Defining the Limits of the Common-Law, South African and European Privilege against Self-Incrimination

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Author: C Theophilopoulos
• Pages: 160-186
• Citation: (2014) 25 Stell LR 160

160

deFining the limits oF the common-laW,

south aFrican and european privilege

against selF-incrimination

C Theophilopoulos

BSc LLB LLM LLD

Associate Professor, School of Law, University of the Witwatersrand

1 Introduction

The common-law privilege is an evidentiary procedural rule whereby,1

“during a criminal or a civil proceeding an individual may refuse to answer

any question or to produce any document, if the a nswer or the production

has the tendency to expose the individual, directly or indirectly to the risk

of a criminal conviction, the imposition of a penalty or the forfeiture of an

estate”.2 The privilege is sometimes described as an obstacle in the search

for legal truth and sometimes as an inducement to encourage freedom of

testimony. The privilege shields the individual from being forced to choose

between (i) lying in the wit ness box and thereby risking a perjur y charge, (ii)

refusing to a nswer questions and thereby riski ng a contempt of court charge,

or (iii) answering incriminating questions and thereby risking exposure to

a possible criminal charge. The privilege therefore ensures that the witness

gives reliable and truthf ul testimony in the face of questioning at tr ial.3

As an abstract ju risprudential principle the pr ivilege denes the l imits of a

witness’ ability to refuse to cooperate with the state. The privilege provides

the witness with a shield against the compulsion of relevant and admissible

self-incriminatory evidence. However, in practice the privilege has been

narrowly construed to apply only to communicative or testimonial oral self-

incrimi natory evidence. Non-testimonial inc riminating evidence and a ll other

procedures for collecting this type of evidence fall outside the privilege’s

narrow protection. The privilege may be invoked whenever an individual

in civil or criminal proceedi ngs is requ ired to answer self-incrim inatory

questions under a legal compulsion or in t erms of due process.4

The English common-law privilege in civil proceedings has been partially

codi ed by section 14 of the Civil Ev idence Act 1968 as “the righ t of a person

1 C Cross Cross an d Tapper on Evidence 12 ed (2010) 41-434; I Dennis The Law of Evidence 4 ed (2010)

152-169; P Murphy Murphy on Evidence 11 ed (2009) 482-494; DT Z effertt & A P Paizes So uth African

Law of Evidence (2009); A Ligertwood Australian Evidence (1993) para 5 68; SB McNicol Law of

Privilege (199 2) 140

2 The semina l restatement of the com mon-law rule is to be fou nd in Blunt v Park Lane Hotel Lt d [1942] 2

KB 235 257, per Goddard LJ S ee also Redfern v Redfern (1981) P 139 147; Lamb v Munster [1882] 10 QB

100 111 and Spokes v Grosven or Hotel Co [1897] 2 QB 124

3 S v Lwane1966 2 SA 433 (A) 438G, per Ogilvie Thomso n JA

4 South Africa: S v Botha (2) 1995 2 SACR 605 (W) 6 09c England: Rio Tinto Zinc Cor p v Westinghouse

Electric Corp [1978] AC 636; (1978) 1 ALL ER 434 464, per Diplock LJ Canada: R v P (M B) [1994] 1

SCR 555 579; R v Jones[1994] 2 SCR 229 269, privilege prote cts against sta te coercion

(2014) 25 Stell LR 160

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in any legal proceeding, other than a crim inal proceeding to refuse to answer

any question or produce any document or thing, if to do so would tend to expose

that person to proceed ings for an offence or for the recovery of a penalty”. The

South A frican codicat ion in section 42 of the Civil P roceedings Evidence

Act 25 of 1965,5 the Australian in section 128 of the Evidence Act 1995

(Cth), and the New Zealand in section 60 of the Evidence Act 2006 are similar

in meaning and i ntent.

During much of its jurisprudential history the privilege has been regarded

as one among many procedur al and evidentiary rules necessa ry in ensuring a

fair adversarial b alance at trial. However, in parallel with the twentiet h century

elevation of the accused’s right to silence into a fundame ntal human right, the

privilege, particu larly in criminal proceed ings, has also been re-inter preted as

a fundament al procedural protection for the w itness during cross -examination,

and as an import ant element of the panoply of constitutional protections of the

witness’ freedom, dig nity, and privacy du ring trial proceedings.6

The privilege has been con stitutionally entrenched in the Fifth A mendment

of the United States Constitution (1789); in section 7 read with sections 11(c)

and 13 of the Canadian Charter of Rights and Freedoms7 (Part 1 of the

Constitution Act, 1982) (“Charter” or “Canad ian Charter”), in section 35(3)(j)

of the Constitution of the Republic of South Afr ica, 1996 (“the Constit ution”)

and by recent adoption in ar ticle 6(1) of the European Convention on Human

Rights (1950)8 (“Convention” or “European Convention”). There is a

signicant trend in New Zealand, in terms of sections 25(d) and 27(1) of the Bill

of Rights Act 1990,9 and in Australia,10 to interpret the privilege as a rst-

class fundament al right. The English privilege is somewhat ambiguous and i n

civil proceedings has been const rued as an “archaic and unjustiable survival

from the past”,11 but this inter pretation may well be declared redundant when

tested before the European Court of Human Rights as a consequence of the

incorporation of the European Convention on Human Rights into domestic

English law by the Human Rights Act 1998.

The principal ju stications for the procedural a nd evidentiary existence of

a general privilege of this kind are directed at shielding a witness against

state coercion or compulsion and ensuring a fair adversarial balance at trial.

Theoretically, the privilege should apply to all compulsory state processes

5 See also s 203 of the Sout h African Cri minal Procedu re Act 51 of 1977 (“CPA”)

6 C Theophilopoulos “The Historical Antecedents of the Right to Silence and the Evolution of the

Adversarial Trail System” (2003) 14 Stell LR 161-186 See also Pyneboard Pty Ltd v Trade Practices

Commission (1983) 57 ALJR 236 243, per Murphy J

7 Solonsky v R[1980] 1 SCR 821 836; The Qu een v Amway Corpora tion[1989] 1 SCR 21 (SCC)

8 European Co nvention on Human Rig hts (1950) ETS 5; 213 UNTS 221

9 R v P [1990-92] 1 NZBORR 311; R v Mallison [1993] 1 NZLR 528; Apple and Pear Mark eting Board v

Masters and So ns Ltd [1986] 1 NZLR 191

10Sorby v Commo nwealth (1983) 152 CLR 281; EPA v Caltex Refining C o (1993) 178 CLR 477 514, per

Brennan J, 508 pe r Mason CJ and Toohey J; Accident In surance Mutua l Holdings Ltd v McFadden (19 93)

31 NAWLR 412 420, per Kirby J

11AT and T Istel Ltd v Tully[1993] AC 45 53, per Lord Templeman Australia : Spedley Secu rities Ltd (in liq)

v Bond Brewing In vestments Pty Ltd (1991) 9 ACLC 522 535-536, per Cole J (“[T]he priv ilege is a mere

procedura l rule from a time when defend ants were less able to protect t hemselves”); Spratt v Hermes

(1965) 114 CLR 226 244-245, per Barwick CJ

THE PRIVILEGE AGAINST SELF-INCRIMINATION 161

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