Special Hearings — Chemical And Biological Warfare Hearings — 1998-06-08

CHAIRPERSON: Learned friends.

MR VALLY: They are my learned friends. In conclusion I would say two things. If there is a commitment to eventual disarmament as a goal then this is a first step.
 Number two in respect of, we have heard that there is a bit of a club in terms of Section 21 of the non-proliferation weapon of mass destruction Act which says: "If the Minister is of the opinion," and the Minister we are talking about here is the Minister of Trade and Industry. 
"If the Minister is of opinion the disclosure of certain information may compromise the functions of the Council or the interests of the industry he may direct that any proceedings excluding court proceedings be held in camera."
And we respect the fact that I think it was indicated that there would not be, various parties would not be using this section. There has been this request regarding time to reflect, I hope it is simply to send a letter to Vienna or whatever but we are not talking about court applications, especially since we have been involved in negotiations on this issue for over two years. Thank you Mr Chairperson.

CHAIRPERSON: Thank you very much. Alex wanted to say something and then.

DR BORAINE: Chairperson I want to take up only one issue and it is the one that Mr Hanif has alluded to in his closing remarks. Just so that we can get absolute clarity we want to give due weight to all the arguments that we have heard and I, just so that there is no confusion. Advocate Gumbi at the very end of your submission you made a request that if whatever the decision of this panel would be you would like to be informed so that any necessary steps could be taken and you quoted as one of those the letter to Vienna, which certainly is very innocuous. In the course of Mr Minty's and your own presentation you did refer to certain powers that the Minister has and Mr Hanif has just referred to that. Can you tell this panel is there any consideration at all that if the panel should decide that the proceedings will be in public that the Minister or the government would consider taking action by way of prohibiting the TRC from continuing if it should agree to continue in public?

MS GUMBI: Well perhaps I can respond very directly to that to say that the Minister of trade and industry has certainly not been consulted with that in mind to say you know; "Would you or would the government exercise this particular authority?" All we were asked to request was to just give a short, very brief time to reflect on it. And if the ruling should be that the matter should be held in public then the government would try to move towards protecting itself. And that is why I used an example of a letter. You know if you have a disclaimer in a letter then as a member state you may be found not to have contravened your obligations because you have put it on record with the necessary authority to say you know
"We disassociate ourselves from this, this is the position that we put as a government but it is a decision of another body. It is not our decision."
So I certainly am unable to say specifically what is going to happen. All I know is that our principals will be in Cape Town today to hear what the result is and reflect on it.

MR HAYSOM: I have to, sorry can I just add something there. It seems to me also that if you take a decision for example that the proceedings should continue in public that the Council may need to secure legal representation at the hearing to attempt in a fashion suggested by Mr Vally to protect its interest as being the only method left to it in the rough and tumble of the enquiry. So that would be one issue which we have not been able to address.

DR BORAINE: Chair there are just two additional comments I want to make. One a large number of witnesses have been brought to this hearing. Notices have been given, a great deal of preparation has gone into this. It would be extraordinarily difficult for us to delay the hearing. And I do not want to in any way anticipate whatever the decision of the panel may be. We will go and talk about this and think about it very hard. But I have to say also that I am even more concerned now having listened to Advocate Gumbi because there certainly does appear to me, and if I am wrong please correct me because this is a factor we would have to take into account, but it does seem to me somewhat ominous that the principals would have to be informed. Of course that is right but there would be need time for reflection, possible taking of legal advice which sounds as if one of the considerations may be the Minister acting on the powers that he has in terms of the Act of enforcing this hearing to be in camera. And I am not sure of you can give me any assurances now but certainly that would assist us in our own deliberations when this panel is adjourned.

MS GUMBI: Well it certainly was not meant to sound ominous Chairperson or Deputy Chair. It is just that it is very difficult for me to jump into the minds of our principals and try and anticipate which way it would go. You know that this matter has been discussed on several occasions with the man and I think our presentation today as you heard Professor Haysom say was as a result of some real detailed reflection now lately after all the processes that we had gone through to examine the 50/50 approach. You know the joint, disjointed hearing and all that. So I am certain that you can hear some real coherent voice coming out to say we have really now had a reflection on the matter.

DR BORAINE: Can I just reassure you that there has never been a suggestion in any of the discussions that, that kind of power would be brought into place. I think neither of us are in a way to say in which way government would respond but certainly when we discussed it this morning and discussed the need possibly to be afforded an opportunity is actually or particularly related to the need to not take legal advice but to have a lawyer here in the proceedings. Because we are not the persons who are going to sit here and monitor.

CHAIRPERSON: Thank you very much. Dumisa?