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

CHAIRPERSON: And Mr Cilliers, this is based as I understood, on the potential prejudice of Mr Basson in his criminal prosecution?

MR CILLIERS: I don't want to repeat the arguments of this morning because I am going to waste your time, but that is probably the most important, yes.  Even though, I do not want to say that the proliferation area is falling away, but it is not potential disadvantageous, potentially disadvantageous to Mr Basson, it is definitely to his prejudice.

CHAIRPERSON: Thank you very much.  Mr Vally?

MR VALLY: Thank you Mr Chairperson.  Mr Chair whatever I say now, like my colleague, has to be heard in the context of the earlier argument this morning.
 Firstly, public interest is not merely public curiosity.  The whole social contract which is reflected in the working of the Truth Commission in that it is transparent and interacting with the public, in terms of discovering what happened in the past, is much more fundamental and much more important to the creation of a new society based on truth and reconciliation, if the public is taken into the confidence of the Truth and Reconciliation Commission in seeing the processes by which we are arriving at the truth, are beyond reproach.
 So the process is as important as the end result of the Truth Commission.  Secondly, the whole issue of the right to silence in so far as the potential prejudice to Dr Wouter Basson, is an issue which was extensively debated both here within this hearing which the Committee has previously ruled on, and which was extensively debated in court.  Our position remains the same, Section 31(3) of our Act and Section 35(5) of the Constitution adequately protects Dr Wouter Basson.
 In fact you saw the kind of protection that Mr Sifiso Nkabinde had, regarding those invasions into his rights.  Thirdly, there will be regardless of what the final decision of this panel is, whatever the ruling of this panel is, a final report drafted after having complied with Section 30 of our Act, in terms of which on the balance of probabilities, certain findings will have to be made.
 Accordingly I repeat the arguments raised earlier today.  The cases I refer to are the constitutional cases of (indistinct) v Levin and Nel v Le Roux, and I again request that the remainder of the hearing be accessible to the public and should it be necessary, we can make a specific ruling regarding the record of the proceedings, not being made available to parties such as the South African Police Services as well as anyone from the office of the Attorney General.
 Other than that, I will abide by the decision of the panel, thank you Mr Chairman.

CHAIRPERSON: Mr Vally, just the point that Mr Cilliers made in regard to the distribution of the record, should the panel be inclined to refuse the application to hear the rest of the evidence in camera, would it make any sense to grant an order in regard to the distribution of the record?

MR VALLY: Yes Mr Chair, because this is the aspect which is of particular concern to my learned friend.
 The point is that the protection that Dr Basson has in terms of Section 33(3) of our Act and Section 35(5) of the Constitution, still remains in tact.  I have pointed out that it would be absurd for the Attorney General's office to in any way, have anything to do with this record.  It will simply taint their own case.
 However, if it is of concern to my learned friend, then there is no problem with such an order being made.  Any prejudice, potential prejudice which Dr Basson will suffer, has been taken into account by the relevant Sections of our Act and Constitution and therefore I do not believe that that argument has any basis.  Thank you Mr Chairman.

CHAIRPERSON: What are the practical possibilities of the Attorney General or the South African Police Services being placed in possession of the transcript of these proceedings?

MR VALLY: I believe they are minimal.  The arrangement is that we are in control of these proceedings and the transcribing agency, will need our consent before making the documents available to anyone else.
 The Act is clear that our consent will be required and we could agree to release it publicly.  However, in addition to that in terms of Section 33, you can make a specific order Mr Chairman, regarding the distribution of such record.  Thank you Mr Chairman.

CHAIRPERSON: Thank you very much Mr Vally.  Mr Cilliers, do you want to respond?

MR CILLIERS: Very briefly Chairperson.  The contra application, I've got that here with me and I will make it available to Mr Vally if he hasn't got one in his own possession, there is not a single reference in that contra application, to the public's right to be present, but the totality of the basis of the application that there would be an infringement of Dr Basson's right to silence, and this was purely the fact that you as a Committee, for your own purposes, you have to write a final report in the nearby future, so you must get the answers from Dr Basson.
 But there is not a single reference which I could find, in all those documents which centred around this need of yours, so it is on that basis that Justice Hlophe made that decision, and that it could be in camera and that the infringement would then be lightened.  The negative results would then be excluded and with the greatest respect, I find it really strange that now that the order was received from Hlophe and also that Dr Basson is prepared to stay with that and to give you the Committee, the answers because you really need the answers for your report, now there is a further request.
 Now the request comes it must take place in public.  The totality of the protection which was tendered in the application, you want to make that non worth it, so it is my submission that the judgment of Justice Hlophe, he hasn't given it yet, we can't see, but it can only be that there is an absolute, it is absolutely necessary for you to hear the truth, that is you, the Committee.
 It is on that basis that the application was brought in and it is my submission that Justice Hlophe's judgment would have been different if it was concerned with an open or closed hearing, and it is on that basis that I make the submission that you give complete protection to Dr Basson.
 With the greatest respect, if we have a situation here where a person is accused and he must testify in front of you and he must say things with regards to the charges which is brought against him, and that he has a right to silence, if this does not move you to have the proceedings in camera, then I would like to say I would like to see an application which was successful, because here we have an absolute need to protect this person's rights.  If this application is not granted, I would like to see the application that was granted.
 Maybe I can just formulate this to you properly and if you know about what was going to be asked, firstly we asked that the proceedings happen in camera, and that everybody be excluded - everybody who does not need to know this, should be excluded.
 The second application that no information should be made public regarding the evidence of Dr Basson.  It should not be made available to any person inasfar as it is necessary for the Committee in its official report, to possibly refer to the evidence.
 I am not trying to limit you in your reporting and in the third place, this would include that prohibition on publication that this would include that it should be prohibited that the minutes of these proceedings whether it is a sound recording or a written document, that it should not be made available to any person outside this Committee who needs it for the preparation of their report with a specific reference to the South African Police and the office of the Attorney General.  As it pleases you Mr Chairperson.

CHAIRPERSON: Thank you Mr Cilliers.
COMMITTEE ADJOURNS