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

ADV POTGIETER: Mr Cilliers I want to assure you that we understand your submission and the authority. I just want to address a simple point. Do you agree with that or not?

CHAIRPERSON: Can I put the question differently. If it is prejudice that is sought to be protected. Whether it is prejudice against self incrimination or prejudice that would come if a person did not remain silent. Now if we had to test prejudice which would come from an (...indistinct) of the right to remain silent are we not permitted to take into account the sort of prejudice that would arise if we were to consider the prejudice that would be brought about by compelling a witness to incriminate him or herself?

MR CILLIERS: These are two different rights. I will concede this is something which can be taken into consideration. But perhaps I thought you wanted to limit it and all you wanted to know is whether it is applicable. All I want to emphasise is that it should be taken into consideration but you should be careful that you keep in mind that it is not limited to that disadvantage. It is the smaller disadvantage of the matter. This is what Justice Kriegler is saying. And I want to ask you to be careful that this is not the only disadvantage. It is a broader concept.
 I want to emphasise it that Subsection 3 of the Act says it should not be allowed as evidence. And this is to do with the fact whether the record of your proceedings could be used as evidence in a latter court case. Or could ask somebody from the public to say that I was present and I heard that and that. This is the situation Subsection 3 addresses. But Subsection 3 gives no assistance for the situation described by Justice Kriegler in disclosing his hand. And if I can give the absurd example of the policeman who eavesdropped on the consultation and now they know what is coming, they can position themselves. They know what the defence will be. This can never be allowed in court but it can be to the detriment of the accused because his right to keep silent has been abrogated. And you must watch against this situation and prevent that. And that is the situation the Constitution makes provision for. And it says that this person has the right to keep silent.

ADV POTGIETER: Mr Cilliers one other point please. Your submission regarding the discretion is your submission that as long as there is statutory obligation a person like your client must only indicate potential prejudice and it leaves the tribunal with no discretion?

MR CILLIERS: In due course I will give you the relevant quotes but you precisely summed it up. That as soon as there is a potential prejudice and I will also refer you to authority and that is a basic right. It is trite law that the statutory obligation to disclose your hand to testify at all is a potential prejudicing for somebody who is approaching a criminal case. And it was the approach by Justices Navsa and Nugent that, that moment when State coercion is found to compel a person and leaves him no choice. And Justice Kriegler called it when a statutory obligation is placed on a person then there is prejudice. And there is the prejudice in the sense that he has to disclose his hand before the criminal proceedings.

ADV POTGIETER: It is the case and usually the case that non of these authorities you referring to has to do with the situation like this Commission which is of a temporary nature. You are referring to civil proceedings or to situations where after the criminal proceedings you can always return back to the proceedings which were suspended. We are not referring to a temporary body like this.

MR CILLIERS: You are probably one of the only temporary institutions who is doing this work and you yourself have never been confronted by this situation. The right to keep quiet is in the moment in the process of being presented to the Constitutional Court but it is not been finalised. And that is also what my research revealed. And there is no authority regarding the position regarding the right to keep silent. And I can refer you to Justice Navsa and Nugent who refers to these rights. Both these judgments do not refer to temporary institutions like you are.

ADV POTGIETER: Won't it be relevant regarding the matter of prejudice? It would be one of the factors which would be considered?

MR CILLIERS: It is difficult for me to say that you can ignore it but in the handling of that you should ask yourself the question is the position then in our legal system that a person's fundamental right as provided expressly by the Constitution through decades long legal process should you negate that and say because we are just a temporary institution we are going to ignore your constitutional rights. That is putting it very harshly but if you give to much weight or any weight to the fact that you are a temporary institution that would mean that temporary institutions can ignore the Constitution. And that only permanent institutions - and it is only parts of the Constitution with which you have a problem. And to put it very strongly it means that those provisions of the Constitution only are applicable to permanent institutions of State.

ADV POTGIETER: All that in the light of the objectives of this process for which the Truth Commission was convened in the view of the national objectives. In the case of the individual it is just a temporary suspension of constitutional rights and the national objective is stronger than the right of the individual.

MR CILLIERS: I am just sharing my views with you and I want to differ from you. Just to a temporary infringement of the rights. The rights of the individual are irreversibly finally prejudiced. This is an interesting approach and it is something which you should keep in consideration. And the choices which should be made and balancing the various interests. It is one of the things you should pay attention to. These individuals should be kept in consideration that it would be a final infringement of rights. So in other words this individual is placed on the altar.
 You should pay attention to that yes. But unfortunately the factual situation is that here is a temporary institution and you can give me an assurance its time span is not going to be extended. This is the factual situation we have.

CHAIRPERSON: Mr Cilliers what would the position be - I do not know if in any of your authorities that you have referred us there is a reference to the application of what now is Section 36 of the Constitution? In other words the limitations clause. How would that impact on your right?