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

PHILLIPS: decision.
"Therefore respondent's right to silence will have been compromised even if they agreed to  testify which they may be forced to do as they may not want to leave unanswered allegations  that are made at the public enquiry. They are in the coercive power of the State. The Crown will be able to gather evidence without the usual safe guards provided by the criminal law."
And then he goes on: -
"Similarly the applicant faced with the evidence before the advisory board may notwithstanding that he has not been subpoenaed to give evidence be forced to waive the right to silence in order to respond to the evidence in the possession of the superintendent. He will therefore be in the coercive power of the State and the Crown will be able to gather evidence without the usual safeguards provided by the criminal law."
 The effect of that and I do not want to take too much time we have here a typical example of State coercion. These are statutory obligation because the accused have no choice. And the handling of that they follow the approach that when there are criminal proceedings which are pending like these, those proceedings would be stayed. Although during those proceedings there are no statutory pressure on people. But the feeling is that perhaps he wants to testify but because he does not want to prejudice himself in the criminal proceedings pending he is in a difficult position should he or should he not testify. And that "pressure" to force him to give evidence to answer questions that difficult choice called State coercion by them, that is so unacceptable that all these proceedings are suspended until the criminal proceedings have been finalised.
 In the light of the fact that we have an easier situation here where there is direct statutory force from the side of the State and it leaves them no choice and you do not have to pay any attention to that.

CHAIRPERSON: Would I be understanding you correctly  Mr Cilliers that the gravamen of your argument is that your client would suffer great prejudice in the criminal proceedings in relation to which they have been charged were they to be compelled in terms of Section 31 of the Promotion of National Unity and Reconciliation Act?

MR CILLIERS: That is the crux of the argument yes.

CHAIRPERSON: Now I know that you did mention this in your argument but I just want to hear you again. And are you saying that prejudice will not be prevented from occurring or in other words it will not be that Subsection 3 of Section 31 of the Act - Promotion of National Unity and Reconciliation Act, is cold comfort from the point of view of prejudice. Subsection 3
"Is there any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of Subsection 1 shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or before anybody or institution established by or under any law. "
And then the proviso is only in relation to the law relevant to (...indistinct)

MR CILLIERS: That is the reason why with respect Mr Chairman right in the beginning I have made a distinction between the two types of law. That is in Common Law and according to the Constitution. The distinction between the right to prevention of self incrimination and the right to keep silent are two various laws handled in various aspects in the Constitution and in the law. The protection of the right to keep silent is more difficult than the right to self incrimination. This is referred to in Section 31 on a proper basis it is handled there.
 To illustrate this Dr Swanepoel was advised by me and I advised him: "Answer the questions that do not fall in this category and the protection by Section 31 is enough protection." 
 But in this case where the right to keep silent is relevant I cannot do it better than Justice Kriegler in that first quote where he made a clear distinction. And he said the underlying principle is fairness towards a person who is approaching a criminal court case and who can be prejudiced if he has to kind of show his hand before the criminal proceedings start. It not has to do with incriminating but it is revealing all information.

ADV POTGIETER: Does it have to do with prejudicing himself? But regarding prejudice and Subsection 3 is also relevant.

MR CILLIERS: Only during incriminating questions.

ADV POTGIETER: Why?

MR CILLIERS: The disclosure of your hand that is when you give certain questions which indicate in which direction your defence is going to be made. It is not an evidence that somebody is going to stand in a court and say: "You are saying this. Last time you said that you produced this agent." It gives the State the advantage that he now knows long before the court case what is the hand, what is the essence of the defence. To illustrate it on two bases. It is the same as to listen what an accused and his legal representative are saying. The policeman would go to court and say this person is not telling the truth because he told his legal representative on the day the crime was committed he was in Cape Town. And the fact that he should not do that does not make that it could be allowed. Now they can do this because of the statutory force which is put on the person that this accused was pressurised to show his hand.

ADV POTGIETER: You have to read this whole Subsection. If you interpret that we should take into consideration the potential prejudice the client can experience when he testifies you should show us the potential prejudice. And I am asking you when we measure all this up why can't we take the provisions of Subsection 3(1)? If we find for example that in the light of the protection provided by Subsection 3(1) he cannot be prejudiced and we can find that we did not make these points.

MR CILLIERS: Should you find that compulsory evidence under statutory pressures cannot prejudice a person. I will fall off this chair with surprise.

ADV POTGIETER: We are referring to the principle now. Subsection 3 is not irrelevant whether you are talking about the right to keep silent or self incrimination it is not relevant. It is one of the considerations we can put in the whole pot. If we talk about prejudicing.

MR CILLIERS: Subsection 3 refers to one of the basic rights involved here. Subsection 3 of Section 3 refers to the fact that incriminating answers or evidence or evidence of an incriminating nature cannot be used against the person.

ADV POTGIETER: That is the point. If we look at the Afrikaans
"An incriminating answer or information or incriminating evidence."
So in other words anything which is mentioned within the context of our proceedings cannot be used in any later criminal proceedings. And I am asking you is your submission that we can take this into consideration only regarding the right not to incriminate yourself. It is irrelevant regarding the right to keep silent.

MR CILLIERS: I am telling you in its context that is clear that, that is an incriminating way to obtain information. If you look at Section 31 and the heading to not allow incriminating evidence. And with respect you cannot take certain passages and not read that in context. If you read that in context it is very clear with what 3 has to do.

ADV POTGIETER: Is your submission that the positions of Subsection 3 of 31 are irrelevant if we have to decide about prejudicing regarding this right to keep silent?

MR CILLIERS: It handles one of the problems because the right to keep silent and the incriminating question are inter-related. There is always a situation where you infringe on the right to keep silence goes further and is a right broader than the right to self incrimination. This is why I have read the judgment of Kriegler. It is not about evidence which can be given in court.