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

CHAIRPERSON: Good morning. I just want to apologise for the slight delay. It sounds like Sun Air or SAA. We are just waiting for two passengers.
 My apologies again I am very sorry that we have not been able to start at nine 'o clock as we had scheduled. We are waiting for two people. One arrived and we are now missing two others. We may now be able to begin. Will you please sit down. Thank you very much. Can we just have a moment of silence please.
 Come Holy Spirit fill the hearts of Thy faithful people and kindle in them the fire of Thy love. Send forth Thy Spirit and they shall be made and Thou shalt renew the face of the earth. Amen. 
 I want to welcome you all very warmly to this special hearing. It is a special hearing relating to the biological and chemical warfare programme, especially with regard to human rights violations and abuses. 
 May I introduce my colleagues. My very extreme right is Professor Peter Folb, a pharmacologist, professor of pharmacology at UCT. 
 Chandre Gould and Hanif Vally and Jerome Chaskalson on our staff. 
 And then the panel here is Wendy Orr, a Commissioner and Deputy Chairperson of the Reparation and Rehabilitation Committee of the Commission. 
 Alex Boraine, Deputy Chairperson of the Commission. Dumisa Ntsebeza on my left, Commissioner and head of our Investigative Unit. 
 Doctor Fazil Randera, Commissioner, member of the Human Rights Violations Committee and in charge of our Gauteng office. 
 And Denzil Potgieter, advocate, past member of the Human Rights Violations Committee, promoted or demoted to Amnesty Committee based here. I think you want to say something Hanif. Good morning Hanif.

MR VALLY: Good Morning my apologies. I was consulting with my learned colleagues as a fact. Arch there has been indication to me by Professor Haysom that there is going to be an application this morning prior to us starting. I don't know if he wants to indicate the application he wants to make and maybe when he indicates that I will address the panel on the issue of whether it should be in camera or not, the argument. I believe it should not be in camera but I will justify it legally. But maybe Professor Haysom, unless Advocate Gumbi is doing the running.

CHAIRPERSON: Let me welcome the three of you. Professor Haysom, Abdul Minty and Advocate Gumbi, welcome.

MR HAYSOM: Thank you. Do I call you Chairman, Archbishop or do I call you Archbishop, Chairman?
 Mr Chairman perhaps I can just introduce ourselves and explain the capacity in which we are here. I am Nicholas Haysom and from the president's office and I am with Advocate Mujancu Gumbi from the deputy president's office. But we are here effectively have been lent to Mr Abdul Minty to assist him. And he is here in his capacity of chairman of the, and it is a long name, The South African Council on Non-proliferation of Weapons of Mass Destruction. It is true that what we will want to do is to put to you a particular proposal regarding the way in which these proceedings are to be conducted. I can sketch out the nature of that proposal now or else do it after Mr Vally has given his explanation as to why this hearing should be in camera. I need to explain that our presentation and all three of us will be presenting on various aspects of our proposal will involve an application under Section 32 that the hearing be held in camera. We had originally thought that such an application could not be brought in public but I am quite confident having looked at Section 33 that it is possible. And we would prefer to bring that application in public rather than in camera. I am in your hands as to whether we proceed to.

CHAIRPERSON: Thank you very much. Is there?

MR VALLY: Archbishop we would prefer to be heard in public as well if you want me to address you on the shell in terms of Section 33 I think Professor Haysom is referring to Section 33, 1 c, which says: "An application for proceedings to be held behind closed doors may be brought by a person referred to in paragraph b and that is a person who views it will be in the interest of justice or that it is likely that harm may ensue. Let me go on,
"Application for proceedings to be held behind closed doors may be brought by a person referred to in paragraph b and such application shall be heard behind closed doors."
That is what the Act says. If the panel wants me to address them on why we can hold it in public I will do. Unless Professor Haysom wants to do so. I can keep it very short.

CHAIRPERSON: I am advised that it would be better if you did.

MR VALLY: Thank you Archbishop. Archbishop my argument is the shell as set out in 33.1 c is directory rather than preemptory or mandatory. There is an option in that traditional view used to be that provisions which are mandatory must be strictly complied with and in cases where provisions are directory it will suffice if there has been substantial compliance. The changes in approach in modern law is such that in appropriate cases there is sufficient compliance with mandatory requirements even when there is not exact compliance is sufficient. How will we determine this? Again I do not want to go into detail because I believe we are ad idem on this issue. In this case a provision which is cultured in positive language and in which no sanction is specified for non-compliance will generally be presumed to be directory. Which I submit this provision is and I have got case authority to support me on this issue.
 The other aspect is if insistence for the need for strict compliance will lead to injustice the provision will be construed to be directory. Again in this case Professor Haysom in making his submissions will want his submissions to be made publicly so that there is no suggestion of any kind of influence being brought upon us. 
 And finally the history of legislation may shed some light on the matter. As we are very clear in our Act in Section 33. 33. 1 a says the hearings of the Commission shall be open to the public and then it has a proviso when it should be in camera. So the arguments for whether it should be held in public or in camera are such that in the context it is merely directory and in view of our mutual interest being such that this matter should be argued in public I submit that the matter can be heard in public, the argument about whether it should be held in camera or not. Thank you Archbishop.

CHAIRPERSON: Thank you very much. I would say that we ourselves are relieved that the particular application is going to be heard in public because of our own very deep commitment to a blessed thing called transparency. So over to you.