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

MR CILLIERS: No disclosing is not there.

ADV POTGIETER: There is the use of evidence, it is protected. The indirect use is protected. It is difficult to understand what the client's problem is.

MR CILLIERS: It is perhaps the same problem as Dr Immelmann's.

ADV POTGIETER: The clients are there.

MR CILLIERS: You allowed them to come here.

ADV POTGIETER: And I am glad he is listening to this discussion. I cannot understand what the problem is. The law provides protection. We are almost at the end of this matter. The matter has been thoroughly investigated. If for example your client is not going to testify during this hearing he is not going to testify again before us.

MR CILLIERS: Like Dr Immelmann is not testifying.

ADV POTGIETER: Correct. Listen to me, this is the last opportunity he has to testify at least before us and put his case. Because a lot of his colleagues have already done that. This is a very important aspect for me and I think your client should consider that seriously.

MR CILLIERS: I agree with you but your approach is not a legal approach. It is an emotional approach.

ADV POTGIETER: No I am saying that and I am putting it very, and I am divorcing it from our technical debate. It is right that we should also put that point.

MR CILLIERS: I just want to answer you with respect you are omitting certain things in the passage you have just read. And I am applying that passage. He says
"Once potential for prejudice is established the Court will stay proceedings or find a formula for preventing prejudice."
That is exactly what I have told you. I am not going to ask you like I would be doing according the Canadian law. I am not going to ask you to stay the proceedings. The proceedings mean the whole investigation. This is the choice aspect we addressed yesterday where I could say to you in terms of the Canadian law stop the total proceedings but in the end I would like to testify to put the matter straight and give certain explanations. And I can't do this now because I would probably prejudice myself in the criminal procedure. Stop this until the criminal trial has been completed then I have a free choice to put my case. In other words in the Canadian law in the

WILLIAMS: decision I would have succeeded in my application but South African law approaches it differently in the latest approaches. And I am not asking you to stay the proceedings. We participated in the proceedings up to a certain stage. And now we are asking, we are not asking it from the Court but from you find a formula in which potential prejudicing would be avoided. The potential prejudice can be that the State will be able to see my hand. I will disclosed my hand to the State. That was how Kriegler J viewed it. What they are saying here is find such a formula. One of the two is barring the use of compelling or coercive measures. You can continue with the proceedings but you can't compel the person to break his right to keep silent. Give him a choice. If he wants to he can.

CHAIRPERSON: Can I just ask a question because I think. Let's supposed that in respect of your client one of the methods that were to be used to prevent that prejudice would be to hold these proceedings in camera. What would you say?

MR CILLIERS: It would have helped. The problem would still remain namely the Attorney General is represented here by means of Mr Polsen. The Attorney General has a representative here. Your evidence and your report will be disclosed and if I hear how quickly you have to compile the report according to Mr Potgieter this will be revealed before this criminal trial has been concluded. I considered that but it seems to me in the reality of our situation it will not be a solution.

YASMINE SOOKA: I think what you have raised are two points. The one is that you could apply to have these proceedings stayed and you chose not to do that. But the alternative to that is to find a mechanism to prevent the prejudice. And if we were to come up with a mechanism to prevent the prejudice and the prejudice could occur at different levels. The one is if the hearing is in camera there is no prejudice because the information is not put out into the outside. But you raise a second point the fact that the Commission has a report to make and to disclose the information in that report. And if the Commission were to find a mechanism to hold that information intact until the trial of your client is over then there would be no prejudice to your client. Because the issue of the Attorney General having a representative here could be taken care of in terms of the in camera arrangement. I would like to hear you if the Commission were to take care of all of those positions?

MR CILLIERS: It is unfortunately at a very late stage that this proposal has been made.

YASMINE SOOKA: It is not a proposal. It is a position out there and awaiting your response.

MR CILLIERS: Well I will certainly pay attention to any such suggestion of proposal or point of view. And if we are sure that any potential prejudice would be eliminated we will leave this application. I am not busy to try and stay your proceedings. This is why we initially did not hand in an application to stay the proceedings until the criminal trial has been finalised. But as I say this is at a very late stage and we have not given consideration to that. But nobody has mentioned such a point of view. The law does not make provision for that. I don't know whether in any case in the past you could make such an arrangement. But I am prepared if you suggest something like that I would consider that.

YASMINE SOOKA: May I just count this one more point. You have raised I think three areas of prejudice: the publication of the information, putting this matter into the public arena and of course the Attorney General having a legal representative here. Are there any other prejudices that your client would suffer? Because I think we would need to know before hand so we could look at options.

MR CILLIERS: No I think Mr Potgieter has already addressed this question. The disadvantage or the prejudice which is referred to in Section 35 of the Constitution, 35(1)(A) is that an accused person can never be compelled to disclose his hand to the State before the trial. This is the right to protection and we are basing our application on that right. And to compel us to give evidence you infringe on that right.

CHAIRPERSON: Do you have any further points to make?

MR CILLIERS: As I have said I will try to give you a fax of

BOTHA: 's judgment. I have not read it myself. My learned colleague found it easily but from the notes I have here which he had made it seems to me that many of the problems which Mr Potgieter pose that it addresses those. I will try to have one here tomorrow morning.

CHAIRPERSON: Mr Arendse you look like you have instructions?