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

MR VALLY: If I look at Constitutional Law of South Africa by Chaskalson et al and they look at the issue of reasonable and necessary and justifiable in an open and democratic society based upon freedom and equality. The first requirement involves a determination as to whether the objective pursuit by the government warrant the infringement of a right. And this is what I have gone through at great length. What the government was pursuing the objective was to find out the truth of gross violation of human rights in exchange a different leg of the Commission would give amnesty in exchange a different leg of the Commission would give reparation.
 The objectives which can safely be identified as overriding importance are those objectives which reflect the values inherent in other fundamental rights. What can be more inherent in fundamental rights than protection against gross violation of human rights. It is the very essence of the fundamental rights we are talking about. And I will continue: -
" The government restriction must be designed to impair,"
I am quoting selectively from that paragraph 12 - 25.
"The government restriction must be designed to impair the right no more than absolutely necessary."
None of this can prejudice Doctor Basson and Doctor Mijburgh. It is up to his counsel and it is up to the trial court to raise any prejudice at the time to exclude any evidence. In a normal course of events he would plead unless he puts everything into dispute. But we are saying that prejudice is limited. Expressly limited in terms of Section 31(3) of our Act. 
 And finally only those restrictions which realises significant social benefits and do not unduly burden the affected individuals should pass constitutional muster. With respect to our detractors, the social benefits of our process have far overridden what our detectors have said. If you look at Mohammed DP's judgment in that matter. We were facing a civil war in exchange for certain provisions in our Act allowing amnesty. So that there would not be criminal trials, there would not Nuremberg trials, there would not be Tokyo trials. We agreed to give amnesty. For the benefit of the country, for reconstruction and reconciliation. But we need to know what happened. 
 Brigadier Wouter Basson as he then was is a key character here. We have presented enough evidence before you to at least show you there are questions which remain to be answered. Before any findings need to be made there are questions that need to be answered in terms of our statutory obligations. In terms of our commitment to the nation. In terms of the Act that parliament has given us. A democratically elected parliament.
 Now those are my legal points. I just want to respond briefly to some of the points raised by my learned friend.

CHAIRPERSON: Just on legal points Mr Vally. There was a submission which was made by Mr Cilliers which as I understood it was seeking to say Judge Nugent in the

DAVIS: case was referring to a situation where there is no discretion regardless of the wedding of the provision that seeks to (...intervention)

MR VALLY: Mr Chair I was going to deal with the Nugent judgment specifically.

CHAIRPERSON: Very well.

MR VALLY: What happened here was very simple. Council employee was called to give evidence before a commission of enquiry in Cape Town. I am sorry I beg your pardon, in Johannesburg. The corruption was allegedly in Johannesburg.
"The Council convened an enquiry in terms of  the chapter into,"
I am talking about sorry DAVIS v TIPP and

<UNKNOWN>: . And I am reading from the head note now Mr Chair.
"The Council convened an enquiry in terms of the chapter into allegations of inter alia bribery, corruption and theft which had been made against an applicant. The first respondent was appointed to conduct the inquiry. The inquiry was due to commence on a certain date."
 Sorry I will just jump to get to the crux of the issue.
"The applicant applied for the matter to be postponed until after the conclusion of the criminal proceedings alleging that if the inquiry proceeded his right to remain silent at his trial could be compromised. He also alleged that his conditions of bail precluded him from consulting witnesses and this would  prejudice him at the enquiry. It was argued that the applicant's right to remain silent during his criminal trial guaranteed by Section 25(3)(C) of the Constitution would be violated if the enquiry proceeded since he might of necessity be called on to answer  evidence given against him. If he wished to avoid a finding of misconduct the applicant's evidence could then be used against him in the  criminal proceedings. Accordingly it was argued the first respondent was bound to postpone the enquiry until after the criminal proceedings were concluded. It was held that the role of the courts was merely to ensure that there was no deviation from the path. Accordingly the only question the court was required to decide was whether the first  respondent's conclusion that the applicant's  constitutional right would not be infringed by  the continuation of the proceedings.  And this was held to be correct."
 The issue that my friend went on about. I beg your pardon I did not mean to phrase it that way. The point that my learned friend was making is that because we have a degree of compulsion therefore the right to remain silent will be infringed. The prejudice involved regarding the right to remain silent being removed would be if the information was to be used against the person. That is an obvious situation. 
 In this case the argument of the applicant was if I have to give evidence in this disciplinary enquiry I am prejudicing my case and my right to remain silent. If I do not give evidence then I will be fired. So I want to suffer that prejudice. In this case Judge Nugent held that choice is yours but you have to give evidence. We will not postpone the enquiry. If at the enquiry you decide to remain silent well and good and you get fired. If you want to keep your job and give evidence that is your choice. It may prejudice your criminal trial. 
 The point I am making is the enquiry was not postponed and it was not postponed on that aspect of he was not compelled to give evidence. He had a choice in the matter. Now our compulsion to give evidence has an immunity provision attached to it which is addressed by the case of FERREIRA v LEVINE. And therefore the prejudice - because the very basis of this provision is no one should be compelled to give evidence against themselves. That is the essence of the provision. It is abhorrent to our justice system that people are forced to interdict themselves. It could lead to all sorts of compulsion and although our courts in the past have not been too proactive about protecting confessions this is a reason why confessions have to go through such a testing phase.
 So in this case because he was not forced, although he could lose his job if he did not give evidence they refused to postpone the enquiry and left the choice in the hands of the person. He was personally prejudiced of course. But because there wasn't State compulsion involved it was found that they would not postpone the enquiry. And the enquiry continued.

ADV POTGIETER: So Mr Vally do I understand it correctly there the point was that if there was a statutory compulsion without immunity then

MR NTSEBEZA: Nugent J said well you have little or no discretion. So in other words a statutory compulsion without the immunity, without excluding the evidence that you would be giving from being used against you in a subsequent criminal proceeding?