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South African Human Rights Commission Act, 2013 (Act No. 40 of 2013)

15. Investigations by Commission

 

(1) Pursuant to the provisions of section 13(3) the Commission may, in order to enable it to exercise its powers and perform its functions—
(a) conduct or cause to be conducted any investigation that is necessary for that purpose;
(b) through  a commissioner,  or  any  member  of  staff  duly  authorised  by  a commissioner, require from any person such particulars and information as may be reasonably necessary in connection with any investigation;
(c) require any person by notice in writing under the hand of a commissioner, addressed and delivered by a member of staff or a sheriff, in relation to an investigation, to appear before it at a time and place specified in such notice and to produce to it all articles or documents in the possession or custody or under the control of any such person and which may be necessary in connection with that investigation: Provided that such notice must contain the reasons why such person’s presence is needed and why any such article or document should be produced; and
(d) through a commissioner, administer an oath to or take an affirmation from any person referred to in paragraph (c), or any person present at the place referred to in that paragraph, irrespective of whether or not such person has been required under the said paragraph to appear before it, and question him or her under oath or affirmation in connection with any matter which may be necessary in connection with that investigation.

 

(2)        

(a) Any person questioned under subsection (1) must, subject to the provisions of paragraph (b) and subsections (3) and (4)—
(i) be competent and compelled to answer all questions put to him or her regarding  any  fact  or  matter  connected  with  the  investigation  of  the Commission notwithstanding that the answer may incriminate him or her; and
(ii) be compelled to produce to the Commission any article or document in his or her possession or custody or under his or her control which may be necessary in connection with that investigation.
(b) A person referred to in paragraph (a) is only competent and compelled to answer a question or compelled to produce any article or document contemplated in that paragraph if—
(i) the Commission, in consultation with the Director of Public Prosecutions who has jurisdiction, issues an order to that effect;
(ii) the Commission is satisfied that to require such information from such person is reasonable, necessary and justifiable in an open and democratic society based on freedom and equality; and
(iii) in the Commission’s judgement, such person has refused or is likely to refuse to answer a question or to produce any article or document on the basis of his or her privilege against self-incrimination.

 

(3)        

(a) Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of subsection (1) is not admissible as evidence against the person concerned in criminal proceedings in a court of law or before any body or institution established by or under any law, except in criminal proceedings where the person stands trial on a charge of perjury or a charge contemplated in section 22(b) of this Act or in section 319(3) of the Criminal Procedure Act, 1955 (Act No. 56 of 1955).
(b) Subject to the provisions of subsection (2)(a)(i), the law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court of law applies in relation to the questioning of a person in terms of subsection (1).

 

(4) Any person appearing before the Commission by virtue of the provisions of subsection (1)(c) and (d) may be assisted at such examination by a legal representative and is entitled to peruse such of the documents referred to in subsection (1)(c) or any other relevant documents.

 

(5) If it appears to the Commission during the course of an investigation that any person is being implicated in the matter being investigated, the Commission must afford such person an opportunity to be heard in connection therewith by way of the giving of evidence or the making of submissions and such person or his or her legal representative is entitled, through the Commission, to question other witnesses, determined by the Commission, who have appeared before the Commission in terms of this section.

 

(6) Subject to the provisions of this Act, the procedure to be followed in conducting an investigation must be determined by the Commission with due regard to the circumstances of each case.

 

(7) The Commission must make known publicly the particulars of the procedure which it has determined in terms of subsection (6).

 

(8) If it is in the interests of justice or if harm to any person might otherwise ensue, the Commission or a commissioner may direct that any person or category of persons or all persons the presence of whom is not desirable may not be present at the proceedings during the investigation or any part thereof.

 

(9) Notwithstanding anything to the contrary contained in any law, no person may disclose to any other person the contents of any document in the possession of a  commissioner  or  a  member  of  staff  or  the  record  of  evidence  given  before  the Commission during an investigation, unless the Commission determines otherwise.