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

CHAIRPERSON: The time is five past nine.  This matter was supposed to have started five minutes ago.  We are now ready to start.
 Mr Vally, can you call the witness?

MR VALLY: Thank you Mr Chairperson.  The witness is Doctor Basson.  We had been told by his attorney that he as taken the six thirty a.m. flight from Johannesburg, so he may be slightly late this morning but I believe he will be represented by his local correspondent.

CHAIRPERSON: You need not stand but you need to put yourself on the record properly.
CHAIRPERSON EXPLAINS MICROPHONE TO COUNSEL

MR VAN NIEKERK: I don't know whether the red button is working or not.  My name is van Niekerk.  I'm from Silberbauers Attorneys of Cape Town and I appear on behalf of Doctor Basson.
 My instructions were only received by me late yesterday afternoon, after 5 o'clock and again early this morning.  I understand that Doctor Basson left Johannesburg at six thirty this 
morning by plan for Cape Town and he should therefore be arriving shortly.  I wonder if the Committee could adjourn until such time as he arrives, which hopefully will be in the next 10 or 15 minutes.

CHAIRPERSON: Mr Vally?

MR VALLY: We don't have any objections to waiting for the short while Mr Chair.

CHAIRPERSON: Do you have any instructions as to why Mr Basson was not able to be here at the appointed time?  Were there no flights yesterday, for instance?  Couldn't he have stayed overnight so that he can be here on time?  Do you have any instructions in that regard?

MR VAN NIEKERK: Mr Chairman, I have no instructions.  As I said earlier, I received an instruction last night that I should appear on behalf of Doctor Basson this morning.  I have not met Doctor Basson yet, I have not spoken to him as yet.  I've taken no detailed instructions from him as yet and I hope to receive further instructions from him as to why he is arriving here late this morning.  I will then report to you once I have those instructions.

CHAIRPERSON: Thank you Mr van Niekerk.
 Advocate Potgieter?

ADV POTGIETER: Mr van Niekerk, will you indeed be acting on behalf of Doctor Basson?  Have you accepted instructions because it looks as if you haven't been given any information at all.

MR VAN NIEKERK: I will be acting on behalf of Doctor Basson today.  Sorry, I should have pressed the red button.

ADV POTGIETER: It is on.

MR VAN NIEKERK: Oh, it is on.
 I will be acting on behalf of Doctor Basson today and I understand that thereafter it's highly likely that Advocate Cilliers will take my place.

ADV POTGIETER: Thank you.

CHAIRPERSON: Well it doesn't appear that there's going to be any much use in us staring at each other here in the absence of Doctor Basson.  I think we have placed on record all that needs to be placed on record at this stage.
 I may just indicate that we are increasingly, as a panel, we are increasingly getting the impression that Doctor Basson takes a very cavalier approach to these proceedings, an approach that concerns us greatly but you are the messenger and I've no reason and no business to be flogging the messenger.  
 We will adjourn until such time as the witness has made an appearance.  We will adjourn.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Mr Vally, I believe we are ready to start.

MR VALLY: I am Mr Chair.

CHAIRPERSON: Thank you.  We'd like to start now.  Can we please have members of the press away from the witness?
 Mr van Niekerk?  Mr van Niekerk, have you taken any instructions on the witness's appearance at this hour, rather than 30 minutes ago?

MR VAN NIEKERK: Yes, Mr Chairman.  Doctor Basson has asked me to apply for a postponement of this matter ...[intervention]

CHAIRPERSON: That is not the question I'm asking you.  Have you taken instructions as to why he appears at half past nine, rather than at 9 o'clock?

MR VAN NIEKERK: Mr Chairman, as I explained to you earlier he left this morning at approximately 06H30.

CHAIRPERSON: Yes, Mr van Niekerk, and I asked you a question as to why he left this morning when he knew that there is a probability that he might not be here at nine, and I think that was the instruction that you were going to get from Mr Basson.

MR VAN NIEKERK: Yes.

CHAIRPERSON: Why didn't he arrive yesterday so that he could appear here to be on time for today's proceedings?

MR VAN NIEKERK: I'm instructed by Mr Basson that the Judgment of Judge Hlope was given on Monday, that he was busy yesterday and he caught the first available flight this morning.

CHAIRPERSON: When you say he was busy, what do you mean?  Do you have any detail?

MR VAN NIEKERK: My instructions are that he had other work to do.

CHAIRPERSON: Is that all that you have Mr van Niekerk?

MR VAN NIEKERK: That is all I have Mr Chairman.  May I point out Mr Chairman, that under normal circumstances to subpoena a witness or direct at a witness: Attend Court, 48 hours and maybe less is a very short period ...[intervention]

CHAIRPERSON: Now where do you get that from, that he was subpoenaed 48 hours?  Papers were served on, certainly on Mr Basson's lawyers 14 days ago and in which it was clear that we would seek an Order of Court for him to appear before this tribunal on the 29th, where does this come from that he got 48 hours notice?  That was notice, kindly take notice, that we will seek an order for him to appear before us on the 29th.

MR VAN NIEKERK: Mr Chairman, ...[intervention]

CHAIRPERSON: That was 14 days ago.

MR VAN NIEKERK: With great respect to you Mr Chairman, that was a Notice of Motion that was served on ...[intervention]

CHAIRPERSON: Yes, so he had noticed that there was a very great likelihood that if we succeed on that Notice of Motion, he would have to appear before us on the 29th.  Any prudent person - and let me say Mr van Niekerk, any person who does not suggest to us disrespectfulness, and I want to put this thing on the table, any person who was not showing to this panel a measure of disrespectfulness which I commented upon before and which I want to comment upon at this stage, would have made provision for an eventuality such as it has come about, that on this day he would have to appear before us and would have acted accordingly.

MR VAN NIEKERK: I take ...[intervention]

CHAIRPERSON: So this thing about him having been given 48 hours notice, it just does not gel.  And you say: "under normal circumstances", and indeed under normal circumstances.  These are not normal circumstances and may I add, they are not normal circumstances brought about by the panel or by anyone as was argued in Court.  They are normal circumstances which have been brought about by a lackadaisical and cavalier approach by this particular witness, both to the question of him bringing an application in Court virtually in July when they had made an undertaking on the 12th of June that they would bring an urgent application to seek the relief that they wanted to get in Court.
 I am not persuaded and I speak on behalf of this entire panel, I am not persuaded that this witness has been dealt with unfairly.  I am still wanting to know why Mr Basson did not arrive here yesterday and I am not prepared to take his explanation that he had things to do.  Which again points Mr van Niekerk, again points to an increasing awareness on the part of the panel that there is a sense in which Mr Basson thinks that he can deal with us as and when he likes.  
 Do you want to take further instructions to get details as to why Mr Basson was busy with other things when he had a commitment with us today?

ADV POTGIETER: Or do you want to lead his testimony Mr van Niekerk, on this issue?