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

CHAIRPERSON: Are you saying for purposes of us taking into account prospects of a success we should take into account the arguments that you placed before us when we considered the matter in extent when we were dealing with the application that was before us?

MR VALLY: That is correct Mr Chair.

CHAIRPERSON: Mr Cilliers?

MR CILLIERS: I do not hear Mr Vally's reply to say whether he thinks there is a possibility or a chance on success or not. He says that you must regard his arguments. I agree with him otherwise we must address you again and it will take another full day. But I do think that the important question that you asked him he did not give the indication that he thinks that there is no chances for success on such an application because that will indicate as to what I am going to tell you now.

CHAIRPERSON: Mr Vally are you wanting to place on record what you want ...(inaudible)

MR VALLY: Mr Chair, Mr Cilliers may not have heard me but I said I did not believe there was a legal or constitutional basis for asking for a postponement of the matter pending the conclusion of the case against Dr Basson and secondly in respect of the awaiting prosecution, possible prosecution of Dr Mijburgh and a conclusion of that case. So yes emphatically so that there aren't any legal or constitutional basis therefor and therefore I respectfully submit that the prospects of success in such a court application are such that he will not succeed and therefore there are no such prospects for success in any proposed court application.

CHAIRPERSON: I want to be sure that I hear you. Were the application were to be premised on a direct challenge to the constitutionality of the provisions of Section 31 what would you say? I know that this forum is obviously not competent to declare on the constitutionality of any provision but I am inviting your legal argument not argument but your position and attitude to whether or not you are able to express yourself on the prospect of success of an application which would be premised on the constitutionality or otherwise of the relevant Section of the Promotion of National Unity and Reconciliation Act.

MR VALLY: Mr Chair emphatically I believe the prospects of success in terms of challenging the constitutionality of Section 31(3) and of our calling both Dr Mijburgh and Basson to give evidence at this hearing has no chance of success.

CHAIRPERSON: Then you are saying with regard thereto we would like us to recall your arguments which you placed before us to the extent that they are relevant on that point?

MR VALLY: I want to reiterate that Mr Chair we have gone out to the extensive argument on the whole point and there has been a ruling in terms of such argument as well. So my argument and the legal basis on which I say that there are no prospects of success in my respectful opinion to the proposed challenge as regards constitutionality of the provisions are before the panel already and I reiterate those. Thank you Mr Chair.

CHAIRPERSON: Mr Cilliers?

MR CILLIERS: With the greatest respect I am not going to address you fully again. You must also consider my arguments which have already been made. The normal way of dealing with this perhaps you are very close to a situation as the High Court is when it has to decide whether it is going to give leave to appeal against this decision. I think this is more or less the same position in which you are at present. Because the relevant question is also; is there reasonable possibility that another court can come to another conclusion? And that is in the same position that you are now asking questions regarding this aspect. The approach in such case will be that in all cases where there is a decision or a judgment which has another conclusion then leave is given because then there has already been a ruling from a court with that other conclusion and then there is a possibility that another court can come to a certain ruling. Now I have given you the rulings of Kriegler J in which he says expressly and mentions civil proceedings such as these and said that they cannot continue and they stayed all proceedings. I referred you to DAVIS v TIPP and the ruling by Navsa J in the

SEAPOINT: ruling where it was said expressly that those measures will be taken if there is State coercion which exists here as Advocate Potgieter has found to be. So apparently there are at least two courts and my learned colleague could not give you a single ruling in opposition to that which says that where there is State coercion to force an accused to testify in proceedings before the criminal trial then measures will be taken such as standing down if that is the only suitable arrangement that can be made. So how he can argue that there is no possibility of success I do not understand that because then there will have to be a ruling that both Nugent and Navsa are wrong in those rulings as far as they have said that postponement will be given. So the ruling in front of you says that there is a basis for this application and therefore you cannot but accept that there is a possibility that a court can find that with all respect Advocate Potgieter's ruling is not correct.

ADV POTGIETER: That is not my ruling.

MR CILLIERS: The Commission's ruling as delivered by you. But my submission is that this is the position in which you find yourselves it is such as the leave to appeal in front of a High Court.
COMMITTEE ADJOURNS