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

MR CILLIERS: The request does not have much more to it than what we concluded. The situation is or my respectful submission rather is that there is a reasonable expectation that exists that a court can come to the ruling or the judgment that your decision is not correct. I say that with the necessary respect. And it is furthermore my submission that if the witnesses are compelled to testify and that the revision application succeeds then the prejudice has already been suffered. I understand your problem that you only have approximately two months sitting time left but I give you the assurance that there is no reason why such an application cannot be dealt with in less than two months and will still leave sufficient time for the witnesses to testify if a court decides that this ruling is incorrect. In this regard I am prepared to give the undertaking that we will prepare our application within a day or two and that we will be in your hands in the reply thereof to speed up the process. But as far as I am concerned there is no reason why the pieces cannot be finalised within a few days. But that is the application as it stands.
 Furthermore I just want to add that the situation is that further dates will have to be arranged for completion of the evidence. Dr Basson's testimony we will not even get to that today. So we will have to arrange an extra date and therefore with great respect there is no reason why now a compulsion must take place while there is time.

CHAIRPERSON: (...indistinct) I would not really like to hear an argument about motives and I mean we can infer all sorts of motives from all sorts of conducts by all sorts of persons. I think you have stated the fact. I mean one can easily say if the real reason that your clients wanted to do - I mean the real was to test the constitutionality of this provision then it wasn't it open to them to have done that in fact before they came to this. I mean let's just separate questions of motives and which is likely conjecture. But I hear you on the points that you are raising. Mr Vally there is an application.

MR VALLY: Mr Chairperson I would respectfully suggest that Dr Mijburgh be formally called to the witness stand, be sworn in again and then a formal application. Be formally sworn in and Mr Cilliers can make his application for the standing down so that I can respond. And my response is going to be related to the time periods within which he will bring his application. He does not have to repeat everything he said. He can refer to it as he has mentioned before. And the same thing be done for Dr Basson. He certainly (...intervention)

CHAIRPERSON: Dr Mijburgh was sworn in, so was Dr Basson.

MR VALLY: Oh I beg your pardon.

CHAIRPERSON: And this matter has been stood down. This particular matter has stood down. And you are merely asking for a formal sitting of the witness where he should be sitting?

MR VALLY: Yes a formal sitting possibly is the right word to use Mr Chair because the application must relate to the matter being stood down. And if the panel rules that it could be stood down then the decision must be made. My response of course will be regarding time periods because the alternative Mr Chair is that we simply lay criminal charges. So it is a decision of the panel after a proper application regarding Dr Mijburgh and Dr Basson and the decision whether to stand the matter down or not pending the court application within certain limited periods. Alternatively criminal charges. The reason I am motivating this is as we will not be able to lay criminal charges if the panel agrees to the matter being stood down. Thank you Mr Chair.

MR CILLIERS: With the greatest respect I do not understand what my learned colleague is trying to say. Why must the witnesses sit next to me? The application I have made now is the application I want to make. If he wants them to sit next to me witness by witness then I can just repeat everything I have said. But I do not understand the motivation behind it.

CHAIRPERSON: Mr Vally addressed the issues. You are on record as to what you would have wished should have been the ideal position but I have indicated that as far as I am concerned this matter has been stood down. The matter before us now is Mr Mijburgh having to testify in view of our ruling and in view of your indication that you are calling Mr Mijburgh to the stand. He was sworn in and he is there. And I think maybe you want to deal with the question, the submissions made by you on that basis. On the basis that the matter before us is Mr Mijburgh having to testify or not to testify because the application has been made that, that evidence stand over pending institution of allegation proceedings in the High Court.

MR VALLY: On that issue Mr Chair possibly I can get an indication from my learned friend that he concedes that the two gentlemen; Dr Mijburgh and Dr Basson or maybe we only dealing with Dr Mijburgh are properly subpoenaed to appear before us number one. Number two that they have been formally asked to testify. Number three in regard to their formal application, the formal request that they testify there is a formal application for the matter to be postponed pending a court application by my learned friends on the issue of constitutionality or review of the decision the panel he can make that clear.

CHAIRPERSON: That is what he has said then I am sure on the three points.

MR VALLY: Yes but it all follows one another Mr Chair. And finally that such an application be brought within a week because presently as our Act stands we have to complete all our work by the end of June. There is an amendment before parliament. It is in the process of going to the National Council of Provinces which will allow us to finish our work by the end of July if it is passed. But presently as the law stands we have to complete our work by the end of June. So the application has to be launched within a week. If the panel was to agree to such a postponement it should be done on that condition.

CHAIRPERSON: Shouldn't all counsel and since you are the counsel who is now before us and you are (...indistinct) shouldn't you address us on prospects of success of the application that is intended to be brought? So that we can be informed as to whether or not we should go Mr Cilliers' way or your way? As I see it you are persuading us not to grant the application but you are saying if we grant it then the application must be brought by way of urgency, the application in the High Court. But in order for us to be able to determine whether or not it is a matter that we should either decline or we should agree to, shouldn't you address us on the issue of the prospects of success? I ask that in view of the fact that in the last two, three days a lot of argument and with great respect I think from both you and counsel was addressed to us on that precise question and copious references were made to authorities in the Constitutional Court and elsewhere, Canadian authorities and all that. I am not saying it was dealt with as exhaustibly as it was but (...intervention)

MR VALLY: Mr Chair I could do so quite easily. The point is I would be repeating the arguments I raised before. I believe there is not a constitutional basis. There is not a legal basis for the request that the hearing be postponed pending the outcome of the criminal trial or the conclusion of the criminal trial. And in regard to Dr Mijburgh pending the question of whether the AG eventually does charge him and then what happens thereafter.
 So I could address the panel again on the issues but I would be traversing the same area I have traversed before.