Amnesty Hearings — Durban — 1998-11-17

MR VISSER: Mr Chairman, then one must look at subsection 31(1) and ask the question, have any of the situations that have been envisaged in this subsection, arisen here, and we say they haven't.
	I see Mr Chairman, how your mind works, well, then we are in agreement.  I can't argue that the Committee should not be regarded as the Commission, because the definition says so.  So clearly so that we won't be at cross purposes, this is not my argument.
	Mr Chairman, if I am wrong in my first submission to you, then the question arises as to the very issue of the protection of the identity of informers Mr Chairman, and in that regard, most important judgment is that of Carla v Minister of Safety and Security, Justice Myburgh.  
	In that case Mr Chairman, the applicant attempted to compel the Prosecution to disclose the contents of a police docket in a criminal case, which included the identity of an informer to which the police objected to.
	Mr Chairman, in the evidence presented by the Commissioner of Police, in resisting the application, the following two paragraphs are of importance Mr Chairman.  The first is, he said:
"there is no Police Force in the world which can exist without a network of informers.  The work of informers is often life threatening, it is frequently necessary for the informer to infiltrate crime syndicates in order to ensure the ultimate successful prosecution of those involved.  The work of the police would be dramatically frustrated if there was any danger of the identity of police informers, being disclosed.  It is not only the prejudice to the investigation of crime which would result, but the very safety of the informers themselves, would be placed in jeopardy.  It would be highly irresponsible if those persons were placed at risk by virtue of their identity being revealed."
	The second and third points weren't relevant to the present instance Mr Chairman, and the fourth point that was made was that the South African Police are dependant on ordinary members of the public, coming forward with information about the commission of criminal offences.  Many individuals however, are frightened of the consequences which might flow from assisting the police.
	The level of intimidation of potential witnesses, constitutes one of the biggest single obstacles to the successful investigation and prosecution of crime in South Africa.
	Many witnesses are only prepared to furnish information to the police on the strict understanding that their confidentiality  will be protected, the fear of victimisation has reached such proportions in South Africa, that it has necessitated the establishment of a special unit, called Crime Stop, which enables members of the public to furnish information to the police anonymously.
	That is referred to in Carla's case, at page 231, dealing with the issues Mr Chairman, Myburgh J, held the starting point in considering the defendant's justification for docket privilege, is an acceptance that the administration of justice is a fundamental public interest.  It is an aspect, a crucially important one, of a broader public interest in the maintenance of social peace and order and reference is made inter alia to the case of D v National Society for the Prevention of Cruelty to Children an all England report case, Mr Chairman.
	His Lordship continues accordingly, as a matter of public policy, it is reasonable that some information in a public docket, should be privileged.  (1) our law in regard to preserving the anonymity of police informers, is in keeping with the common law and statutory law of democratic societies, such as the United States of America, the United Kingdom, Canada, Australia, New Zealand.
	Again reference is made to D v National Society for the Prevention of Cruelty to Children, Mr Chairman, where Lord Diplock, is quoted as having stated, the rational of this rule as it applies to public informers, is plain.
	If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime.
	The public interest in preserving the anonymity of police informers, had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts, relevant to an issue, on which it is required to adjudicate, should be withheld from that tribunal.
	The balance has fallen on the side of non-disclosure, except where on the trial of a defendant for a criminal offence, disclosure of the identity of the informer, could help to show that the defendant was innocent of the offence and reference is made inter alia to Weakmore, Phipson on evidence.
	Mr Chairman, His Lordship continues and says the various Freedom of Information Acts, referred to earlier, all create an exception to the public's right to access to information held by government agencies.  In the case of information which would reveal the identity of a confidential source of information, the rule is that the Court is vested with a discretion to compel the Prosecution to reveal the identity of an informer, where it is in the public interest to do so.
	The most compelling circumstances in which the Court would make such a compelling order, is where the identity of the informer could help to show that the accused was innocent.
	The rules relating to informer privilege however, are not rigid or flexible.  Public policy might and this is important Mr Chairman, for example require that the class of person whose identity should be kept confidential, is extended and it must be recognised that it may be in the public interest that in certain cases, a Court should not have a discretion to compel the disclosure of the identity of an informer.
	Mr Chairman, what Judge Myburgh is saying here is that the rule as I read it in the law of the United States and England and New Zealand and Canada, etc, is that the option falls on non-disclosure.  There are exceptions.  The most notable one is when the identity of the informer could show the innocence of an innocent man.
	But says His Lordship Mr Justice Myburgh, Mr Chairman, that the class of person who deserves protection, might be extended and in that, he is saying very explicitly, there might be cases where the classes might be diminished, where information as to identity should be more readily ordered.  That is not what he is saying.
	The emphasis falls on protection Mr Chairman, and in fact, he goes so far as obiter as it was, quite clearly, but obiter, he expresses the opinion that in certain cases, the Court should not even have the discretion.

CHAIRPERSON: Is this Myburgh, or is he quoting Diplock?

MR VISSER: Mr Chairman, I drew this off the computer, I believe it is Justice Myburgh who is saying this.

CHAIRPERSON: ... as on the previous page.