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

CHAIRPERSON: Can you just articulate that?  Can you just expand on that?  What interests would you be protecting incidentally because Doctor Basson is here to answer questions that will be lawfully put to him.  You are a tried and tested attorney.  I've not sought to find out what your pedigree is but I take judicial notice that you have been in the legal profession for quite some time.  All that you need to do really is to make sure that questions are put to him in a fair and lawful manner.
 Doctor Basson is protected by the Act and in fact especially by the Act, Section 31(3), that anything that he says here will not be used against him at any tribunal or court of law and that was what in fact was found to be the position by even the High Court in the application that he himself brought and in relation to his counter-application which was brought.  What is it that he must now be protected against?
 I'm not saying he must not be represented because you might have matters of clarification, you might want to put questions to him in clarification, in which case you could take instructions as we hop along.  I just don't understand, I would like to have some clear argument on what it is that he needs that sort of protection from you when he is here to answer questions that are lawfully put to him.

MR VAN NIEKERK: Mr Chairman, he is no doubt entitled to the protections that were envisaged by the lawmakers when Section 34 of Act 34 of 1995 was brought into effect.  Parliament saw fit to entitle a person who is to be questioned by an investigation unit, to have the benefit of a legal representative.
 Doctor Basson for some months now has received various papers and documents.  He has consulted with legal representatives in the Transvaal, in Pretoria.  When he was called upon yesterday at midday to appear neither of those gentlemen were available to appear before this Commission today ...[intervention]

CHAIRPERSON: Can you just place it on record who are these legal representatives.  Adolf Malan who is au fait with the case, Mr van Zyl, Mr Piet de Jager?

MR VAN NIEKERK: I don't know if I ...[intervention]

CHAIRPERSON: Mr Cilliers?

MR VAN NIEKERK: Advocate Cilliers I think, yes.

CHAIRPERSON: Oh, Advocate Cilliers and in his matter in the Supreme Court two counsel appeared, Advocate van Zyl and Advocate Piet de Jager.  We're talking about four legal representatives in the Transvaal, as it then was known, who are competent and who are au fait with all the issues in this matter.  Are your instructions that none of them are available?

MR VAN NIEKERK: My instructions are that his legal representatives are not available to be here today.  I have no knowledge as to who his legal representatives are nor as to the number.  I do know about Mr Malan and I do know about Mr Cilliers.  You will bear in mind Mr Commissioner, that my instructions came in partly late yesterday afternoon, after 5 o'clock and thereafter this morning as I was on my way to this Commission.  I'm very sorry, if I'd had more time I could perhaps have found out the names of the various legal representatives.  I don't know who they all are, you know more than I do.

CHAIRPERSON: Mr van Niekerk, please don't get the impression that there is any hostility by this panel against you as a person.  If it has come across as that, please be assured that we are vigorous and rigorous in our endeavour to try and protect the integrity of this process.

MR VAN NIEKERK: I'm grateful to hear that.

CHAIRPERSON: And please, if you are able to relax whilst we put questions to you.  You have taken upon yourself a task of having to represent the interests of Doctor Wouter Basson.  May I add, we also do not want to deal with Doctor Wouter Basson very unfairly, we were just concerned about what it does to this process and to the integrity of this process.  Do you have any instructions as to whether there were any attempts by Doctor Wouter Basson when his attorneys were not available, to appoint other legal representatives other than yourself?
 Section 39(C) applies also people who are in the audience.  Anyone who does anything in relation to the Commission which if it were done in a court of law would constitute a contempt of court, they will be guilty of an offence.  A cellphone ringing in this Commission might constitute contempt of court.  So people be warned.  I am not in the happiest of moods this morning.  
 Mr van Niekerk?

MR VAN NIEKERK: Yes, thank you Mr Chairman.  My instructions are that General Kaiser of the, Colonel Kaiser of the Defence Force has instructed that new or fresh legal representation should not be provided for today's proceedings in the event of Doctor Basson giving evidence.
 My brief is purely and simply to apply to this Commission for a postponement.  I have no instructions ...[intervention]

CHAIRPERSON: To what date?  Because that is critical to our decision.  We have until Friday in terms of the law and all layers including those who have been representing Mr Wouter Basson are aware of this.  That is the legal position.
 Even if we were inclined to grant a postponement, and I must say speaking for myself, at this stage unless I get persuaded by you, I'm disinclined to grant a postponement.  I would persuade very vigorously my panel members to think likewise, but assuming that we were inclined in that direction, is it clear to you that it would have to be a postponement to either today or tomorrow, certainly not beyond the 31st.  Is that very clear to you?

MR VAN NIEKERK: That is absolutely so.

CHAIRPERSON: Are you applying for a postponement on that basis?

MR VAN NIEKERK: On that basis.

CHAIRPERSON: Now can you take instructions as to when those lawyers would be available before us if we were to be inclined to grant a postponement?  I'm not saying we would.

MR VAN NIEKERK: Mr Chairman, as I understand my brief, I'm to a large extent in the hands of the Commission as to whether they wish to postpone this matter until tomorrow or until Friday.  That depends on the Commission.
 I understand my brief to be that the Transvaal legal representatives are available either tomorrow or on Friday.

CHAIRPERSON: Mr Vally?