Extract from Subscriber Newsletter on Corporate Privilege

'The reason that one must venture beyond the boundaries of OHS legislation is simple. The Constitution is supreme and overrides any statute or common law provision. (A constitutional override must first be challenged in court and ultimately verified by the Constitutional Court to take effect). Any person who advises employers and users on matters of OHS law would be failing in their task if they were not always cognisant of the Constitution and its impact on certain provisions of OHS legislation. Particularly the impact that the Bill of Rights has on the rights of natural and juristic persons at judicial proceedings such as section 31 Investigations and particularly section 32 Formal Inquiries where cross-examination is allowed. (The same applies to sections 60 and 65 of the MHS Act although section 63 of the MHS Act, like the Constitution itself, does provide for limitations to be placed on these rights). Although there are various provisions in the OHS Act which are constitutionally dicey – the OHS Act having been promulgated before the Constitution was in place – the focus of this newsletter will be on evidence given or statements made by persons during investigations or formal inquiries.

Section 35(5) of the Bill of Rights states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. While section 35 does deal with arrested, accused and detained persons and while sections 31 and 32 of the OHS Act are inquisitorial as opposed to accusatorial of nature, one must bear in mind that the law of privilege applies at these procedures (i.e. as if someone was an accused in a criminal court) and that the Constitution encourages the development of the common law to address issues that were previously virgin legal territory. It has long been accepted that natural persons do enjoy the right to silence and the right against self-incrimination at any of the inquisitorial procedures of OHS legislation even before the Constitution was in place. These rights were afforded in terms of the Criminal Procedure Act. (Law of Privilege)'.