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

MR NTSEBEZA: Thank you Chair. I actually do not seek guarantees from the government. I would be very uncomfortable if I were to be perceived to be acting on a guarantee from government that they will not interfere. My Vally if I could just put the question to you. As I understand the question from the applicants they are not saying that whatever transpires in the course of these proceedings will never be made public. In fact I think that is the (...indistinct) that all the proceedings will be made public when you as the Commission have decided to make them public. They are also not saying that you should not have a full enquiry. In fact they are saying you have decided to self-censor yourselves because you have already decided that certain documentation will not be used because you perceive it to be documentation that might proliferate. They say use the method of an in camera hearing for purposes of using even those documents which you thought were they to be used in public are going to be proliferation. But that it must be your decision at the end of time and yours alone to release whatever you think ought to be released. Without taking the risks of some documents being sprung on you or of human error in the heat of a public hearing allowing certain documents for you only to realise after harm has been done that, that is a document on further reflection that you should not have used. Because in fact it does exactly what you thought it would not do. In other words there can be no guarantee that you could be vigilant and vigilant to an extent that you might be able to prevent witnesses, let alone documents, witnesses from dealing with issues that we are not aware of ahead of time but which you could not stop from circulating throughout the world before you could prevent harm from taking place. That is what I understand to be the essence of their argument. What are you saying to those specific concerns?

MR VALLY: Mr Ntsebeza the first point I want to make is our Act is clear, Section 33 subject to provisions of the section the hearings of the Commission shall be open to the public. That is part of the whole procedure and modus operandi of this Commission. As we enjoined to by parliament.
 The second point I want to make is that the documents we are talking about are not documents that we have taken willy-nilly. We have taken a whole set of documents, we have considered it carefully. Thereafter we entered into negotiations with government. And yes we have self-censored ourselves not because we were convinced that these issues would lead to proliferation but to meet the concerns that were raised with us. So we remove some documents from the public domain completely we did not use at all and some documents we agreed and I will make this application to the panel after this is decided that these will not be released to the press to meet the concerns being raised with us. 
 I have told you our views. Our views are that this information is freely available. And with respect to the scientists involved our opinion is the science is poor. The science is not particularly good. 
 And then the third point you raised Mr Ntsebeza is the issue of harm by witnesses giving evidence. How much can a person blurt out which they cannot do once they walk out of our doors? If they wanted to do something of this sort then they would have done it. We have already heard stories of certain people going to Libya. Now they wait on a transnet contract, maybe it had nothing to do with chemical weapons. But it is not the fact of them sitting here giving evidence which is going to be the issue of whether they are going to give out information or not. The press is there, there are enough journalists who will be willing to hear anyone whether it is within our premises or outside our premises. 
 So that issue, with respect that some one in a few minutes will blurt out things I do not believe holds water. I think I have covered all three points you have raised Mr Ntsebeza.

MR NTSEBEZA: But Mr Vally just on what you have said very lastly, do you think that any witness who had been enjoined to confidentiality and actually been ordered by this confidentiality would breach that confidentiality simply because we have no hold over their mouths? Are you suggesting that even if, let's assume that we were inclined to go the direction of having the proceedings in camera and then every witness who came was enjoined and actually sworn to confidentiality. Are you saying that does not matter because they could walk out of here and have press interviews.

CHAIRPERSON: (...indistinct) before. (...indistinct) debate.

MR NTSEBEZA: Can I have a reply?

MR VALLY: Ja it is going to be difficult to say that you will not repeat anything you say here when it is in a public hearing. There will be some documents which we were asked not to be released to the press. But the source of these documents by far the majority if not, by far the majority were obtained from some of the people. They were working with these documents in fact they were found in the possession of some of the witnesses. So this is not new information that we are releasing. But I am not clear as to exactly what the issue is. Thank you Mr Chair.

CHAIRPERSON: Denzil?

ADV POTGIETER: Thank you Chairperson. Mr Vally just as a matter of law do you accept that the obligation not to proliferate overrides the provision in our Act relating to full disclosure public hearings, transparency and so on? What is your position on that one first?

MR VALLY: It is arguable but I suspect simply because apparently there is no provision in our Act which says that our Act supersedes other acts but it is arguable I think it will be question of interpretation. The courts will try and see if you can compromise between the two and if you cannot compromise then they will take the more emphatic provision. But I want to stress Mr Potgieter that we do not want to proliferate. We honestly are committed not to proliferate. And how we are going to proliferate is if witnesses blurt out things. I have not heard anything else. The documents we have gone through extensively with various officials. We have raised (...intervention)

ADV POTGIETER: Sorry, thank you, sorry. No I understand that point, you have made that point. So what we are really talking about is a process, we are in agreement that our proceedings here should not contribute towards proliferation. And we talking of process, how do we cater for that problem? Now the point was raised by Professor Haysom, he said that the question of control in cross-examination for example there is a potential that we might be falling foul of this obligation that we accept not to proliferate. What is your response to that?

MR VALLY: We hoping and we still suggested that the non-proliferation Council as well as the other persons who have concerns about this issue and in fact we would enjoin the panellists themselves. First of all the people with a direct interest and a direct statutory obligation, the non-proliferation Council should have representation where they can stop such things from happening. And secondly the panellists themselves should be sensitive to this issue. That is all I can suggest. I certainly will be sensitive to any notion of proliferation and if I have an opportunity and the issue arises I will certainly also object.

ADV POTGIETER: Thank you Mr Vally.

CHAIRPERSON: Professor do you have any? I gather I have to give you a "woordjie."