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

CHAIRPERSON: You do not.  In other words, if you have rights they must apply, or they must be applicable come what may.  They are not limited in any sort of way, is that your understanding?  If you have a right to legal representation it doesn't matter what the circumstances are you must get it.  If otherwise you don't have it then your attitude is that your cooperation will be withdrawn?

WOUTER BASSON: I understand that I should do everything in my ability to see that I have legal representation.  I don't understand the concept of an absolute right.  I understand that I can exercise my right to have legal representation and that I could do everything in my power to obtain legal representation.

CHAIRPERSON: Let me ask you a hypothetical question.  Let's assume that we grant you a postponement till tomorrow on the basis and on the understanding that these proceedings will continue, will take place, whether or not you have a legal representative, and we are taking into account that you have done everything in your power but that that notwithstanding these proceedings will continue?  Now that is a hypothetical question.  Would your attitude be that that is an infringement of your right to legal representation?
 Secondly, that on that basis you are not available and you are not prepared to cooperate with us?  Let us say that was how we would be inclined to go.

WOUTER BASSON: Can you repeat the question please, I did not understand.

CHAIRPERSON: If we were to say to you, "Dr Wouter Basson we are appreciative of your problems and your attempts to get legal representation, however, we are prepared to grant you a postponement till tomorrow morning at nine o'clock before us, but you must understand that whether or not you are legally represented tomorrow we will proceed and we will take evidence from you", now let's assume that that is the attitude we take, are you going to - would you say that you would then, in that instance, and I have regard to the document that you submitted to us, especially paragraph 8 thereof, would your attitude then be that in that instance I am not prepared to cooperate?  You can say you don't want to answer a question that is speculative, if that is what you want, but I just thought that since we are engaged in an exercise where we need to understand and trust each other and rely on each other's integrity, you might want to indicate to us where you stand in regard thereto.

WOUTER BASSON: Mr Chairman with respect regarding the speculative question I can just say that I am trying to arrange legal representation.  If you could postpone that to tomorrow I can try my utmost best to obtain legal representation.  Should I not be successful in that regard and the Commission's activities are continued at that stage I will decide what my approach will be.  My approach will be aimed at cooperation as far as it is possible within my own rights and abilities without prejudicing myself.
 I would like to repeat the cooperation I have in mind will also have assurances regarding certain information I want to convey, the protection of that information you are aware of the judgment by  .....(tape ends)... the appeal is pending, I want certain assurances from the Commission how certain aspects will be handled.

CHAIRPERSON: Just about what you are saying, do I understand the attitude to be that when you do- or let me put it this way given the nature of your replies, if and when you appear, say for instance before us tomorrow and let's assume that you are legally represented, do I understand your appearance to be premised on your legal representatives taking the attitude that it may well be incompetent for us to take evidence from you because you are seeking to appeal against the judgment that was given to us?

MR VAN NIEKEK: Mr Chairman I  must object to that question, that doesn't relate to the question of the postponement.

CHAIRPERSON: It does because it seems to say that your postponement may not be to obtain the results that you may well have to decide whether or not a postponement is competent, you may just be postponing in order for us to argue for a further postponement pending the outcome of an appeal.  ...(indistinct)

WOUTER BASSON: Mr Chairman you understood me wrongly, I want to explain slowly.  What I'm trying to say is that Justice Hlophe, made a certain judgement namely that I have to testify with legal representation, I hope.  He gave us the right to appeal but the right to appeal did not cancel his judgment, in other words I still have a right to appeal, as I understand it.  The basis on which the decision was made, as I understand it, was based on, in certain commercial cases, a certain amount of money had to be transferred and then the recipient of the money had to provide guarantees for this amount of money until the appeal has been lodged.  And then if the appeal is granted and the original judgment reversed, restitution should be given.
 If I testify here and I understand and you don't interpret the difference as we do the right to keep silent during these hearings I would make certain statements which would become publicly known to certain authorities who are prosecuting me and that would be to my detriment or that would prejudice me,  I have no remedy.  And the sort of remedy I would expect is then when I should testify, this is also speculative, should I testify I would certainly expect a counter-achievement from this Commission that certain guarantees should be provided that the information should not be made available to anybody else but the Commission.  I did not question the competency of this Commission to question me.

CHAIRPERSON: Thank you Dr Basson.  I don't know if any members of the panel want to put some questions.  Advocate Potgieter?

ADV POTGIETER: Thank you, thank you Chairperson.  Dr Basson was your submission to us now that from all of the legal representatives that have represented you earlier only Advocate Cilliers can possibly assist you on Friday, and that the others are not available at all to represent you between now and Friday?

WOUTER BASSON: I would like to answer that question in two parts.   You are talking about all the legal representatives who have ever represented me.  It is unfortunately the case that there are various actions pending against me in which various legal representatives were involved.  Often it was not necessary for them to make themselves aware of all the facts.  The only advocate who is completely informed about all the facts at this stage is Advocate Cilliers.  He dealt with certain aspects of subsections of the project and other parts of the project.  He is also not completely informed.  I will have to spend a couple of hours with him to inform him.  That is the first part of the answer.
 Not many legal representatives have represented me on all of the facts.
 The second part, up to this stage I was informed that Advocate Cilliers would be available on Friday.  I have not received any answer from Malan or Cilliers regarding their availability because both of them are involved, as I was informed and as they yesterday afternoon informed the Bar Council, that they were busy with other matters that have been set down long ago.  On the advice of the Bar Council they told me that we must find somebody in Cape Town to come and explain the matter today and to do what I was ordered to do by Judge Hlophe which was to appear here today.
 At this stage I know that Advocate Cilliers will possibly be available on Friday.

ADV POTGIETER: That is the point.  At the best in other words, the situation is that Advocate Cilliers will possibly be able to assist you on Friday?

WOUTER BASSON: I said "possibly", it has not been confirmed yet.  It is possible that my legal representative cannot say that he will be available.  As far as I know he might be, it is possible.