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

CHAIRPERSON: The honeymoon is over, let's get on with the job.   Mr Cilliers.

MR CILLIERS: As it pleases you Mr Chairman, the witness hasn't been called formally yet but can we continue with the legal argument regarding the question if there's obligation on these witnesses to testify.

CHAIRPERSON: One of the witnesses, we have sworn Dr Mijburgh I think.  Can I ask....

MR CILLIERS: The witness Mijburgh has been sworn, Basson not yet.  My submission will be, for practical reasons, that we first have the argument although I have no specific prejudices I think it will be practical that you first make the decision before he is sworn in.

CHAIRPERSON: Adv Potgieter can you swear the witness in.

WOUTER BASSON: (sworn states)

CHAIRPERSON: Mr Cilliers.

MR CILLIERS: As it pleases you.  As indicated Mr Chairman during last week to Mr Vally and Mr Chaskalson and more specifically this week to you, there is at this stage an application on behalf of the two witnesses before you and what we want is that their evidence be suspended according to the criminal charges pending against them.
 At this stage, in view of the attitude of Mr Vally I will make no distinction between the two.  I will deal with the legal position on the same basis, although there is a small difference between the two, but Dr Basson, as you possibly know, has already been arrested and is out on bail and a date has already been set for his appearance in court.  He has appeared in court regularly, but from the 17th of August a final charge sheet will be provided and he will be expected to plead and from there the case will be continued.
 The position is not quite the same regarding Dr Mijburgh, but I have been told by Mr Vally that we can deal with the matter and it's my submission that this is an agreement with the present law in this regard and that Dr Mijburgh has the same rights, in light of the indications, that Dr Mijburgh will be charged for these crimes or offences.  It is only the finalising thereof in the near future.
 As regards the legal position ...(intervention)

ADV POTGIETER: I am sorry Mr Cilliers before you do that, don't you just want to sketch the practical situation for us?  You said that this evidence must be suspended or curtailed pending the criminal charges, what is the prognosis?  How far has this case progressed?  When is it going to be completed?  Is there any idea that this case will be completed by the time that this Commission has to complete its work which is the 30th of June?

MR CILLIERS: No, this is an absolute date and that there's no possibility of an extension as has happened in the past then there can surely be no realistic estimation that it will be completed by that stage unless the government will not continue with the prosecution.  But there was an initial indication that the State would be ready at the end of January this year, but as a result of problems on their side they could not continue with this or could not even give us the charge sheet at this stage and the situation was extended or delayed, postponed till August.
 So it is our submission that this is a realistic possibility that has not been envisaged at all by the Attorney-General and we can therefore not make a realistic estimation that if the case continues that it will be completed by the end of June.

ADV POTGIETER: So if we should curtail this or postpone it, it would not be practical unless there is an extension of the period of taking of evidence.  That's out of the question.

MR CILLIERS: I am not clued up about that.  I can possibly boil down to that, yes.

ADV POTGIETER: So you want to deal with the legal position?

MR CILLIERS: Yes.  As regards the legal position you must just understand the factual basis first and I think that Mr Vally and I are in agreement about the fact that the factual basis on which this questioning rests is exactly the same as the factual basis of the criminal charges against these two witnesses.
 The evidence that they will give here, if they are obliged or compelled to testify, that will deal with exactly the same aspects as the complaints are against these specific witnesses.  You must accept this as the basic point of departure because this is of cardinal importance.
 As has already been said I will not continue with the factual situation, the distinction thereof, in view of Mr Vally's attitude that he makes no distinction between the two.
 We must then start with Section 35 of the Constitution which deals with the relevant situation.  You must keep in mind this so-called right not to answer, the dealing with accused people which has been entrenched in our common law.  It's the deep-rooted law or right which is in all the legal systems in the world including the Canadian and the British legal systems, so it's a deep-rooted right which is accepted throughout the world as a right in the fair dealing, handling, of any person who is charged.
 Section 35 of the Constitution went further and this specific right was entrenched in the Constitution.  Section 35, as you possibly know, deals with three sub cases.  The heading is perhaps already an indication of which three cases are dealt with, namely arrested persons; detained persons and accused persons.
 Subsection 1, already this is now before the charge sheet has been given to a person, or a decision has been made, but on his arrest already the Constitution in Section 35(1)(a) gives the right without any - for such a person and such a person has the right not to answer.  There is no compromise reached in that article and this is a right which he is given and which will be our respectful submission which cannot be affected by proceedings of any nature.  This is how in the recent past it was dealt with in the courts in South Africa and we will in time refer you to that.   
 At the outset I would also like to make something clear.  We must just make a clear distinction and perhaps for the people on the panel who are not jurists that is just something which you must distinguish between in your own mind, one gets the situation of self-incrimination on the one hand and the so-called right not to answer on the other hand.  These are two total different rights and they must be dealt with, are dealt with differently in the Constitution and are dealt with by different sections.
 This is also dealt with on a different basis in different legislation.  I will try to explain briefly what the difference is.  
 The right against self-incrimination is purely that right that a person has not to give any testimony during any proceedings which will implicate himself.  Such right is also included in Section 35 and 35(3)(c).  It's been entrenched in these sections, the right not to answer as opposed to this is merely the right that an accused person is not obliged or cannot be compelled to - this is a basic right that he has to say that during my case I will give my testimony.  The basic difference and handling of this is of great importance and this is explained as such. And this is the right to give self-incriminating evidence can be saved by legislation and Section 31 argues this to a large extent.
 The negative effect that this has for a witness is that the incriminating evidence cannot be used against that person in a later hearing.

CHAIRPERSON: ....to remove yourselves here.  Thank you.