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

MR VALLY: Well I will go through it very quickly. But the issues I want to raise are under the general umbrella that this is part of the pattern, by Dr Wouter Basson, to frustrate the work of this Commission, and I would remind the panel again that when he brought his application to interdict us or review our decision not to hear his evidence, he brought it by ordinary time periods.  He did not bring it by urgency, and in the normal course of events there is no way that we could have got a judgment prior to our time running out.  So that pattern is being repeated here in terms of the confusing instructions that are set out here.
 Now factually there are certain issues which I want to take up with the legal representative of Dr Basson.
 Firstly paragraph 3, the sentence -
"It is my further instructions that not one of Dr Basson's legal representatives who consulted with him and who prepared him for questioning by the Commission is available."
 I understood from my conversation with Mr Malan, the attorney for Dr Wouter Basson, that the reason he wouldn't be here today is that he had to see the SANDF to try and persuade them to allow him to instruct alternative counsel.  I don't know if he has any other reasons but this is all he told me.
We have already talked about the fact that Colonel Kaiser said he has not been approached on this issue before.  
 I specifically asked Mr Malan why he did not, himself, represent Dr Basson, his response was that he did not feel he was adequately prepared.  I am paraphrasing here, those may not be his exact words, but that's the effect of what he told me.
 So firstly I would respectfully submit that Mr Malan may possibly have been available.
 Secondly, we've already talked about the fact that the SANDF have not been approached regarding the briefing of alternative counsel.  We don't have anything to add on that issue.
 The other very important issue that I want to take up is this suggestion that we submit written questions to Dr Wouter Basson.  From our point of view leading evidence here we think this is the most disingenuous position taken by Dr Wouter Basson to date.
 The reason why we say this is that a long time ago, after a series of negotiations, we agreed to send some questions to Dr Wouter Basson.  On the 30th of April 1998 we did under some conditions.  This is DBN9 in the court papers.  Mr van Niekerk has advised us that he has seen the court papers.  We said these are the conditions under which we send the written questions to Dr Wouter Basson.
1. The written questions in no way take the place of the proposed hearing.
 2. The same questions and/or follow-up questions may be asked of your clients in both the written questions and at the hearing under oath.
 3. The written questions are in no way exhaustive of all possible ......"

CHAIRPERSON: You were not on record on the last....

MR VALLY: I beg your pardon.
3. The written questions are in no way exhaustive of all possible issues which may be canvassed at the hearing.
 We asked them to respond by the 11th of May 1998.  There were altogether approximately 35 questions.  These were just initial questions for us to save time at the hearing.
 We were then asked to give an extension in a letter of the 7th of May to the 15th of May.  This is from attorneys, Adolf Malan and Vermeulen.  It says:
"We would appreciate it if we were given an extension to respond to the questions until the 15th of May 1998".
It says so in Afrikaans.
 We responded and said, yes, you have that extension. We responded on the 11th of May.
 On the 15th of May we were then contacted and said, we can't answer the questions until we get certain documentation.  We advised them that we would give them the documentation with the Section 29 notice, and we asked them to please respond again to the questions. We also said that in the interim he could respond to questions before getting the documentation if he was in a position to do so, and I am talking about questions like your qualifications, your position in the Defence Force, innocuous questions.
 On the 18th of May he said they were unable to answer any questions until they got the documentation.  We then said that this was not in terms of our undertaking, but, this is on the 18th of May, we are in a process of serving subpoenas on you in this week with the documentation, please let us have your response.
 On the 26th of May, after the Section 29 notice was served with the documentation, we again asked for answers to the questions.  On the 29th of May we again asked where were the answers to the questions.  And on the 4th of June we again asked where were the answers to the questions.  Now you must remember the hearings started on the 8th of June.
 Now Dr Basson has the temerity to ask us to submit questions to him in writing at this stage, after a court application where he was ordered to appear before us and answer questions in writing; after he had promised on the 30th of April 1998 that he would respond to very general, a lot of them were innocuous questions, we still haven't got an answer to those questions.  I believe that this is part of a plot to sabotage these particular hearings into Chemical and Biological Warfare, but Dr Wouter Basson, and I strongly urge the panel not to allow Dr Basson to misdirect the panel as regards the issue of written questions.  
 This Commission has previously taken a very strong stance on people who refuse to appear before us, no less a person than Mr P W Botha also demanded we send him written questions and we refused and that criminal trial is still pending. 
 I think in view of Dr Wouter Basson's history in this matter, how he has dealt with us; the fact that he tried to use the court processes to sabotage us coming to a conclusion regarding this matter; the fact that the court has ordered him to appear; the fact that we were told that they were not allowed to brief alternative counsel whereas the Defence Force says no such request was made, and now having not responded to our previous questions asking us to submit all our questions in writing is indicative of the strategy being adopted by Dr Wouter Basson, and this panel should not tolerate it.  At very least should the panel feel so inclined it can be postponed until tomorrow, but I strongly would urge that this not be postponed to any date after the 30th of July, firstly, if the panel so decides; and secondly, that it should be made absolutely clear to Dr Basson that we are not inclined to submit questions to him in writing in view of his past conduct regarding questions submitted to him in writing and that that is not even an issue that we are considering.
 Thank you Mr Chair.

ADV POTGIETER: Besides Mr Vally, is the Commission not in the process of finalising a report on its activities, which in terms of the law have to cease by the end of this week?  How would whatever contribution Dr Basson is able to make to this process, to this hearing, be able to be incorporated into that process if we were to settle for some written exchange of interrogatories and all that sort of thing?

MR VALLY: Absolutely Mr Chair, I couldn't agree more, and Mr van Niekerk should be aware of this based on the court papers.  This is precisely the issue we raised in our court papers, because the application that they brought was aimed at letting the judgment, arising from their court application, fall outside our cut-off date, the 31st of July.  And in our counter-application we had to bring it by way of urgency and get the order that we got.  Now frustrating us using the court process, failed.  Now this is another attempt to frustrate us, and I think this is disingenuous of Dr Wouter Basson, and I think we need to take a stance regarding this matter.
 Thank you Mr Chair.

CHAIRPERSON: Mr van Niekerk do you have anything in reply?