Section 189 of the Criminal Procedure Act provides that a witness may avoid giving evidence or postpone when he or she gives evidence if s/he is able to present a ‘just excuse’. Similarly, section 6 of the Commissions Act, allows a witness to avoid giving evidence or postpone when he or she gives evidence by presenting ‘sufficient cause’.

The meaning of what is required by the Commissions Act (sufficient cause) is not well developed and will probably be informed by the jurisprudence under the Criminal Procedure Act – by what has come to be understood by a ‘just cause’. A ‘just excuse’ has been interpreted to mean that it must be ‘humanly intolerable’ to testify (see Attorney-General, Transvaal v Kader 1991 (2) SACR 669 (A)). I anticipate that if a witness would be in physical pain, or unable to focus because he or she will be unable to concentrate because of the condition itself or medication for that condition, a court or comission would accepted this as a satisfactory excuse.

Of course, a court or comission must also respect, at the very least, the right to dignity of the accused and especially his/her right not to be placed in jeopardy (because of a physical or mental condition) of incriminating him or herself – especially by disclosing a line of evidence that could lead to self-incrimination by indirect means. While direct self-incrimination is inadmissible in subsequent criminal proceedings, evidence which is discovered because of what an accused says (indirect evidence) is admissible in subsequent proceedings. Thus a witness needs to be alert and able to focus.

However, the public’s right to know is gaining prominence (see R v Parker 1986 (2) SA 56 (RA) and S v Maduna 1978 (2) SA 777 (D) – cited in Kader (above)) in the factors that a court or commission will inevitable take into account. However, if another source of information is available, a court (or commission) may well accept a refusal to testify (see S v Cornelissen; Cornelissen v ‘Zeelie NO en Andere, 1994 (2) SACR 41 (W)).

In addition, a court or comission will inevitably also consider whether it can rely on the return of a witness who intends to leave the country.

Any court or comission may, of course, take other factors into account. Whatever one may think of the witness concerned, it would seem flippant to regard the decision to be made as simple.

James Grant

23 Jan 2020

You must be logged in to post a comment.