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

FERREIRA: case there is a provision.
 I know that we are talking whether remain silent or self-incrimination but that right is protected to the extent - I am dealing now about the prejudice. It seems the prejudice is that your client by being compelled not to remain silent you would e showing his hand. 
 Now, and I think the response to that proposition is that there is no prejudice because none of what would have been derived from these proceedings can be used against him. If there was a police person here who sought to rely on what he heard when your client was testifying and it becomes clear and it should be very clear you would be there to protect your client's interests to say no this is exactly the evidence that was led in the TRC. It is exactly what can be deduced from what was said in the TRC. And in terms of Section 31(3) that is not usable. That is inadmissible. Unless you are seeking for an absolute, absolute protection and I do not understand even constitutionally entrenched rights are absolute to that extent. There is no way that your right to remain silent can ever be assaulted or compromised in any sort of fashion.

MR CILLIERS: With respect Mr Chairman the answer is easy. It is not an absolute right. It is only applicable until the criminal proceedings have been concluded. This is why I have not asked for any decision that it should be a compelled witness. The line of authority is very clear. He can be compelled to testify but he must, his interrogation should be left over until the finalisation of the criminal proceedings.

CHAIRPERSON: But why therefore the whole question of this special circumstances of the TRC as a process were urged upon us to be taken into account by Mr Vally that this is a situation where we are dealing with a project. We are dealing with a transient situation which is not going to be there forever. That the facts of the matter should be taken into account.
 Your client was arrested I do not know when. I do not know when it last came before court and we do not even know when in respect of Mr Basson when he is going to be arraigned before court. 
 In the case of Mr Mijburgh we are not even sure he will ever be arraigned. But we are not wanting to be insensitive to their rights. They are entitled to their rights. 
 But we are saying; are you saying those factors cannot be taken into account that there may be circumstances like the Mohammed judgment says where the rights of individuals' entrenched as they are in the Constitution may be compromised.

MR CILLIERS: Mr Chairman the situation is the following with respect. A person's citizens' rights cannot be taken away from him because there is a situation that the life span of this Commission is limited. And there is a possibility that the life span of the Commission will be over before the criminal trial has been concluded. With the biggest respect somebody must just wait until the end of the proceedings before a person is summoned. This is the situation which is unfortunately so. I have said that you can possibly pay attention to that. You can take it into consideration when you evaluate this.
 But I am submitting that if it is so that an accused has a right to silence your Act does not make provision for the infringement of that right. And therefore it is my respectful submission that at the end of the story should it entail a limitation of the right you can take this aspect into consideration because then you are weighing up the various rights. The infringement of constitutional rights is also clear. You can never limit it to a degree that you can destroy this right. This was why the death penalty was totally unacceptable because you cannot limit the right to such a degree that you would introduce capital punishment. And therefore you cannot limit the right to silence in Section 35 to compel a person to testify. You are then destroying the right.

CHAIRPERSON: But tell me just about that whole question about the right to life. On that basis the Constitutional Court I do not know I ask you to take judicial notice of this gentleman from Natal who the Constitutional ruled could not be kept on that life saving dialysis or something like forever. What I am saying is there was a classic case where the person's right to life was compromised on some other considerations. I am just asking you to take judicial notice of the fact that there is a very good argument and I am sure that is why the matter went to the Constitutional Court that the content of the right to life had been compromised to the extent that the State, it is not even a question of dealing with a horizontal obligation. We are talking about State - Individual. The State was declared by the Constitutional Court to be quite entitled not to provide the life-giving mechanism justifying the person of the right to life. Again the question of don't we take the surrounding circumstances even if they go to the content of the right.

MR CILLIERS: With respect the difference between the two aspects Mr Chairman is the following. It is not the State who is infringing the right to life. What was found is because of financial consideration the State cannot for unlimited period provide such equipment and that a person cannot compel the State to provide the finances to provide this equipment. Here it is like the death penalty. The State destroys the right. And Mr Vally asked you to destroy the right of the accused.
 With reference to Dr Mijburgh I don't have sufficient information before you regarding him. It has been interesting that you will have to treat those two on the same basis. And it is on that basis I did not want to waste the time to put two different cases to you. Dr Mijburgh does not have the same rights as Mr Basson but as on the basis with the agreement with Mr Vally that I have made this submission.

ADV POTGIETER: What is your interpretation of page 365(E) where Navsa J refers in his conclusions under (E)
"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 ..."
This is the type of situation we have,
" ... all the facts and circumstances to determine whether prejudice might attach to the accused person if civil proceedings were to continue. Once potential for prejudice is established the Court will stay proceedings or,"
And this what I want to draw your attention to.
"... prejudice such as in appropriate cases ruling that information obtained should not be subsequently disclosed or barring the use of compelling or coercive measures. "
In other words what this judgment is saying if I read it correctly even if there is potential prejudicing. Let's supposed there is potential prejudice and should this matter be disclosed this judgment says that it is not automatic that this application will be granted. Various ways to address this potential prejudice is addressed. (microphone is not on)

MR CILLIERS: I want to convey to you and I feel you did not take that into regard.

ADV POTGIETER: Section 31 forces a person while in this case there is not that compulsion from the side of the State.

MR CILLIERS: Well that is the second one that he mentions.

ADV POTGIETER: I understand that point but the point which I am making is even this authority or judgment says that should there be a potential prejudice doesn't it follow automatically that the application should be granted. There are various ways should be investigated how to address this prejudice. This is what is contained in Section 31. This Subsection 3 goes the furthest of all legislation.

MR CILLIERS: If you read Section 36 of the Insolvency Act it is much better protection.

ADV POTGIETER: I see the matter as follows. If all the protection your client can think of.