPOINT COMPUTER BUREAU (PTY) LTD v McCLAUGHLIN AND DE WET NNO, 1997 (2)SA663W. He placed particular emphasis on these two decisions and submitted that in view of these authorities the legal position is that once there is potential prejudice and the witness is under statutory compulsion to testify like in this case, the panel has discretion and is compelled to grant the application.
 The submission was that the witnesses would be irreparably prejudiced in a criminal trial if they are deprived of their right to remain silent. Mr Cilliers submitted that the prejudice which the witnesses would suffer is that they would be compelled to disclose their line of defence prior to the trial which could be used to their prejudice by the prosecution.
 Mr Cilliers conceded that the immunity contained in Section 31(3) quoted above is a relevant factor which could be considered by the panel in deciding the issue of prejudice but argued that Section 31(3) does not provide adequate protection to the witness. He referred in this regard to the matter of STATE v BOTHA, 1994 (4)SA799 at 832 which he submitted supports his contention. We had regard to the judgment. The matter relates to the issue of discovering in criminal matters pursuant to the provisions of the interim Constitution of 1993 and does not deal directly with the situation we are faced with. 
 He also submitted that Section 31 does not deal with the issue of the right to remain silent which has to be carefully distinguished from the right against self-incrimination which is in fact dealt with in the Section. He indicated that he is not submitting that Section 31 is unconstitutional but merely that the Section does not affect the right to remain silent as entrenched in Section 35 of the Constitution.
 Mr Vally submitted that both witnesses are crucial for the hearing which concerns matters of grave importance to the country and which vitally affect the mandate and obligations of the TRC. He indicated that the opportunity would be lost to obtain the testimony of the witnesses should they not testify in this session given the impending termination of the activities of the TRC. 
 The application is accordingly and I quote strongly opposed. He submitted that although the provision of Section 35 of the Constitution apply to this matter the obligations upon the witnesses to testify in this matter does not amount to a breach of their fundamental right to remain silent. He submitted on the authority of FERREIRA v LEVINE N O AND OTHERS and VRYENHOEK AND OTHERS v POWELL N O AND OTHERS, 1995 (7) SACLR 63CC that this matter has to be decided within the general context of the witnesses' right to a fair trial which is not breached if they are compelled to testify subject to the immunity and safe guards contained in Section 31(3).
 The trial court is able to ensure that the witnesses receive a fair trial by enforcing the said immunities and safe guards. He submitted further that even if there were a limitation of the witnesses' Section 35 rights this is justifiable given the overriding social and other objectives pursued by the TRC and the discrete and narrowly tailored interference with the witnesses' rights crafted by Section 31(3). He submitted that the situation which the court dealt with in the

DAVIS AND SEAPOINT: cases referred to is distinguishable in that it concerned a disciplinary enquiry and a civil action respectively and that in any event in both cases the application for a stay was refused.
 He furthermore relied upon the cases of NEL v LE ROUX N O AND OTHERS, 1996 (1)SACLR 572 and VAN VUUREN v ESTERHUIZEN N O AND OTHER, 1996(4)(SA) 603A which he submitted support his contentions. This was disputed by Mr Cilliers who submitted that neither these cases nor the

FERREIRA: case is relevant to this matter.
 Mr Vally referred to further authority in developing his argument which we have noted but find unnecessary to catalogue. This is a summary of the main contentions of the parties. We have carefully considered the very full and helpful argument of the legal representatives for which we wish to express our appreciation. In our view we should approach this matter on the basis set out in the

SEAPOINT: case at 648D-E and I quote
" I will assume that at common law in suitable circumstances civil proceedings can be stayed where criminal proceedings are anticipated to be instituted as in the

TOWNSHIP MANAGEMENT: case supra the central question is whether there is a case justifying a stay. I agree with Nugent J that the discretion the cases speak of is not one in the traditional sense. To me it means that the court has authority to stay proceedings in suitable cases in order to arrive at a decision whether to do so or not. A court weighs all the facts and circumstances to determine whether prejudice might attach to the accused person if the civil trial were to continue. Once potential for prejudice is established the court will stay proceedings or find a formula for preventing prejudice such as in appropriate cases ruling that information obtained should not be subsequently disclosed or barring the use of compelling or coercive measures."
 This approach is largely echoed in the