Commission's Act

The provisions in the Commission's Act provide witnesses protection not to reveal matters discussed with their legal representatives, which is different from the right to self-incrimination.

“provisions speak of a privilege ... gives a witness protection not to reveal matters that are the subject of discussion with their legal representative”

Advocate Sello SC compared the right against self-incrimination under the Commission's Act with a similar provision in the NPA Act.

“I find it interesting that you have a similar provision in the Act, in the NPA Act, and I want to see whether you draw a distinction”

Privilege protects a witness from revealing matters discussed with their legal representative under the Commission's Act, distinct from the right against self-incrimination.

“privilege is about your discussion with your attorney, with your lawyer. So I am under no obligation. Our 3(4) when I say your, I mean Commission’s Act, gives a witness protection not to reveal matters that are the subject of discussion with their legal representative.”

The witness asserts their constitutional right against self-incrimination under section 35(3)(j) of the South African Constitution and section 3(4) of the Commission's Act, and intends to exercise this right when testifying.

“should I be called upon to I will exercise my right not to incriminate myself under section 35(3)(j) of the Constitution of the Republic of South Africa read with section 3(4) of the Commission's Act”

The witness confirms that they understand the correct legal position is to invoke right against self-incrimination question by question under the Commission's Act.

“That is correct, because I understood that is the rules under which the Commission does operate, and so there is no blanket, but it is on a question by question”

Section 3(4) of the Commission's Act secures the witness's right against self-incrimination while testifying before the Commission.

“you invoke section 3(4) of the Commission's Act ... and that is, I think, in our Act what secures your right against self-incrimination”

Section 28(8) of the NPA Act is equivalent to section 3(4) of the Commission's Act, providing similar rights regarding privilege against self-incrimination to witnesses.

“28(8) to be equivalent to the Commission's Act section 3(4) which means that rights are the same”

Section 3(4) of the Commission's Act should be read conjunctively with section 6 to allow a witness to invoke right against self-incrimination.

“section 6 will cross-refer you to this section 3(4) referencing the privilege ... So they should be read conjunctively together to a position where a witness may invoke a right against self-incrimination”

Mr Matlala has two legal defenses in the Commission: section 35 defense and protection under section 8(2) of the Commission's Act preventing self-incrimination in criminal cases.

“He has two defences in this Commission, the section 35 defence, or buttressed, in fact, by section 8 (2) of the Commission's Act, that anything he says that would incriminate him cannot be used against him in any criminal case.”

Suppressing answers due to fear of self-incrimination is a recognized legal right, but it is subject to the Commission's terms of reference and legal bases such as section 6 of the Commission's Act.

“There is also, I think it is section 6 of the Commission's Act... requiring witnesses to answer questions satisfactorily. Failure to do so is on pain of facing criminal proceedings.”