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

CHAIRPERSON: That is the leave you are seeking, you are seeking - I mean you are not in charge of these proceedings.  You are asking us to allow you to take the matter on review and that pending that, this proceedings should come to an end.  The issue for us to decide is whether we are persuaded by anything you say, that these proceedings must be suspended or stand down pending the outcome of that and that is the issue before us.
 I am seeking your assistance as far as that is concerned.  Do I understand the process, just the procedure is going to be that you are seeking our indulgence in relation to which we must rule, that pending because these proceedings are in process, we have made a ruling, we are about to take evidence from your client.
 Your client is of the view that we have decided wrongly and you are then saying you want to approach Court as a matter of urgency, by all means, you can.  But what I am saying to you these proceedings are not going to be stopped whilst you are going to court.
 The only thing that can stop these proceedings from going ahead, is a court order which will be placed before me, which suspends this, pending a review.

MR CILLIERS: The problem that I have with that, in order to get that court order, I have to get or to make a statement, to file a statement with Dr Basson's involvement.  I don't want to get into an argument regarding that.
 In order to obtain that legal assistance, I require Dr Basson's instructions and with the greatest of respect, we can become involved in a verbal battle, but I cannot exercise that right to review, without Dr Basson's instructions.
 If you decide that this questioning continues and refuse to give Dr Basson, he is here on order, or to excuse Dr Basson, you de facto deny him the opportunity to obtain that order.  And with the greatest of respect, you make negative the effect of the order.
 Say for instance it takes half an hour or an hour to obtain such an order, and we obtain such an order, there is a situation that for half an hour, or an hour, the questioning has continued, and the prejudicing has occurred irrevocably.

CHAIRPERSON: Yes, it is because you know, I think the panel is of the firm view and they are prepared to take the risk of whatever decision may be arrived at, we have a Court's decision, we have a Court order, we may not have the recent judgment, that says all the things that you have said which were forming the basis of your submitting that your client will be prejudiced, if these proceedings go on in public, and we remain unpersuaded that anything you have said, and anything that might be said in support thereof, is likely to upset the decision and the conclusion that we have arrived at, namely that there will be no prejudice and therefore that the proceedings should go ahead.
 The only issue that I thought I might be hearing on, is whether or not you have any compelling reasons why we should suspend the proceedings.  You have now addressed me on that.
 I remain unpersuaded.  I don't even consider that any Court acting reasonably in the light of the history of this matter, will be persuaded by anything you say in support of the position that you take.

MR CILLIERS: Honourable Chairman, I have told you what my submissions are, specifically that in fact you destroy the right, should we succeed with an urgent application, even within half an hour,  you have totally destroyed the right which should be protected.  I can't take that any further.
 Must I infer from that that your attitude - if my client wants to answer the questions ...

CHAIRPERSON: He must do so.  If it is going to be in camera, that has been refused, we have made a ruling in relation thereto.

MR CILLIERS: My instructions at this stage is that my client will not answer questions before the review procedure.

CHAIRPERSON: That is his choice.  We have now made a ruling.  If he chooses not to answer questions, that is his choice.  Maybe we will go home faster than we thought we would be.

MR CILLIERS: That is his choice.

CHAIRPERSON: That is his choice and Mr Vally will be instructed to go ahead and the record will show every time that he is refusing to answer any questions put to him, that he is refusing to answer questions lawfully put to him.  That is the road we shall all go.

MR CILLIERS: That is my client's choice after he received advice in this regard, that is his choice, yes.

CHAIRPERSON: Mr Vally, I have ruled in your favour, unless you don't appreciate it?

WOUTER BASSON: (still under oath)

MR VALLY: I beg your pardon, we are just gathering out thoughts as to where to start.
 Is there any scientific basis whatsoever, for your belief that dagga, cocaine, mandrax or ecstasy, could be used as incapacitants?

MR CILLIERS: Mr Chairman, as I have already indicated, my instructions are - do you want Dr Basson to repeat it every time, he is not going to answer the questions until we have received this review.

CHAIRPERSON: I understood that the basis of your application in relation to which we made a ruling, was that I was not here, but I understood it from my colleagues that you were objecting to questions that have relevance to criminal proceedings that might be brought against Dr Wouter Basson.
 I didn't understand that your application was objecting to any and all evidence that might be obtained from him and I do not know if this question is one that is ...

MR CILLIERS: With respect, that happened during the time that you were not here.  Mr Vally indicated at that stage when I launched my application, that he had no other questions than the questions relevant to the charge sheet.   We are in the situation where we have tried to assist by saying that the questions which were posed regarding CR Gas, we will answer.

CHAIRPERSON: Okay.

MR CILLIERS: And I want to put it clearly, if Mr Vally has questions not relevant to the charge sheet, we are prepared to answer those questions, but Mr Vally told Mr Potgieter that he had come now to the end of that road.
 We have come to the situation you foresaw this morning, when we said we will play it according to the ear.  Unless he changes now and says he has questions, we are at that stage where my instructions are that my client will not further answer any questions.

CHAIRPERSON: Can I then ask you as a matter of process, acknowledging that I have heard that that is what you have instructed your client, he is on the stand.  We have ruled that he must answer questions.
 Now I understand that you have instructed him to say, you have advised him that he must not reply to any questions.  I think to the extent that he is on the stand, we require that he should do so.

MR CILLIERS: Mr Chairman, the position is, I have already said my instructions are, my client is willing to answer Mr Vally's questions, all his questions, inasfar as it is not related to his charge sheet.
 Mr Vally said that he doesn't have any questions like that, it is only aimed at questions being mentioned in the charge sheet according to which my client can be prosecuted.  He has to appear in court on those counts on Monday.
 My client is not going to answer those questions, depending on the urgent application.

CHAIRPERSON: Yes, I understand you very well Mr Cilliers, that is why I therefore say you have given your client that advice.  I want him to exercise that advice, he must on the record under oath to say the things that you have advised him, because there are consequences.

MR CILLIERS: My client is not going to put on record which happens in consultations.  What he is going to tell you is that at this stage, he is not going to answer questions, pending on the finalisation of the review application.