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

MR VAN NIEKERK: Thank you very much Mr Chairman.  I'm not in a position to represent Doctor Basson today.  I have not read the papers relating to this matter.  I believe there are a series of question that were put in writing to Doctor Basson.  I haven't studied them, I don't know what the answer are, I've not consulted with my client.
 I will not be appearing on behalf of Doctor Basson today, if I can call it, on the merits.  My brief extends to apply for a postponement to a date that will suit this Commission.
 If that postponement is not granted, I regret to have to advise the Commission that I will then be bound to withdraw as Doctor Basson's legal representative as I cannot appear for a man when I have not received proper and full instructions on a matter which is both technical and has far reaching consequences.
 I have not attempted to delay these proceedings.  I've attempted to assist the Commission wherever possible.

CHAIRPERSON: Mrs Sooka?

YASMINE SOOKA: Mr van Niekerk, I just want to understand this quite carefully.  You say that you were instructed yesterday to appear on behalf of Mr Basson and that your instructions only extended in fact to appearing this morning to ask for a postponement, is that correct?

MR VAN NIEKERK: That is quite correct.

YASMINE SOOKA: Can you tell me, in terms of the postponement you've asked for you indicated that you are in the hands of this Commission, so therefore if this matter is to be postponed until tomorrow, have you taken instructions on whether Mr Basson's own counsel, the ones that appeared for him previously, are going to be available?

MR VAN NIEKERK: On my right I'm told by my assistant that that is what she understands to be her instructions, on my left Doctor Basson says he is not sure that they will be the same representatives.

YASMINE SOOKA: So you're actually not sure, when you're asking for this postponement, whether we will not be placed in exactly the same position tomorrow as we are today?

MR VAN NIEKERK: My instructions are clear, that we are in the hands of the Commission, that today is the day on which the legal representatives are not available.

YASMINE SOOKA: Sorry, with respect, you are not answering my question.  I have asked you whether or not tomorrow morning we will not be faced with the same situation, where you client's counsels are not available to represent him.  Can you answer equivocally on that issue please.

MR VAN NIEKERK: The answer is ...[intervention]

YASMINE SOOKA: You're not sure?

MR VAN NIEKERK: No, no, the answer is, I'm trying to give you a direct answer, they will be available tomorrow should the court see fit to postpone this matter until tomorrow.  They will be available on Friday should this Commission see fit to postpone this matter ...[intervention]

CHAIRPERSON: Don't even talk about Friday, don't even talk about Friday.  I want to make it categorically clear that if we were inclined to a postponement, it would not be to Friday.  That must be very clear, for all the reasons that Mr Vally's stated.  I am not even sure that we are going to be inclined to a postponement to Thursday but I'm simply saying erase Friday as an option, it's just not an option.
 We are just concerned, on your own admission your left something else which is contradicted directly by your right.  
 I think we should take the tea adjournment now.

MR VAN NIEKERK: Mr Chairman, I can perhaps clarify that point.  Doctor Basson says that in fact Miss Jakeal, my assistant spoke to the attorneys in Johannesburg subsequently to him speaking to them, so that I must take her instructions in that regard as being the proper instructions.

CHAIRPERSON: I would like to suggest that we should take the tea adjournment now to enable you to get an unequivocally commitment from whoever, because that might assist us in deciding in whether the postponement should be to today in the afternoon because that is another possibility that we are thinking seriously about.  We have got to get these proceedings on the way or it should be till tomorrow.
 We'll take the tea adjournment now and we will resume these proceedings at eleven.
COMMITTEE ADJOURNS
ON RESUMPTION

CHAIRPERSON: Can we get ready to start?  Is there anything that you would like to add Mr van Niekerk to your submissions that you made?

MR VAN NIEKERK: Mr Chairman, you asked me to ascertain as to the unequivocal availability or not of Doctor Basson's legal representatives.  The position is that I've only had a one third success rate in that two of the legal representatives are as perhaps could have been expected, out of office today, that's Advocate van Zyl and Mr Malan.  We have left messages for Mr Malan to phone back and he has not done so as yet.
 Insofar as Advocate Cilliers is concerned he is not available tomorrow but he is available on Friday.  He is in the midst of preparing for a criminal in the Cape High Court of some major significance and cannot break free for tomorrow.
 Mr Chairman, what I have in my possession though and which I will ask my assistant to hand in to the Commission, are my instructions as to today's appearance and as to the attitude of Doctor Basson to the giving of evidence and the answering of questions.  Perhaps if we could hand that in to the Commission, I can take it from there.

CHAIRPERSON: Very well Mr van Niekerk.

MR VAN NIEKERK: You'll forgive the scribblings on the paper, they are mine and I didn't realise I would hand it in at the time.

CHAIRPERSON: Who is the author of this document?  It doesn't disclose anything.

MR VAN NIEKERK: Mr Chairman, I received this from attorney Malan this morning.  You'll see at eight forty two p.m., he sent it at eight forty two p.m.  I got it this morning.
 In my discussions that I had with Mr Cilliers this morning, who is the only legal representative that I was able to get hold of, he instructs me that this was drafted certainly by him and Mr Malan.  I don't know about Mr van Zyl.  He just said: "We drafted this last night to send down for you so that you would know what to do today".

CHAIRPERSON: What is the essence of this submission?  I do not propose to read it.

MR VAN NIEKERK: Well Mr Chairman, may I suggest that before I answer questions on the instructions of Doctor Basson, that I should read this for you into the record.

CHAIRPERSON: For what purpose Mr van Niekerk, in furtherance of what purpose?

MR VAN NIEKERK: So that it is on record.

CHAIRPERSON: I understand that Mr van Niekerk.  You are not therefore wanting to give us the essence of, is it in furtherance of the application for a postponement?  I just want to get a sense of why we are where we are.  I've not refusing to let you have the opportunity to read it into the record, I just want to get a sense of where we are getting to in view of an application in relation to which we must make a ruling.

MR VAN NIEKERK: Well Mr Chairman, I have applied for a postponement to date that is convenient to this Commission.  You have asked me or Mrs Sooka asked me to be able to give you an unequivocal answer to the availability of the various legal representatives for Doctor Basson.
 I have come out with, I'm afraid a somewhat patchy answer in that two of them are not in office and that's understandable in view of the fact that they said they wouldn't be available today.  And Advocate Cilliers is not available.  He had been booked for the consultations that he's now busy with, some two or three months ago.

CHAIRPERSON: I would like to understand what this document is.  Is this a document that purports to be instructions from Doctor Basson to his lawyers?

MR VAN NIEKERK: I understand this to be an instruction that was given by Doctor Basson to his lawyers for transmission to me.

CHAIRPERSON: And you now want to read those instructions into the record?

MR VAN NIEKERK: I would very much like these instructions to be placed on record.