Special Hearings — Chemical And Biological Warfare Hearings — 1998-07-29

MR VALLY: Thank you Mr Chair.  Just for the record, I want to put our views across the whole issue of legal representation.  Firstly, as has been pointed out by the Chairperson, that as at the 14th of July when our application or counter-application was served on Doctor Basson's legal representatives, it was clear that we were asking for an Order instructing Doctor Basson to appear before us today on the 29th of July.
 Secondly, when this Order was granted in the Cape High Court by Judge Hlope on the 27th of July 1998, he was aware of the arguments put forward by Doctor Basson's legal representatives to the effect that those specific advocates were not available today.  Being aware of those arguments, he gave us an Order instructing Doctor Basson to be present here today.  
 Thirdly, we returned a phone call to Doctor Wouter Basson's advocate yesterday at six twenty five p.m. specifically from Mr Adolf Malan.  He advised us as to what Doctor Wouter Basson has instructed his attorney presently, that the counsel, and I refer to all three counsel, Advocate Piet de Jager SC, Advocate Cilliers and Advocate van Zyl, were not available today.  He also advised us that the South African National Defence Force, which is responsible for footing the bill for Doctor Wouter Basson's appearances before the Truth Commission was not amenable to Doctor Wouter Basson instructing other counsel.
 We then called Colonel Kaiser at eight twenty a.m. this morning.  He is the gentleman in the South African National Defence Force who liaises with persons needing legal representation.  He advised us that he in fact had contacted Doctor Basson's attorneys yesterday after he got an enquiry from General Knobel's attorneys as to whether this matter was proceeding today.  
 I enquired from him as to whether he had refused permission for an alternative advocate to be briefed by Doctor Basson's attorneys.  He advised me that he had not.  He stated that no such request had been made to him.  I have given a copy of a letter which I sent to Doctor Basson's attorneys today, to Mr Malan.  A copy has been given to my learned friend and a copy has been given to the panel and with your permission I'd like to read it into the record.

CHAIRPERSON: Go ahead Mr Vally.

MR VALLY: Thank you Mr Chair.
"Dear Sir
RE:  DOCTOR WOUTER BASSON
 We refer to your telephone conversation with our Mr Vally at approximately 18H25 on the 28th of July 1998.  You advised us that none of your counsel, that is Advocate Cilliers, van Zyl or de Jager were available to represent your client at the hearing on the 29th of July 1998.  You further advised us that the SANDF had declined to allow you to brief alternative counsel for the said hearing.  We contacted Colonel Kaiser of the SANDF today.  He advised us that he had in fact contacted you yesterday after receiving a query from General Knobel's attorney and that you had indicated to him that your counsel were not available to attend today's hearing.  However, you did not them or previously request consent to brief alternative counsel to represent your client at our hearing and have not done so to date.  He further indicated that he would have considered such an application sympathetically and would have consulted with the State Attorney concerning this issue should such a request have been directed to him.  In the circumstances, and especially as your client was aware of the relief sought by us as early as the 14th of July 1998 and which was subsequently granted by the Cape High Court on the 27th of July 1998, we trust that your client will comply with the said Court Order, failing which, we reserve our rights to take appropriate legal steps"
And the letter ends there.
 I just have one further item to add.  If the panel is inclined to grant a postponement I would strongly recommend that the postponement be no longer than tomorrow.  We will need at least two days to canvass all the issues we wish to canvass with Doctor Wouter Basson.   If such a decision is made to grant a postponement, it should not be longer than Thursday the 30th.  As we are aware and as has been made clear and again for the record, in terms Act 33 of 1998, this is the Promotion of National Unity and Reconciliation Amendment Act, we are expressly not allowed to have anymore hearings in terms of Section 29 after the 31st of July 1998.  
 So effectively, if any postponement after this date is being sought this is to frustrate, number one, the workings of this Commission and number two, it will be contemptuous of the Order granted by the Cape High Court on Monday the 27th of July 1998.  Thank you Mr Chair.

CHAIRPERSON: Mr van Niekerk?

MR VAN NIEKERK: Mr Chairman, I'm not asking that the matter be postponed beyond the 31st of July at all.  I'm in the hands of the Commission as to the date of postponement.  If tomorrow suits this Commission, so be it.  If Friday suits the Commission, so be it.  I am briefed ...[intervention]

CHAIRPERSON: Well today suits the Commission quite frankly.

MR VAN NIEKERK: Well unfortunately ...[intervention]

CHAIRPERSON: And I'm talking about this afternoon for instance.  I mean, you have not canvassed that with your, they may have been engaged in the morning only.  You are not unacquainted with situations where you get to Court, a matter gets settled and suddenly you have all the free time in the world that you thought you did not have.
 I am asking for a co-operation of the nature that shows me and satisfies me and this panel that we are dealing here with people who want to cooperate with us because they are appreciative of the issues which have to be canvassed before us.
 Again I don't want to accuse anyone but there is an impression with this panel and I will repeat that there is a cavalier approach that is adopted by your client to the proceedings of this Commission.  It's an impression that can be erased if there is evidence to the contrary and I'm afraid that as far as I am concerned I am not getting that.
 Advocate Potgieter?

ADV POTGIETER: Besides Mr van Niekerk, Mr Vally makes the point that apparently one of the grounds on which the counter-claim of the Commission to compel Doctor Basson to appear today, was opposed.  One of the issues that was raised by Doctor Basson's legal representatives was the fact of their apparent non-availability for today.
 In spite of that the Commission was given a Court Order which expressly compels Doctor Basson to appear before us today.  Now what is the effect of that on the application for a postponement, on the basis that the legal representatives are not available?

MR VAN NIEKERK: I am unable to answer that.  I have read the portion of the Order that was issue by Mr Justice Hlope.  I'm not sure whether he was aware that in terms, I think it's Section 34, Doctor Basson is entitled to be legally represented here today.  And I am sure that ...[intervention]

CHAIRPERSON: He was aware, you can take it that he was aware.  I can't speak for him but you can take it that he was aware.