Special Hearings — Chemical And Biological Warfare Hearings — 1998-07-29

ADV POTGIETER: Certainly.
"Any person who"
and sub-section (c):
"does anything in relation to the Commission which if done in relation to a court of law would constitute contempt of court"
and then right at the end:
"shall be guilty of an offence"
and then they provide for the consequence of that.  
 It's not for an idle reason that we're engaging in this debate.  As you can well appreciate there are obvious consequences which could flow from this situation, where Doctor Basson walks in here at, whether it's 09H14 or 09H20 under circumstances where he has been notified through his attorneys that these proceedings would commence today at 9 o'clock. 
 Obviously there are the real prospects of consequences flowing from that, and I mean we are giving you an opportunity, we have suggested earlier as well that you might consider whether he shouldn't be testifying and putting his case before us on that issue.  That is the purpose why we are giving this opportunity, to hear what the ostensible reason is for this situation.
 One assumes that you can't take it any further and your client doesn't want to add anything to what has been placed on record.

CHAIRPERSON: Before you reply Mr van Niekerk, I would like to get clarity on the question or whether your client persists, and this is how I hear him, persists in the attitude that he did not have to be here at 9 o'clock and therefor owes us no apology.  Because he was here at a quarter past nine he could have been here at 5 o'clock because all that was indicated was that he should appear before us on the 29th.
 I haven't heard that coming through, all that I'm hearing is an argumentation that says: "I was not ordered nor subpoenaed by anyone to be here at nine and therefore you cannot take the point that I am contemptuous of these proceedings by not having been here at nine".  Is that your client's attitude?

MR VAN NIEKERK: Mr Chairman, I am instructed that Mr Basson acted strictly in terms of the Order of Court and in accordance with discussions that his attorney in Pretoria had had with your legal advisor in this Commission, Mr Vally.
 It's been drawn to my attention, the provisions of Section 39(C) by Advocate Potgieter.  My answer to Advocate Potgieter ...[intervention]

CHAIRPERSON: Mr van Niekerk, are you through with the pointed question that I'm asking?

MR VAN NIEKERK: I am through with that.

CHAIRPERSON: Is your client's attitude that he owes us no apology because we didn't subpoena him to be here at nine?  Is that his position?

MR VAN NIEKERK: My client instructs me that if you wish him to tender an apology he will do so.

CHAIRPERSON: No, I cannot select anything for your client but I want to hear what he says, I want to know what his state of mind is, I want to know what his attitude is because the argument as advanced by you is that there was no obligation on him to be here at 9 o'clock.
 Now if that is your argument, I want to know what the sub-text is.  Is the sub-text therefore that he doesn't have to apologise for having been here at 09H15, actually he did us a favour because we never specified the time at which he should have been here?  Is that the inference that must be drawn from his attitude?

MR VAN NIEKERK: There's no question of him suggesting or any inference being drawn that he is doing this Commission a favour.  He has a duty to be here today.  He was given very short notice of the time by which he had to be here today and he used his best endeavours to be here on time.  He cannot take the matter further, nor can I.

CHAIRPERSON: Thank you Mr van Niekerk.  You wanted to talk on Section 39(C).

MR VAN NIEKERK: Yes.  Mr Chairman, insofar as Section 39(C) is concerned, that states that any person who does anything in relation to the Commission which is done in relation to a Court of Law, would constitute contempt of court.
 Now Mr Chairman, with great respect, indeed my client had been subpoenaed or ordered by Judge Hlope to be here at 9 a.m. and he had wilfully not been here at 9 a.m., there may be an argument that he is in contempt of this Commission.  That is not the case however.  Neither the Order nor the Notice of Motion required him to be here at 9 a.m.  
 There is a letter which was handed to him.  It's accepted practice that a witness who is to testify in proceedings be given reasonable notice as to when he is required to be in court.

CHAIRPERSON: Is your attitude Mr van Niekerk, if I hear you well, that if a witness is represented by an attorney or by counsel and communication is done through his or her counsel or attorney, that is of no consequence?  We are not to regard it as legally binding on a person represented by a lawyer, to serve notices on his or her lawyer, we should do more.  Is that how the argument should be understood?  We should have done more, we should have issued a subpoena over and above dealing with a particular witness through legal representatives who have been representing him.  Are you saying no weight should be given to communications between the attorneys?

MR VAN NIEKERK: I am saying exactly the opposite.  A letter was received by Messrs Malan and Vermeulen requesting that Doctor Basson be here at 9 a.m. today.  Notice was indeed taken of that letter and then a subsequent telephonic conversation between Mr Vally and Mr Malan in which Mr Malan explained that it was not possible for his client to be here at 9 o'clock precisely and that he may be a few minutes late.
 As I understand the position, notice of that fact was taken by this Commission's legal advisor and no objection was raised.  That is I understand what Mr Vally has told the Commission himself this morning.

CHAIRPERSON: And as I understand your argument therefore, it would not be competent for this panel to take the view that your client's conduct is in contravention of Section 39(C)?

MR VAN NIEKERK: Indeed that is my submission to you.

CHAIRPERSON: I see.  You indicated - we'll reserve our judgement on this point.  We'll certainly have to decide upon it.  You indicated that there was another issue that you wanted to place on record and you had began to move an application in that direction when I interrupted you.  If we can have that application now?

MR VAN NIEKERK: As the Commission pleases.
 Mr Chairman, my instructions are this morning to apply for a postponement of this matter.  I must place ...[intervention]

CHAIRPERSON: To what date?

MR VAN NIEKERK: I beg your pardon?

CHAIRPERSON: To what date?

MR VAN NIEKERK: To a date suitable to this Commission.  If I may just explain why the application is being made and at the same time I will also refer the Commission to the papers that were filed on behalf of Doctor Basson in the proceedings in the Cape High Court.
 The reason why the application for a postponement is being made is that in terms of the Act, Doctor Basson is entitled to have legal representation here today.

CHAIRPERSON: Which he has in the person of yourself?

MR VAN NIEKERK: Indeed he has it in the person of myself for today.  I certainly have not been able to take instructions sufficient to enable me to protect the interests of Doctor Basson.  I received my instructions yesterday afternoon ...[intervention]