Advocate Andrea Johnson invokes s35(3)(j) self-incrimination protection
Legal commentary
On Day 144, Advocate Andrea Johnson — Director of the Investigating Directorate Against Corruption (IDAC), which is prosecuting the Crime Intelligence matter this Commission has also examined — placed on record that she will invoke the privilege against self-incrimination under section 35(3)(j) of the Constitution if called to testify on certain matters, stating in her affidavit that "the Commission's fact-finding mandate does not override [her] constitutional protection against self-incrimination under any circumstances." The claim sits on genuinely unsettled ground: section 35(3)(j) by its terms protects an accused person in criminal proceedings, and South African commissions of inquiry have repeatedly had to grapple with whether, and how far, that protection extends to testimony compelled outside a criminal trial — a tension that has surfaced in some form at previous commissions of this kind. Whether it applies here, and whether it would bar only direct use of her testimony or its derivative use as well, is not something the record before us resolves.
In plain terms
The person leading the investigation into corrupt police officials has told the Commission she may refuse to answer certain questions about her own conduct, using the same constitutional right that lets any South African stay silent rather than incriminate themselves. That right is real, and it belongs to everyone — but it raises an uncomfortable question here: can the head of a corruption investigation decline to explain her own actions, at the very inquiry set up to get to the bottom of that corruption? The Commission hasn't yet said how it will handle that. This isn't evidence that she did anything wrong — everyone has this right — but it does mean the public may not get a full account of her role from her own testimony.
Cited claims
Supporting context