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

ADV POTGIETER: Fine so you say that the publicisation of your case. What else?

CHAIRPERSON: Can I just ask that just before you answer to my learned colleague is it your case and this is something that I think Mr Vally addressed yesterday, is it your case that on all faults what we are going to be testing here is what is going to be tested in the criminal court when your client appears before the criminal court? Has there been a factual basis, even a legal one on the basis of which you can say what is in our subpoena and what is in our documents relevant to what your client is going to be called upon in this enquiry should we decide that he should testify? Are those the issues that are going to be tested in the criminal proceedings?

MR CILLIERS: I put it to you unequivocally that it is not even partially so. It is exactly the same factual statements which are being investigated. If you expect me to lay a factual basis then I say that I am prepared to go to the prosecutor in this specific case who I am convinced will give such a statement. It is Dr Pretorius of the Attorney General's office. It is on that basis that it is also his attitude and he showed me that today again that he would prefer that these witnesses not be called because he does not want his trial compromised with an argument as such. And I cannot get a fair hearing later. I want to state it to you unequivocally I know the facts and the background. It is absolutely the same facts. You can look at the provisional charge sheet.

ADV POTGIETER: We must see if we can't make some progress.
 According to this letter from the Attorney General the first possible charge is instigation to murder Orlando Christina. Is that relevant to our matter? Is that something which will be raised here which will come up in the criminal case regarding CBW?

MR CILLIERS: Yes the second one is exactly that. There the allegation is placed in an unfavourable position as opposed to us we have more facts.
Charge one is the allegation of instigation to murder.

ADV POTGIETER: What did that have to do with this hearing? What did it have to do with CBW?

MR CILLIERS: Let me explain it to you. The questioning with regard to charge two which accompanies that murder is the allegation that chemical substances were used which were manufactured in this project in order to question the people who murdered Christina Orlando.

ADV POTGIETER: Did our subpoena have any reference to these matters?

MR CILLIERS: The previous subpoena did include this.

ADV POTGIETER: No I am talking about this one. So we can eliminate it. It is not something that is relevant here?

MR CILLIERS: No. Except for the manufacturing of the chemical substances for means of torturing people to gain information from them.

ADV POTGIETER: No please Mr Cilliers this is nothing to do with us. It has never been a matter of concern.

MR CILLIERS: With the greatest respect you are wrong.

ADV POTGIETER: I do not want to argue with you. Let's continue. Manufacture of a thousand kilograms Mandrax, what does this have to do with us?

MR CILLIERS: That is why you had Dr Lothar Neethling come and Dr Koekemoer and that is why you want to hear Dr Philip Mijburgh. The same with the next charge; the Ecstasy and the fifth charge and the sixth and the seventh. I do not know what 8 is about.

ADV POTGIETER: ...(inaudible) the ends of justice.

MR CILLIERS: I do not know what 8 is about so I cannot address you on that.

ADV POTGIETER: Possession of classified material.

MR CILLIERS: I do now know what that deals with.

ADV POTGIETER: A number of charges with conspiracy to murder.

MR CILLIERS: That is exactly what the investigation deals with, the alleged poisons. So-called list 52.

ADV POTGIETER: Sorry I'll just put the specifics to him.

MR CILLIERS: The argument where we were last with all respect is that you are having the right to silence and the right to self-incrimination flow into one. You asked me what is the prejudice. It is as His Honour Justice Kriegler said is showing your hand. I also got a judgment which I think you can look at. Because he deals with this specifically. Unfortunately I did not read it. I will try and give it to you tomorrow. It is 1994 (4) SA799. It is not a very long judgment. You can look at especially page 832. The name is STATE v BOTHA AND OTHERS.

ADV POTGIETER: What are the other grounds of prejudice?

MR CILLIERS: No this is the basis of prejudice.

ADV POTGIETER: Which guarantees are included in Section 31 of the publicisation of your case? Why do you say? Can one use the information of that testimony of the person who is testifying before us?

MR CILLIERS: Of course indirectly. With the greatest respect that is with which the

BOTHA: case dealt with. If you show your hand before the time. If you show what your strategy is. And if you should ask Basson why did you manufacture a thousand kilograms of Mandrax and he would give you all his reasons and he said that he had this authorisation to do that then he would be showing his whole hand. He would be giving the State the opportunity before hand and whether it is fair or not that is a right that he has. He does not have to do that. Then he gives the State the opportunity to use every little bit of evidence that he gave to research it and to try to find contradictions and to get other evidence as opposing to this.

ADV POTGIETER: I am sorry I want to stop you there. You see it is exactly that evil that Section 31(3) guards against. It does not just guard against direct derivative evidence. Everything that can be derived from what the person tells us is not permissible and the presiding officer at the criminal trial has the discretion to say no not at all. You can object to this.

MR CILLIERS: But the judge will not even know about this. The problem is if you show your hand you give your opponent. That is why you do not show your hand for the opposite parties because otherwise they have an advantage. Why does the accused not have to give his plea before hand? The basis of this is that he does not have to show his hand because this gives the State the benefit of researching this and using it against him.

CHAIRPERSON: If your contention is that not even the provisions of Section 31 subsection 3 are sufficient to protect your client's right to remain silent isn't it so that your client's right is elevated to a position where it is an absolute right. Nothing can limit it whatsoever. And again I will refer to some of the arguments that were raised in terms of the limitations clause.  It seems to me that your right to remain silent is so absolute, nothing but nothing can ever limit it. And we are saying there is a law of general application, this law. This particular Act is limiting that right. And because it is limiting it in the manner in which for instance the Insolvency Act or that portion of the Insolvency Act was limiting that sort of right in the