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

MR CHASKALSON: This is, it's got a number on it on the top of 4733 and it is the second page of TRC 26.
MR SWANEPOEL
"Project Coast - Objective Codes"
 1 - Establishment of Facilities for CCC Research
 2  - Establishment of Security Coverage and Systems for Research
 3  - Establishment of Security Systems for CCC Research
 4  - Management of CCC Research
 5  - Establishment of an Industrial Ability  in regard of CCC
 6  - Management of the CCC Technical Information System
 7  - [no English translation]
 8  - CCC Operational Support to the Security Forces"

MR CHASKALSON: And I'm just going to confirm that you haven't seen this document before?

MR SWANEPOEL: No, I haven't.

MR CHASKALSON: You described item 7 is actually marked as "Voer van CBO - Ops", you had read it into the record as operations, obviously this is a new document to you, could it also be operatives?

MR SWANEPOEL: It could be.

MR CHASKALSON: Could I ask you to turn another two pages on to page 4735 is the number where ...[intervention]

MR SWANEPOEL: Can I just comment on the last statement please?

MR CHASKALSON: Sure.

MR SWANEPOEL: The feeding of CBW ops would mean that you have to feed them.

MR CHASKALSON: For there food?

MR SWANEPOEL: Yes.

MR CHASKALSON: And who would ...[intervention]

MR SWANEPOEL: ...[no English translation]  means operations.

MR CHASKALSON: And if you wanted to pay somebody who was conducting an operation, that would go under operations as opposed to an operative?

MR SWANEPOEL: I cannot speculate specifically in that regard.

MR CHASKALSON: That's fine.  Could you go back to page 4735 where 07 - Management of CBW Ops, and could you read us through that section?
MR SWANEPOEL
"7/1 - Chancellor
  7/02 - Chris
  7/03 - Koos
  7/04 - Mielie
  7/05 - Hekkies
  7/06 - Barries(?)
  7/07 - Conventional
  7/08 - Other"

MR CHASKALSON: Some of those seem to be a list of names, can you comment on that?

MR SWANEPOEL: I cannot comment on that.

MR CHASKALSON: If that was a list of names, have you ever met any people of those names?

MR SWANEPOEL: No.

MR CHASKALSON: You would not know where those people came from, assuming that they are people?

MR SWANEPOEL: No.

MR CHASKALSON: You would not be able to tell me for instance, Koos' real name or full name?

MR SWANEPOEL: No.

MR CHASKALSON: Would you have any indication as to who would know?

MR SWANEPOEL: I believe that Doctor Basson will know.

MR CHASKALSON: Thank you, we will raise that question with him.  Before I leave this document alone, under Section 08 there is some handwriting there, there's also some handwriting on one of the earlier pages, sorry the last page 4739, do you by any chance recognise that handwriting?

MR SWANEPOEL: I am not sure about it, no.

MR CHASKALSON: For the moment that is all that I wanted to deal with on this particular document.
 Mr Chair, if you would bear with me, I have an affidavit that I would like formally enter into the record.  I understand that all of the relevant parties have been furnished with a copy of the affidavit.  It's a copy of the affidavit of Doctor Andre Immelman ...[indistinct]

CHAIRPERSON: You are not on the record Mr Chaskalson.

MR CHASKALSON: Sorry.  It is a copy of an affidavit that has been deposed to by Doctor Andre Immelman ...[intervention]

MR CILLIERS: Mr Chairman, I haven't been supplied with a copy of that affidavit, may I have a copy?

CHAIRPERSON: Can I just check?  I was of the impression that the documents were circulated.

MR CHASKALSON: As far as I was concerned it was circulated to the legal representatives of one that team.  I'm quite happy to make another copy available.

MR VAN ZYL: I did receive a copy, I can confirm that.

LEGAL REPRESENTATIVE FOR DR IMMELMAN: Mr Chairman, I also received a copy that initially the documents were given to Doctor Immelman by means of my office because I act on his behalf.  I later established that there is an arrangement with Mr Vally and the Attorney-General that this witness would not be called.
 I do not know exactly what that ruling is but I just want to make it clear that if the affidavit is handed in by means of evidence that the correct value be attached to it.  If it is done by agreement an affidavit cannot be cross-examined and it cannot give explanations so the value which is attached to that affidavit must be more limited and less than what somebody says under oath.  I just want to reserve my rights in that regard on behalf of my client.

MR CILLIERS: Mr Chairman, may I at this stage just have it placed on record the attitude that we have regarding this specific document is that we find it very strange that Doctor Immelman who, if I listened to the testimony of Doctor van Rensburg, Doctor Swanepoel, what Doctor Odendal testified, then it seems to me as if Doctor Immelman is one of the most important witnesses in this whole matter.
 And I find it extremely strange that from the side of Mr Vally agreements were entered into with the office of the Attorney-General, that he does not have to testify.  The reason as I understand it is because he will be witness in a criminal case against Doctor Basson and Doctor Mijburgh.   
 And with all respect I find it strange the way in which this was done, in which the accused in the case are being subpoenaed and they are being expected to give evidence before you in public but agreements are concluded or entered into with Mr Vally and his team  with the Attorney-General who is the party in that criminal case, that Immelman is kept away so that he does not give his version in public and that he does not have to subject himself to cross-examination as the people who are the accused in this specific case, as they will have to do if their applications do not succeed.  
 At this stage our attitude is that we oppose the handing in of the affidavit and we feel that you should have Doctor Immelman here, who is for all intents and purposes the most important man at these proceedings and that he should be here.

CHAIRPERSON: Now as I understand the position, you are not objecting to the document being used, you are just placing on record your reservations and your surprise that Mr Immelman is not, are you objecting to the document being used?

MR CILLIERS: I probably didn't make myself very clear.  I also object to the use of the affidavit.  The witness is available, he's been subpoenaed and there is no basis on which the Attorney-General for reasons of their own, should conclude any agreements that this witness not be subjected to cross-examination and it is my basis that this is a mala fides situation.  Immelman should give his version himself.

MR CHASKALSON: Mr Chairman, if I may just address a few remarks.  I'd just like to place it on record that the decision not to call Doctor Immelman to the hearing was a decision was made after serious consideration and discussion with a number of interested parties, including canvassed quite broadly within the Commission itself.
 Doctor Immelman is under subpoena.  The final arrangement that we had made with both the legal representative of Doctor Immelman and the Attorney-General was that we would prefer to have Doctor Immelman at the hearing.  It was argued to us that it would severely prejudice a future criminal prosecution.  We did not want to take such steps but we did warn the respective parties that if compelled we would require Doctor Immelman to be at the hearing.
 I'd also like to point out another factor which I think it's slightly disingenuous to argue that it is unfair to subject Doctor Immelman to cross-examination when we are about to be addressed with legal argument as to why Doctor Basson and why Doctor Mijburgh should not even appear at our hearing.