A high calibre team is set to investigate the state capture inquiry that was announced by former president Jacob Zuma last year. However, the evidence presented before the commission may not be used against witnesses. Does that mean immunity for those witnesses?
Speaking to Bongani Bingwa, law professor James Grant says one may only claim immunity based on what one says, so a witness cannot be prosecuted based on what they said in the commission. However, a court in a subsequent criminal trial would have the discretion to exclude any evidence which is derivative evidence.
Why would anyone spill the beans? The answer is because they are under threat of criminal punishment of imprisonment for six months if they don't tell the truth in the commission.— James Grant, Visiting Professor of Law at Wits University
The question then becomes, do people have the right to protect themselves against self-incrimination and how would this work? Grant says the commission compels you to tell the truth, but once you tell the truth, that particular self-incriminating evidence, will not be used against you.
The professor said the big question will then be, which evidence discovered by virtue of what the witness said, can that be used?
The bottom line is that in a subsequent prosecution, a court would have the discretion, whether to exclude it, so the default position would be that that evidence can be admitted. But the person who made the disclosure which led to the discovery of that evidence can make the argument that its unfair for the evidence to be admitted.— James Grant, Visiting Professor of Law at Wits University
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