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

MR CILLIERS: I think the practical situation to some extent is as follows. If a Section in your Act tells you that you can or must use the right to silence or that there is no right to silence in your proceedings then I would not even be able to debate this argument in front of you. Then I would ask you for these proceedings to stand down that the constitutional aspects of your legislation or this legislation be tested. And then you would have no right to make a ruling in that regard. If your Act tells you that a person does not have the right to silence and I want to attack that aspect then I cannot do that in front of you.

ADV POTGIETER: As you are doing at the present moment. You are placing an application in front of us. If for example you want to bring an application that we adjourn our proceedings because you want to make a constitutional point or argument to the Supreme Court, the Higher Court then we can give ruling about this application. And in a ruling of that matter we can decide for example on postponement. Let's take that for an example. Are there merits in the points that you are raising? If there is no merit then we can say that no there is no merit in this application. We do not have to adjourn our proceedings. Then in that sense yes if it comes to these kinds of matters yes but not regarding the substantive fact.

MR CILLIERS: I think that we agree on that situation or how one handles that situation. But at present the application is not to declare Section 31 unconstitutional. It deals with something that is not being dealt with in your Act. If you should find that Section 31 is applicable and it destroys the right to silence of a person then it is an aspect which I will not be able to argue in front of you. I will have to go to the Supreme Court and say that as far as you are correct in the layout of your Section then it is unconstitutional and that argument will not be able to be dealt with in a forum such as yours. It will have to serve before the Supreme Court. That is not my argument at the moment. At the moment my argument is that in the law as it is in the Act I am entitled to a postponement on behalf of the client.

ADV POTGIETER: Is your submission that our Act does not protect or curtail the right to silence of a person?

MR CILLIERS: Where he is an accused person, yes.

ADV POTGIETER: But if one looks at it at this Section.

MR CILLIERS: You must beware of reading something. One does not just read it simply without taking into consideration the Constitution and you only explain an Act against the background of a Constitution. Chief Justice Mohammed in earlier judgments raised those aspects. Especially in the Namibian Supreme Court and they explain this very well. Since the Constitution there is a further way of interpreting an Act. And that is that one interprets it as seen against the background of the principles of the Constitution. So with all respect you must beware that you do not do it prima facie.

ADV POTGIETER: I hear what you are saying. The point is if one reads Section 31 it is apparently so that a person who has been subpoenaed has a duty to appear and has a duty to answer questions unless he has sufficient cause. That is a point we raised yesterday with Mr Vally in our Section 39. Unless there is sufficient cause he is compelled to testify. And then there is a further obligation on him that if we want to compel him to incriminate himself he must do that. So it seems to me if one reads Section 31 that both those two rights - your right to silence and your right to self-incrimination are being dealt with here in Section 31 and this is done away with in the light of certain guarantees given in subsection 3.

MR CILLIERS: I do not agree with you. One must read it as seen against the full background. Or one can place it under that category. I do not think that one must guard against trying to categorise these rights. And one must follow a more comprehensive approach that it is a just cause. My submission to you is that, that Section is valid. But where there is a person who has the right to silence in terms of the Constitution and it is only an accused person that has this right, then apparently you must interpret your legislation against the background of that. The Act must be interpreted so that it does not come into direct conflict with the Constitution. So that you cancel the right to silence. Because that is what it boils down to, what you are putting to me. Then it comes into direct conflict with the Constitution.

ADV POTGIETER: Yes in view of the guarantees which were built in here. And this is the relevance of the

FERREIRA: judgment which Mr Vally mentioned. And this in a similar provision has been included in another Act.

MR CILLIERS: It is not even nearly similar. It only deals with incriminating questions.

ADV POTGIETER: No, no let us be more specific. I have this judgment in front of me. The Court deals with Section 417 of Company's Act and the subsection against which the application was made says that
"Any such person,"
that is a person who has been summoned,
"And such person may be required to answer any question put to him."
So there is no right of silence. It falls away. At the examination then the other aspects come: -
"Notwithstanding that the answer might tend to incriminate him."
So this specific Section deals with more or less the same situation that we have here. In Section 31 that both your right to silence and your right to self-incrimination are dealt with.

MR CILLIERS: With all respect. The fact that these are two different rights you are placing them as one. You say that the one is essentially the other. Because otherwise there was no reason for protection against self-incrimination and then we just needed a right to silence.

ADV POTGIETER: That is not what I am saying.

MR CILLIERS: But that is what it boils down to.

ADV POTGIETER: I am taking the argument as you have stated it. You said that we must remember to be careful to make a distinction between the right to silence and the right against self-incrimination. You said that your argument is based on the right to silence if I understood you correctly.

MR CILLIERS: Yes because you are giving me sufficient protection in terms of Section 31 - the right to self-incrimination. Your Act withstands any constitutional argument. But it does not make provision for the protection of the right to silence.

ADV POTGIETER: Perhaps I must ask you more specifically. What is the prejudice that you say?

MR CILLIERS: I have got new rulings that I am going to refer you to, or judgments. I can have them fax it through to us because we do not have library facilities. I spoke to Mr Vally. Unfortunately you also do not have library facilities here but I could have it faxed through tomorrow morning very early.

ADV POTGIETER: But that point.

MR CILLIERS: I cannot give it to you in any better way than Justice Kriegler did.

ADV POTGIETER: Just a minute. You give us all the points of prejudice that you are alleging your clients are going to suffer or endure if we ask them to testify.

MR CILLIERS: I am just going to read once again what His Honour Justice Kriegler said. He says that the principle underlying the practice is clear.

ADV POTGIETER: Can you try to be concrete and just give us the prejudice?

MR CILLIERS: The exposure of your hand.

ADV POTGIETER: We will read the judgment later. Just give us the basis of prejudice and reference to the judgment and then we can make up some time.

MR CILLIERS: The publicising of your case in a nutshell this is the prejudice which the authorities says there is for a person. This is the reason why there is a Section such as Section 35(1)(A) in the Constitution. If there is no prejudice with the greatest of respect why would the legislature as the first right in Section 35 give a person the right to silence.