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

ADV POTGIETER: You have a copy of the Commission's letter of today which was written by the National Legal Officer, Mr Vally, which confirms a discussion with Colonel Kaiser of the South African National Defence Force which on the face it appears to contradict this submission which you are making to us.
 Colonel Kaiser has indicated to Mr Vally that Mr Malan had spoken to him, and I'm referring to that third paragraph where Colonel Kaiser is referred to, and he says in the third line, Mr Vally confirms the effect of the discussion he had with Colonel Kaiser and he says:
"However, you ..."
that is Mr Malan.
"... did not then or previously request consent to brief alternative counsel to represent your client at our hearing and have not done so to date"
 Now clearly there is a contradiction on this one, but if you are saying that you are persisting with this submission and those are your instructions and you are satisfied that that is the factual position, then we know how to deal with this matter because there will obviously be consequences flowing from this.  
 If we are being misled on any of these issues then of course, you know there are clear consequences that will follow on that.  That is why I thought I should raise this and put it to you and ask whether you are in fact in a position to persist with this one, or whether you can at best say: "Look, this is what they told me", because what you are doing now is you are presenting it to us as a matter of fact.

MR VAN NIEKERK: Mr Chairman, I am presenting this as part of an instruction that I've received.  I cannot take it further.  If there is a dispute between Mr Vally and Mr Malan as to what Colonel Kaiser said, I'm afraid I don't know what took place.
 I have certainly not had an opportunity of investigating this matter at all.  This letter was placed before me by Mr Vally this morning.  As a courtesy it's been despatched to Mr Malan and I don't know what the answer to this is.
 I can't take the matter any further than to set out on this paper what my instructions are, to lay it before the Commission and play open cards with this Commission.

ADV POTGIETER: That is what I thought your position was but your client might be in a better position to clarify this.

CHAIRPERSON: In fact I think in view of all of this we may go on ad infinitum.  I'm going to ask your client to take the stand because we need to get direct and clear answers from him.
 If Doctor Wouter Basson can take the stand?  Doctor Wouter Basson?

MR VAN NIEKERK: Mr Chairman in what respect is my client now being asked to take the stand?

CHAIRPERSON: He is being asked to take the stand because he is here as a witness who was sworn in the last time, and this panel is in a position, it is here, it seeks to get certain clarifications about issues about this matter.  Yours is not to represent him on the merits.

MR VAN NIEKERK: That is correct.

CHAIRPERSON: Yours is to be here to represent and make sure that insofar as the process is concerned he is being dealt with fairly.  The prerogative of this panel is to establish certain facts from Dr Wouter Basson.
 May I indicate that whilst we were in recess we are of the view that we should, in spite of our own convictions, be disposed towards granting a postponement in this matter, and which postponement would be till tomorrow, that however, it may well be necessary in order to save time to take evidence from Dr Wouter Basson which does not pertain to the merits, personal details about himself, so that those things that we would have done tomorrow can be done today, which will make sure that he's not prejudiced, and that your function would be fulfilled, if that were possible.  That is part of the exercise that we would be embarking upon when he takes the stand.
 But more particularly on this particular issue we would like to get some confirmation from him whether in fact what you say are your instructions, are his instructions, because he is here.  It seems to me weird that we should be going about not establishing issues which he himself can clarify quickly.  That is the basis on which we would like him to take the stand.

MR VAN NIEKERK: Mr Chairman ...(intervention)

CHAIRPERSON: Unless your client is refusing to take the stand.

MR VAN NIEKERK: Mr Chairman my brief is to apply for a postponement.  I have applied for a postponement.  This Commission will decide whether it will accede to that application or not.

CHAIRPERSON: Yes.

MR VAN NIEKERK: I have no mandate to appear on behalf of Dr Basson in any other respect whatsoever.  Should he take the stand, you have already indicated you want to question him about personal matters, that goes beyond my brief.  I will then have to withdraw and Dr Basson will then be without a legal representative, and he's entitled to have one in this court.

CHAIRPERSON: Mr van Niekerk I have endeavoured to indicate to you that now that I request your client to take the stand it is only insofar that we wish to be able to get it from him, as a witness who is before us as he ought to have been and he is, on issues that might persuade us to grant a postponement to tomorrow.
 One of the issues that need clarification are whether or not he has instructed his attorneys on some of the issues that are now on record.  We would like to know what he understands, what his attitude is, whether it is in fact his attitude, that for instance in relation to paragraph 8, that he is not in a position to appear with or without his Gauteng lawyers.  That is something that it is our prerogative to get clarity on, and I cannot see in what way that would prejudice you because we are dealing with the postponement which you are here for him to represent.  We are taking evidence, in other words, where you would have led evidence from him, in support of your application. There are instances now where we would like unequivocal answers from him.  
 I see you nod and I am sure that it is because you understand.
 Mr Wouter Basson can you take the stand please.

MR VAN NIEKERK: Mr Chairman I would like a short adjournment to take an instruction from my client.

CHAIRPERSON: Mr Vally?

MR VALLY: Mr Chair I am not objecting to the adjournment but I think whilst Mr van Niekerk may want to take instructions and I understand the ruling from the Chair about Dr Basson giving us clear evidence as to what his instructions are, there are certain aspects which will be relevant to asking Dr Basson about his instructions pertaining to this document handed in, and I would like to place it on record, it will facilitate the work of the panel when they do question Dr Basson on his instructions.

CHAIRPERSON: What are you asking for Mr Vally?

MR VALLY: Just very briefly to talk about some of the points raised here especially where, in our opinion, there are factual inconsistencies to bring to the attention of the panel, besides those which the panel has picked up themselves.

CHAIRPERSON: Can you therefore go ahead Mr Vally?