Nervous citizens may worry that the enshrining of the right to silence in the Constitution will encourage crime. Is this true?
THE right to silence accorded to people accused of criminal offences is deeply rooted in our law, and dates back about 300 years in Anglo-American legal systems. It means that no person can be convicted merely because he has chosen to say nothing in defence, and it has the effect that the prosecution must prove every small element of the crime, otherwise the accused person, with no further ado, walks free.
The Nats, with their twisted understanding of freedom, created many statutes that subverted this right. The old Internal Security Act, for example, placed the onus on an accused to prove his innocence of certain offences. In such circumstances an accused person could hardly remain silent, and it was the prosecution that could simply sit back, chip away at what he said, and then argue that he had not proved himself innocent.
Now, however, the right to silence is consecrated in the Constitution; silence both before and during trial. In the moral panic created by South Africa’s endemic crime, it is seen by law-abiding citizens (or, at least, those with no criminal record) as a villain’s charter.
No doubt the villains also see it in this light, and many old statutes will be struck down as offensive to it; indeed, some already have been.
But the interesting question is how far, in fact, the right to silence stretches. Does it enable a murderer, sued for killing a breadwinner, to stall the civil trial on the grounds that he may incriminate himself in the uncertain event that Justice Minister Dullah Omar’s torpid department eventually gets around to prosecuting him?
Not if a recent decision of Judge Bob Nugent is anything to go by. The case concerned Mike Davis, then the executive director of the Directorate of Public Safety of the Johannesburg City Council. He stood accused of “bribery, corruption and theft”, and the council appointed an advocate to inquire into these allegations. If true, Davis would have been found guilty of misconduct and probably would have been dismissed.
Thereafter, Davis was arrested by the police on charges of fraud and theft, and these charges overlapped with the council’s inquiry.
Davis applied for a postponement of the council’s inquiry until after the criminal proceedings, claiming that otherwise his right to silence before trial would be undermined. This was refused and the supreme court was called on to reverse the refusal.
Judge Nugent refused to do so. In essence, he held that the courts should only intervene where there is an “element of compulsion” requiring a person to testify in civil proceedings about matters relating to criminal charges.
But Davis could choose whether or not to testify at his inquiry and, at worst for him, either way, he faced dismissal by his employer. This was not, Judge Nugent thought, compulsion. As he so bluntly put it, “what the applicant seeks to be protected against is the consequence of the choices he may be called upon to make”, and he declined to extend such protection to Davis.
While this may seem a rather brusque and stony-hearted judgment to some, it is to be welcomed as drawing sensible confines around the right to silence. Judge Nugent limited it to a right against coercion or force.
This view received some anticipatory support from Acting Judge Sydney Kentridge in the only Constitutional Court case touching on the issue. It will also reassure nervous citizens that the right is not designated to accelerate the enrichment of the criminal classes at their expense.
For these reasons, Judge Nugent’s decision, restrictive though it is, affirms the true essence of the right to silence, and therefore to protect its future existence.