Special Hearings — Chemical And Biological Warfare Hearings — 1998-07-29

ADV POTGIETER: So these were instructions to you as to what you should be saying to us?  Have you changed the basis of this now because you had said to us that your postponement, your application for a postponement is until tomorrow or whenever it suits us and I understood it to be on the basis that Doctor Basson will appear and the proceedings would then carry on, but the instruction that you got here was slightly different in the sense that it ends on the note that we should change the process and we should, you should be asking for an opportunity for Doctor Basson to respond in writing to questions.  Now have you abandoned that leg of your instruction?  Is your position presently that it is a postponement for Doctor Basson to have his Gauteng lawyers present when he is asked questions?  Is that the present position?

MR VAN NIEKERK: Mr Chairman, there may be an amalgamation of both of those, and please I ...[intervention]

CHAIRPERSON: It can't be.

MR VAN NIEKERK: As I understand it, it may well be possible that the matter is postponed and that in the interim questions are put to Doctor Basson, which he can reply to in writing as soon as possible and the matter will then be resumed.
 My interpretation of this document is that ...[intervention]

CHAIRPERSON: Mr Malan, I don't want to cut across you ...[intervention]

MR VAN NIEKERK: I'm not Mr Malan, so you're not cutting across me.

CHAIRPERSON: I mean Mr van Niekerk.  I don't want to cut across you, I want to treat you with the greatest respect.  Your application until you introduced this document was premised on the sole basis that the Transvaal attorneys, Gauteng attorneys and counsel representing Doctor Wouter Basson are not able to be here.
 You were fully appreciative of the fact that he is here to answer questions put to him in a public hearing and that is the application that we are seeking to apply our minds to.  The sole issue that we adjourned for was for you to obtain and unequivocal commitment on the part of the Gauteng legal representatives as to their availability tomorrow and possibly Friday.  That was the basis on which we adjourned and that was premised on the understanding that it still our prerogative to refuse any application for a postponement.  I just want that to be very clear.  We have not pronounced on - I indicated that we may even postpone to only 2 o'clock this afternoon.
 Now this document takes the attitude that your client may not even have to appear in the form in which we have understood and in the form in which your application was premised upon.  
 Now what Advocate Potgieter seeks to understand from you is whether you are now making a fresh application on the basis of the last paragraph or whether you are abandoning the instructions which you got yesterday and were fully appreciative of and which when you made this application this morning, you did not rely upon because if you had this document yesterday, when you did make your application for a postponement you knew that one of the bases that your client seeks the matter not to be heard, apart from him not having a legal representative who was au fait with the issues, was that he would prefer to reply to such questions as we may want to put to him, in writing.  
 You didn't premise your application this morning on that ...[indistinct].  And that is why Advocate Potgieter wanted to know whether we must understand that not withstanding your reading this particular document into the record, we should not understand you to be relying on that section of it that seeks to say your client must be given an opportunity to reply in writing.  You attempted to say it's an amalgamation and I say it can't be.  I cannot see how it can be.  Can we then get an indication from you that you are not relying in your application for a postponement, on us granting it subject to Doctor Wouter Basson only submitting written replies to such question as we may put to him?

MR VAN NIEKERK: Mr Chairman, that is not so at all.  If you will have a look at paragraph 2, you will see that it is made quite clear there that Doctor Basson is prepared to answer any question that is lawfully put to him.

CHAIRPERSON: I see.

MR VAN NIEKERK: What we are doing, as I understand my instructions, is to say: in addition to that, if there are written that the Commission wants to be answered we will endeavour to answer those written questions, notwithstanding that there is a very short time limit.

CHAIRPERSON: Oh I see.

MR VAN NIEKERK: We will endeavour to assist this Commission that that additional offer is made and it should be understood as such.

CHAIRPERSON: Oh I see.

YASMINE SOOKA: Sorry Chair, but it's prefaced by
"In die lig van die probleme hierbo is my client nie bereid om te getuig"
and that is a preface to that offer to answer questions in writing, and certainly my understanding of the nature then of what Mr van Niekerk is saying, is that this paper in fact changes the earlier application that he made because he is now saying here that if his legal representatives, the Transvaal ones are not available then he's prepared to give evidence, and in that event he will be prepared to answer the questions.  Maybe I understand Afrikaans differently, so perhaps Mr van Niekerk can elucidate on that.

CHAIRPERSON: Advocate Potgieter, do you want to chip in your question also to Mr van Niekerk at this stage?

ADV POTGIETER: Chair, no, I think I should perhaps just allow Mr van Niekerk to respond to that.  I've got another difficulty which I want to raise.

CHAIRPERSON: Mr van Niekerk?

MR VAN NIEKERK: The position is, Mr Basson - I'm here to apply for a postponement.  I have not had an opportunity to make myself au fait with the documentation and I believe there is a mass of documentation and I will not be representing Doctor Basson here today in that regard because I will be failing in my duty as an attorney to a client if I embark on such a cavalier attitude.
 Doctor Basson has said he will give evidence and I have set that out in paragraph 2.  As I understand it, that evidence will be when his legal representatives are here and he is entitled to have that in terms of the Act.  
 Insofar as the written questions and the written answers are concerned, that as I understand it is made in an endeavour to assist this Commission to deal with the matter expeditiously.  If the Commission doesn't want put written questions to Doctor Basson, so be it.  He doesn't have to answer them.  It's an offer he is making in order to assist this Commission, nothing more and nothing less.

CHAIRPERSON: Advocate Potgieter?

ADV POTGIETER: Thank you.
 Mr van Niekerk, just on a different issue.  Are you persisting with paragraph 8, particularly that first sentence?

MR VAN NIEKERK: Yes, Mr Chairman, those are my instructions.