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

CHAIRPERSON: And are they emanating from Mr Malan?

MR VAN NIEKERK: Mr Malan is the attorney who faxed them to me at eight forty two p.m. last night.

CHAIRPERSON: I see.  Do you appreciate that there may well be questions that we would like to put to your client on the basis of this thing if it goes into the record?

MR VAN NIEKERK: I don't know what questions you may wish to put to my client at all.  I'm merely asking to place on record the instructions that I have received and I believe it contains certain undertakings by Doctor Basson.

CHAIRPERSON: I see.  Can you read the instructions into the record.

MR VAN NIEKERK: As it pleases.
"Instructions from Doctor Basson
 1. In the light of the Judgment of Justice Hlope on the 27th of July 1998, it is my instructions from my client that in spite of the short time given to him in terms of this order, he is prepared to appear before this Commission.
 2. It is further my instructions that the client seen in the light of this mentioned order is prepared to answer any questions which are legally put to him.
 3. It is further my instructions that not one of Doctor Basson's legal representatives who consulted with him and who prepared to assist him during questioning before this Commission, are available to appear to assist him during questioning in terms of Prayer 2 of the mentioned Order referred to above.  It is further my instructions that in the light of the great extent of these documents relevant to this questioning and also the relevant facts, it was totally impossible for my client to give anybody instructions to assist him.
 4. It is further my instructions that the Bar Counsel have been approached by the legal representatives of my client to clear the ethical position in the light of these particular circumstances.  I want to make it clear that the reason for the fact that the legal representatives of my client who prepared to assist him during the questioning not being present here is because of the short notice of this date of questioning.  It is then also in the pleadings before this Court and the decision of the Bar Counsel was that the legal representatives are bound through the instructions which they have taken earlier and that in terms of the ethical rules, they are obliged to fulfil those instructions.  
 5. It is further my instruction and my submission that my client, in terms of Article 34(1) of the Truth Commission Act is entitled to legal representation during questioning. 
 It is also my submission that it is one of my client's fundamental rights in terms of the Constitution.
 6. The further submission for my client is then that such legal representation should mean effective representation.  In other words by a legal representatives who had the time to prepare themselves properly and to scrutinise the relevant documentation.
 7. I want to bring it under the attention of the Committee that I personally had no occasion to consult or had any insight into any documentation.  I can say that I've met this client for the first time today.  I did not have the opportunity to study the record of the previous proceedings.  
 8. It is further my instructions that the instance who finances the legal representation of the SANDF is not prepared to supply new legal representation.  The huge costs associated with the duplication of work is the main reason.  Practically they would not be able to prepare timeously for this questioning.  
 9. It is my instructions once again to confirm that my client would not ignore the order the justice.  He is prepared to comply in all respects.  In the light of the problems mentioned above, my client is not prepared to testify without legal representation.  To give execution to the order of Honourable Judge, my client is prepared to answer in writing on any questions posed by this Committee should he be given the opportunity and to prepare these answers with the assistance of his legal representatives who can assist him.
 My client further indicates that he will subject himself to any time limits posed by this Committee for the provision of such answer as is humanly possible.  My instructions are furthermore that the answers should be provided by means of procedures which according to my instructions have already been followed during the working of this Committee in respect of other witnesses"

CHAIRPERSON: Thank you Mr van Niekerk.  What are you asking for?

MR VAN NIEKERK: I'm asking for a postponement Mr Chairman.

CHAIRPERSON: I see.
 Mr Vally?

MR VALLY: Mr Chair, I want to firstly respond to these instructions.  We are not absolutely clear.  I assume it's Mr Malan's instructions to Mr van Niekerk.  The heading says
"Instructions from Doctor Basson"
and there are some items which are in the first person, for example where it says:
"I want to bring to the attention of the Committee that I haven't had the opportunity to consult"
etc.  I assume that is something written for Mr van Niekerk, so it's rather confusing.  But there are certain factual aspects that I want to bring to the panel's attention.

YASMINE SOOKA: Sorry Mr Chair, before Mr Vally gets to that, perhaps we can just clear up exactly whose document this is because I myself am a little confused.  Is it from Mr Malan, did Mr van Niekerk himself prepare it, because the paragraph that Mr Vally alludes to is a little confusing.

MR VAN NIEKERK: Mr Chairman, as I mentioned to you earlier, this is a fax that was received by me and apparently was dispatched by Mr Malan, Mr A Malan at eight forty two last night.  He is the local attorney for Doctor Basson.  He no doubt took instructions from Doctor Basson.  I assume that he consulted with counsel.  That this document was drafted and I received it when I arrived in office this morning.

YASMINE SOOKA: May I follow that up because paragraph 7 in fact is that, and it talks about: "ek" and wonder who that refers to, is it yourself or Mr Malan?

MR VAN NIEKERK: No, that's me.  I have not had an opportunity of perusing any papers and let me make that quite clear before this Commission.  I have seen no papers other than the papers which were submitted to the High Court in Cape Town, in which Justice Hlope gave a Judgment earlier this week.

YASMINE SOOKA: So Mr Malan's instructions to you are for you to put that allegation on record, that you were only instructed yesterday?

MR VAN NIEKERK: Yes, and I make it independently of what Doctor Basson says or what Mr Malan says.  Those are the facts.

YASMINE SOOKA: Thank you.

ADV POTGIETER: And then Mr van Niekerk, there are some peculiar features of this document.  This entire reference to: "my instruksies".  There are a number of them.  This seems to be you speaking.  It seems as if this document was prepared by your correspondent in Pretoria to guide you in making submissions to the panel here.  These seem to be the sort of parameters of the argument that you must present to us today it seems, unless I misunderstand it.

MR VAN NIEKERK: No, that's exactly as I understand it.  As I mentioned to you earlier, I was somewhat in the dark and thrown in at the deep end and these are the instructions I've received regarding representations to be made to this Commission.