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

MR CILLIERS: If he does not testify and no written answers are given then it is the case. I am of the opinion and it is something that has never been discussed that instead of testimony a written submission can be given. Because the big danger I must say lies in the questioning situation. In the authority which is being referred here by  Justices Navsa and Nugent it is one of the points that is made. That is the danger. Something which might be totally irrelevant for your decision comes out in re-examination or cross-examination by one of the lawyers representing any of their clients. I am of the opinion that there is a way of overcoming this problem by making a written submission.

ADV POTGIETER: Although this does not assist your submission. You say that there is an absolute right to silence.

MR CILLIERS: Yes but I will also tell you that in order to assist you we would definitely be prepared with regard to certain aspects we will have to accept that it will be difficult to deal with this because we have the problem with possible self incrimination, etc, etc. But that we would be prepared on a written basis to answer certain of the important questions that you might have.

CHAIRPERSON: Mr Vally?

MR VALLY: Thank you Mr Chair. Mr Chair let's just understand the time frames here firstly. The first issue is that my learned friend did contact Mr Chaskalson on Thursday and said they may be bringing an application objecting to Mr Basson giving evidence. He said he would let Mr Chaskalson know what the decision was on Friday. It did not happen last week Friday. We did hear on Monday I concede that they were going to raise this point.
 Having said that let me leave the Commission in no doubt that we regard the evidence, especially of Doctor Basson but also of Doctor Mijburgh of being of crucial importance to us. We have a limited life span. Our function and our statutory mandate is absolutely clear. We are talking about gross human rights violations potentially on a mass scale if the evidence regarding the cholera for example is found to be correct we are actually talking a form of genocide. So we find it very important to tress that it is crucial. We are coming to the end of our life. We have to complete our work at the very latest presently by June if the amendment goes through by the end of July. We are not going to have an opportunity to wait for this criminal matter which has been dragging on for a very, very long time in terms of when the arrest took place and when the trial is starting. I am not saying it is my learned friend's client's fault but that is the reality we have had to deal with. So we are strongly opposing the application.
 Let me first start off with one of the points my learned friend made. He said that we are ad idem that the issues we are raising and the issues at the criminal trial are identical. I am afraid we cannot make such an unequivocal statement. Our knowledge of the criminal trial and the evidence relating thereto is not of such a detailed nature that we can say that. We have had a letter from the office of the Attorney General which we read into the court record. We do not know much more than that. Our hearing is clearly set out, the purposes of our hearing is clearly set out in the subpoenas we have sent and we want to enquire about the aspects relating to the gross violation of human rights in relation to the chemical and biological warfare programme. Of which Doctor Wouter Basson was at the centre. There is no doubt about that.
 Let's just deal with the legal issues being raised. Let me say from the outset Mr Chair that we regard the provisions of Section 35 of the Constitution as binding on us. Let's be clear on that. We are (...indistinct) Commission but we are a Commission within the context of the laws of South Africa which makes it explicit that the Constitution should apply to us as well. So I have got no qualms about conceding that.
 The first issue is this; are we in breach of either of the two gentlemen's constitutional rights. These are set out in Section 35 of the Constitution. There are two rights which we allegedly are in breach of. Now when you read Section 35 you read Section 35 subsection 1 and then the further subsections relating to the two issues. Section 35 subsection 1 reads: -
"Everyone who is arrested for allegedly committing an offence has the right,"
and then you talk about 
 "a: to remain silent."
And elsewhere there is reference to not being compelled to make any confession of admission that could be used in evidence against that person. So (...intervention)

CHAIRPERSON: Section 35 (I).

MR VALLY: Very well again.

CHAIRPERSON: 3 (J) I think. "Every accused person has the right to a fair trial which includes the right not to be compelled to give self-incriminating evidence."