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

CHAIRPERSON: Doctor Swanepoel, welcome to these proceedings.  Before you take the stand and testify I will ask Advocate Potgieter to swear you.

UNKNOWN: Full names please.

WYNAND PIETER SWANEPOEL: (sworn states)

CHAIRPERSON: Mr Vally, or is it Mr Chaskalson?

MR VALLY: I'll be commencing and Mr Chaskalson will be taking over Mr Chair.  The reason I'm beginning is, we need to invoke the provisions of Section 31 of our Act in respect of this witness.  I had a brief discussion with my learned friend.  If you look at Section 31(2) we may compel this witness to respond to questions which may be self incriminating.  In order for us to do that we have satisfy the requirements set out in Section 31(2).
 I can for the record, Mr Chairperson, confirm that:-
 (a) We have consulted with the Attorney-General who has jurisdiction for that requirement, Section 31(2).
 (b) We have to satisfy the panel that the information that we require from such a person is reasonable, necessary and justifiable in an open democratic society based on freedom and equality.  And I will briefly address these aspects.  
 Firstly, that the purpose of our Commission is an important both government concern and social concern in that we are trying to determine the gross violation of human rights in our mandate period and the value reflected therein in terms trying to expose gross violations of human rights would, I submit, reflect the values inherent in our Bill of Rights.
 Secondly, the restriction or the interference with the witness' constitutional rights is impaired no more than is absolutely necessary and in this regard I would refer to Section 31(3) of our Act which states:
"Any incriminating answer or information obtained or incriminating evidence directly or indirectly derived from a questioning in sub-Section (1) shall not be admissible as evidence against the person concerned in criminal proceedings in a Court of Law or before anybody or institution established by or under any law, provided that incriminating evidence arising from such questioning shall be admissible in criminal proceedings where the person is arraigned with a charge of perjury or a charge contemplated in terms of Section 39 of this Act or Section 319(3) of the Criminal Procedure Act"
 Thirdly the benefits to be gained are not out of proportion to the restriction of the witness' constitutional rights and this regard I respectfully refer the Commission to the objectives as set out in our Act.
 And finally I would submit that the evidence given by this witness to the Commission, in view of our obligation to make a report to Parliament, to make recommendations as regards any potential future violation of human rights and what steps should be taken to prevent these are of significant social benefit to the society and therefore should be allowed to be led.  
 And I would respectfully submit that this meets the requirement as set out in Section 31(2) (b), that the information we require is reasonable, necessary and justifiable in an open and democratic society based on freedom and equality.
 As regards the third issue, Section 31 Sub-(2), Sub-(c) we need to satisfy ourselves that the person has refused or is likely to refuse to answer a question or produce an article on the grounds that such an answer or article might incriminate him or her.  
 My learned friend will confirm that in discussions before my submission that there is a possibility that he, a likelihood as the Act states that Doctor Swanepoel would have declined to answer questions on the basis that they may incriminate him and on that basis I have made my submission.  Thank you Mr Chair.

CHAIRPERSON: Mr Cilliers?

MR CILLIERS: Mr Chairman, I agree with the submission of my learned friend.  I did give an indication that there might be some difficulties regarding incriminating questions and I agree with his suggestion that we in advance, bring into operation the specific provisions in order to protect the witness against the result of giving incriminating answers already at this stage, then we don't have any difficulties further, then he can without difficulty answer any questions put to him at any stage of the proceedings and we don't need argument in-between, whether this might an incriminating question or not.
 It's always a very difficult situation to handle, so I agree with the submission by my learned friend, that at this stage already the provisions of the specific Section are being brought in operation by yourselves and that the specific indemnity is given to Doctor Swanepoel.

CHAIRPERSON: Thank you very much Mr Cilliers.  I'm sure I'm reflecting the views of the panel that to the extent of Doctor Wynand Swanepoel's testimony which is being given during the course of this hearing, to that extent the provisions of Section 31 will apply and he will be compelled to answer all questions on the basis that any evidence that he leads in this inquiry shall not be used for purposes of prosecuting him at a later stage.
 Mr Chaskalson?

MR CHASKALSON: Thank you Chairperson.

NORMAN ARENDSE: Sorry Chairperson, just before we proceed, there was a matter which I raised with you during the break and you said you would address it and issue a directive which is appropriate.

CHAIRPERSON: Thank you.  We, over the last two, three days and consequently upon an application by the Ministry of Foreign Affairs, there a ruling that any new documents that might be brought, and especially documents that might emanate from witnesses, must be discovered so that the Ministry should not be placed in a position where such document have not been debated upon as to the susceptibility to proliferation beforehand.
 And I would like to emphasise and direct that if any witnesses are going to be producing such documents as may have the potentiality to affect that agreement, those documents must be discovered ahead of time so that counsel for the Ministry and all relevant counsel should have the necessary agreement as to whether or not they are in line with the agreement.  
 So I just want to remind those who represent witnesses who might testify, that if there are any new documents which do not form part of the bundle of documents that have been situated to counsel and to witnesses, those documents need to be discovered first to counsel for the Ministry so that their agreement should capable of being enforced.
 Mr Chaskalson?

MR CHASKALSON: Doctor Swanepoel, could you tell us what your qualifications are?

MR SWANEPOEL: I'm a dentist by professional qualification.

MR CHASKALSON: Just for the record insofar as it is necessary, we identified Mr Swanepoel as a Doctor at the outset and the correction insofar as it stands should just be noted.
 Mr Swanepoel, could you tell me when you joined the Special Operations team in Special Forces?

MR SWANEPOEL: In 1983.  April of 1983 I joined the Medical Special Operations.  I was never a member of Special Forces.

MR CHASKALSON: Can you tell me what your functions were during that time?

MR SWANEPOEL: I was mainly in charge of personnel, administration and logistic support and co-ordinated these functions.

MR CHASKALSON: Who else was involved in your unit?

MR SWANEPOEL: Doctor Wouter Basson was the head of the unit, Doctor Philip Mijburgh and then there were other doctors and a great deal of conscripts.

MR CHASKALSON: Was Doctor Johnny Koertzen by any chance a member of that unit?

MR SWANEPOEL: He was a conscript but joined the permanent force a while later.

MR CHASKALSON: During this period of time, did you participate in any operations?

MR SWANEPOEL: No.

MR CHASKALSON: Did you at any stage, later after you had left this unit, participate in any Special Force operations?

MR SWANEPOEL: No.

MR CHASKALSON: When did you join RRL?

MR SWANEPOEL: I am not sure but it was approximately 1 April or 1 June '86.

MR CHASKALSON: Can you tell us who recruited you?