Dudu Myeni: State Capture, the Right to Remain Silent and the Privilege against Self Incrimination.

We need a justice that restores.

This week, the testimony of Dudu Myeni at the state capture commission has brought some important issues to the fore.

Some months ago I wrote about the possible role of restorative justice in the problem of state capture and corruption. This, in essence, because the complexity of running prosecutions and gaining convictions in commercial crimes cannot be adequately fathomed by society in general and so the very public state capture enquiry adds fuel and energy to society’s already desperate demand for justice which is often and to a large extent the misinterpreted desire for retribution and revenge. It is a blood lust type of energy and it is not good for us as a society which desperately needs to heal and achieve justice. Real justice is that every person has what they need. For the public to get what they need we need to have discussions around getting rid of the tender board that opens the way for unsavoury alliances between the public and private sector and expand public works. But that’s a discussion for a future blog.

Read my first blog on state capture and corruption here.

Thuli Madonsela has recently given credence to the potential for restorative justice for clerks and individuals possible lower down in the matrix that is state capture. I would argue that it is imperative for all of us that the entire process and every part of it is the work of restorative justice.

The state capture enquiry is complex and this week gave us some insight into (but not the full extent of) just how complex it may be.

Dudu Myeni has asserted her right to claim the privilege against self-incrimination. At the outset she expressed that she supports the enquiry and wishes to co-operate but feared that her right to remain silent may be compromised if she were to be charged criminally and would thus be asserting her privilege against self-incrimination.

Ms Hofmeyr for the commission clearly articulated the distinction between the right to remain silent and the privilege against self-incrimination. Ms Myeni’s legal team made some powerfully compelling submissions that Constitutionalist ought to reflect on with a great deal of care.

The aforegoing right to remain silent accrues to the accused in criminal proceedings and the latter (privilege against self-incrimination) can only be invoked in response to particular questions with the witness claiming privilege and putting forth reasons that justify that privilege. This means that Ms Myeni could not claim privilege on an entire theme of questioning such as SAA but needs to claim
her privilege in each instance where she may be exposed to incrimination. The economics of this painful process of questioning and claiming privilege on each question is mind boggling.

The result is that the media and public are watching Ms Myeni do what she is lawfully entitled to do and are widely and wildly interpreting her asserting her privilege as affirmation that she must be guilty.

This may present a constitutional anomaly, comparable, I think, to the reverse onus. She cannot invoke a right to remain silent because this is not a criminal forum and as such she cannot defend herself in the way that she would be able to in a criminal court and enjoy the onus and high burden of proof being squarely on her accusers. Instead, she must appear at the commission, on television, asserting her privilege against self-incrimination in every instance, which is perfectly good in law, and be exposed to vast sectors of society and the media pre-judging her as guilty and moreover ridiculing her in ways that may violate her dignity and harm her reputation for life whether she is ultimately found guilty or not and whether in fact she is guilty or not.

This may well open the way for her legal team to argue in a criminal court, if she is charged, that her matter is incapable of a fair trial.

All the while, South Africans are watching, getting the usual angry rise and becoming more brazen in often racially charged ridicule, comment and conjecture whilst billions drain away to a process that simply does not have the capacity to give us what we need. Healing and a just society.

That is a society where everyone has what they need.

By Sheena St Clair Jonker