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

CHAIRPERSON: I am not asking anyone to say anything.

NORMAN ARENDSE: It is almost time for the next game.

CHAIRPERSON: I am simply saying we will obviously need time to consider and we should be in a position to give our ruling at nine 'o clock tomorrow morning. We will adjourn till nine 'o clock.
COMMITTEE ADJOURNS
ON RESUMPTION ON 12-06-98
R U L I N G

ADV POTGIETER: This is a hearing of the Truth and Reconciliation Commission, the TRC into the Chemical and Biological Warfare, CBW Programme conducted during the term of office of the previous government. The hearing is conducted at the TRC head office in Cape Town during the period 8 - 12 June 1998 by a panel of Commissioners. A number of witnesses all connected to the CBW Programme from across the country have already testified and others are still due to testify. During the course of the hearing on 9 June 1998 one of the witnesses Dr P Mijburgh was due to commence testify. His counsel Mr Cilliers who appears together with Mr van Zyl indicated that an application will be brought prior to such testimony which application also affects the position of one of the other witnesses, Dr Wouter Basson also represented by them. Due to the fact that Dr Basson was absent from the hearing at the time the matter stood down to allow Dr Basson to be present when the matter is raised. When the matter was eventually dealt with later in the day both of the said witnesses were present until the matter was disposed of.
 We would have preferred to have more time at our disposal to deal with this matter but in view of the extreme time constraints we are compelled to give an immediate ruling and endeavour to give as full as possible reasons therefor.
 At the commencement of his argument Mr Cilliers indicated that the application is based upon the fact that Dr Basson has been charged and is facing trial on a number of criminal charges largely relating to the CBW Programme. According to a letter from the Attorney General of Gauteng dated the 3rd of June 1998 Dr Basson is likely to stand trial on a number of charges. Listed in the letter which reads as follows: -
"1. The criminal investigation regarding Dr Wouter Basson is not concluded. The provisional charges which are being investigated are the following
1. Instigation to murder.
 This charge relates to the assassination of Mr Orlando Christina and the sequeli thereto.
2. Assault to do grievous bodily harm.
 This charge relates to the use of the so-called truth serum in the investigation and questioning of the alleged perpetrators in the Orlando Christina matter above.
3. Manufacture of 1000 kilograms Mandrax.
 4. Manufacture of 1000 kilograms Ecstasy MDMA.
 5. Possession of 100 capsules of Ecstasy.
 6. Possession of 2000 capsules of Ecstasy MDMA.
 7. Possession of 1040 capsules of Ecstasy MDMA8.
 8. Defeating the ends of justice.
 9. Possession of classified material.
 10. A number of charges of conspiracy to murder involving the alleged use of poison.
 2. Once the investigation by the Office of Serious Economic Offences has been finally concluded a further 10 charges relating to fraud amounting to approximately 50 million rand would be joined to above charges.
 3. It must be emphasised that these are provisional charges which are being investigated. It is possible that at the conclusion of the investigation some of these charges may be preferred against the accused. It is also possible that further charges may emerge. 
 Although Mr Vally who together with Mr Chaskalson is leading evidence at the hearing on behalf of the TRC indicated that there is no complete consensus on the view that the prospective charges largely relate to the CBW Programme we will accept without deciding that to be the case for purpose of this ruling.
 The case of Dr Mijburgh is slightly different in that there is apparently a possibility that he too may face criminal charges we assume similar to those in the case of Dr Basson. Although this is not altogether clear. Mr Cilliers has accordingly dealt with the positions of both witnesses on the same basis and has advanced a single argument which he indicated applies to both. For the purposes of this ruling and without deciding the merits of this approach we are prepared to assume that this approach is correct. And we will approach the cases of both witnesses on the same basis.
 The application before us is for the evidence of both witnesses to be held over or stayed until finalisation of the pending criminal trials. When asked about this Mr Cilliers pointed out that there is no indication when these trials are likely to be concluded and that it is clear that none of this would happen during the life span of the TRC which is compelled to finalise its work by no later than 31st July 1998. Mr Cilliers has confirmed that the practical effect of granting the application would be to permanently preclude the TRC from hearing the testimony of the two witnesses. Mr Cilliers has also conceded that at least Dr Basson is an important witness for the purpose of this hearing. 
 The application is based on the submission that compelling the witnesses to testify would amount to a breach of the fundamental rights of the witnesses to remain silent as entrenched in Section 35 of the Constitution of 1996. It should be mentioned in this regard that both witnesses have been subpoenaed and are compelled to testify in terms of Section 31 of the Promotion of National Unity and Reconciliation Act 34 of 1995. The relevant portions whereof provide that and I quote: -
"Compellability of witnesses and inadmissibility of incriminating evidence given before Commission.
31(1): Any person who is question by the Commission in the exercise of its powers in terms of this Act or who has been subpoenaed to give evidence or to produce any article at a hearing of the Commission shall subject to the provisions of subsections 2, 3 and 5 be compelled to produce any article or to answer any question put to him or her with regard to the subject matter of the hearing notwithstanding the fact that the article or his or her answer may incriminate him or her. Subsection 2: A person referred to in subsection 1 shall only be compelled to answer a question or to produce an article which will incriminate him or her if the Commission has issued an order to that effect after the Commission a. Has consulted with the Attorney General who has jurisdiction. b. Has satisfied itself that to require such information from such a person is reasonable, necessary and justifiable in an open and democratic society based on freedom and equality. c. Has satisfied itself that such a person has refused or is likely to refuse to answer a question or produce an article on the grounds that such an answer or article might incriminate him or her.

SUBSECTION 3: Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in terms of subsection 1 shall not be admissible as evidence against the person concerned in criminal proceedings in a court of law or before any body or institution established by or under any law provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned on a charge of perjury  or a charge contemplated in Section 39(D)(2) of this Act or in Section 3(1)(9)(3) of the Criminal Procedure Act of 1955.

SUBSECTION 4: Subject to the provisions of this Section the law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a court of law shall apply in relation to the questioning of a person in terms of subsection 1.