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

DAVIS: case at 1157F - G and is reasonable, logical and practical in our view. An automatic stay of evidence without weighing up all the relevant factors and considerations would lead to a stifling of the TRC process with the concomitant negative consequences of failing to fulfil the TRC mandate. As far as that may be necessary for present purposes we wish to indicate that in our view Section 31 expressly limits both the right to remain silent and the right against self-incrimination to the extent that this amounts to a limitation of the witnesses' Section 35 fundamental rights. It appears to be a reasonable and justifiable limitation in all the circumstances. And particularly in light of the objectives sought to be achieved by the TRC process and the safe guards and immunity contained in Section 31.
 We do not find it necessary to deal with the other interesting issues raised in the course of argument. In considering the matter we had regard to the following main factors in arriving at our decision:
 1. Any potential prejudice which the witnesses may suffer by having to disclose their case prior to the criminal trial is sufficiently attenuated by the safe guards and immunity set out in Section 31(3).
 2. Both witnesses are important witnesses for the purposes of the hearing which concerns very grave and important issues relating to the TRC mandate. 
 3. The testimony of the witnesses would not be available to the TRC should they not testify in this session due to the uncertainty relating to the date of finalisation of the prospective criminal trials and the impending termination of the TRC. This would preclude the TRC from establishing the fullest possible picture of the CBW Programme in accordance with its mandate.
 4. The testimony of the witnesses is reasonably necessary for the purposes of the hearing and is in no way intended as a means of collecting evidence which could be used in any criminal prosecution of the witnesses. We are in general agreement with the submissions of Mr Vally in regard to the issue of prejudice.
 Having carefully weighed up all the facts and circumstances of the case and the arguments addressed to us we unanimously come to the conclusion that it is not warranted to stay or hold over the evidence of the witnesses. We deem it necessary to re-emphasise that the TRC process is aimed at establishing the fullest possible picture and the truth about gross violations of human rights in our recent unfortunate past with a view to avoiding a repetition of such abuses in future and to promote the national unity and reconciliation so sorely needed at this juncture in the history of our new democracy. This process is neither intended nor applied as a means of persecuting any individuals or groups. Its ultimate success is not only dependent upon the commitment and co-operation of all our people but vital to our common destiny. In all the circumstances the application is refused.

CHAIRPERSON: Mr Cilliers may I just indicate that this is the ruling in relation to which all five members of the panel are in concurrence. And the only thing I would add is that if it does not appear very clearly from the judgment that two bases or two fundamental rights were referred to by their counsel for applicant, namely right to remain silent and the right against self-incrimination. In the consideration of this ruling we approached the matter on the basis that we are addressing both those two fundamental rights.

MR CILLIERS: As it pleases you if you perhaps can give me an indication of the further procedures. There is a situation that it is Friday now, it is half past eleven and the witness which is testifying at the moment and the indication by his legal representative is that he will testify the whole day today. Should even that be sufficient to listen to his evidence. I must receive instructions regarding our further approach. But it seems to me in order to listen to the evidence of these two witnesses should they testify would not happen today. The time is too short for that. Give me an indication how you view this and regarding the time aspect you want to arrange another hearing at a later stage or what do you intend to listen to this evidence?

CHAIRPERSON: I need to hear Mr Vally on this but as I understand it the present witness has been stood down. Mr Vally had the dominus litis in a colloquial sort of sense and we need to get your guidance as to how you want to present evidence to us taking into account time constraints that are indicated by Mr Cilliers. But I mean we are entirely at your hands as to how you want to run your proceedings.

MR VALLY: Mr Chair I wish to call Dr Mijburgh and thereafter Dr Basson. And we will make arrangements with General Knobel's legal representative if necessary regarding his recall. So I would want to start with Dr Mijburgh which was our original intention until the application was brought.

CHAIRPERSON: Mr Cilliers?

MR CILLIERS: The situation is I hear what my learned colleague is saying but the situation is that in the time available there is not sufficient time to listen to Mr Mijburgh's evidence and we will not even touch upon Dr Basson's evidence. His evidence would take the longest time. Should he testify it would last about two to three days to listen to his evidence regarding all the relevant aspects. If that is my learned colleagues attitude that he wanted to intervene with this witnesses evidence - I don't know why he wants to do that but my instructions are to save time. So I need not ask for stay procedures that my instructions are what my attitude would be should you give the ruling which you did give. Should there be a review application and there will also be a substantive application regarding the constitutionality of Section 31. This is an argument which cannot be put before you. And my interpretation of that Section is that it is not unconstitutional.

CHAIRPERSON: Let's take it step by step. You now know what the attitude of Mr Hanif Vally is. Do I hear you to be making an application to us as a panel that we should consider holding over the taking down of the evidence of Mr Mijburgh pending your application to whatever court either to place the decision of this panel on review or to make a substantive application to the court or to Constitutional Court challenging the constitutionality of the provisions of the Section 31 in particular?

MR CILLIERS: As it pleases you it will not have to go to the Constitutional Court. It will be done in one application so it can be done quickly and completed before this sittings time expires.

CHAIRPERSON: I am just dealing with process. I don't want to deal with the substance. Are you making a formal application? Because as I understand it Mr Vally is saying he is calling that evidence. He is calling the evidence of Mr Mijburgh. Are you saying you have instructions to make a formal application for us to stay hearing that evidence pending the finalisation of an application which you want to move in the Supreme Court or in the High Court as it is now called testing the constitutionality of the provisions of Section 31? If that is what you are doing then I would like the record to be clean and be clear about that so that we should consider it.

MR CILLIERS: The request is that you then hold over the evidence of Dr Mijburgh until the revision application can be finalised regarding the judgment which has been given by the panel by mouth of Advocate Potgieter.

CHAIRPERSON: Is that all that you are wanting to address or do you want to exhaust your address? Because I would like us to consider that application immediately.