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

NORMAN ARENDSE: I look like some one who has made a very bad start of the World Cup and there is now every possibility that the second Arendse will be sent back. But I do have instructions to put on record a few points, a few observations. The first one being that it needs to be clearly understood and I trust that you do that the department and also the Deputy President's office supports this process whole-heartedly and that the department is very pleased at the way in which it has gone up to now. And it accordingly it is important that important witnesses like the applicants in this application that they need to give information to this Committee. Subject of course to proliferation matters being dealt with as it comes up from time to time.
 Now as far as this application is concerned my observations are as follows. I didn't hear - and these notes if I can just put it in a context I made in fact yesterday when the application was made already. So it may well traverse some of the ground that has been covered or even some observations that had been made by either Advocate Potgieter or my colleague, Mr Cilliers. I didn't hear the applicant saying that the information that they need to give or that they are required to give before this hearing is not reasonable, necessary or desirable for the purposes of the hearing. I did not hear that. I also did not hear an attack on the constitutionality of the Act or Section 31 for that matter. I also did not hear, well what I did hear is a mere request that the giving of this information by the applicants be postponed to a date once the criminal proceedings have been finalised. That is what I have heard.  
 Then another point, the basis of both the rules relating to the right to silence and the right to self-incrimination is based and rooted in prejudice. I did not hear any arguments or points being made to the contrary. And in my view Section 31(3) deals foursquare with that situation. And here I just want to point out that there is perhaps a misconception or a lack of understanding of this process, the amnesty process and criminal proceedings. The right to remain silent, the right against self-incrimination remains intact when it comes to the criminal trial. When either of the applicants are asked to plead for example or ask to say if they are required to say anything they can invoke that right at that point. Similarly, if they do get called upon to give evidence they may refuse to give evidence on certain aspects invoking the right to self-incrimination. Now those rights are not compromised because of 31(3). They are not compromised by these proceedings. 
 So with respect it is not correct to say that like the right to life when it comes to linking that with the death penalty that, that right is completely obliterated. It is not obliterated at all. Now it may sound a bit perverse because the whole world, TV, newspaper reports what goes on here. But the fact of the matter and this is where it comes in to understanding the difference in the processes. In the criminal case the State must still call their witnesses to prove their case. Those witnesses are subjected to cross-examination a lot more vigorously than this process. This process with due respect because of time constraints is a lot more informal, a lot of hearsay evidence is allowed and in fact counsel are told from time to time: "Listen here you have got 5 minutes left." Now this kind of thing obviously does not happen in an ordinary criminal trial. So witnesses are subjected to cross-examination. And the tests are a lot more stringent in order to determine whether evidence is admissible, relevant and so on. So that is very important. 
 And of course in a criminal trial the State must prove their case beyond a reasonable doubt. Here the Committee is going to listen to evidence, do a weighing up process and decide on balance whose version to accept or not. So that I feel is important. And with respect I want to agree with Advocate Potgieter that Section (1)(31) does deal with both the right to silence and the right to self-incrimination. And clearly parliament when it made this law had that in mind. Hence 31(1) which deals with the person who may say: "I don't want to give," even though that person has important information that person now says: "No I don't want to give the information." 31(1) then goes on to say you can be compelled. You shall be compelled to give evidence. Now what does that mean? It means your right to silence is compromised, is violated. But violated in specific circumstances and that is where 31(2) comes in. And I did not hear any debate on 31(2). 31(2) deals with three situations, 31(2)(A), the AG must be consulted. (B) the Commission must satisfy itself that the information is reasonable, necessary and justifiable and then (C) also deals with another aspect. 
 Now so in the absence of an attack on the constitutionality of Section 31 in my view all this Committee must then take into account is whether in this case the applicants have been compelled to be here and satisfy itself that 31(2) has been complied with. And I did not hear any argument or any contentions that it has not been complied with. 
 As far as the cases that have been cited are concerned in my view are they all distinguishable. The one case involves a civil action where clearly no protection such as that offered or provided for in 31(2) was applicable. The other case was an insolvency case. The case of

HATTING: is interesting because I am not so sure that Judge Kriegler would express the same sentiments as he did in 1988. It is a 1988 case. So it is before the 1994 Constitution and a new Constitution.

CHAIRPERSON: And the case was made that in any event in the

FERREIRA: case was the minority judgment.

NORMAN ARENDSE: Yes and the other case was a case involving a domestic tribunal where either Tipp sitting as a hearing officer or as an arbitrator had to make a decision. Again when nothing like the kind of water-tight protection provided for in 31(3) has been offered.
 I also think some considerations should be given to the provisions when looking at the constitutional points raised to Section 39 of the Constitution which provides that when interpreting a Bill of Rights a court, a tribunal or forum like this one must promote the values that underlie the Constitution, must consider international law and may consider foreign law. When interpreting any legislation and when developing the common law or customary law every court, tribunal or forum must promote the spirit, purpose and objects of the Bill of Rights.
 And this Act under which you have been established has been given special constitutional status. Not to compromise rights or to violate rights. So it is in that context and in this regard Mr Vally made the valid observation that I think it is item 22 or 23 in Schedule 6 retains the post-amble in the interim Constitution. 
 And for the rest the comments made by Mohammed DP in the AZAPO v THE PRESIDENT OF SOUTH AFRICA that case regarding the differences in the processes I think is relevant and I also agree that the FERREIRA v LEVINE case is entirely on point in this situation. In fact more so because in that case it was 4172(B) says that the answers may be used against you. In this case it is exactly the opposite, so I think in fact strengthens. 
 The Constitutional Court said: 
"Don't run to us. Let the hearing first hear what you have got to say and if during the course of hearing what you say, your rights are compromised then we will step in."
But in fact in that case, in the

FERREIRA: case the Court said: "An application of that nature is premature. We first have to hear what you have got to say."
 So that is the department's views and my views on this matter. Ja unless there is anything specifically you want to put to me or ask me I don't have anything further to add.