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

MR CILLIERS: If I could just briefly reply.  My learned colleague can get the reason for this in the Constitution where accused people have a fundamental right, entrenching the Constitution in Section 35 which gives them the right not to answer.
 I find it extremely strange that the level on which this investigation is dealt with by them is on the basis that my learned colleague is now saying, that a witness should be protected for purposes of the obtaining of him being guilty and he's kept away and dealt with with gloves and that he should be protected until the hearing commences but the accused person who has a right, entrenching the Constitution, is not given that privilege.  And the application to give them that same right which they have in terms of, not only the Constitution but in terms of our common law is dealt with by my colleague.  
 So in answer to his question he can get the answer of that in Section 35 of the Constitution.  But what he is saying at this moment, I really find this very strange and with all respect the bone fides of that are above me or beyond me.

UNKNOWN: Mr Cilliers, why do you say that we cannot receive the affidavit regardless of whether this witness is going to testify or not, why can we not receive this at this stage?

MR CILLIERS: The affidavit is being given to you, as Mr Chaskalson is saying ...[intervention]

UNKNOWN: Forget about that, listen to what I am saying.  Forget about whether the man is testifying or not, why can we not receive the statement of the affidavit at this stage?

MR CILLIERS: You must go and look at the reason and the motivation behind.  The motivation has been given in order to keep this person away to get prejudice in a criminal case which is going to follow and therefore I say that the motivation for the request to you is not bona fide.

UNKNOWN: Regardless of that it is an aspect which lies within our discretion.  We can decide whether we are going to have the person appear here or not.  It is something which we can decide about but the purposes of cross-examination or the questioning of this witness, why can that affidavit not be used?

MR CILLIERS: If it has been prepared and submitted to you as explained by my learned colleague, with no bona fide motivation then you can act on your own discretion.  You should not allow that such negotiations follow to provide witnesses in criminal cases which would follow after this.

UNKNOWN: I cannot understand what the problem is, why we cannot use the affidavit.  You are giving an explanation about the reason why Mr Chaskalson wants to place it in front of us at this stage, it might be so, it might be his reason.  Why can we not accept it at this stage and decide later whether we want this specific witness here or not?

MR CILLIERS: Well surely, you should not allow that the procedure be abused which you should actually follow and if you know that there is a procedure which has to be followed which has the basis of non bona fide motivation, then you should not allow this.

CHAIRPERSON: Do I understand your position to be, are you arguing that this document is inadmissible?  Are you arguing that the weight that must be given it must be one that would be given to a document whose ...[indistinct] value should be less than a document which was backed by the testimony of a person who would have to be cross-examined on the basis of his or her allegations?  In other words, are you saying it is inadmissible and I haven't really heard you say that it is inadmissible or are you saying, if we are going to admit it then due weight must be given to the type of document that it is?  That is the first question.
 The second question, I understood Mr Chaskalson to be saying the agreement such as it is, is one that was clearly communicated to the Attorney-General to be depending on the discretion of the panel as the process goes on.  If it so becomes that it is necessary for the witness to be called then the witness will have to be called.
 Thirdly, isn't it about prejudice that this whole thing turns on?  And if it is on the basis of potential or real prejudice, being the issue insofar as your clients are concerned, and if we are going to make a finding because I think in line with, certainly some authorities, where a finding which is detrimental to the person who is mentioned to his or her detriment is going to be made, then an opportunity must be made available to the person prejudiced by that evidence in one or two forms.  Section 30 I think provides, it can be either in terms of written submissions or if it becomes necessary for the witness who made these allegations to be brought for subjection to cross-examination.
 What I'm trying to get at is, is it not something that, to use a colloquialism, we should play be the ear?  Let's have your objection noted only to the extent, unless of course you are going to argue very strongly and with authority that it is totally inadmissible, only to the extent that it can be admitted but no weight should be given to it.

MR CILLIERS: As it pleases you Mr Chairman, it's possible to argue that what you're proposing is perhaps in the direction Mr Potgieter is moving with his questions.  Perhaps a practical approach will save time and which will eliminate all disadvantages.  If can answer your questions in a certain order, whether it's admissible or not, it is not my argument that is not admissible.  You will have a discretion in determining your procedures to allow such a document or not.
 The argument goes further than that, it's based on that discretion.  And my submission is that you already at this stage have enough evidence to say that I don't want to take in this document.  Immelman is a very important witness, perhaps one of the most important, it not the most important and he must come to these proceedings.  He is available, he has been subpoenaed.   The submission I'm making is that in the exercise of your discretion you should not allow that negotiations take place and people be kept away who are necessary here to be able to determine the truth.  These people are available and for some or other negotiation with the Attorney-General, because of that they are not being called.  
 The reason why he is not being called is very, very improper.  In your search for truth, that is why you are here and a lot of money is spent on that, the evidence of almost the most important witness is not heard because the Attorney-General tells that this is going to impede my criminal case.  But at the same time the accused in that criminal case whose rights are being protected by the Constitution, forget about their rights, we are only protecting State witnesses not the accused.  That is not the impression that should be created here.  
 Regarding the admission here at this stage, just for a few questions, you are probably right, there is not total prejudicial circumstances which cannot be set right.  You can exercise your discretion afterwards and say the witness must still come here to be cross-examined.  I would request that after we've completed this evidence we should address you about this question, whether Immelman should testify or not and then you should make a relevant decision and make a ruling so that there's enough time to, before the end of the week, to fit him into the time slot.  
 I find it strange that these arrangements - I'm not saying Mr Chaskalson as a person was involved as a person and I'm referring to the evidence leaders, that they and the Attorney-General negotiated without Mr Immelmann's lawyer being informed about this.  I find this very strange that he was not involved.