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

CHAIRPERSON: Ladies and gentlemen, welcome back again.  I believe there are legal representatives of witnesses or of the witness was going to be called, and I would ask you to place yourselves formally on the record.

MR CURRIN: Thank you, Mr Chairman, my name is Brian Currin and I am here representing Dr Jan Lourens.  I believe he will be the first witness called to testify.

CHAIRPERSON: Maybe - let's have all the other legal representatives placing themselves on record, just in case.

MR CILLIERS: Mag dit u behaag, my van is Cilliers.  Ek verskyn in opdrag van Menere Adolf Malan Prokureurs, saam met my geleerde kollega, Mnr van Zyl, vir Dr Basson, Dr Neethling, Dr Swanepoel en Dr Myburgh.

CHAIRPERSON: Dankie.

UNKNOWN: H J Du Plessis van die firma D P du Plessis Prokureurs in Pretoria en ek tree op namens Generaal Knobel.

MR POLSEN: Mr Chairman, my name is J R G Polsen of firm Ruth & Wessels, and I act on behalf of Doctors Koekemoer, Van Rensburg, Odendal, yes, I think there may be one or two others.

CHAIRPERSON: Thank you very much, gentlemen.  May I just mention that there are simultaneous translation facilities.  I sometimes assume, because you have appeared in the Commission for so long, that some of the things are not worth mentioning.  Both witnesses and counsel will obviously be entitled to express themselves in the language they are best comfortable with.  Mr Vally?

MR VALLY: Thank you, Mr Chairperson.  There are three items I want to bring to the attention of the panel.   The first item is that we were contacted by Advocate Gumbi, who advised us that they are unable to arrange counsel at short notice, that they hope to have counsel ready by - or instructed by tomorrow morning.  There's a number of bureaucratic measures which have to be taken before they can brief counsel.  They've asked us if it is possible for us to stand the matter down until tomorrow morning.  We've indicated that it will not be practical for us to do so, and in any event, most of the witnesses being called to give evidence today, will not, we believe, deal with matters which will raise any concerns with them.  So I have indicated to her that we will be going on today.

CHAIRPERSON: Very well, Mr Vally.

MR VALLY: The other two items are the following, in our discussion with various representatives of Government regarding the documentation which will be made available, we did make some concessions and I want to place on record what agreements we have, and I'll motivate these issues if necessary.  There are three categories.
 The first category is documents which we will not be using or referring to at all.  
 The second category is documents that we will be using and referring to, but, and I'll motivate just now, we will ask the Commission or the panel to rule that the information contained therein is not made available to the public or to the press.  And thirdly there will be documents that we will be using which will be made available to the public and to the press.

CHAIRPERSON: I didn't get the second category.

MR VALLY: The second category is, I will ask for a ruling in terms of section 33(2)(b), directed,
 "No person may in any manner make public any information which may" -
Sorry, (c), I beg your pardon, let me just find the exact section, alright, directed - sorry it's section 33(2), firstly (a), directed,
"No information relating to proceedings or any part thereof"
the part thereof I'm referring to are certain documents which I will indicate to the Chair right now,
"... shall be made public in any manner."
There are certain documents which it is felt, may lead to proliferation, we believe it's necessary for our hearing, but we are prepared to concede that it not be made public in view of the possibility of proliferation relating to those documents. Could I indicate to the panel which documents I am referring to.  I would hope that I don't have to argue the issue again, because I think it's been sufficiently canvassed prior to the luncheon break.  We're working on two tests, the one is "Will it harm interstate confidentiality", that is vice versa South Africa and other states, and two, "Is there a potential proliferation", more specifically, can people use those documents to make weapons, be they chemical or biological.  Could I proceed?

CHAIRPERSON: Yes, Mr Vally.

MR VALLY: Thank you.  You should have an index of documents with you.  The first document is document - this category are the documents which we will not be using at all, and which should not be made public in any manner whatsoever.
 The first document is document 9 - alright, I won't describe these documents, because I've been advised it may defeat the purpose.  It involves those two issues, either Interstate confidentiality, or possible proliferation.  So it's documents 9, 21 - 23 inclusive, 25 and 60.  
 The next documents are documents which we will refer to, but there should be a ruling on that these are not in any way published.  That is document no 4, documents 9 - 20, sorry, 19 and 20, document 59, document 65, 66, 71, 72, 74, 75 and 81, as well as document no 24.  So this is the category which we will be referring to, but which will not be published, and I would like the Commission to make a ruling in terms of section 33(2) that no person will be allowed to disseminate or publish those documents in the second category.  
 Finally, Mr Chair, whilst we will be using the rest of the documents, there are documents which we believe are in a sense innocuous, but they do have chemical formulae.  It doesn't take our case any further, there's no particular public need to know those formulae, I believe it is largely accessible from various chemistry textbooks, but in any event, we should not distribute those documents, and from time to time, when we come to those documents, I will request that the Commission that those not be published as well.  Thank you, Mr Chair, that concludes my second point.

CHAIRPERSON: But how are those documents different from documents in category 2?

MR VALLY: They differ from documents in category 2 in that we believe that the proliferation danger contained in there is not even probable, but the fact is that they do have chemical formulae, the fact is that we don't need reference to those chemical formulae for the purposes of our hearing and rather than disseminate those chemical formulae which are accessible elsewhere, it shouldn't be us who does that.

CHAIRPERSON: Are you through, Mr Vally?

MR VALLY: On my second point, yes, Mr Chairman.

CHAIRPERSON: Are you through on all the points?

MR VALLY: No, because the third point is a completely different one.  The third point, in preparing for this hearing, we've had to negotiate not only the issue of alleged proliferation and potential of interstate breaches of confidentiality, there's also a criminal trial which is pending, and I wanted to draw something to the panel's attention and place it on record.

CHAIRPERSON: Are we dealing with category 3 now?

MR VALLY: Not at all, this a completely different issue.

CHAIRPERSON: Oh.