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

CHAIRPERSON: Ladies and gentlemen, let's get ready to start.   Once again we welcome everybody to this hearing on the Chemical and Biological Warfare programme, as it has been popularly or notoriously called.  We were taking the evidence of General Knobel, and as I understand the position, we are further going to take the evidence of Dr Wouter Basson and Dr Mijburgh.   There was an indication that an application was going to be made to the High Court by legal representatives representing certainly Dr Wouter Basson, and that we would have received court papers by now in which Dr Wouter Basson's confidence to testify in these proceedings would be placed in issue in view of the fact that he still has to appear on criminal charges in the foreseeable future.  I do not know what the position is, Mr Vally, how you intend to proceed.
 I may just observe in passing that there was a newspaper account of an interview of Dr Wouter Basson which purported to have appeared in Punt Geselsradio, in which he seems to have given a fair amount of testimony about his goings on in the period under consideration by this Commission, and I'm stating that because it seems he's prepared to talk to Punt Geselsradio, if that report is true, and he is ready to come and talk to us.  But I don't want to jump the gun.  
 Mr Vally can you indicate to us what the position is, and then maybe the legal representatives of Dr Wouter Basson if they're here will put us in some position to understand what is going on.  Mr Vally?

MR VALLY: Thank you, Mr Chair.  Mr Chair, for the record I want to put the following things - bring the following things to the attention of the panel.
 On the 8th of June 1998 we were advised that Dr Basson wished to make a legal challenge to the ruling that he has to give evidence before the Truth and Reconciliation Commission.  He was called to give testimony on the 9th of June 1998 and argument was led, and a ruling was made by the panel on the 12th of June 1998, turning down the application of Dr Basson.  After the ruling was given, Advocate Cilliers, counsel for Dr Basson, indicated on the record that a court application on behalf of Dr Basson, at that stage possibly Dr Mijburgh as well, would be prepared within a few days.   On the 15th of June we were advised telephonically that Dr Basson and Dr Mijburgh would not be prepared to testify at the reconvened hearing and that they were in the process of finalising their applications.  We were advised that the applications would be served on us by no later than Thursday 18 June 1998.  
 On the 17th of June 1998 we were advised in writing that they were not in a position - this is - sorry, correspondence with the attorneys, Adolph Malan, of Dr Basson, we were advised that they were not in a position to let us have papers formally by Thursday 18 June, as they were still busy finalising the papers.  We then got an indication that we would receive the final papers by close of business on Friday the 19th of June.  Between the 17th and 18th of June we also were advised that Dr Mijburgh would be prepared to testify and that the legal challenge would only be brought on behalf of Dr Basson.   On the 19th of June we received a fax which advised us that Mr Malan was in Harare at the time and he apologised for not sending us a draft application, he would enquire about this from Carelson and would revert to us.  We asked for the application to be served on us by no later than Monday the 22nd of June.  
 On the 22nd of June we received a telefax which said they would keep us informed as to the progress of the application.  Eventually - I'm just cutting through - we had dealings with them right through, on the 23rd of June, etc.  At some point we received draft papers.  We received initially just a draft founding affidavit on the 24th of June, thereafter on the 29th of June we received a draft notice of motion and draft founding affidavit, neither of which were attested to or issued by any court.  To date we have not received any formal application.  
 Now, we have said in our letter on the 1st of July 1998 that should we not receive any application by the start of the hearing, then we expect Dr Wouter Basson to be present here at this hearing.  We repeated this in a letter dated the 3rd of July 1998 and subsequently as late as the 6th of July 1998 we again pointed out, and I quote from our letter -
"Finally we wish to point out that we still have not received the duly issued application on behalf of Dr Basson.  From your correspondence it seems that we should receive this shortly, but we would once again state if we have not received it prior to the commencement of the hearing tomorrow, we will require Dr Basson to be in attendance at the hearing from 09h00 on the 7th of July 1998.  If a booking is required for Dr Basson please contact us at your earliest convenience."
Clearly we have not received any application, we've been told for a long time it's imminent.  We have, both at the last hearing and after the ruling by the Commission, requested Dr Wouter Basson's presence here.
 I would ask the panel to formally call Dr Wouter Basson and thereafter we can take any steps necessary if Dr Basson does not accede to our request that he appear before this panel of the Truth and Reconciliation Commission.  Thank you, Mr Chair.

CHAIRPERSON: Are you aware - is Dr Wouter Basson represented by any of legal counsel here today?

MR VAN ZYL: Thank you, Chairperson, I am one of the persons appearing on behalf of Dr Basson, and perhaps at this stage I could say the following in terms of the drafting of the application and the negotiations between Mr Chaskalson and Mr Vally, I was not at all involved in that, and I also wasn't involved in the drafting of the application.  My colleague, Mr Cilliers is also appearing on behalf of Mr Basson, is also present here -I see he's not present at the moment.  He dealt with that aspect, and as far as I know he also had talks with Mr Vally and Mr Chaskalson via my attorney, Mr Malan.  I'm not in a position at this stage to answer, irrespective of what Mr Vally has now put on record since I wasn't involved in those discussions.
 As far as I understand my attorney, Mr Malan, is currently at Silberbauers Attorneys in Cape Town, they're the correspondent attorneys and it is my understanding, and I stand to be corrected, that the application was filed yesterday, but that is second-hand information and I can't vouch for that.  
 Apart from the fact that I also appear on behalf of Mr Basson I am specifically here today to assist Mr Mijburgh in testifying and I would request that if these aspects should be taken further, that as soon as Mr Cilliers is available, and he is present, I'm assuming that he is probably also at the Attorneys at the moment, that the matter regarding Dr Basson then be dealt with later with my colleague, I don't have any specific instructions regarding the position.

CHAIRPERSON: Mr Vally, do you have anything to say to what Mr van Zyl has said?

MR VALLY: Clearly Mr van Zyl doesn't have any information which can help us, he's speculating.  I would ask that the panel formally call Dr Wouter Basson for the record and then we can take whatever steps necessary thereafter, but I think it's important to do so so that we can apply the law in the instance of Dr Wouter Basson's absence if he is indeed absent.