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

ADV POTGIETER: No, no, I hear you what you say Doctor Basson.  I mention it to you because my recollection is that is what General Knobel had told us.  When he was confronted with this unique situation regarding the CD's he said that he had to rely on what you had told him and you couldn't blame him that he had to rely on people who needed to assist him and he still mentioned the examples of the case of Mr PW Botha's report which was not personally read by the Chairperson of the Commission, so that is why I'm asking you.  So you say you never told him formally told him: "Look, this was completed successfully"?

MR CILLIERS: Advocate, I don't want to repeat the argument, I don't want to repeat it Chairperson, and members because we handled it this morning to a great extent.  If I understand the attitude of Mr Vally correctly, he said that he does not have a problem with the second part of the application which is that the record should not be distributed to other people, other than those who really need it, for yourselves that is.
 His objection was against the first part, the in camera bit.  That was his objection.  So I am not going to waste your time any further unless you really want to hear from me with regards to the aspect of the making available thereof, for example to the office of the Attorney General or the Police who is handling the case or people who's got nothing to do with this case.  I will limit myself to the in camera bit of the application, the first bit of the application.
 I have already referred to page 33 of the law which gives you the capacity or the ability and you had insight into the statement of Ntsebeza, where he gave support to the counter application which was handed in earlier this week in the High Supreme court and he utters this as one of the things which the law assists the Committee with, to protect the right to silence or the infringement thereof.  To make the infringement thereof lighter.
 And also say that it is so important for your report that you hear the evidence and that you can deal with this properly and you can still protect his rights for example to have the hearing in camera.  My submission is, I was not involved in the application, but my instructions are that it was also the basis of the argument of the Advocate who acted on behalf of the Committee at that aspect, it is with regards to the protection measures which are there and which lightens the infringement of the right to silence.
 In the light of the protection of Section 33 and 31, this balance is that the public interest must gain priority, but Mr Vally now informs you that we are now at a situation where all the aspects which you want to know from Dr Basson, and these are the aspects he is specifically going to be charged with.
 So that is going to be very prejudicial to him if it is disclosed or if it is going to become to the knowledge of the people who is going to prosecute him.  I have already addressed you more properly about your right to silence, and there is a specific law in Section 35 of the constitution, the prejudicial aspect thereof.
 I refer you to that.  I also refer to Havenga which said that the disadvantage lies in the fact that you cannot force a person to show his hand before the time, and I am not going to waste your time any further.  You know everything about those aspects.
 But now we are in a situation, and we have now reached the stage where each thing Dr Basson is going to be asked about by Mr Vally, are aspects which are contained in the charge sheet and it is very relevant to the charge sheet and he is going to be prejudiced by giving answers now which is given in public and necessarily it is also going to come to the knowledge of the people who are going to prosecute him.
 It is naive to say by Mr Vally, that those people would not irresponsibly handle that.  Surely you know that about the prosecution of Mr Nkabinde in Natal where they went so far as to in this time with the constitution in place, that person went and placed microphones or bugs in his cell to listen to the consultations he had with his Attorneys, so to rely on the responsibility of the Police only, is not a sufficient guarantee for the protection of the right to silence of Dr Basson.
 Dr Basson is prepared to answer you with regards to all the questions which are put to him legitimately in terms of the court findings.  He has not given me any instruction to the extent that he does not want to adhere to that court order, that is why - or answer the questions this morning, but with the greatest respect, the moment when you, or let me rather put it this way, that obligation is only towards you and the responsible people, and that does not extent to the general public where it will be disadvantageous to him.
 My respectful submission is here that once again you've got to weigh the important things here.  On the one hand you have to consider the right of silence and on the other hand you have to think of the public interest.  The importance of the public interest is contained in the documents before the Judge Hlophe.
 It was handled on the basis of the public interest and you as the Committee, you expire today so it is very important for you as a Committee to obtain answers to questions with regards to Project Coast and therefore we have to infringe the right to silence and that is why Justice Hlophe gave his judgment.
 But with the greatest respect, a case was never put as a basis, neither in these documents nor in the argument of Mr Hlophe.  But his rights are of such a nature that the rights of Mr Basson must be destroyed in order to satisfy the public's inquisitiveness, because if that was the basis to intervene into a person's basic rights, then there would not be place in our law for the existence of a right to silence because public curiosity would always be there.
 In a lot of cases, its got to gain priority above the person's right to silence and with all respect, there would be no place in our law to the right of silence.  Therefore it is my respectful submission that at this stage of this whole affair, you would find a midway by destroying Dr Basson's right to silence, but also to protect him as best as you could.
 The law provides for this.  That is protection in terms of Section 31 and also in terms of Section 33.  I cannot understand the basis of the opposition of my colleagues against such a request if you consider the prejudice.
 As far as Mr Vally's attitude is concerned, and specifically with regards to the fact that he does not have a problem that you make an order that the record is not distributed, but he does have a problem with the in camera hearing.
 The problem I've got with that is the one is destructive, because if the proceedings do take place in public, what does that help if you then make an order that the minutes are not distributed?  All the media, all the people in the public heard what was said, all representatives heard what was said.  I do not know if there are people in this audience who belongs to the South African Police, it is quite probable, and maybe officials of the Attorney General, but they will be justified to sit here and have the right to be here, so what does it help if you prohibit the minutes from being spread but the total, all of the public including these certain institutions, have and they will be able to see Dr Basson's hand at this stage, before the prosecution even started.
 At this stage it is the application that it would, now it is only concerned with essential elements and you should protect him in the best way as you can, so this infringement to his right, which you are going to make, to give support to that.  If you will still be in a position to do your job as you are supposed to do it, therefore my submission is at this stage, in camera please.