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

MR VAN NIEKERK: Mr Chairman, I've been asked a question and it would appear that the Chairman himself wants me to provide an answer.  I met Doctor Basson and have spoken to Doctor Basson for the first time this morning when I met him at the escalator.  I'm afraid that without taking further instructions I'm not able to provide any answers of the nature of the questions that have been put to me.
 May I also say that the Chairman suggests that Doctor Basson had notice that he should appear here today.  The first official instruction, whether it be by way of subpoena or by way of Court Order, was issued on Monday, not when the Notice of Motion was served upon Doctor Basson.  Mr Chairman, I would very much like to take instructions and I may be able to give you fuller answers and thereafter deal with such other matters as Doctor Basson will instruct me ...[intervention]

CHAIRPERSON: Will you lead evidence after you have taken instructions on this particular issue?

MR VAN NIEKERK: No, I will lead no evidence today whatsoever.  My instructions ...[intervention]

CHAIRPERSON: On the issue of why Mr Basson was not able to be here at 9 o'clock.  Will you take instructions and lead his evidence because it might be very important and very critical for us to have under oath what he says in that regard.

MR VAN NIEKERK: Mr Chairman, I'll have to take instructions from Doctor Basson.

CHAIRPERSON: I'll give you five minutes Mr van Niekerk, to take instructions.
 These proceedings are adjourning for five minutes to enable Mr van Niekerk to take instructions from his witness.  We are adjourned.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Mr van Niekerk?

MR VAN NIEKERK: Mr Chairman, thank you.  Yes, I've indeed had an opportunity of taking instructions from Doctor Basson.  I have also had an opportunity of reading the Notice of Motion which you referred to when speaking to me earlier.  The position is Mr Chairman, that Doctor Basson was busy at the Pretoria Academic Hospital until after 6 o'clock last night.
 I must also place on record that the Notice of Motion that was issued by this Commission's attorneys asked for an order as referred to by you in the following terms Sir, and in view of your accusation that Doctor Basson is adopting a somewhat cavalier attitude towards this Committee, perhaps it is just as well that I read the relevant portion of the Prayers of the Notice of Motion and place same on the record.
 There was a counter application filed in this matter and the Notice of Motion is dated the 14th of July, as referred to by you.  The second Prayer in that Notice of Motion says as follows:
"That the applicant be directed to appear before the Respondent"
that is this Commission.
"on Wednesday the 29th of July 1998 and to answer all questions lawfully put to him"
Now Mr Chairman, I am instructed that the Order of Mr Justice Hlope is to the effect that:
"That the applicant be directed to appear before the Respondent on Wednesday the 29th of July 1998 and to answer questions lawfully put to him"
Doctor Basson was here at 09H15 this morning Mr Chairman.  There was not time stipulated, either in the Notice of Motion nor in the Order of Court, that Doctor Basson should be here at 9 a.m.  
 A letter dated the 27th of July was forwarded to Doctor Basson's Pretoria attorneys, Messrs Adolf Malan and Vermeulen and he was requested before the Human Rights Violations Committee on Wednesday the 29th of July 1998 commencing at 9 a.m. on the 10th Floor and so on.  That was merely contained in a letter and the contents of that letter were passed on to Doctor Basson yesterday at about midday.
 I submit under the circumstances that Doctor Basson is neither a cavalier attitude in arriving here at 09H15 nor in any way showing disrespect to this Committee.

CHAIRPERSON: Mr Vally?

MR VALLY: On this issue Mr Chair, having obtained the order on the 27th of July, thereafter we did send that letter to Doctor Basson's attorneys advising him that we would be commencing at 9 a.m. on Wednesday the 29th of July 1998.  We also undertook to make whatever transport arrangements had to be made, should Doctor Basson require it.  So as soon as we were aware of the Order that was granted, we drafted a letter and forwarded it to Doctor Basson's attorneys.  Thank you Mr Chair.

CHAIRPERSON: I think the question still remains Mr van Niekerk, why Doctor Basson, knowing that he had to appear before at 9 a.m. today, he did not.  I've heard all you've said about his commitment at the hospital until 6 o'clock you said.  It still doesn't answer my question as to why he could not be here last night.  Are you instructed that there were no flights available last night?

MR VALLY: Mr Chair, with your permission, could I just intervene here.  In connection with another issue, there was a telephone call from Mr Adolf Malan, the attorney for Doctor Wouter Basson yesterday at about six twenty five p.m. where he did indicate to me that Doctor Basson would be leaving Johannesburg International Airport at 06H30 this morning.  When he advised me of this I did not strenuously object or insist that he leave earlier.  Thank you Mr Chair.

ADV POTGIETER: Mr Vally, did he give you a reason for that?

MR VALLY: No, he did not and nor did I enquire.

CHAIRPERSON: Other than the reasons that we are given Mr van Niekerk, do you have any other reasons why Mr Basson could not have taken an available flight yesterday from Johannesburg to Cape Town so that he could be here at nine?

MR VAN NIEKERK: Mr Chairman, Doctor Basson was not called upon to be here at nine, either in the Notice of Motion drafted by your attorneys, nor in the Order of Court.  My instructions are that he was busy until after six at the Pretoria Academic Hospital.

CHAIRPERSON: Other than that?

MR VAN NIEKERK: I have nothing further to add to that.

ADV POTGIETER: So Mr van Niekerk, are you saying that he arrived at 09H15 deliberately because he was not supposed to have been here at 9 o'clock?

MR VAN NIEKERK: What I'm saying, as I understand my instructions Mr Chairman, are that Mr Basson endeavoured to be here as early as possible this morning and he had work to do yesterday.  He was only informed of this letter yesterday at midday.

ADV POTGIETER: So is his attitude that he was under no obligation to be here at 9 o'clock this morning?

MR VAN NIEKERK: I think I - if you'll excuse me.  I'm instructed by Doctor Basson that his attitude was to be here as soon as possible today, having regard to the constraints that were placed upon him by his workload of yesterday.

ADV POTGIETER: But what was his state of mind, was his understanding that he was obliged to have been here at 9 o'clock but through circumstances beyond his control he couldn't make it or is his attitude that he was not obliged to have been here at 9 o'clock, he's doing us a favour to be here at 09H15?  That was the earliest?

MR VAN NIEKERK: Mr Chairman, Doctor Basson instructs me that he had sensitivity for the workload of this Commission.  The Order of the Court requires him to be here today.  He made it his business to be here as early as possible today, and as I've said he had a busy workload yesterday which carried on until after 6 o'clock.

ADV POTGIETER: So in other words there was no obligation upon him to be here at 9 o'clock, there was no time specified?  It's a very important - can I perhaps just Mr van Niekerk, for the benefit of your client, refer you to Section 39.  Perhaps I should quote Section 39(C) under the heading
"Offences and Penalties"

MR VAN NIEKERK: Could you just bear with me Mr Chairman, I'd just like to relevant document.