The witness cannot refuse to answer a question – even if it may criminally implicate her – but the evidence cannot be used against her except if it
is shown that she lied under oath in Parliament. It also appears that a witness would be allowed legal assistance, but her attorney cannot
answer on her behalf.
By Christine Botha: Legal Officer, Centre for Constitutional Rights
20 April 2018
International and South African news has been consumed over the last few months with the tumbling of Steinhoff International N.V. (Steinhoff) and the sudden resignation of its former Chief Executive Officer (CEO), Markus Jooste (Mr Jooste). Following the announcement of suspected accounting irregularities in Steinhoff’s financial statements, the fall in Steinhoff shares has, according to media reports, wiped out over R200 billion in market capitalisation. At the time of announcement, the Government Employees Pension Fund was, through the Public Investment Corporation, the second largest shareholder in Steinhoff.
In the Netherlands, where Steinhoff is incorporated, there are talks of a large-scale class action against Steinhoff’s directors and auditors. Locally, it appears that the Hawks and the Financial Services Board are investigating Mr Jooste. Recently there has also been an announcement that Mr Jooste will possibly be subpoenaed to appear before Parliament.
The possible subpoena was announced after Mr Jooste, through his attorney, turned down an invitation to appear before the Joint Parliamentary Committees meeting on Steinhoff. Mr Jooste’s attorney has held that Mr Jooste’s constitutional right to a fair trial, which includes the right not to incriminate oneself, would be unduly infringed upon if he is compelled to appear before Parliament.
This issue raises an interesting question on Parliament’s powers and to what extent an individual would be protected when appearing before one of its Committees.
Right to a Fair Trial
The constitutional right to a fair trial, which includes the right not to be compelled to give self-incriminating evidence, is afforded to an accused person, meaning a person criminally charged. There is however, South African case law in which the view was expressed that this right should also be extended to suspects who are under investigation.
In Mr Jooste’s case it does not appear that he has been formally charged or has been asked by the Hawks to make any statement. He is therefore not an accused and at most he is a suspect concerning possible criminal activities during his term as CEO at Steinhoff. This is an important point to keep in mind.
Powers of Parliament
The starting point is a review of the extent of Parliament’s constitutional mandate to ensure accountability and scrutiny of executive action, ranging from the President to constitutional institutions and regulatory bodies. To do so, Parliament may, in terms of section 56 of the Constitution, summon any person to appear before it to give evidence under oath.
The Powers, Privileges and Immunities of Parliament and Provincial LegislaturesActof 2004 (the Immunities Act) provides that such summons must identify the purpose for which the evidence of that person is required. If a person fails to appear after being summoned without a sufficient reason, they could be fined, or even face imprisonment of 12 months.
The question in this case is:
- whether a witness appearing before a Committee can refuse to answer a question and more so, if they are entitled to legal representation.
The Immunities Act provides that the privilege of a witness in this instance is similar to that of a witness in Court. In general, a witness would not need to disclose information subject to legal privilege – for instance communication between herself and her attorney. Furthermore, if she answers honestly, she should be immune from civil and criminal liability.
However, the Immunities Act makes a crucial exemption to this rule: a witness giving evidence under oath in Parliament is obliged to answer any question put to her – even if the answer might lead to self-incrimination or exposure to a claim for civil damages. The only protection provided to such witnesses is that the evidence given may not be used against that person subsequently, except where the person has been charged with perjury.
So, in simple terms, the witness cannot refuse to answer a question – even if it may criminally implicate her – but the evidence cannot be used against her except if it is shown that she lied under oath in Parliament. It also appears that a witness would be allowed legal assistance, but her attorney cannot answer on her behalf.
As such, the Joint Parliamentary Committee has the constitutional prerogative to summon Mr Jooste. If he fails to appear, without sufficient cause, he is at risk of being fined or of facing imprisonment of 12 months.
Eskom Inquiry v the Steinhoff Briefing
Should Parliament’s approach in the Eskom inquiry differ from the Steinhoff briefing? The Parliamentary inquiry into Eskom is a fact-finding inquiry. It was established after the Portfolio Committee on Public Enterprises held that urgent intervention was required following reports of serious governance challenges of state-owned enterprises (SOEs). After hearing evidence, recommendations will be made on proposed action that could be taken. Terms and References were specifically drafted which provide the objective, the investigation phases, and issues to be interrogated. Importantly, before the Committee’s findings are published, “affected persons” could make further representations on the findings.
The Eskom inquiry has attempted to summon the Gupta bothers, Ms Dudu Myeni, as well as Mr Duduzane Zuma but the sheriff is struggling to serve the summons on the Gupta brothers and on Mr Duduzane Zuma. In terms of the Immunities Act, the sheriff has to serve on either the person mentioned in the summons or on a person above the age of 18 residing or being employed at the person’s “usual or last known place of residence or of employment or business”. Parliament might need to approach the Court for direction as the Immunities Act’s methods are not effective. In this instance, the Court could consider alternative methods of service with the Uniform Rules of Court as guidance and arguably extend it to this situation. The proceedings in the Eskom inquiry may very well influence how Parliament approaches Mr Jooste.
The Steinhoff briefing, on the other hand, appears to be no more than a meeting with regulators at this stage. Its purpose appears to be to establish the role of regulators and to obtain feedback from regulatory institutions. At the first briefing in January 2018, various Standing and Portfolio Committees jointly met with Steinhoff representatives, and various regulatory bodies. Each regulatory body gave a preliminary account of the corporate scandal’s impact and various investigations launched were also discussed. With the second briefing in March 2018, the Hawks, the Financial Services Board and the auditing team of PricewaterhouseCoopers reported back on various investigations and it was at this meeting that the Joint Committee felt Mr Jooste had to be subpoenaed.
It should be noted that the direction of the Steinhoff briefing is not, as yet, quite clear. No framework appears to have been drafted for further engagement (as stated in the first meeting). It is crucial that the Steinhoff briefing remain distinct from a criminal investigation whichever way it proceeds, especially where a suspect is yet to make a police statement. If the Joint Committee intends to establish a Parliamentary Inquiry into Steinhoff to gather evidence to make recommendations on how regulatory bodies could be strengthened, then it should be established to provide certainty.
Parliament has played an active role the last few months in its oversight function. It must be commended. Nonetheless, it is important to keep in mind that this process does not aim to determine criminal guilt. Parliament should be careful not to step in the shoes of investigative bodies and it should clearly delineate the purpose of calling witnesses.
*For more on the constitutional rights of arrested, detained and accused persons please see the Centre for Constitutional Rights’ annual Human Rights Report Card.