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

MR VALLY: Yes our Act was passed bearing in mind this potential prejudice. And therefore Section 31(3) of our Act says specifically, having invoked Section 31 and having passed the requirement for Section 31(2) as we did this morning for Doctor Swanepoel. It says
"Any incriminating answer or information obtained or incriminating evidence directly of 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. Provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned on the charge of  perjury or a charge contemplated in terms of Section 39 of this Act or in Section 3193 of the Criminal Procedure Act, 1955."
 So that prejudice has been removed now the I would submit equivalent provision was left intact provided that prejudicial aspect was removed in the judgment of the Constitutional Court. On that issue the majority judgment is ad idem in this case. There are aspects of the judgment related to referral to the Constitutional Court and other aspects regarding Judge Ackerman's reasoning where the majority have their own views. I will quote what Justice Chaskalson said in that same matter he confirmed that aspect of the judgment of Justice Ackerman. I am just trying to find my quote quickly.
"I have the meticulous judgment of Ackerman J. I agree with paragraphs 1 to 33 of his judgment. I also agree with his conclusion that Section 4172 (B) of the Companies Act 1973 is inconsistent with the Constitution and with the order he propose as a remedy for that situation. Just deleting the part that it could be used in evidence against that person. I am however unable to agree with the analysis of the issue of standing and with the interpretation of Section 11(1) of the Constitution on which he ultimately arise for his decision. In my view the matter is one in which the applicants have standing and which can and should be dealt with under Section 25(3) of the Constitution."
 Section 25(3) of the Constitution I will remind the panel again is in terms of the interim Constitution the provision which says: "Every accused person shall have the right to a fair trial which shall include the right to," and then we go into those two issues - self-incrimination and right to be silent.
"The finding that Section 41 (4)(1)(7) 2 (B) of the Companies Act is inconsistent with the Constitution is in essence based on a finding that the Section infringes a rule against  self-incrimination. This is apparent from the reasons given by Ackerman J for holding the Section to be inconsistent with the Constitution. The rule against self-incrimination is not simply a rule of evidence. It is a right which by virtue of the provisions of Section 25 subsection 3 is as far as an accused person is concerned entitled to the status of a Constitutional right. It is inextricably linked to the right of an accused person to a fair trial.
The rule exists to protect that right. The right to a fair trial. If that right is not threatened the rule has no application. Thus a person who has been indemnified against prosecution or a person convicted of a crime who is subsequently called to give evidence against a co-conspirator would not be entitled to claim the privilege in respect of evidence covered by the indemnity or the conviction, would not be entitled. 
This connection between the unconstitutionality of Section 417(2)(B) and the privilege is recognised in the order made by Ackerman J which is designed to eliminate the conflict by ensuring that evidence given by a witness at a Section 417(2)(B) inquiry cannot be used against that witness if he or she is subsequently prosecuted. 
A challenge to the constitutionality to Section 417(2)(B) should therefore in my view be characterised and dealt with as a challenge founded on the right to a fair criminal trial. It is precisely because Section 417(2)(B) is inconsistent with that right that its validity can be impugned. It is also the basis upon which the applicants launched their constitutional challenge in the present case. Although they relied on various provisions of chapter 3 to support their argument at the core of their complaint was a concern that they were required to answer questions at the inquiry which might incriminate them and which might thereafter be used in evidence against them"

ADV POTGIETER: Mr Vally whose judgment are you quoting from there?

MR VALLY: I am now quoting Chaskalson.

ADV POTGIETER: Chaskalson?

MR VALLY: That is right.

ADV POTGIETER: And what is the reference?

MR VALLY: I have quoted on my copy.
ADV POTGIETER

FERREIRA: .

MR VALLY: That is FERREIRA v LEVINE.

ADV POTGIETER: Yes just the page reference of Chaskalson's?

MR VALLY: In my copy it is paragraph 160 page 221 leading onto page 222. That was the last quote.

ADV POTGIETER: Paragraph 160?

MR VALLY: Paragraph 160. And the previous quote was page 220 paragraph 158 a continuation thereof and paragraph 159.

ADV POTGIETER: Thank you.

MR VALLY: I am advised that my references may not be the same as the other references. We took this copy off the Internet and therefore the page numbers may not be identical.

ADV POTGIETER: I think the paragraph numbers would probably be the same.