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

MR VAN ZYL: If I could perhaps say at this stage, as I indicated, Mr Cilliers and my attorney, Mr Malan dealt with the matter and I understand from Mr Vally that he is requesting that Mr Basson be called immediately and then to take the necessary steps, but I would like to suggest once again that the matter perhaps be taken up once Mr Cilliers is available here because he knows what the position is and what arrangements have been made. In the circumstances I would like to suggest that it is fair that the position be clarified with Mr Cilliers, he might have facts which I don't have at my disposal and that we at this stage continue with the evidence of Mr Mijburgh, and that when Mr Cilliers becomes available, then that matter in relation to Mr Basson be taken further.  I am not in a position to place any facts on record in respect of the application, the filing of the application and in those circumstances it would be only fair for the situation to be clarified with Mr Cilliers by the panel, and that he should explain to you what the facts are, then you would be in a far better position to make a proper judgement.
 In these circumstances I would like to request that the matter in respect of Mr Basson stand down until later in the day, until Mr Cilliers is present, and that we continue with the evidence of Mr Mijburgh.

CHAIRPERSON: Thank you, Mr van Zyl, I appreciate all your efforts to really endeavour to represent Dr Wouter Basson's interests in a situation where you have not been dealing with those issues that have caused delays in the application to court as well as the circumstances surrounding there.  My own impression, and I must state it is a very prima facie impression, I would stand to be persuaded, is that we are being treated with the utmost contempt by Dr Wouter Basson, but then that's a very prima facie impression.
 It is also my impression that if there was any endeavour to treat this panel and the Commission with the respect that I hold they deserve, legal representatives of Dr Wouter Basson would be here to make the explanations that you so endeavour to make.  It's not about whether there is evidence that can be called, it is about whether officers of the court who know their responsibility to this Commission in the same way as they have a responsibility to their clients are here at the time appointed for the resumption of these proceedings.  They are not here, neither is their client.  It's a matter of grave concern.  I just want to note that and place it on record.
 I think Mr Vally's application is validly made and it shall be granted, and Mr Vally if there is anybody here who would go and call Dr Wouter Basson's name outside there three times, I would stand that that should be done.

MR VAN ZYL: Thank you, Chairperson.  I take note of the remarks which you've made.  Once again I'd to place it on record that, as you've said, your approach is a prima facie one regarding the position of Dr Basson and your other remarks as well.  I would just like to state that it is my submission that you would probably be in a better position to take a view as to this matter once you've been fully briefed.  As far as the presence of Mr Cilliers is concerned, as I understood the arrangement today, was that we would immediately proceed with Dr Mijburgh's evidence.  I did not foresee that the issue of Dr Basson would be immediately taken up.  As I indicated earlier, I wasn't involved in any of the correspondence or arrangements in this regard.

CHAIRPERSON: Mr van Zyl, we appreciate you have made those points and they are on record, and I exonerate you totally from all sorts of blame, but those who were dealing with Mr Vally, Mr Adolph Malan and an advocate who may have been instructed in that connection, they at least owe this Commission and panel their presence here.  As far - if Mr Vally's submissions are correct then they will be subject to contestation by the other lawyers, but if on the basis of what he has said, there was a fax yesterday re-emphasising the need for Dr Wouter Basson to be here at 09h00 today in view of the fact that now application has been submitted as had been promised, then we hold that in a very serious light.  But then as I say, subject to whatever submissions they may make subsequently, we may be persuaded otherwise, but at this stage I personally, and I think I speak on behalf of the panel as well, I'm taking the strongest exception to this type of treatment from colleagues.  Mr Vally?

MR VALLY: Thank you, Mr Chairperson.  Chair, for the record we have called out Dr Wouter Basson's name three times outside the hearing room and there has been no response.

CHAIRPERSON: Subject to whatever submissions may be made by Dr Wouter Basson's lawyers on his behalf it is my impression and certainly the view, I believe, of this panel that there has been a contravention of Section 39 of our Act and that that is the present view of this panel.  As I say, subject to whatever submissions may be made on his behalf later on.  Mr Vally is there anything further that we should do?

MR VALLY: Not at this stage regarding Dr Basson, Mr Chair.

CHAIRPERSON: Can we go on?

MR VALLY: Thank you, Mr Chair.  Mr Chair, we were busy with General Knobel's evidence, but we are standing General Knobel down to start with Dr Mijburgh.  I would suggest that we put all the attorneys present on record as to who they represent, and then we can commence with Dr Mijburgh.

CHAIRPERSON: Very well, Mr Vally.  Mr van Zyl, you are already on record.

MR VAN ZYL: Thank you, Chairperson.

MR TOWEEL: Mr Chairperson, C R Toweel, instructed by Du Plessis attorneys, acting on behalf of General Knobel.

CHAIRPERSON: You are already on record as far as I believe, Mr Du Plessis as well.  You are certainly not going on record now.

MS REYNOLDS: Kate Reynolds on behalf of Brian Currin for Jan Lourens.

CHAIRPERSON: Yes, you are on record as far as I also remember from the last time.

CHAIRPERSON: Thank you very much.  Dr Mijburgh, you are reminded that you are still under oath.

MR VALLY: Mr Chair, just for the record, advocate Norman Arendse has indicated he will be coming, he's slightly delayed.  And again for the record as regards proliferation issues, we will hold back using certain documents provided to us by General Knobel, pending discussion with Advocate Arendse on those documents.

CHAIRPERSON: Who is going to look after the interest of those Mr Arendse represents?  I'm just asking for the record.

MR VALLY: I do not know, Mr Chairperson.

CHAIRPERSON: Mr Mike Kennedy will have to act as a lawyer in the circumstance and step into the breach.  Well raise your hand, Mr Mike Kennedy if you feel that we are veering into an area we shouldn't.  Mr Vally, if we could proceed.

MR VALLY: Thank you, Mr Chair.  For the record I want to first ask - or maybe I should put this on record, I have arranged with my learned friend that Section 31(3) of our Act, Act 34 of 1995 applies and I'll read it into the record,
"Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of sub-section 1..."
this is questioning at a hearing of this kind, 
"...shall not be admissible as evidence against a person concerned in criminal proceedings in a court of law or before anybody or institution established by or under any law, provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned on a charge of perjury or a charge contemplated in terms of Section 39(d)(ii) of this Act, or in terms of Section 319(3) of the Criminal Procedure Act, no 56 of 1955."
So for the record, this would apply to Dr Mijburgh.

CHAIRPERSON: Thank you, Mr Vally.

MR VALLY: Thank you, Mr Chair.  Before I start, Dr Mijburgh, do you wish to make a statement which you wish to read into the record?