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

CHAIRPERSON: Mr Vally?

MR VALLY: Mr Chair, the long awaited reply of Advocate Cilliers to his initial argument.

CHAIRPERSON: General Knobel, are you taking General Knobel today?

MR VALLY: We would like to if you want to work very late.

CHAIRPERSON: I see. It is your intention therefore not to take him just so if he wants to go?

MR VALLY: Yes he can be excused for today. We would need him tomorrow though.

CHAIRPERSON: Thank you very much.

MR VALLY: Mr Chair what time are we starting tomorrow morning?

CHAIRPERSON: The usual time.

MR VALLY: Is it nine 'o clock or eight thirty?

CHAIRPERSON: Can we deal with the argument now?

MR VALLY: If General Knobel is leaving he should be advised what time he should be back.

CHAIRPERSON: Mr Vally I would prefer nine 'o clock.

MR VALLY: Your are in the chair Mr Chair.

MR CILLIERS: Then we don't need to vote.

CHAIRPERSON: If we can hear you now then Mr Cilliers?

MR CILLIERS: As it pleases you there is only one aspect I want to mention. It is the aspect of Doctor Immelmann. It is my opinion that in light of the fact that tomorrow is the last day it is very urgent that finality should be obtained regarding his position. Should you do decide about that only tomorrow it will be effectively too late to get him to come here because as far as I know he is in Pretoria. And with respect I would like to suggest - I don't know what you want to hear an argument about that or what Mr Vally's attitude is. That the instruction should be given that Doctor Immelmann be available tomorrow for questioning. Should you not make that decision today that he should be questioned.

MR VALLY: I am not clear what is being raised here. I was waiting for argument on the constitutional point. Is Mr Cilliers or has Advocate Cilliers made an application that Doctor Immelmann should give evidence to this hearing at any point? Otherwise what ruling is weighted. There is an affidavit from Doctor Immelmann in which certainly Advocate Cilliers' clients are implicated and a copy has been made available to them. We await Doctor Wouter Basson's response on that in person but in order to get to that point we need to complete the argument and we need a ruling on the argument. Now is Advocate Cilliers making an application for Doctor Immelmann to be called? I am not clear what is being raised here.

CHAIRPERSON: Maybe can we take it on this basis? Let's deal with this whole question of whether or not Dr Basson and Dr Mijburgh you know are competent and should be compelled to testify. Because all other issues arise from that.

MR CILLIERS: To a certain degree yes but it will be our submission that although you will find that Dr Mijburgh and Dr Basson do not have to testify whether you decide they should testify is irrelevant. The question regarding Dr Immelmann's situation I can remember it was Mr Vally was not present. Mr Chaskalson was here when we mentioned this matter. That is why he does not know about this situation. It is my submission that regardless the rulings the end regarding Mijburgh and Basson, Mr Immelmann's situation remains relevant. I want to suggest in the light of the fact that time has become a factor and the cost implication is also relevant that Dr Immelmann be available tomorrow to give evidence. Should you then find that it is not necessary for him to testify or that it is not necessary to call him then you have the problem that additional costs will be incurred and then if you tomorrow decide that he need not testify it will have no practical effect because it will take longer to get him here and time is available to continue with the proceedings. This is why I want a ruling regarding Dr Immelmann today so that Mr Vally can convey the message to him tonight that he should be here tomorrow morning for questioning.

CHAIRPERSON: I decline to be persuaded that we ought to be making those arrangements at this stage. I think there are several factors that we have. We have for instance a witness who should have been today who is available which is my understanding would be taken first thing tomorrow even if the ruling - whichever way the ruling goes we shall have General Knobel and from the impression that I got of the sort of evidence that would be led from him he is going to be there for a pretty long time. So let's play it by the ear. We still have time if tomorrow it becomes clear that it is essential that Mr Immelmann should be here and I always want to remind you the extent of the agreement with the Attorney General's office as I understood it was to the extent that if it became absolutely essential and we were persuaded that his presence is desirably needed then the agreement ceases to be an agreement. Then he will be called. So let's trust me we will do everything to safe guard everybody's interests.

MR CILLIERS: At this stage I will leave it at that. And then present it again tomorrow morning. I am not going to disappoint Mr Vally. I am going to reply. I hope it meets his requirements or his expectations.
 Firstly I want to refer to a few short aspects from Mr Vally's arguments. I want to put certain things straight, with respect were not properly conveyed to me. Did not come through properly according to my submission. At the end of his argument he referred to the DAVIS v TIPP matter and also the

SUNDOWN: judgment which I mentioned. And Mr Vally with respect he conveyed wrong information to you regarding the judgment.

ADV POTGIETER: Is it

SUNDOWN: or

SEAPOINT: ?
MR CILLIERS

SEAPOINT: .

CHAIRPERSON: (...indistinct) record.

MR CILLIERS: He told you at the end of the two judgments and his verbatim words were that the Court ruling was "you have to give evidence." That is what the Court told the applicant who was the witness who brought an application regarding his right to silence. With respect that is not correct. The other one he says the Court "compelled to give evidence." This with respect is not correct. That is the essence of the judgment and that is the essence or the crux and the basis of my case. The reason in that judgment which I wanted to convey and why I want to repeat that I perhaps did not express myself very well. Those two statements by Mr Vally are ostensibly based on a wrong interpretation of those judgments. In those cases the judges Navsa J and Nugent J decided that here is a choice and by rejecting the application they are saying; "we are not obliging you or compelling you to testify. You have a choice." That is the basis of this application. This is the difference between the situation here in which we are involved to make a ruling and the cases in DAVIS v TIPP and the

SEAPOINT: . There the judges said: "Your application does not succeed. I am not staying all the proceedings because it is not necessary to testify if you don't want to. If you don't want to testify you can leave it." I shortly want to refer you to the relevant passages it is in the

SEAPOINT: pages 645 a and 648 g and further on. In the DAVIS v TIPP judgment it is page 1157 f to g. I am not going to quote that again. I have already done that before. But it is precisely the situation when this so-called State coercion exists. In that judgment it was mentioned that the proceedings could be stayed until the finalisation of the criminal proceedings. Or as Kriegler J said in the Hanvaga mention should not be made of unlawful compulsion. And this is the situation with what we have to do here.
 The effect of the

DAVIS: judgment, the

SEAPOINT: decision, is that the people did not have to testify.
 The second point I wish to state is regarding the FERREIRA v LEVINE judgment. With respect towards the statement by my colleague this is totally irrelevant. If you look at the judgment of DAVIS v TIPP and the