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

CHAIRPERSON: There is an application before us substantially in similar terms to one which was raised earlier today in these proceedings and that concerns the  public nature or otherwise of the proceedings which up to now have been conducted in public.
 The application is for the remaining testimony of Dr Basson which it appears to be common cause to a greater or lesser extent, would impact on questions that will arise at his criminal trial, his pending criminal trial, that those issues and the remaining testimony be taken in camera with a further ancillary order prohibiting the distribution of a record of the testimony which is to be given.
 The arguments have been presented to us at an earlier occasion.  Many of the arguments have been raised when there was the initial application not to compel Dr Basson to testify at this stage, but to hold over that testimony until after finalisation of the criminal trial.
 The submission in short of Mr Cilliers who again appears on behalf of Dr Basson, is based on what he refers to as the actual prejudice which Dr Basson will suffer in his criminal prosecution, should the remainder of his testimony be taken in public.  He submits that the prejudice lies in the fact that the testimony which he will now be giving, will amount to disclosing his hand at this stage, and it could be used for the purposes of the prosecution, to his prejudice.
 Mr Vally, who represents the interests of the Commission at these proceedings, has also restated basically his arguments which he had relied upon in opposing the earlier application which I have referred to of Dr Basson, not to be compelled to testify.
 He submits that Section 31 of the Promotion of National Unity and Reconciliation Act which regulates the affairs of the Commission, taken together with Section 35 of the present Constitution, provide adequate protection for Dr Basson in regard to the pending criminal prosecution.
 Mr Cilliers has referred in his arguments this morning, and in passing again when this application was made, to the danger of proliferation, but he has indicated that he mainly relies on the question of the prejudice in respect of the criminal trial, the pending criminal trial.
 The panel is sitting under extreme time constraints, this is the last day of the work of the Human Rights Violations Committee.  From the indications that have been given, there are quite a number of issues which Mr Vally still wishes to canvass with Dr Basson, so we are under the circumstances under pressure to respond immediately to this application.
 We will therefore not give full reasons for the ruling which will follow, save to say that having considered the arguments addressed to us and having taken into account the provisions of Section 31 of the TRC Act as well as the provisions of Section 35 of the Constitution, which are issues that have been raised at the recent High Court application which was launched by Dr Basson in order to review the earlier decision of this panel to hear his testimony, in spite of the pending criminal trial, we are of the view that sufficient protection is provided for in the law as it stands, and that there are no reasonable grounds for concluding that by hearing the testimony in public, which concerns issues which have already been largely canvassed through the testimony of other witnesses at these proceedings, in public, that Dr Basson would not suffer the actual prejudice which his counsel has submitted in his arguments to us.
 Taking into account the public importance of the subject matter of this particular hearing, the importance of the testimony of Dr Basson in regard to the Chemical and Biological Warfare Programme, we are satisfied that there is no grounds for ruling in terms of Section 33 that these proceedings should be conducted in camera.
 As an additional measure, which has been conceded by Mr Vally, we order that the record in the form of tapes, tape recordings or in the form of written notes, is not to be distributed to either the Attorney General who are engaged in the prosecution of Dr Basson, or in fact to any other Attorney General or to any member of the South African Police Services.
 And just to amplify the last part of the order, the prohibition also extends to any video recording of the proceedings.  That is the ruling of the panel.

MR CILLIERS: As it pleases you.  At this stage, can I ask for a short adjournment please?

CHAIRPERSON: You have five minutes Mr Cilliers, we will stand down for five minutes.

MR CILLIERS: We will try to do it within five minutes.
COMMITTEE ADJOURNS

CHAIRPERSON: Are we ready to start Mr Cilliers?

MR CILLIERS: Honourable Chairman, it is my instructions to tell you now that this ruling of the Committee which have just been conveyed to us by Adv Potgieter, namely that this specific ruling should be taken into review, and we are asking you to take this ruling in review.

CHAIRPERSON: What does that mean?

MR CILLIERS: It means we are going to accord to put this ruling aside, or to get a declaration that we should hold this in camera.

CHAIRPERSON: Now if we are talking process, do I understand you to be saying that you are making an application for these proceedings to be suspended, pending an outcome of an urgent application to be made to the High Court?

MR CILLIERS: Yes, that is so, yes.

CHAIRPERSON: Mr Vally?

MR VALLY: Mr Chair, there are two issues here which concerns me. One is if this happens, it will effectively ...

CHAIRPERSON: No, those are the merits, do you oppose ...

MR VALLY: Oh, I beg your pardon.  I would strenuously oppose this matter standing down, simply because this is our last day.  It will effectively put an end to this particular hearing.

CHAIRPERSON: Mr Cilliers, do you want to say anything in support of your application?  I must say without even hearing you, there is an inclination on the part of the panel, to refuse your application, but we may be persuaded by anything you might say.

MR CILLIERS: Honourable Mr Chairman, all I can say is with the greatest of respect, there is serious prejudicing of my client.  You have made a ruling and with respect, a person not only in the position of Dr Basson or in any circumstances where a tribunal makes a decision, has a right to take this decision or ruling on review, where he is prejudiced by this specific ruling.

CHAIRPERSON: You see, we have made a ruling and I think what you are saying to us is that we must grant you leave, that is the essence of your application, you want us to grant you leave to take the matter on review?

MR CILLIERS: No, I am not asking for your permission to take it on review, I am telling you I am taking it on review.  I want you to stand down these proceedings until I have taken it on review.